Lawyers can’t be sued by clients for ‘deficiency in service’ under Consumer Protection Act, rules SC

Satya Prakash

New Delhi, May 14

Holding that legal services rendered by lawyers do not fall under the ambit of the Consumer Protection Act, the Supreme Court on Tuesday ruled that litigants can’t sue lawyers for ‘deficiency in service’ to claim compensation.

“The Legal Profession is sui generis i.e. unique in nature and cannot be compared with any other Profession. 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 43 definition of “Service” contained in Section 2 (42) of the CP Act 2019,” a Bench led by Justice Bela M Trivedi said, terming advocates’ responsibility as “onerous”.

The Bench said, an advocate was the only link between the court and the client and was expected to follow his client’s instructions rather than substitute his (client’s) judgment.

“A complaint alleging “deficiency in service” against Advocates practising Legal Profession would not be maintainable under the CP Act, 2019,” it said, overruling a 1995 verdict of the National Consumer Disputes Redressal Commission (NCDRC) which held that lawyers were covered under the Act. The NCDRC order was stayed by the Supreme Court in 2009.

The Bench, however, clarified that lawyers can be sued in courts for negligence and misconduct.

“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,” it said.

The top court also said that its 1995 verdict in Indian Medical Association vs V P Shantha and Others, bringing medical negligence under the Consumer Protection Act should be reconsidered.

“…in our humble opinion, the said decision deserves to be revisited having regard to the history, object, purpose and the scheme of the CP Act and in view of the opinion expressed by us hereinabove to the effect that 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,” the Bench said, requesting the CJI to send it to a larger Bench for reconsideration.

“We are therefore of the considered opinion that 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,” said the Bench which also included Justice Pankaj Mithal.

Justice Mithal – who delivered a separate concurring judgment – said, “that the legislature in India as in some other countries, had not intended to include the services rendered by the professionals especially the lawyers to their client within the purview of Consumer Protection Act, 1986 and re-enacted in 2019.”

“One should also not lose sight of the fact that the other object of the Act was to provide to the consumers timely and effective administration and settlement of their disputes. 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,” the Bench noted.

Advocates were generally perceived to be their client’s agents and owed fiduciary duties to their clients who exercised direct control over their advocates rendering legal professional services, it said.

The Bench said “that 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 the section 2(42) of the CP Act, 2019. As a necessary corollary, a complaint alleging “deficiency in service” against Advocates practising Legal Profession would not be maintainable under the CP Act, 2019.”