Supreme Court: In an appeal filed against the impugned judgment passed by the National Consumer Disputes Redressal Commission (‘NCDRC’), wherein the Commission held inter alia that if there was any deficiency in service rendered by the Advocates/Lawyers, a complaint under the Consumer Protection Act, 1986 (‘CPA, 1986) would be maintainable, the Division Bench of Bela Trivedi and Pankaj Mithal, JJ. while setting aside the NCDRC judgment, has held the following:
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The very purpose and object of the CP Act 1986 as re-enacted in 2019 was to provide protection to the consumers from unfair trade practices and unethical business practices, and the Legislature never intended to include either the Professions or the services rendered by the Professionals within the purview of the said Act of 1986/2019.
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The Legal Profession is sui generis i.e. unique in nature and cannot be compared with any other Profession.
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A service hired or availed of an Advocate is a service under “a contract of personal service,” and therefore, would fall within the exclusionary part of the definition of “Service” contained in Section 2 (42) of the CP Act 2019.
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A complaint alleging “deficiency in service” against Advocates practising Legal Profession would not be maintainable under the CP Act, 2019.
Issues and Analysis:
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Whether a complaint alleging “deficiency in service” against Advocates practising Legal Profession, would be maintainable under CPA, 1986 or Whether the Legislature ever intended to include the Professions or services rendered by the Professionals within the purview of the CPA 1986 ?
The Court examined the scope and object of the CPA, 1986, and said that CPA was enacted to provide for the better protection of the interests of the consumers against their exploitation by the traders and manufacturers of the consumer goods, and to help consumers in getting justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies.
The Court said that there was not a whisper in the statement of objects and reasons either of the CP Act, 1986 or 2019 to include the Professions or the Services provided by the Professionals like Advocates, Doctors etc. within the purview of the Act. The Professionals could not be called Businessmen or Traders, nor Clients or Patients be called Consumers. It is also required to be borne in mind that the terms ‘business’ or ‘trade’ having a commercial aspect involved, could not be used interchangeably with the term ‘Profession’ which normally would involve some branch of learning or science. The Court remarked that profession as such would require knowledge of an advanced type in a given field of learning or science, or learning gained by a prolonged course of specialized study.
The Court said that, having regard to the nature of work of a professional, which requires high level of education, training and proficiency and which involves skilled and specialized kind of mental work, operating in the specialized spheres, where achieving success would depend upon many other factors beyond a man’s control, a Professional cannot be treated equally or on a par with a Businessman or a Trader or a Service provider of products or goods as contemplated in the CP Act. Similarly, the services rendered by a Businessman or a Trader to the consumers regarding his goods or products cannot be equated with the Services provided by a Professional to his clients regarding his specialized branch of profession.
The Court opined that the very purpose and object of the CP Act 1986 as re-enacted in 2019 was to provide protection to the consumers from unfair trade practices and unethical business practices only. There is nothing on record to suggest that the Legislature ever intended to include the Professions or the Professionals within the purview of the Act. Thus, neither the Professions nor the Professionals were ever intended to be brought within the purview of the CP Act either of 1986 or 2019.
However, the Court clarified that it is not saying that the professionals could not be sued or held liable for their alleged misconduct or tortious or criminal acts.
The bench also opined that the judgment in Indian Medical Assn. v. V.P. Shantha, (1995) 6 SCC 651 which held that doctors and medical professionals can be held liable under the Consumer Protection Act, requires to be revisited. The bench requested the Chief Justice of India to refer VP Shantha (supra) judgment to a larger bench for reconsideration.
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Whether the Legal Profession is sui generis?
After referring to various Judgments, the Court noted that the legal profession cannot be equated with any other traditional professions. It is not commercial in nature but is essentially a service oriented, noble profession.
Having regard to the role, status and duties of the Advocates as professionals, the Court opined that the legal profession is sui generis i.e unique in nature and cannot be compared with any other profession.
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Whether a Service hired or availed of an Advocate could be said to be the service under “a contract of personal service” to exclude it from the definition of “Service” contained in Section 2 (42) of the CP Act 2019?
The Court noted that comprehensive provisions are contained in the Advocates Act, 1961 and the Bar Council of India Rules framed thereunder, to take care of the professional misconduct of the Advocates, and prescribing the punishments if they are found guilty of professional or other misconduct by the Disciplinary Committees of the State Bar Council or the Bar Council of India.
The Court took note of the definition of “Service” contained in Section 2(1)(o) of the CP Act 1986 and in Section 2(42) of the CP Act 2019 and noted that there is slight difference in the definition of ‘Deficiency’ in Section 2(1)(g) of 1986 Act and Section 2(11) of 2019 Act.
After examining the relationship between an Advocate and his Client, the Court said that:
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The Advocates are generally perceived to be their client’s agents and owe fiduciary duties to their clients.
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Advocates are fastened with all the traditional duties that agents owe to their principals.
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Advocates are not entitled to make concessions or give any undertaking to the Court without express instructions from the Client.
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It is the solemn duty of an Advocate not to transgress the authority conferred on him by his client.
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An Advocate is bound to seek appropriate instructions from the Client or his authorized agent before taking any action or making any statement or concession which may, directly or remotely, affect the legal rights of the Client.
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The Advocate represents the client before the Court and conducts proceedings on behalf of the client. He is the only link between the Court and the client. Therefore, his responsibility is onerous. He is expected to follow the instructions of his client rather than substitute his judgment.
Thus, the Court said that a considerable amount of direct control is exercised by the Client over how an Advocate renders his services during his employment. Thus, the services hired or availed of an Advocate would be that of a contract ‘of personal service’ and would therefore stand excluded from the definition of “service” contained in Section 2(42) of the CP Act, 2019. Therefore, a complaint alleging “deficiency in service” against Advocates practising Legal Profession would not be maintainable under the CP Act, 2019.
[Bar of Indian Lawyers v. D. K. Gandhi PS National Institute of Communicable Diseases, 2024 SCC OnLine SC 928, decided on 14-05-2024]
