CONSUMER PROTECTION ACT AND INDIAN LAWYERS BY - DHAKA VIRENDAR KUMAR & ANJALI NAIN

CONSUMER PROTECTION ACT AND INDIAN LAWYERS

AUTHORED BY - DHAKA VIRENDAR KUMAR

 & ANJALI NAIN

Introduction

The advent of the digital age has raised customer expectations and set new benchmarks for digital branding. Digitization enables instant access, a broad selection, user-friendly payment methods, more service possibilities, and simpler buying. Consumer protection difficulties did, however, emerge as India's trade and commerce expanded.

The Consumer Protection Act of 2019 went into effect on July 20, 2020, superseding the Consumer Protection Act of 1986, which had been in existence since that year. It enables clients to protect their rights by adhering to a variety of laws and standards. The new law could be passed and implemented much faster and more easily than the previous one. With the previous system, customers had only one option for seeking redress, allowing them to obtain justice through a single venue. As a result, the process took longer to complete. The previous Act built a basis for consumer dispute resolution at the federal, state, and municipal levels. This institution was previously known as the National Consumer Disputes Redressal Commission.

Analysis

The term “service” refers to any description provided to prospective users but does not include the provision of services. The provision of facilities in connection with banking, financing, insurance, transportation, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement, or the dissemination of news or other information are examples of such descriptions. Section 2 of the 2019 Consumer Protection Act includes this definition of “service”.

There are different interpretations of the definition of “service”. The words “potential users” and “service of any kind”, which are used to begin the term, might be interpreted in a variety of ways. The 2019 amendment, which adds the phrase “but not limited to”, will broaden the clause's application even more. The same decision was reached in the 1993 case “Lucknow Development Authority v. M. K. Gupta[1]”, which provides a full explanation of each provision's meaning. The definition, according to the judge, is separated into three pieces. The inclusive clause comes first, followed by the exclusive clause, and finally by the main body of the text. The first statement covers a lot of ground on its own.

Due to the exclusionary clause, which is the third component of the definition, the Act does not apply to two categories of services. When a service is provided for free or as part of a personal service agreement, these two types of services are covered under this exception. The second portion of this sentence can be extended. It was investigated to discover more about what it entailed. This arrangement is also known as a “personal service contract.” What about the level of personalized assistance a client receives from an advocate? Is there a “service contract” as well?

It is impossible to deny that a client and an advocate have a trustworthy and private fiduciary relationship. The advocate has a moral obligation to preserve the client's privacy in all client-related information.

Merriam-Webster defines “personal service” as “a service based on an individual's intellectual or manual labour (as for revenue or wages) rather than a saleable output of his or her talents”. One could contend that the legal profession is exempt from the Act because it offers a service based on both mental and physical impacts.

The advocate-client relationship is automatically excluded from this definition due to its inclusion in the category of “service under a contract of personal service”, which is expressly excluded from the definition of “service” in Section 2(1)(o) of the Consumer Protection Act of 1986.

The second question that needs to be answered is whether or not this is a “service contract”. It is critical to distinguish between “contract of service” and “contract for service” for the purposes of this discussion. The following elements also distinguish a service contract from a contract for services: In the first scenario, the master can command or demand what must be done, but in the second, he can also order or demand how it should be done. In the 1956 case of “State of Saurashtra v. Dharangadhara Chemical Works Ltd[2]”., the judge concluded that service contracts are distinct from product purchase contracts.

Yet, in the case of “Cassidy v. Ministry of Health[3]” it was cited that Many service contracts provide the master little influence over how the work is done. A captain of a ship is an example of this. Nonetheless, the Justice maintains that developing a legal norm that separates one from the other is problematic. It is a reality that needs to be analysed in light of all the situations that surround it. As a result, using any specific standards, distinguishing between a “contract for service” and a “contract for service” is impossible.

However, in “Indian Clinical Affiliation v. Shantha[4]”, the High Court explained and determined that the Parliamentary artist was fully aware of the fundamental difference between a “contract of service” and a “contract for service” and purposefully chose the former over the latter for section 2 of the demonstration. In this case, the Supreme Court considered whether the Parliamentary draftsman understood the distinction between an “employment contract” and a “contract of service”. This is because of the nature of their relationship and the fact that an employer cannot be considered a consumer for services given by his employee under an employment contract. This decision will directly hinder activists from participating in the law's implementation.

Yet, it is important to note that, because they are fundamentally different, services such as banking, broadcast communications, or entertainment cannot compete with those supplied by backers. Attorneys, according to the Indian Bar Council, do not work in any industry, trade, or enterprise, and their services are not subject to the Service Tax Act. Instead, advocates work to improve the judicial system's efficiency.

Deficiency in Service in Case of Lawyers

The fundamental service condition of the CPA of 1986 is met by attorneys who perform the service in exchange for money. A lawyer may not be held liable if his client wins a lawsuit, but he should be if he fails to provide the services he promised. It is necessary to investigate the entire scope of what a “shortfall in services” means in accordance with this Act. The question of whether all legal practitioners' actions or inactions may amount to a failure in service, as defined by the CPA, 1986, must be addressed.

One of the most essential characteristics of the legal profession is the lack of a single, all-inclusive definition of negligence. The “Donoughue v. Stevenson[5]” criteria of “a cautious man” is not widely known in the legal community, and as previously stated, simple carelessness does not constitute professional misconduct if it is not accompanied by a lack of moral bravery. Unambiguously stating that failing to fulfil one's obligations does not constitute professional bad behaviour was a special seat of the Madras High Court. This was the case because a lack of moral integrity is the primary source of professional wrongdoing.

Section 2 (1) of the CPA defines the phrase “deficiency in service”. As a result, the insufficiency must always be linked to an advocate's service to the client. According to section 2 (1), the concept of inadequacy would not apply if the current problem was outside the scope of service (o). In all other instances, the 1986 CPA protects the advocate from client liability.

During the “MC v. RA” hearings in Bhopal before the SCDRC for Madhya Pradesh, the problem of limited access to legal services was discussed. When it was discovered that the appellant's attorney had paid the correct amount but had failed to notify the National Commission of a change, they were penalized with poor service. According to the attorney, the respondent complaint obtained a certified copy of the contested ruling, but it was not given to the appellant, necessitating the use of a different counsel to make the revision. The lawyer went on to say that it was up to the appellant to submit the modification. According to the State Commission, the District Forum's judgment requiring a refund of funds was susceptible to review, and there was no service shortage. Instances involving the embezzlement or misuse of funds, the intentional delay required to escape the statute of limitations, and the filing of appeals without the required postage despite multiple reminders have all been deemed proper. These cases were approved because they are considered “immoral and repulsive”, and they are expected to “dishonour” the legal profession as a whole.

In “R.K. Kannappan v. K.P.K. Komalam[6]”, the professional fee was deducted from the remuneration for land acquisition. The assertion that 10% of the Sub-award Court's was subtracted from the total amount agreed upon by the parties was not debated. It has been established that there was an issue with the service. By permitting the complaint to proceed, the forum did right.

In “S. Mahendra v. Chirayinkil C. P. Badra Kumar[7]”, the absence of a lawsuit from a lawyer constituted a defect on the part of the attorney. The NCDRC ordered the opposing party to reimburse the complainant for the commission's fees within a month after ruling that the complainant was entitled to them.

The opposing party, an attorney, committed fraud, misappropriation, breach of confidence, and forgery in “Mukesh and Co. v. S.M. Bansal[8]”. Additionally, bank cheques were written, but no sales tax deposits were made. They misled and deceived the plaintiff by claiming that the sales tax was always submitted. It was discovered that there was an issue with the service. The other party was ordered by the court to refund the money plus 10% interest.

The plaintiff in “S.A. Ahmed & Co. v. Poonam A. Shah[9]” sought legal counsel to file a claim for specific performance. The complaint also paid a court charge of Rs. 62,125 in addition to the litigation costs and professional fees. O.P., the lawyer, chose to file an injunction request rather than a specific performance lawsuit and paid a Rs. 25 court fees. The Commission emphasized that an advocate's job is to protect their client’s rights and fight for justice. The Commission ordered that the OP repay the amount paid by the complainant, as well as compensation for mental anguish and forum-awarded expenses. Being an advocate, according to the Commission, is a noble profession. Yet, in this case, a lawyer made a mistake that caused the client emotional distress and a variety of sorts of melancholy.

Conclusion and Suggestions

People have had a good opinion of those who work in the court system. The Consumer Protection Act currently does not hold lawyers accountable for their actions. Law professionals are critical to maintaining social order. Most people would rather seek justice with the assistance of an attorney than sue on their own. This is because they hold attorneys and the legal system in high regard. They should be allowed to receive the justice they deserve without any obstacles in their way. It is not a novel idea to hold attorneys liable for their client’s negligence or wrongdoing.

If an attorney is found to have been negligent or unethical, they may face disciplinary action under the Advocates Act of 1961. Yet, the Advocates Act prohibits any sort of payment, and bringing legal action against them is a costly and time-consuming process. This calls for the creation of a solution. These could be considered for the Consumer Protection Act. Because of the nature of the profession and the fact that advocates are now governed by a separate Act, it would be preferable to include language in the Advocates Act that provides compensation to the parties harmed by the scenario.

[1] Lucknow Development Authority v. M. K. Gupta, 1994 SCC (1) 243

[2] State of Saurashtra v. Dharangadhara Chemical Works Ltd, 1957 SCR 152

[3] Cassidy v. Ministry of Health, [1951] 2 KB 343

[4] Indian Clinical Affiliation v. Shantha, 1995 SCC (6) 651

[5] Donoughue v. Stevenson, [1932] UKHL 100

[6]  R.K. Kannappan v. K.P.K. Komalam , A.P.No. 417 of 2000

[7] S. Mahendra v. Chirayinkil C. P. Badra Kumar,  F.A. No. 559 of 1992

[8] Mukesh and Co. v. S.M. Bansal, II (2005) CPJ 107 NC

[9] S.A. Ahmed & Co. v. Poonam A. Shah,  Appeal No. 1380 of 2006