SHAMBU PRASAD vs Niranjan Prasad

-PETITIONER was the complainant before the District Forum, where the complainant has filed a case of professional negligence on the part of the respondent, Mr. Niranjan Prasad who is an Advocate by profession.

UNDISPUTED facts of the case are that the complainant who was in jail custody, had hired the services of the respondent Advocate in a "bail" matter in the Court of C.J.M. which was fixed for 24.7.2004. It is admitted position that the Counsel could not appear on that date as according to the respondent/opposite party, he suddenly developed chest pain on that date and had to consult a doctor. On 25.7.2004 being Sunday, he moved an application for bail with regard to the petitioner before the CJM on 26.7.2004 which was taken up only on 29.7.2004 and the petitioner/complainant was granted bail. The professional deficiency on the part of the respondent, as alleged by the complainant, is that since the respondent did not appear before the CJM on 24.7.2004, he had to spend longer time in custody as he was granted the bail only on 29.7.2004 and this happened on account of professional deficiency on the part of the respondent. It is in these circumstances, a complaint was filed before the District Forum, who allowed the complaint and directed the respondent to pay a compensation of Rs. 4,000. Aggrieved by this order, the respondent filed an appeal before the State Commission, who allowed the appeal and dismissed the complaint. Aggrieved by this order, the petitioner/complainant has filed this revision petition before us.

We heard the learned amicus curiae appointed by us on behalf of the petitioner/complainant as also the learned Counsel for the respondent. The only point at issue is, could the respondent appear before the CJM on 24.7.2004 or not?

BEFORE the District Forum the respondent had filed the affidavits of two other Advocates, namely, Deepak Kumar and Dhananjay Kumar Sinha who have sworn the affidavits to the effect that at about 11.30 all of a sudden the respondent developed chest pain and he was to be removed to the clinic of Dr. Kaushal Kishore. Since no affidavit of the said Doctor could be produced by the respondent, the District Forum held this defence not acceptable and allowed the complaint. In our view, the District Forum erred in not relying upon the affidavits of the two Advocates and if the District Forum was not satisfied, the deponents could have been examined with regard to the affidavits sworn and filed before them but this they did not do and passed order merely relying upon the inability on the part of the respondent to produce an affidavit from the Doctor concerned. The District Forum, in our view, erred in not relying upon the evidence produced before them by way of two affidavits filed by two colleagues of the respondent. Who else could say better than the persons to whom he complained of chest pain and removed to the clinic of a Doctor? We are not dealing with a case of medical negligence. The affidavits of the two Advocates filed on behalf of the respondents remain unrebutted. The State Commission, in our view, rightly held that since the Doctor was not available in the place from where the treatment was obtained on 24.7.2004, in such a situation the real position could have been revealed by examining the two other witnesses who had filed the affidavits to the effect that the respondent had developed the chest pain on that date at about 11.30 a.m.

IN our view, the bona fide of the respondent stands proved, when he without any further instructions or complaint from any quarter, voluntarily filed a bail application on the next working day, i.e., on 26.7.2004 which was fixed by the CJM on 29.7.2004, and bail was granted on that date. In the aforementioned circumstances, we find no ground to interfere with the well-reasoned order passed by the State Commission, in view of which, we find no merit in this revision petition, hence dismissed. No order as to costs. R.P. dismissed.