Consumer Protection Act for deficiency of services?

Recently in the case of Bar of Indian Lawyers vs. D.K.Gandhi PS National Institute of Communicable Diseases & Anr., an issue was raised as to whether advocates can be held liable under the Consumer Protection Act for deficiency of services.

Background of the Consumer Protection Act

The said issue arose from a 2007 judgment by the National Consumer Disputes Redressal Commission. The Commission ruled that lawyers’ services fall under Section 2 (o) of the Consumer Protection Act, which defines “Service.” It was determined that while a lawyer cannot be held accountable for the favorable outcome of a case, as the result depends on various factors, but they can be held liable for any deficiency in the services promised if they have received a fee.

An appeal against this order was filed before the Supreme Court. The top court had on April 13, 2009, stayed the NCDRC ruling.

• Ratio Decidendi
• A Bench of Justices Bela M Trivedi and Pankaj Mithal saidlegal profession is sui generis (unique) and cannot be compared with any other profession.
• The Court stated that the legal profession is distinctive, characterized by the unique relationship between advocate and client, where the client exercises direct control over the advocate.
• Advocates are generally seen as agents of their clients and have fiduciary duties towards them.
• Advocates are bound by all the traditional duties that agents owe to their principals.
• Advocates cannot make concessions or give any undertakings to the Court without explicit instructions from the client.
• It is the solemn duty of an advocate not to exceed the authority granted by the client.
• The advocate represents the client in court and conducts proceedings on their behalf, serving as the sole link between the court and the client.
• They cannot represent someone in court unless appointed by that person. This appointment document is known as a “Vakalatnama.” The Court noted that through the “Vakalatnama,” advocates take on specific duties, including obligations to their clients.
• Therefore, the advocate’s responsibility is substantial. They are expected to follow the client’s instructions rather than substitute their own judgment.

Doctors Under CPA Requires Reconsideration

• The Court ruled that its 1996 decision in Indian Medical Association v. Shanta concerning medical negligence would need to be revisited as medicine is as noble a profession as law.
• Justice Trivedi stated that the primary aim of the Consumer Protection Act of 1986 (and its re-enactment in 2019) was solely to protect consumers from unfair trade practices and unethical business conduct.
• She further noted that there is no indication that the legislature intended to include professions or professionals within the scope of the Act.

Services under CPA

• The definition of ‘Service’ clearly excludes Services rendered under a contract of personal service.
• Services provided by an advocate would be classified under a “contract of personal service” rather than a “contract for service.” The greater the amount of direct control exercised over the person rendering the services by the person contracting for them, the stronger would be the grounds for holding it to be a “contract of personal service.”
• To determine if the client has direct control over the advocate, the Court referred to several provisions of the Civil Procedure Code. A key provision, Order III Rule 4, states that a pleader the role of Advocates is indispensable in the Justice Delivery System.
• An evolution of jurisprudence to keep our Constitution vibrant is possible only with the positive contribution of the Advocates. It is not commercial in nature but is essentially a service oriented, noble profession.

Therefore, the Hon’ble SC held that the advocates cannot be held liable under the Consumer Protection Act for deficiency of services.

How to File a Complaint?

To file a consumer complaint, ensure it is done within two years of purchasing the product or service. Clearly detail the issue, specifying whether you are requesting an exchange, replacement, or compensation for any distress, and ensure your demand is reasonable. Below you can check detailed points on How to File a Complaint under the Consumer Protection Act.

Timeframe:

• • File your complaint within two years of purchasing the product or service.

Details of the Complaint:

• • Clearly describe the issue, whether you seek an exchange, replacement, or compensation for any distress caused. Ensure your request is reasonable.

Documentation:

• • Retain and attach all relevant receipts and bills to your complaint letter.

Submission:

• • Send your written complaint to the consumer forum via email, registered post, fax, or hand delivery.
  • Ensure you receive an acknowledgment of receipt and keep it for your records.

Language:

• • The complaint can be written in any language you prefer.

Legal Representation:

• • Hiring a lawyer is not required.

Record Keeping:

• • Preserve all documents related to the complaint, including those sent and received.