CHAPTER- VIII

PRACTICAL SESSIONS

CASE - I (WITNESSED AT PERMANENT LOK ADALATH)

PERMANANT LOK ADALATH, ERNAKULAM

Application No. OP 90/2015 29/05/15

ApplicantKatson TradersRepresented by ProprietorM.C.Jolly, Banerjee Road, High Court JunctionErnakulum, Kochi-682031

RespondentThe Professional CouriersRepresented by Director, Jacob, Vallanatt RoadKochi-682018

APPLICATION FILED UNDER SECTION 22(C) OF THE LEGAL SERVICES AUTHORITIES ACT, 1987

1. The applicant is running business in Ernakulum. This is the only sources of his livelihood of its proprietor.

2. The respondent is running the business of courier service with its operation office in Ernakulum in the address shown above and is represented by the manager.

3. The applicant entrusted with the respondent a consignment of electrical goods to be sent back to the manufacturer ABB, Bangalore on

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29.05.2013 from whom it was purchased earlier. After satisfying all the conditions/requirements and receiving Rs 750/- as their charge the respondent accepted as per docket No.038857206 dated

29.05.2013. The materials value of Rs 17400/- as declared by the applicant was also accepted.

4. The consignment was not delivered to the consignee within the agreed time. The applicant knowing about this informed the respondent about the non-delivery through telephone and letters. The employee of the respondent agreed to look into the matter and deliver the consignment immediately.

5. The applicant believed the words of the respondent and waited in the belief that the consignment would be delivered by the respondent as agreed by them. The consignment has not yet been delivered to the consignee even now. The respondent has not informed the applicant about the whereabouts of the consignment and neither returned the consignment to the applicant if unable to deliver it to the consignee due to any reason.

6. The consignment of electrical goods was being sent to the manufacturer who on its receipt would replace it with other goods or its value would be paid to the applicant in accordance with the agreement with them.

7. Due to the failure on the part of the respondent to deliver the goods the applicant has suffered a loss of Rs 17,400/- being the value of the electrical goods. Aggrieved by the non-delivery and delaying delivery or compensating him the applicant caused to issue a registered lawyer notice dated 09.05.2014 to the respondent demanding them to deliver the consignment immediately to the consignee or to compensate the applicant by paying Rs 50,000/- being the value of the consignment and the loss suffered by the applicant.

8. The notice was received by the respondent but they have neither sent any reply nor complied with the request in the notice. The respondent agreed to settle the matter by compensating but did not keep the word. Their attempt was only to prolong the matter.

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9. The respondent has even though acknowledged this has in spite of all the pleadings of the helpless applicant failed to deliver the consignment. This attitude had caused considerable monetary loss, mental pain and suffering to this applicant. The applicant had also spent amounts towards travelling and corresponding expenses in this matter.

10. The applicant is legally entitled to get the consignment delivered or get it returned or its value with the damage suffered. He is also entitled to and is claiming compensation for the loss suffered due to the non-delivery or return of consignment. The applicant is also entitled to and claiming compensation for the mental pain and suffering caused by the respondent. The applicant is entitled and is claiming Rs 50,000/- as total compensation under all the above heads.

11. The cause of action for filling this application arose on and after the respondent agreed to deliver the consignment on 29.05.2013 and on several occasions when the applicant had informed the respondent about the deficiency in service and on 09.05.2014 when the applicant sent a notice to the respondent. All the cause of action occurred within the jurisdiction of this Hon’ble Authority. The applicant and the respondent are residing and functioning at Ernakulum within the jurisdiction of this Hon’ble Authority.

The applicant therefore humbly pray that this Hon’ble Forum may be pleased to take this application by directing the respondent to pay to the applicant Rs 50,000/- (Fifty thousand) with interest at the rate of 12% annum till payment with cost.

Dated this the 28th day of May 2015Applicant represented by

the Manager Partner

What is stated above are true and correct to the best of my knowledge and belief.

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Applicant represented by the Manager Partner

Counsel for the Applicant

List of Documents

1. Debit Note - Purchase Return dated 29.05.20132. Consignee Receipt No. 38857206, dated 29.08.2014 issued by the

respondent3. Letter dated 13.09.2013 issued by the applicant to the respondent4. Letter dated 18.03.2014 from the applicant to the respondent5. Lawyer’s Notice dated 09.05.20156. Acknowledgement card showing receipt by the respondent

Dated this the 28th Day of May 2015-08-04

Sd/-Counsel for the Applicant

BEFORE THE HON’BLE PERMANANT LOK ADALATHat ERNAKULAM

Application No OP 90/2015 29.05.2015

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KELSON TRADERSRepresented by Proprietor : ApplicantM.C.JOLLY

Vs

The PROFESSIONAL COURIERS : RespondentRepresented by the Manager

APPLICATION FILED UNDER SECTION 22(C) OF THE LEGAL SERVICES AUTHORITIES ACT 1987

K.P Suresh KumarCounsel for the Applicant

PROCEEDINGS

Present1. Sri D Pappachan (Retd. Principal District & Sessions Judge) :

Chairman2. Sri John Darrel : Member3. Smt Kamala Menon : Member

Adv M M Mathew has appeared for the petitioner and K Sreenivasan, DeputyManager appeared for the defendant courier service.

The representative of the courier service admitted that they have accepted the consignment from the petitioner and the item was misplaced and hence it could not be delivered to the consignee.

He also argued that they never seen the item and hence they cannot agree with the petitioner’s claim of Rs 50,000/- as compensation.

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Moreover the petitioner himself admitted in the petition that the value of the item that they intended to send through the courier was Rs 17,400/-.

The chairman also agreed with the contention of the representative of the respondent and asked to negotiate once more for a settlement. But the counsel for the petitioner insisted that the petitioner is ready for a settlement for Rs 20,000/-.

But the representative of the courier service is firm in his stand that since they didn’t see the item physically, they cannot pay more than Rs 10,000/- as compensation. He also stated that their courier service is a reputed one in the city for a quite long time. For keeping its good reputation among the people, they are ready to pay the amount to the petitioner. He affirmed that the courier service acknowledges the pain of the petitioner for missing the item that he has entrusted with the courier service.

Keeping in view of the all facts and the circumstances, the representative of the respondent courier service is ready to pay Rs 10,000/- as compensation and no enhancement further.

The Chairman has directed both the parties to agree for another round of negotiation and come out with a mutually agreeable solution.

The chairman has kept the next posting on 19th August 2015, for deciding the matter after knowing the result of the negotiation.

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CASE - II (WITNESSED AT PERMANENT LOK ADALATH)

PERMANANT LOK ADALATH, ERNAKULAM

Application No. OP 149 of 2013

ApplicantRiyas s/o Khader, Thottungal HouseKaithakattukara, Pattimattom, Ernakulam

Respondent1. The Oriental Insurance company Ltd. New Delhi.2. The Manager Oriental Insurance Company, Thripunithura.3. Director, Popular Mega Motors India Ltd Kochi.

Facts of the CaseThis is a petition filed under Section 22c(I) read with Section 22A (b) (vi) 0f the Legal Services Authorities Act, 1987, for short the LSA Act. The dispute raised in this petition relates to the insurance amount claimed by the petitioner with respect to his vehicle bearing registration No. KL-40 G 8771, which is covered by a valid insurance policy with the Oriental Insurance company Limited, New Delhi, and with The Manager, The Oriental Insurance Company, Thripunithura.

The vehicle had met with an accident on 26.12.2013. Riyas the petitioner entrusted the damaged vehicle with the work shop run by Ms Popular Mega motors India Ltd., Kochi for getting it repaired. But the repairing work was not completed by the workshop on the ground that the Insurance Company did not settle the insurance claim. In the result the petitioner approached the Permanent Lok Adalath praying for appropriate directions to the insurance company to pay the entire cost of repair. He also prayed for a grant of Rs 2,00,000/- towards loss incurred by him and

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Rs 1,00,000/- towards compensation for the mental agony and sufferings of the petitioner as against all the respondents.

Notice from PLA and Insurance Company’s ResponseUpon receipt of notice from the authority the Oriental Insurance Company represented both by the Delhi Unit and its Brach at Thripunithura filed written statement touching all the allegations and claims in the petition and stating their willingness and readiness for settling the dispute.

Ms Popular Mega Motors India LtdThe service company appeared and filed detailed written statement. They disputed the averments on the part of the petitioner and prayed for the dismissal of the petition as against them with costs and damages. They demanded an amount of Rs 5,24,000/- towards the repairing charge of the damaged vehicle.

Proceeding on the part of the PLAThe authority conducted a statutory reconciliation under section 22 C (4) of the LSA Act in attempt to have an amicable settlement of the dispute. Resultant upon the discussions so held, all the parties to the dispute agreed to have a tripartite settlement.

Adv. Sri. Paul K. Varghese represented the Petitioner, and Adv. Jacob Mathew P represented 1st and 2nd Respondents, and Adv. Ziyad Rahman and Shiraz Bava V S represented the 3rd Respondent.

The Tri-party Settlement1. The Petitioner on one side and 3rd respondent on the other side agree

that the total cost of repair of the vehicle which is now in the workshop of the 3rd respondent would be Rs. 5,24,000/-.

3rd respondent initially offers a reduction of Rs. 23,500/- as salvage value, thereby total due reduced to Rs. 5,00,500/-

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2. The Insurance Company was not willing to come down to grant that a higher amount as Insurance claim.

The 3rd Respondent further offers a special discount only for the sake of a settlement of the dispute, of an amount of Rs. 16000/-. This resulted in a further reduction of repairing charge making total charges to Rs. 4,84,500/-

3. The Oriental Insurance Company clarified that they are ready to pay an amount of Rs. 4,64,500/-less Rs. 20000/-of the remaining payable cost to the workshop. The Insurance company agrees that on receipt of the final bill from the repairer as stated above, after the repairing of the vehicle, the insurance claim amounting to Rs.4,64,500/- will be paid directly to the 3rd respondent repairer within 10 days from the date of receipt of the bill.

4. It is further agreed that the copy of the communication by the 3 rd

respondent to the Insurance Company will be given to the petitioner for information.

5. The petitioner on one side and the 3rd respondent on the other side comes to an agreement as to the difference ie Rs. 20000/- payable to the repairer. The Petitioner agrees to pay it himself directly to the repairer.

6. The final contribution to the disputed amount is shared as follows.Total cost for repairing : Rs. 5,24,500/-Reduction offered by repairer : Rs. 39,500/-Balance payable : Rs. 4,84,500/-Insurance company : Rs. 4,64,500/-Amount borne by petitioner : Rs. 20,000/-

7. It is further made clear that the 3rd respondent need not wait for the receipt of the insurance amount from the insurance company for the release of the vehicle to the petitioner after getting the balance repairing charge of Rs. 20000/-

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8. The petitioner and 3rd respondent came to a mutual agreement to perform their parts before 31.9.2015.

The settlement terms were reduced to writing and signatures of all concerned were obtained. In accordance with the terms and conditions arrived at, a settlement award was passed by the permanent Lok Adalat under the Legal Services Authorities Act, 1987.

The PLA directed to bear the costs themselves. The parties were informed that they will free of cost be provided with copies of the award.

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PROBLEM- I (OWN TEAM’S PROBLEM)

Petitioner : Lincy (wife)Respondent : Cyril (husband)

FACTS OF THE CASE

Ciril is married to Lincy aged 25 years in the year 2005. Late it was recognized that Lincy is showing deviating behaviour in her in laws house. She ran away from house at night. Lincy has filed a complaint stating that she is tortured mentally and physically by her husband and sister in law as well as defamed by her husband by publicizing she is insane. She filed a petition for divorce, maintenance and defamation claim. The matter is filed in the family court which directed for mediation.

PROVISION FOR MEDIATION

Section 5 of the Family Court Act provides provision for the Government to require the association of Social Welfare Organisation to hold the family Court to arrive at a settlement. Section 6 of the Act provides for appointment of permanent counsellors to effect settlement in the family matters. Further Section 9 of the Act imposes an obligation on the Court to make effort for settlement before taking evidence in the case.

In fact the practice in family Court shows that most of the cases are filed on sudden impulse between the members of the family, spouse and they are being settled in the conciliation itself. To this extent the alternate dispute resolution has got much recognition in the matter of settlement of family disputes. Similar provision has been made in Order XXXII A of C.P.C. which deals with family matters.

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PROCEEDINGS OF THE MEDIATION

Members Present

Lakshmi Mohan : PetitionerMohammed Harish : RespondentMini Samuel : Counsel for PetitionerMadhusudhanan S : Counsel for RespondentMithun N S : Mediator 1Manu J Plamootil : Mediator 2

ROLE PLAYED BY THE MEDIATORS

The mediators set the background for an open discussion. They informed the parties that the entire process is informal. They also pointed out that everything discussed here would be strictly private in nature and won't be available to anyone else. The mediators encouraged the parties to open up in the interest of an amicable solution.

The mediators introduced themselves and welcomed the parties. They asked the parties to introduce themselves. The mediators then outlined the process and the roles of the mediator, the parties, and counsels. The mediators ended the introduction by explaining the ground rules for the process.

The mediators then asked for statements from both parties. Both parties presented their parts of the story and concerns (which are furnished below). The mediators often intervened and asked clarifying questions. The parties did not question each other. After both parties have spoken, the mediator asked more questions, both to clarify the issues and to provide the other party with greater understanding.

STATEMENT BY PETITIONER

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The Petitioner stated that she has married to Cyril on 20th May 2005 at the age of 25. The respondent is working as an excise Inspector and he was very much affectionate, caring and a loving husband in the beginning. Slowly due to the ill advice of an unmarried sister, to whom he is very much affectionate, started behaving indifferently. He comes most of the time in the late hours during night time. Still the petitioner likes the respondent and she believes that petitioner is also having the same feeling. Hence the petitioner wants an amicable settlement and she is not pressing the divorce.

STATEMENT BY RESPONDENT

The respondent stated that he is working as inspector of Excise and have hectic official duty and hence sometimes he comes late night. But it was not intentional. He denied that her sister never ever made any harassment of the petitioner. He told that before running away during the night hours from the house, she would have contacted him at least through phone. He also agreed to settle the matter and likes the company of his wife along with him and forgives her past deeds. The respondent denied that he never alleged the petitioner as insane. He in fact asked her about the medicines that she consumed during night time, but the petitioner never clarifies about that.

STATEMENT BY PETITIONER’S COUNSEL

The counsel for petitioner stated that the petitioner has filed the petition for divorce, maintenance & defamation after a series of settlement efforts made

by elders of both the parties and religious leaders. But the respondent is adamant in his stand. The petitioner has lost all hopes of a reunion and hence she filed the petition. But later she realised that life is only for once and it has to be lived with happiness, mutual trust and co operation. Hence she is ready for a settlement.

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STATEMENT BY RESPONDENT’S COUNSEL

The counsel for respondent stated that the petitioner has exaggerated the things. The respondent has neither ill-treated the petitioner not harassed physically or mentally. The respondent only clarified about the habit of consuming heavy dosage of medicine by the petitioner during the night hours. Probably the petitioner might have misinterpreted this as publishing her as insane. As the petitioner herself expressed that life is only once and it has to be lived with happiness, mutual trust and cooperation and is ready for a settlement his client (respondent) is also ready for an amicable settlement.

FINAL SETTLEMENT

Mediators asked both the parties for a meeting and put forward the conditions of settlement. The following are the terms & conditions of the mediation.

1. The respondent should hire a house and stay with the petitioner.2. The respondent should never compel the petitioner to accompany him

to his home. However the respondent can visit his home and meet his parents or sister.

3. Since both the parties agreed to cohabit together, question of maintenance doesn’t arise.

4. The respondent should say sorry to the petitioner against the allegation of the petitioner that he has publicized her insane.

Both the parties accepted the terms and conditions.

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PROBLEM- II (OTHER TEAM’S PROBLEM)

Petitioner : Shri Madhavan Nair, ContractorRespondent : Smt Alka, House owner

FACTS OF THE CASE

MadhavanNair, a recognized contractor for construction work, enters into a contract of construction with Alka in 2003. The contract is for (the) extension work of (an) inhabiting house of the second party, Alka. The terms of contract included that construction shall be completed within 6 months. The construction involved building an upstairs, a common hall and a bedroom and its attached bathroom. The estimated cost is Rs. 4,00,000/-. The contractor failed to comply with the terms and conditions of the contract and completed the work in 2½ years and (the) second party incurred a total expense of Rs. 7,50,000/-. The service rendered was proved to be dissatisfactory. Later, on the day before the completion of limitation period of the completion of (the) contract work, the contractor filed a suit for recovery of money and inherent attachment over the property. The second party has defamed and incurred a huge loss of money to meet the (cost of the) proceedings. The (second) party has two daughters pursuing professional courses. The appeal has been placed in the Hon’ble High Court wherein (an) order for mediation is passed.

PROCEEDINGS OF THE MEDIATION

Members Present

Sivaraman P L : MediatorShaji A V : MediatorVenugopal K : ContractorSudheesh S : Advocate of ContractorSidhiqul Akbar K A : Alka

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Vinode V L : Advocate of Alka

ARGUMENTS FOR THE PETITIONER

1. That the long delay in the completion was fully attributable to the respondent, and that the petitioner was not to be blamed in the least. In fact the petitioner was a victim of the delay in terms of cost over-run in all respects including overheads, for which he has to be compensated by the respondent.

During the construction, the family members of the respondent were staying in the ground floor of the house and they had instructed him that the work in the first floor should be done in such a way as not to disturb her daughters who were studying in professional colleges and were preparing for the forthcoming examinations. Because of this restriction, the work could be carried out only when the children were not studying. As a result, the works were impeded time and again and the workers were often idling during productive hours.

On many days, they could work only for period of 2 to 3 hours in a day. At times, the workers had to be sent back or diverted due to want of adequate work front. The idle wages substantially increased the cost of the work and the reduced output of labour and shortage of adequate work-front delayed the completion of the work considerably.

2. The excessive cost of the works due to the excess labour component arising out of idle labour hours has to be borne by the respondent.

3. There was ban on mining of sand from the nearby river by the district authorities during the peak period of construction. The respondent, did not accept his proposal to use in place of river sand manufactured fine aggregate obtained from stone crushers which is technically known to be as efficient as river sand. The short supply of natural river sand and the consequential rise in the sand price contributed significantly to the delay in the completion of the work and the cost overrun.

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4. The locality witnessed incessant rain as Kerala witnessed an unusually extended monsoon that year which affected smooth work leading to delay. This being a force majeure case, the contractor could not be held responsible for the resulting delay in the work.

5. The petitioner also brought to the notice of the mediator that only an initial advance of Rs. 2 lakh was paid by the respondent. Due to the delay in work, there was increase in labour cost, increase in the cost of building materials and cost of transportation etc. They stated that they had incurred a total expense of Rs. 7.5 lakhs, which was reasonable.

6. The first party claimed that they enjoyed the reputation of completing all their projects in time. But for the restrictions imposed by the respondent, the acute scarcity of river sand the unfavourable weather and the non-payment of running bills during the construction, they could have completed the work in time. The delay was fully ascribable to the above factors for which they were not at all responsible.

7. The cost of the work mentioned in the contract was only an estimated cost and not the full and final amount to be paid. The total cost of the construction was flexible as was implied clearly by the word “estimated” as also the terms of the contract. The final cost had to be worked out based on actual. The contract provided that extra items and extra quantities incurred at the instance of the clients would be paid as extra items. Therefore, their payments could not be restricted to the estimated cost of Rs. 4 lakh.

8. The labour payments and the cost of the building materials were met by the 1st party through bank loans at high interest rates. The second party had, it was alleged, paid only an advance of Rs. 2 lakh and not even the balance amount of Rs. 2 lakh according to the estimated contract price neither during the ongoing work nor after the completion; not to talk of the excess expenditure of Rs. 3.5 lakh which was also long overdue. This amount included the cost additional works done at the instance of the respondent which was clearly payable by the respondent according to the terms of the contract. The non-payment of the huge sum of money due from the respondent in spite

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of several requests was the reason which forced the petitioner to approach the court and file the suit for recovery of money, otherwise, he had no intention to defame the respondent. Moreover, approaching the Court for remedying a bonafide dispute is in no way tantamount to defaming a defaulting party.

ARGUMENTS FOR THE RESPONDENT

1. That she had given the contract to the petitioner as he was a recognized, well-experienced and reputed contractor, who could foresee the uncertainties like weather, scarcity of sand in monsoon etc. These are not unforeseen circumstances which could not be foreseen and which would qualify to be placed under the force majeure clause. Moreover, there was no express mention in the contract of force majeure in the absence of which the petitioner was not entitled to invoke such grounds for justifying delay and making claims of compensation.

2. She had mentioned in the contract that the house would be under occupation during the construction, and making available the whole of the front at a time in one stretch was never committed in the agreement. The contractor was expected to take up the works sequentially in a more planned manner.

3. The Contract was to be completed in 6 months’ time at an estimated cost of Rs. 4 lakh. The Second party was unable to mobilize workers presumably due to his other works and as a result most of the days only a few workers were seen engaged on the job.

4. She was not intending to hold any payment due. On the other hand she had advanced 50% of the cost before the commencement of the work, and that too without any bank guarantee. Due to poor progress and the inordinate delay, she was skeptical of the contractor’s intention. Had she paid the balance amount of Rs. 2 lakh, there was every likelihood of the contractor absconding without completing the finishing works for which he had quoted a low rate.

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5. She asserted that the amount of Rs. 7.5 lakh was too exorbitant, much higher (90% more) than the agreed contract price.

6. She claimed that the 2 years delay has led to loss of rent which she needed to support her children’s professional educational expenses.

7. She alleged that the contractor had, instead of settling the matter with her with due justification of the extra cost, filed the suit for money only as a coercive tactic against her to threaten her to concede to his demand.

8. She further alleged that the suit was intended to defame her, and that in fact her reputation in the neighborhood had been injuredby the litigation initiated by the second party.

9. She further contended that she had spent about a lakh of rupees on lawer’s fees and associated expenses, which the contractor has to compensate.

PROPOSAL BY THE MEDIATOR

The mediator brought to the notice of both the parties that about 10 years have elapsed since the dispute went to the court and no solution was in sight in near future. This was adding to the expenses of both the parties.

The respondent was losing rent and she was not getting her dues for the past 10 years. The children of the respondent are grown up and they needed that extra space for good reasons and the respondent needed his dues for paying off the debts.

The respondent to pay the petitioner a total sum of Rs. 5.5 lakhto which the First party agreed.

Since an amount of Rs 2 lakhs had already been paid as advance, the respondent was liable to pay only the balance sum of Rs. 3.5 lakh in satisfaction of the total claim. The parties agreed that the 2nd

party would pay the above amount in three equal installments within a period of 6 months.

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The mediator requested the parties to draw up a written agreement stating the points agreed and sign it so that that could be informed to the High Court as a legally enforceable settlement between the parties.

FINAL SETTLEMENTBoth the parties agreed to the proposal put forth by the mediator and a mutual consensus was arrived at.

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PROBLEM- III (OTHER TEAM’S PROBLEM)

Petitioner : INTUC and BMSRespondent : Xaviour Latex Industries Ltd

FACTS OF THE CASE

Xaviour Latex Industries Ltd Was established under the Industrial Dispute Act which was closed down due to non-availability of raw materials. Due to the same reason many employees are retrenched from the industry. The Bharatiya Mazdoor Sangh and INTUC filed the suit against the industry. The retrenched employees are not paid with compensation and the industry is not opened till the date of filing the suit. The appeal has made to High Court which in further ordered for mediation.

PROCEEDINGS OF THE MEDIATION

Members PresentSajeer V A : BMS RepresentativeSanal Kumar : INTUC RepresentativeSanjeev Kumar : Counsel for Respondent CompanySankar P : Mediator

The mediator has allowed the both the petitioners to brief their cases.

The 1st petitioner alleged that retrenchment was effected for employees of their union alone and others are considered rather with a soft corner.

The 2nd Petitioner denied this and he reiterated that employees belonging to their union is victimised rather that the other union, But both of them argued for a better package for retrenchment.

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Then the counsel for the respondent company was asked to supplement his views.

The counsel for the respondent has explained the position regarding the closing down of the company. He explained that the non-availability of the raw material, Latex, the company is not in a position to continue his operation. The company has resulted into the production of rubber product below the target and hence the company is struggling even to pay the salary of its employees. The company has forced to shut down some of its plants due this and retrenched some of its employees. It was told by the counsel for respondent that the retrenchment was not taken as part of the punitive action and once the company regains its financial position, the retrenched employees’ cases will be considered sympathetically.

The mediator requested both the petitioners to have a fruitful discussion and an amicable settlement. After long discussion, they arrived the following settlement.

1. An agreement shall be made by both the parties.2. A target date is to be fixed for reinstating the employees.3. Compensation is to be paid to the employees as per agreement.

It is ordered by the mediator that Mediation report will be sent to the Hon’bleHigh Court of Kerala for further action.