The issue of professional liability has become increasingly significant in today's rapidly evolving legal and consumer landscape, particularly for professionals such as doctors and advocates who provide critical services that directly impact the lives and rights of individuals. As both professions hold positions of trust and authority, they are expected to maintain high standards of care in their respective fields. However, the question of how they can be held accountable for negligence presents complex legal and ethical challenges. The case of Indian Bar Association v. DK Gandhi offers an important lens through which to examine the liability of advocates under Indian law, particularly within the context of the Consumer Protection Act.

Ratio Decidendi
The Apex Court opined that intention of the legislation was never to include the Professions or the Professionals within the purview of the COPRA. Enactment of COPRA seeks to promote and protect the rights of consumers and provide better protection of the interests of consumers. A three-tier forum comprising the District Forum, the State Commission and the National Commission prevents exploitation by unscrupulous manufacturers and traders of consumer goods by providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services.

However, there lies no good reason to assume that the legislature intended to include the Professions or the Professionals or the services provided by the professionals within the ambit of the COPRA as it is well established that Professionals could not be called Businessmen or Traders, nor Clients be called Consumers.

A "Profession" requires advanced education and training in some branch of learning or science Therefore, having regard to the nature of work of a professional, which requires high level of education, training and proficiency and which involves skilled and specialized kind of mental work, they cannot be treated equally or at par with a Businessman or a Trader or a Service provider of products or goods as contemplated in the COPRA.
It was further opined that that the legal profession is sui generis i.e unique in nature and cannot be compared with any other profession considering the role, status and duties of the Advocates. The function of judges and lawyers remained unaltered and rooted in the common law traditions in contradistinction to those prevailing in the civil law or other systems of law since very beginning. The legal profession cannot be equated with any other traditional professions as it is service oriented and not commercial in nature and is a noble considering the nature of duties to be performed and its impact on the society. In the process of rendering different duties and enabling the courts to come to a just conclusion, it may also be possible that at times, the lawyers may earn displeasure of the client while assisting the court.

The independence of the Bar and autonomy of the Bar Council is significant to preserve the very democracy itself and to ensure that judiciary remains strong. What the Advocates do, affects not only an individual but the entire administration of justice hence they are expected to be fearless and independent for protecting the rights of citizens, for upholding the Rule of law and also for protecting the Independence of Judiciary.

It was held that 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 and would therefore stand excluded from the definition of "service" contained in the section 2(42) of the CP Act, 2019. Definition of service as mentioned under Section 2 (42) of the COPRA, 2019 excludes services rendered that are free of charge or under a contract of personal service.

Greater is 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." In the Advocate client relation, although advocate has certain authorities by virtue of such "Vakalatnama" but at the same time has certain fiduciaries duties too. The advocate is also tied with traditional duties that agents owe to their principals providing a direct control of client over advocate.

A complaint thus alleging "deficiency in service" against Advocates practicing Legal Profession would not be maintainable under the CP Act, 2019.

Facts Of The Case
The present set of appeals emanate from the order dated 06.08.2007 passed by the National Consumer Disputes Redressal Commission (NCDRC), New Delhi in Revision Petition in which the it was held inter alia that if there was any deficiency in service rendered by the Advocates/Lawyers, a complaint under the Consumer Protection Act, 1986 would be maintainable.

In the present facts, the appellant who is an advocate was hired for its services by the respondent as an advocate for filing a Complaint against Kamal Sharma under Section 138 of the Negotiable Instruments Act, as the cheque for Rs.20,000/- issued by Kamal Sharma in favour of the respondent D.K. Gandhi was dishonoured. Kamal Sharma agreed to pay Rs. 20,000 plus Rs. 5,000 for expenses.

It was alleged that pay order for Rs. 20,000 and a crossed cheque for Rs. 5,000 from Kamal Sharma was not delivered to the respondent while Rs. 5,000 in cash was demanded as fees for which a recovery suit was subsequently filed in the Court of Small Causes, Delhi. The appellant later gave the respondent the DD/pay order and the cheque, but the payment of the Rs. 5,000 cheque was stopped by Sharma, allegedly at the appellant's instance. D.K. Gandhi filed a complaint before the District Consumer Disputes Redressal Forum, Delhi, for compensation and additional costs. The appellant argued that District Consumer Forum lacked jurisdiction as services of advocates were not covered under the Consumer Protection Act.

The District Forum rejected this objection and ruled in favor of the respondent. However, in an appeal to the State Commission was successful, it was held that legal services did not fall under the 'service' definition in the Consumer Protection Act. However, on revision, the NCDRC reversed the State Commission's decision. Aggrieved by the NCDRC's order, the Bar of Indian Lawyers, Delhi High Court Bar Association, Bar Council of India, and the appellant M. Mathias filed the present appeals.

Point Of Law Involved:

• Whether the Legislature ever intended to include the Professions or services rendered by the Professionals within the purview of the COPRA 1986 as re-enacted in 2019?
• Whether the Legal Profession is sui generis?
• Whether a Service hired or availed of an Advocate could be said to be the service under "a contract of personal service" so as to exclude it from the definition of "Service" contained in Section 2 (42) of the CP Act 2019?

Rule Of Law:

• Consumer Protection Act, 2019 (Section 2(42)): The said provision defines "service" as any description which is made available to potential users and includes, but does not include the rendering of any service free of charge or under a contract of personal service. The court in the facts per se ruled that the relationship between an advocate and their client is a contract of personal service and hence falls under exclusionary part of definition.
   
• Rule of Purposive Interpretation: The cardinal principle to decipher the scope of statutes is to identify the intention of the legislature and the true legal meaning of the enactment. The intention of the legislature is derived by evaluating the meaning of the words used in the statute. The whole tenor of COPRA is to protect consumers from deficiencies in business or trade services, but advocates can be in situation be deemed under the category of businessman or traders. They also intend to preserve the professional autonomy of advocates while balancing public interest.
   
• Contract of Personal Service vs. Contract for Service: The Court made a distinction between these two types of contracts. A "contract of personal service" is one where the service provider is subject to the control and direction of the client, whereas a "contract for service" involves an independent contractor providing a service. The Court ruled that legal services fall under the former, thus exempting advocates from liability under the COPRA.
   
• Legal Profession as Sui Generis: The Court highlighted that the legal profession is sui generis i.e unique and cannot be equated with other professions like medical or business services. It reaffirmed that Advocates Act 1961, consolidated all the other statutes that existed in the pre-independence era for legal practitioners and should be ruled by the same. Thus making them unsuitable for inclusion under consumer protection law.

Analysis
Judgement in D.K. Gandhi has seemingly overlooked key observations in Indian Medical Association v VP Shantha & Others. For instance, A relationship of master and servant can be only treated as one of personal service. Relationship between advocate and client fails to ensure the criteria and thus should not fall under a "contract for personal service".

By substantiating the scope of legal practitioners within the purview of the Act, in no manner change the substantive laws and principles that apply to negligence. It would equally apply to consumer disputes before the Consumer Disputes Redressal Agencies under the Act and Bar council. When an advocate provides legal services for a fee, the client (consumer) can file a complaint in consumer courts if they feel aggrieved due to deficiency of service.

The main clause of definition of service uses the words including 'any ' and 'potential'. As suggested by Oxford and Black Law dictionary, 'any' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The word 'potential' is again very wide as 'capable of coming into being, possibility'.

The 'service' clause is thus very wide and extends to any or all actual or potential users. The argument that here was "not a whisper" in the CPA's statement of objects and reasons to include the services provided by professionals such as advocates and doctors because both the 1986 and 2019 versions of the CPA did not aim to lay down an exhaustive list.

While Bar Councils regulate the ethical and professional conduct of lawyers, Consumer forums are more focused on the consumer protection aspect and offer monetary compensation for deficiencies in services. The consumer forums are designed to be less formal and cost-effective compared to regular courts.

Moreover, District Forum, the State Commission and the National Commission under the Act constitutes judges of Supreme courts and high courts and member have knowledge and experience in dealing with problems relating to various fields. The forums are thus suited to hear disputes pertaining to Legal practitioner considering they belong to the same field and have pre emptied knowledge.

The present judgement fails to consider these aspects and a clear guidelines need to framed to determine whether a liability of professional falls under Consumer Protection Act and under what grounds.

Conclusion
The conclusion of the Bar of Indian Lawyers v. DK Gandhi marks a significant legal precedent in Indian consumer law. Although the case tried to broaden the horizon by putting forth arguments that has not been previously asserted however, it failed to look upon observations made by in Indian Medical Association v VP Shantha & Others.

The Supreme Court held that legal practitioners do not come under the purview of COPRA. The Court ruled that legal services provided by advocates are not "services" as defined under the Consumer Protection Act, 1986. Therefore, clients cannot file consumer complaints against advocates in consumer forums for issues like negligence or deficiency of service.
The Court reemphasized that advocates are governed by the Advocates Act, 1961, and that matters of professional conduct, including complaints about negligence or deficiency, should be addressed by the Bar Council of India and not by consumer courts.

This decision provided much needed clarity on the regulatory framework governing legal practitioners, reinforcing that complaints related to the professional conduct or negligence of lawyers should be addressed within the legal profession's own regulatory bodies, not under consumer law.

It also insisted upon revisit of VP Shanta case highlighting the need to adapt to changing times.

Written By: Khushi Jain