LAWYER'S LIABILITY UNDER CONSUMER PROTECTION ACT

LAWYERS’ LIABILITY UNDER THE CONSUMER PROTECTION ACT: A VICIOUS CIRCLE

SUVENDU SUVASIS DASH*

With the advent of the later half of the eighteenth century (1760), came the golden period of Industrial Revolution with its far-reaching impulses on the lives of human beings. Thus were laid down the foundations of trade and commerce for the benefit of the common man and the profits from which made a million of millionaires and scores of billionaires. Gradually, under the veil of trade and commerce, unscrupulous elements began to fool the innocent consumer and consequently, there came the present age-the age of consumerism.

Keeping in view the interest of the innocent buyer of goods and user of services, Parliament of India enacted the Consumer Protection Act in 1986 to safeguard such interests. By its ever-increasing reach with the help of a plethora of judicial pronouncements of the National Commission and the Supreme Court, the Act has now become very popular among citizens. This Act serves as a check against the seller of goods and service providers from selling or providing the consumer with faulty goods or services respectively.

However, recent developments are indicators of an oncoming state of chaos when the ambit of the Act has been unnecessarily stretched to a forbidden territory by holding lawyers liable for deficiency in service under the aforesaid Act. For a detailed discussion on this issue one has to observe the judgment of the National Consumer Disputes Redressal Commission in the case of D.K.Gandhi v/s M.Mathias, in Revision Petition No. 1392 of 2006, pronounced on 6^th August 2007

FACTS OF THE CASE IN BRIEF : D.K.Gandhi v/s M.Mathias, in Revision Petition No. 1392 of 2006, pronounced on 6^th August 2007

D.K Gandhi had engaged the professional service of M.Mathias, a lawyer. In a subsequent dispute, Gandhi alleged negligence on the part of Mathias and filed a consumer complaint against him in the District Consumer Forum. The matter went before the Delhi Consumer Disputes Redressal Commission in Appeal No.1815 of 2000, which observed in its order dated 10. 03. 2006 that a complaint against a lawyer would be beyond the province of the Consumer Protection Act.

The reasons for such gainsaying were as follows:

Firstly, that in an advocate-client relationship the client executes the power of attorney to his advocate to do certain acts on his behalf, but nothing is stated in the contract or power of attorney as to what would be the liability of the advocate incase of his failure to act.

Secondly, the contract giving rise to the above relationship is a unilateral contract executed by the client giving authority to the lawyer to appear and represent the matter on his behalf without any specific assurance or undertaking and,

Thirdly, there is no term of contract whereby such power of attorney is executed to the advocate.

Dissatisfied with the order of the State Commission, Gandhi filed a Revision Petition before the National Commission challenging the interpretation by the former. The National Commission in its judgment dated 6^th August 2007 banished the reasoning of the State Commission by holding it totally erroneous. As per its pronouncement, when a party engages a lawyer, there comes into operation a bilateral contract where the lawyer renders services in consideration for the fees, which he receives. It held the definition of ‘service’ as very wide and capable of bringing lawyers and other professionals under its domain and ruling on the maintainability of the complaint, the National Commission remanded the matter back to the State Commission for deciding the merits of the allegations.

ANALYSIS OF THE REASONINGS OF THE NATIONAL COMMISSION WITH ITS POSSIBLE OUTCOMES:

The Consumer Protection Act covers all kinds of services excluding those rendered gratuitously or under a “contract of personal service”. In order to debar the categorization of the services rendered by an advocate from the exclusion clause, the National Commission relied heavily on another decision of its own that made a distinction between “a contract of personal service” and “a contract for personal service”. 1 According to that judgment, “ “a contract of personal service” arises out of a master-servant relationship where the master can not only tell the servant what is to be done, but also how it is to be done. However, in “a contract for personal service”, there is a professional-client relationship where the professional or technical expert has to use his own skill, knowledge and expertise, over which the hirer of the service has no control. Hence, the services rendered by a professional would not fall within the exclusion clause, and a complaint would be maintainable against the professional for deficiency in service.”

Here, in spite of the Commission’s correct interpretation of the law in regarding the classification of the professional-client relationship as a bilateral contract and in establishing a comprehensive distinction between “a contract of personal service” and “a contract for personal service” the judgment brings confusion since the inclusion of lawyers in the group of all professionals is made without paying any heed to the nature of an advocate’s work.

Though, the courts are aware of the fact that professionals cannot achieve success in every case at hand nor can they guarantee such success. Often failure is beyond the control of the professionals. For instance, a doctor cannot cure every single person. However, it is a fact that a doctor diagnoses the disease and treats the patient upon his scientific knowledge of the physiological and anatomical facts and he is expected to possess a certain minimum degree of competence and should exercise reasonable care in the discharge of his duties. Failure to do so would constitute negligence and “deficiency in service”.2

Whereas, a lawyer’s approach towards a case is originated upon and depends entirely on his intellectual capacities of weighing facts, putting forth his written submissions articulately and arguing the case with utter deftness. And, with equally competent lawyers on both sides in a case, the outcome will generally be founded upon a clever bargaining of ideas. Consequently, lawyers cannot be equated with doctors as far as the question of their inclusion in the ambit of service providers is concerned.

Notice can now be drawn to the phrase, “over which the hirer of service has no control” which allows a client to be totally unaware of the proceedings while the laws of our country enunciate the principle of “ignorantia juris non excusat” i.e. ignorance of laws is not excusable.

The Commission in its judgment has also referred to another judgment of the Supreme Court in which it has held that “ a professional can be said to be negligent when he does not possess the requisite skill which he professes, or when he does not exercise reasonable competence, skill and care expected of a professional.”3 Nevertheless such negligence is blameworthy as it puts a blot on the image of lawyers; the proper resort is to approach the respective Bar Council for initiating disciplinary actions against the lawyer under the Advocates Act, 1961 and not to file a consumer complaint. Such permission will increase the tendency of every client against whom an unfavourable judgment is passed to file a consumer complaint citing any minor mistake of the lawyer as negligence on his behalf and that will serve as a notorious element in the multiplicity of proceedings with increasing number of litigants.

It is submitted that a lawyer is in no uncertain terms a medium or a catalyst in the justice delivery machinery where the result or outcome of litigation does not solely depend on the lawyer’s ability, aptitude and drafting and arguing skills. Often, the success rate in a case is fifty-fifty and the outcome of the case is reached by the exercise of the wisdom of a judge by a clever bargaining of ideas from both sides. In such a process it is difficult to set a standard of care and assess deficiency on the part of a lawyer. Let us imagine the gravity of a situation where each convicted person files a consumer complaint against his defence counsel for the latter’s failure to prove the former’s innocence in a criminal trial or where every prosecutrix in a prosecution for rape or an attempt to commit rape files a consumer complaint against the prosecutor for being unable to establish lack of consent on the former’s part. Furthermore, it raises a question as to the liability of Public Interest lawyers if the judgment gives antagonistic results.

Finally, an implication of this judgment is the needless exaggeration of the term ‘service’. The Supreme Court held that the main clause in section 2 (1) (o) of the Consumer Protection Act, 1986, defining ‘service’ itself is very wide by the use of the word ‘any’. It applies to any service made available to potential users. The words ‘any’ and ‘potential’ are significant. Both are of wide amplitude.4 The dictionary meaning of ‘any’ is one or some or all. The Black’s law dictionary defines ‘any’ as all or every or some or one. So ‘any’ is used in a very wide sense extending from ‘one’ to ‘all’. The judgment therefore serves to still widen an already wide term.

The Supreme Court, therefore, cleverly abstained from giving any hint at including lawyers within the sphere of service providers in the Indian Medical Association case 5 to which the members in the present case promptly referred.

CONCLUSION:

In conclusion it is apt to iterate that no matter the direction of the judgment is well intended to serve the general public from being prejudiced it may still end up being an anathema since it has indubitably sown the seeds of a vicious circle as shown below:

Increased tendency to win a case than to seek justice

Invitation to corruption in court affairs Growth in number of litigants

Multiplicity of proceedings

However, from such a development the ultimate beneficiaries would be lawyers for whom the increasing number of litigants will come as a boon--perhaps the only silver lining of including lawyers in the consumer net. It would be nothing but robbing Peter to pay Paul. The only way out to prevent a state of disorder of such a magnitude is to exclude lawyers from the realm of the Consumer Protection Act which the National Commission in D.K Gandhi’s case has denied in utter disregard of the conditions at hand and without calculating the impending circumstances. A clearer interpretation is solicited from the Supreme Court which is after all the final arbiter on substantial questions of law to give the matter in question a fresh and proper construction.

* LL.M., 1st year student, Madhusudan Law College, Cuttack, Orissa.

1. A.C Modgai v/s CrossWell Tailors and Anr. II (1991) CPJ 586 (NC)

2. Indian Medical Association v/s V.P.Santha and Ors. (1995) 6 SCC 651

3. Jacob Mathew v/s State of Punjab (2005) 6 SCC 1

4. Lucknow Development Authority v/s M.K Gupta (1994) 1 SCC 243 p. 254-255

5. Supra endnote 2.