| Dec-01-2021

As per Consumer Protection Act losing a case on merit could not be termed as deficiency in service by the advocate: Supreme Court

Hon’ble Supreme Court in Nandlal Lohariya v. Jagdish Chand Purohit and Ors. [S.L.P. (C) Diary No. 24842 of 2020, decided on November 8, 2021] held that in each and every case where a litigant has lost the case on merits and is not guilty of negligence, it cannot be said that there was any deficiency in service by the litigant. Further, held that in every case either of the party is bound to loose and in such situation, the party who lost the case will approach consumer forum alleging deficiency in service and demand for compensation, which is not permissible.

Nandlal Lohariya (“the Petitioner”) filed three complaints against BSNL before the District Forum through his three advocates. All the three complaints were dismissed by the District Forum on merits. Further, the Petitioner filed complaint against the three advocates who appeared on behalf of him in the abovementioned complaint alleging deficiency in service on their part in contesting his cases before the District Forum.

The District Forum dismissed the complaint and observed that there was no negligence on the part of the advocates in prosecuting and/or conducting the complaints, similar view was taken by the State Commission and National Commission. Aggrieved by the same the Petitioner preferred the present Special Leave Petition (“SLP”).

The Hon’ble Supreme Court observed that the three advocates who appeared for the Petitioner before the District Forum lost the case on merits therefore it cannot be alleged that there was deficiency of service on part of three advocates while contesting the three complaints.

Held that, the District Forum has rightly dismissed the complaint filed by the Petitioner and has rightly been confirmed by State Commission and National Commission.

Observed that, if submissions advanced by the Petitioner are accepted, then in each and every case where the litigant has lost on merits has to face the allegations of deficiency of service before the consumer forum.

Further held that, losing the case on merits after the advocate argued the matter cannot be said to be deficiency in service on the part of the advocate.

Our Comments:

National Consumer Dispute Resolution in the case of D.K. Gandhi v. M. Mathias [Appeal No.1815/2000 dated August 6, 2007] held that lawyers should not be held responsible for the unfavorable outcome of a case as the result/outcome does not depend only on the lawyers services, but if there is deficiency in rendering services promised, for which consideration in the form of fee is received by him, then the lawyers can be proceeded against under the Consumer Protection Act, 1986.

In P. Krishna Rao & Anr v. Mandipalli Devaiah [FA No. 30/2002 decided on February 8, 2002] State Commission of Andhra Pradesh upheld the order of the District Forum that the appellant, practicing advocate, failed in their duty in properly drafting the plaint in a suit which falls under the definition of ‘deficiency in service’ by an advocate.

In our view it can be construed that in a litigation either party is bound to lose and unfavorable outcome of a case does not depend only on lawyers services, but if a lawyer fails to perform his basic duties like non appearance, abstaining from court, non filing of replies, not arguing the matter or any such act which is detrimental to the interest of the client, the advocate can be held be held liable for compensation under the Consumer Protection Act, 1986.

(Author can be reached at info@a2ztaxcorp.com)

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