Why Can't Client Be 'Consumer' & Lawyer's Negligence Be 'Deficiency Of Service' Under Consumer Protection Act ? Supreme Court Asks

The matter was placed before Justices Bela Trivedi and Pankaj Mithal. Reports about the previous hearings can be read here, here and here

Continuing with yesterday's submissions, Senior Advocate Guru Krishnakumar, on behalf of the Bar Council of India, tried convincing the bench that whenever the question arises as to culpability in law, Courts have taken note of the position of this unique profession.

He asserted that one cannot equate or compare the legal profession with any other service provider in the trade or commercial sense.

To support his submissions, the Counsel placed his reliance on the 2005 judgment of the Supreme Court in Chairman, M.P. Electricity Board and Ors. Vs Shiv Narayan And Anr. Therein, the Court had observed:

“It does not require any strong argument to justify the conclusion that the office of a lawyer or a firm of lawyers is not a 'shop' within the meaning of Section 2(15). Whatever may be the popular conception or misconception regarding the role of today's lawyers and the alleged narrowing of the gap between a profession on one hand and a trade or business on the other, it is trite that, traditionally, lawyers do not carry on a trade or business nor do they render services to 'customers' (V. Sasidharan v. M/s Peter and Karunakar (AIR 1984 SC 1700)).”

Justice Trivedi asked the Senior Counsel: If you are not providing service to the Client, what else are you doing?

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

Justice Trivedi quipped: The word used in the Consumer Protect Act is Consumer. Neither Client nor customer.

Krishnakumar, in his attempt to convince the bench, said : We are saying that at the end of the day, what is the meaning to be attributed to consumer, service, and the deficiency…at the end of the day, my lords, we are looking at this profession, apart from its noble character and how 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.

On being asked, he further clarified that the faith is in the system as well as in the lawyers.

As arguments unfolded, Krishnakumar took the bench through a slew of decisions to highlight how the Court has dealt with professional misconduct. Through these decisions, the Senior Council also intended to demonstrate the jurisdiction exercised by the Bar Council and Advocates Act in such cases. These included the constitution bench judgment in Mr. 'P' an Advocate, wherein the court held:

“It is true that mere negligence or error of judgment on the part of the Advocate would not amount to professional misconduct. Error of judgment cannot be completely eliminated in all human affairs and mere negligence may not necessarily show that the Advocate who was guilty of it can be charged with misconduct. But different considerations arise where the negligence of the Advocate is gross.

It may be that before condemning an Advocate for misconduct, courts are inclined to examine the question as to whether such gross negligence involves moral turpitude or delinquency. In dealing with this aspect of the matter, however, it is of utmost importance to remember that the expression "moral turpitude or delinquency" is not to receive a narrow construction.”

He averred that the bottom line is that any decision-making by the Bar Council while dealing with the allegation of misconduct is always a decision on negligence amounting to professional misconduct. To understand the context, one may note that under the Advocates Act, the punishment of advocates for misconduct is prescribed under Section 35. While it takes into account advocates guilty of professional or other misconduct, it does not explicitly state negligence. Explaining this, Counsel, during the course of proceedings, also said: “Subsumed in the consideration of misconduct the principle of negligence.”

Based on this, Justice Mithal invited arguments on whether negligence would amount to a deficiency in service. Here is the excerpt of arguments advanced by the Counsel and questions put forward by the judge:

Justice Mithal: 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?

However, the Senior Council vehemently countered this by submitting: There are two approaches I want to take. Number one, the Bar Council has the power to impose the costs under the Act itself. Bar council does that in appropriate cases. Number two, when we are dealing with the jurisdiction of a civil court, we are dealing with a general principle in law….the question is when you say can this not be extended to a consumer forum. There, I am saying, my lords, several problems will arise which by definition will make it incompatible and unjustified.

He clarified that it is not being argued that there cannot be any liability. However, the liability cannot be under the Consumer Protection Act and before the Consumer Forum.

“It cannot be said that the remedy under the Consumer Act is merely an extension of the remedy available under the civil court.,” he added.

Case Title: BAR OF INDIAN LAWYERS THROUGH ITS PRESIDENT JASBIR SIGH MALIK vs. D.K.GANDHI PS NATIONAL INSTITUTE OF COMMUNICABLE DISEASES., Diary No.- 27751 - 2007