Col. R.N. Singh (Retd.) vs Ex. Major C. Parsad

S.K. Gupta, J.—The dominating position acquired by the public and private enterprises providing goods and services of any description

made available to the potential users, and the blind race for earning money by fair or foul means led to the consumer exploitation in India. Not only

illiterate but educated consumers knew well that they were being exploited, yet they were tolerating it because of expensive and time-consuming

procedural delays in instituting cases for damages in the Civil Court. Recognizing the need of the hour, Parliament enacted Consumer Protection

Act, 1986, which is a land-mark in the history of socio-economic legislation, a ""mag'na carta"" in the field of consumer protection for checking the

unfair trade practices and deficiency in relation to goods and services. The provisions of the Act are in addition to and not in derogation of the

provisions of any other law for the time being in force. This envisages a complaint containning allegation about the defects in the goods or

deficiency in, service, can be filed by the consumer, In nutshell, the provisions of the Act have to be construed from the stand point of the

consumer to achieve and accomplish the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the Court while

construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the

provisions and is not contrary to admitted objective of the enactment. The issues posed and the questions involved in this appeal have

consequential as well as topical importance for the members of legal profession.

We have heard Mr. Subash Bhat, learned counsel for the appellant, as well as Mr. Vipin Gandotra, learned advocate, for the respon- dent, in

extenso. We have also perused the Judgment and order propounded by the J&K State Consumers Protection Commission (hereinafter referred to

as ""State Commission""), by which the State Commission has awarded a sum of Rs. 75,000/- as compensation on account of financial loss, mental

torture and harassment to the Respondent-Complainant in context with the material on record. To appreciate the rival contentions put across by

the parties, factual backdrop of the case is given in resume.

Complainant, Major C. Parsad, an Officer Commanding in the Army, engaged the Respondent-Appellant and hired his services as Lawyer to

defend him in proceedings before General Court Martial at Jammu. The Complainant was facing charges of misappropriation before the General

Court Martial. According to the Complainant, a fee of Rs. 40,000/- was settled for defending him before General Court Martial with the

Respondent-Appellant. The Complainant stated to have paid the entire amount of fee in break-up as detailed in the judgment of the State

Commission obviously taken from the complaint. It is further stated that during the course of proceedings before General Court Martial, the

Respondent-Appellant had withdrawn from the power of attorney and de- serted the Complainant on 07-11-1993. That it was a case of

deficiency of service, which necessitated the Complainant to approach the Redressal Fora for award of compensation.

Respondent-Appellant was put on notice. On the filing of the demurrer by the Respondent-Appellant, the State Commission after going through

the plea but across by the respective parties, scanning the evidence, orally and documentary, found the case of deficiency of service of an

Advocate hired by a client, sufficiently and cogently established and awarded compensation, which became the subject matter of challenge in this

appeal. The controversy raised before the State Commission and reiterated by the Appellant before us hinges on the following issues:

1) Whether the dispute between the client and his counsel with regard to the fee can only be entertained by the State Bar Council Act u/s 35 and

the State Commission has no jurisdiction in such, cases under the Consumer Protection Act;

2) Whether the Advocate can withdraw from the proceedings for non-payment of remaining fee;

3) Whether the withdrawal of the Advocate from the proceedings on account of unpaid part of fee amounted to deficiency of service to his client

within the meaning of Consumer Protection Act.

Before we embark on discussing the issues raised in the appeal, it is apt to narrate certain admitted facts. The Complainant was facing

proceedings before the General Court Martial. He hired the services of the Appellant-Respondent to defend him in the proceedings before the

General Court Martial is not disputed. It is admitted by the Appellant-Respondent that he withdrew from proceedings for non-payment of the

unpaid fee. As regards the jurisdiction of the Consumer Protection Act to entertain the dispute between the client and the Advocate with regard to

fee, Mr, Subash Bhat, Appellant's counsel, vehemently urged that misconduct of the Lawyer is to be dealt with under the Advocates Act, which is

a special enactment, to which the provisions of Consumer Protection Act are not attracted. It is meaningful to point out that provision contained in

Section 3 of the Act is unique because the remedies available under other laws in existence have neither been repealed nor superseded, but the

remedies have been provided under the Act in addition to any other remedy available under any other law for the time being in force. Though this

provision is somewhat unique in its nature, yet the language of Section 3 is plain and categoric in highlighting that, whatever rights and remedies are

provided by the Act, they are expressly in addition to the exist ing ones. If the legislature, in its wisdom, has, in terms, granted ad ditional rights and

remedies, it can not be curtailed so as to abridge the scope thereof. These rights and rem edies are not to be blocked or ham strung. The avowed

object of the Act is to provide ""cheap,"" speedy and efficacious remedy and it is with this object of Section 3, the Act lays down that the provi sions

of this Act shall be in addi tion to and not in derogation of the provisions of any other law for the time being in force. Accord ingly, it is for the

consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service.

The learned counsel appearing for the Complainant-Respondent, however, submitted that there is no provision in the Advocates Act to deal

with the disputes between the client and his Advocate with regard to deficiency of service and claim compensation in respect, thereof. It-is also

contended that 'only disciplinary matters are considered and dealt with by the Bar Council under the Advocates Act. At the cost of repetition, it is

apt to point out that Consumer Protection Act gives the consumer an additional remedy besides those which may be available under other existing

laws. Assuming though not admitting that the dispute between the client and the Advocate with regard to the payment of balance fee if covered by

the Advocates Act, as pleaded by the Appellant's counsel even then the Respondent-Complainant cannot be deprived of the benefit of

social/beneficial legislation under Consumer Protection Act providing an additional, remedy to deal with the deficiency of service of any kind. The

Consumer Forum, therefore, would be competent to sanction compensation, if any deficiency in the discharge of its obligation resulting in

deficiency of service is established. We have no manner of doubt that it also includes service rendered by the Advocate. The term 'service' has

variety of meanings, it may be contractual, professional, public, domestic, legal, statutory, etc. The concept of service, thus, is very wide. How it

should be understood and what means depends in the context in which it has been used in an enactment. The test, therefore, is not if a person

against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility, as is

handed down by the Apex Court in Lucknow Development Authority Vs. M.K. Gupta, . This clearly shows that the professional service tendered

by the Advocate to his client engaged by, the latter is service within the meaning of Consumer Protection Act ""and the Consumer Forum has the

jurisdiction to entertain the complaint to grant relief, if it is satisfied that it was a deficiency in service. The plea raised by appellant's counsel,

therefore, is devoid of any substance and the Judgments referred to and relied upon do not apply to the facts of the case being clearly

distinguishable.

Another limb of argument put across by Mr. Bhat, learned Appellant's counsel, is that the Respondent-Appellant had withdrawn from the

proceedings for non-payment of the partof the fee settled with the Complainant-Respondent, which did not amount to deficiency in service on the

part of the Respondent-Appellant and covered by Consumer Protection Act. The lawyer's rights, obligations and disabilities are, therefore,

governed either by the contract or by the statute. He has the right to sue the client like any other professional. In R.D. Saxena Vs. Balram Prasad

Sharma, , while dealing with the rights and obligations of an Advocate towards his client, the Supreme Court held that a n Advocate has no lien in

respect of litigant's papers even if there is a dispute regarding payment of his fee. It was further held that obligation to return the brief is not ajust

legal duty but a moral imperative. That nobody would dispute the proposition that the cause in a court/tribunal is far more important for all

concerned than the right of the legal practitioner for his remuneration in respect of the service rendered for espousing the cause on behalf of the

litigant. It, therefore, follows that an Advocate cannot withdraw from the proceedings in the Court for non-payment of the balance unpaid fee.

Once the Advocate signed the Vakalatnama, he has to appear till the proceedings culminated in finality, in the absence of any agreement to the

contrary. It is not in dispute that Complainant-Respondent had engaged the Respondent-Appellant as his Advocate and hired his services to

defend him in the proceedings before the General Court Martial and the fee was also settled between the Respondent-Appellant and, the

Complainant-Respondent. That the Respondent-Appellant withdrew from the proceedings of the General Court Martial for nonpayment of the

balance fee during the course of the proceedings is also not disputed. The material on record does not show that any notice of withdrawal from the

proceedings for unpaid fee was given to the Complainant-Respondent by the Respondent-Appellant. Even the Vakalatnama allegedly accepted

and signed by the Appellant by the Respondent-Appellant to defend the Complainant-Respondent in Genera! Court Martial has not been

produced. It is true that an Advocate is competent to settle the terms of his engagement and his fee by private agreement with his client, but it is

equally true that if such fee is not paid in full, he has no right to withdraw from the proceedings for nonpayment of balance unpaid fee. Like any

other citizen, an Advocate has a right to recover the fee payable to him by the litigant by way of legal proceedings, however, subject to such

restrictions as may be imposed by law or the rules made in that behalf.

A clearcase of deficiency of service on the part of the Respondent-Appellant to his client in defending, him in, proceedings before the General

Court. Martial by withdrawing from the proceedings has been established. On the basis of material on record, no exception can be taken to the

view expressed by the State Commission on this issue. Once it is found that there is hiring of service for consideration/ fee and that loss has been

caused to the Respondent-Complainant on account of neglect and deficiency in rendering, service, the aggrieved, consumer is entitled to seek

remedy under the Consumer Protection Act by approaching the appropriate Redressal Forum. Every transaction of hiring of service may amount

to a contract in the eyes of law and any deficiency in rendering the service may be technically a breach of contract but merely for that reason the

consumer cannot be denied the benefit of the protection conferred by the Act. In the present case, it is further gatherable from the material on

record that another Lawyer had to be engaged by the Respondent-Complainant and paid his fee for defending him in the remaining proceedings

before the General Court Martial. It is also disclosed that the Respondent-Complainant suffered a great loss because of the Appellant-Respondent

being deficient in rendering service to the Respondent-Complainant in defending him in the proceedings before the General Court Martial for which

his services were hired. We do not find any infirmity or jurisdictional error in the order impugned formulated by the State Commission in awarding

compensation, so as to invite our interference in this appeal.

For the aforesaid reasons, we do not find any merit in this appeal and is accordingly dismissed. Cost of Rs. 5,000/- shall abide the result.