Bar Of Indian Lawyers vs D.K. Gandhi PS National Institute Of Communicable Diseases 2024 INSC 410 – Consumer Complaint Against Advocates Not Maintainable

Consumer Protection Act, 2019; Section 2 (42) – A complaint alleging “deficiency in service” against Advocates practising Legal Profession would not be maintainable – 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) – The Legal Profession is sui generis i.e. unique in nature and cannot be compared with any other Profession. (Para 42)

Consumer Protection Act, 1986 Indian Medical Association Vs. V.P. Shantha [1995] Supp. (5) S.C.R. 110– the wide amplitude of the definition of ‘service’ in the main part of Section 2(1)(o) would cover the services rendered by Medical Practitioners within the said Section 2(1)(o) -The said decision deserves to be revisited having regard to the history, object, purpose and the scheme of the CP Act- Neither the “Profession” could be treated as “business” or “trade” nor the services provided by the “Professionals” could be treated at par with the services provided by the Businessmen or the Traders, so as to bring them within the purview of the CP Act . (Para 21-24)

Relationship between an Advocate and his Client: Advocate can act for any person in any Court only when he is appointed by such person by executing the document called “Vakalatnama.” Such Advocate has certain authorities by virtue of such “Vakalatnama” but at the same time has certain duties too, i.e. the duties to the courts, to the client, to the opponent and to the colleagues as enumerated in the Bar Council of India Rule-Unique attributes 1) Advocates are generally perceived to be their client’s agents and owe fiduciary duties to their clients. 2) Advocates are fastened with all the traditional duties that agents owe to their principals. For example, Advocates have to respect the client’s autonomy to make 41 decisions at a minimum, as to the objectives of the representation. 3) Advocates are not entitled to make concessions or give any undertaking to the Court without express instructions from the Client. 4) It is the solemn duty of an Advocate not to transgress the authority conferred on him by his Client. 5) 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. 6) 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, a considerable amount of direct control is exercised by the Client over the manner in which an Advocate renders his services during the course of his employment. (Para 40-41)

Consumer Protection Act, 2019; Section 2 (42) -The question as to whether a given relationship should be classified as a contract ‘for services’ as opposed to a contract ‘of service’ [i.e. contract ‘of personal service’] is a vexed question of law and is incapable of being answered with exactitude without reference to the underlying facts in any given case.- 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 service.

Consumer Protection Act, 2019– The very purpose and object of the CP Act 1986 as re-enacted in 2019 was to provide protection to the consumers from the 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- If the services provided by all the Professionals are also brought within the purview of the Act, there would be flood-gate of litigations in the commissions/forums established under the Act, particularly because the remedy provided under the Act is inexpensive and summary in nature-We do not propose to say that the professionals could not be sued or held liable for their alleged misconduct or tortious or criminal acts. In the process of overall depletion and erosion of ethical values and degradation of the professional ethics, the instances of professional misconduct are also on the rise. Undoubtedly, no professional either legal, medical or any other professional enjoys any immunity from being sued or from being held liable for his professional or otherwise misconduct or other misdeeds causing legal, monetary or other injuries to his clients or the persons hiring or availing his services. The fact that professionals are governed by their respective Councils like Bar Councils or Medical Councils also would not absolve them from their civil or criminal liability arising out of their professional misconduct or negligence. (Para 18-20)

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