Medical Negligence Versus Legal Negligence: Why can't lawyers come under consumer law if Doctors can? SC asks
Delhi: In a significant legal debate, the Supreme Court initiated discussions on Wednesday regarding the applicability of the Consumer Protection Act, 1986 to legal representation services, questioning the asymmetry between the accountability of lawyers and doctors.
The bench, comprising justices Bela M Trivedi and Pankaj Mithal, was considering petitions challenging the National Consumer Commission's 2007 stance, asserting that advocates fall within the scope of the Consumer Protection Act, allowing clients to bring them to consumer courts for deficiencies in services. “You (lawyer) have to also employ your skills and knowledge in the facts of that case... like a doctor does with a patient. How is it any different from a doctor?” asked the bench.
The bar bodies, such as Bar Council of India, Delhi High Court Bar Association and Bar of Indian Lawyers, and other individuals in a batch of petitions have challenged a 2007 verdict of the National Consumer Disputes Redressal Commission which has ruled that advocates and their services come under the purview of the Consumer Protection Act, 1986.
In its 2007 judgment, the Consumer Commission held that advocates come under the purview of the Consumer Protection Act and can be sued in a consumer court by their clients for any deficiency in service. The national consumer forum's verdict had held that the legal services rendered by lawyers would come within the ambit of section 2(1)(o) of the 1986 Act. Section 2(1)(o) of the Act defines the word "service" to mean a "service of any description, which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service".
"Undisputedly, lawyers are rendering service. They are charging fees. It is not a contract of personal service. Therefore, there is no reason to hold that they are not covered by the provisions of the Consumer Protection Act, 1986," the NCDRC had held. The top court, however, stayed the August 6, 2007 verdict of the NCDRC in April 2009. Senior counsel Narender Hooda, representing the appellants, contested the reasoning behind the 2007 judgment, contending that lawyers occupy a distinct position compared to other professionals, including doctors.
As per a recent media report by Hindustan Times, Mr Hooda pointed out that the court's independent stand plays a vital role in the success of the lawyer. Disagreeing, the bench replied: “If a lawyer does not remain present in the court and an ex parte decree is passed against his client. The lawyer does not even tell his client why the case was dismissed. Who will be responsible for this? For this kind of negligence, the court doesn’t come in the picture at all.” Hooda added that for professional misconduct, there is already a remedy provided for a litigant to lodge a complaint with the Bar Council of India, besides the option of approaching a court of law.
However, the bench pointed out that there is a difference between negligence and misconduct. So how can one differentiate your profession from doctors? The doctors also have regulations under the Medical Council of India Act and yet they are answerable under the ambit of the Consumer Protection Act. “In that case, a court can always decide whether it’s professional misconduct or negligence. There’s a difference between professional misconduct and professional negligence and the court can adjudicate that depending on the facts of a case," the bench added.
Replying to the court's observation made on Wednesday that if doctors can be sued for poor service and negligence and deficiency in service, then why lawyers cannot be sued for the same, Hooda said, "A doctor's clinic has been treated as a commercial entity like all big hospitals, which can advertise themselves. There is no bar on them. However, there is a bar on lawyers to advertise their work. They cannot solicit work and cannot have a share in the suit property as the remuneration for their service under the Advocates Act of 1961."
The hearing remained inconclusive and the next hearing has been listed February 21.
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