Why Can't Client Be 'Consumer' & Lawyer's Negligent for  'Deficiency of Service' Under Consumer Protection Act? SC asks Bar Association

While hearing a very important case of Advocates Association on 22 Feb 2024 in the matter of Bar of Indian Lawyers Through Its President Jasbir Sigh Malik Vs. D.K. Gandhi Ps National Institute of Communicable Diseases., (Diary No.- 27751 – 2007) Supreme Court asked the advocates pleading on behalf of Bar Association

“Why Can't Client Be 'Consumer' & Lawyer's Negligence Be 'Deficiency of Service' Under Consumer Protection Act?”

The Senior Counsel replied that it is the client to whom, not in the trade or commercial sense, the Service is being rendered.

Dr Prem Lata Legal Head

SC had several queries while hearing an appeal against a case pending for the last 17 years. An order issued by National Commission was stayed by the supreme court in the 2007

It is averred by the advocate on behalf of Bar of Indian Lawyers that lawyers adopt this profession as its noble character and it is part of the judicial dispensation process, the relationship is really a fiduciary relationship like a trustee, where a matter of trust and faith is reposed.

 SC had a further query -If there is a case of deficiency in service or negligence and the litigant suffers a loss on account of that. Can you sue the lawyer for damages?

Counsel replied in affirmative. Yes, in a civil Court., he said

Justice Mithal: Now, the Civil Court has the power in spite of the misconduct being dealt with by the Bar Council. Now, this power of the civil Court, can it not be given to a special Court?

There are two approaches explains the advocate for Bar Associations –

·         The Bar Council has the power to impose the costs under the Act itself. Bar council does that in appropriate cases.

·         When we are dealing with the jurisdiction of a civil court, we are dealing with a general principle in law, several problems will arise which by definition will make it incompatible and unjustified if Consumer commissions allowed like civil courts.

Back ground of the case;

Here we refer back the case decided by National commission as back as in 2007 when National Commission had held in the matter of D.K. Gandhi V M. Mathias 2007 CTJ 909 (CP)NCDRC D.K. Gandhi V Mathias 2007 CTJ 909 (CP)NCDRC that services rendered by an advocate to his client in the course of litigation is to be covered under the provisions of Consumer Protection Act. Large number of advocate bodies, bar of Indian lawyers ,Delhi High Court bar association and Bar Council of India  approached the Hon’ble SC and. Supreme court  bench comprising Justice L.S Panta and Justice B Sudarshan Reddy stayed the ruling of Apex consumer commission holding that lawyers rendered legal assistance and not service to the client.

This case   had travelled from consumer forum to state commission Delhi who had held on 10.3.2006 that advocates will not come within the ambit of consumer forums. Revision petition against this order was filed by the aggrieved consumer before the National commission who dealt with the matter in details referring to number of judgements on the issue of services rendered by professionals. Agreeing to the concept that profession of an advocate is a noble profession, reference to number of earlier cases against professionals were made. In the case of Indian Medical Association V V.Shantha 1995,CTJ 969 SC ,the word profession and occupation was discussed at length .In the matter of professional’s, ability it was agreed that success cannot be achieved in every case Therefore if a doctor, the medical professional is unable to cure the disease ,should not be considered deficient in services .But surely he renders services defined under the CP Act, though it is also a noble profession ,a life saver of a patient who banks upon the ability of a doctor for survival. In this case also it was argued that medical associations are there to take disciplinary action against the erring professional .The similar argument is given in the case of M K Gandhi also Incidentally  this argument was  earlier also discussed in the matter of  Srimathi  v Union of India AIR 1996 Mad 427-that the fact that advocates are governed by the statutory enactment and rules framed thereunder are subject to the disciplinary control of the statutory body But it was held that  there is no provision to enable the bar council to deal with the dispute between the advocate and the client to compensate him for the damages and refund the money. The National commission earlier also in the matter of K Vishnu v National Consumer Dispute Redressal Commission  had observed in 2000 that even if the advocate is regarded as officer of the court and is a part of the justice system ,he cannot be set free from his basic role of services to his client for the consideration received .National commission while concluding his judgement had also referred to the case of Mathew Jackob v State of Punjab 2005 CTJ 1085 SC, wherein Apex court had held that in law of negligence ,professionals ,such as lawyers ,doctors, architects and others are included in the category of persons professing some special skill and professional may be held liable for negligence.

 

The case is now being heard by the Apex court on merits after a long period of almost 17 years and the points now being discussed are matter of interest for consumers. By now almost every professional has come under the jurisdiction of Consumer Commissions through SC pronouncements. National Commission judgment 2007 is a very reasoned order which has referred to all important quotes from Supreme court earlier judgments. The questions being raised before the apex court are in no manner new which are not replied in National commission order.

Since the matter which was kept in cold storage for 17 years and now has seen sunlight, we have high hopes from the apex court for favorable  turn towards consumers.

I Shall be back to readers as the SC decides the case on merits.