Professionals Are Not Businessmen/Traders; Clients/Patients Are Not Consumers: Supreme Court Doubts Its 3 Decades Old 'IMA vs VP Shantha' Judgment
The Supreme Court observed that its three decades old judgment in Indian Medical Association Vs. V.P. Shantha [1995] Supp. (5) S.C.R. 110 deserves to be ‘revisited’ by a larger bench.
In VP Shantha, a three-Judges Bench had held that service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both· medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act.
The Bench referred the matter to the Chief Justice of India for consideration stating that in their opinion, neither a ‘Profession’ could be treated as a ‘business’ or ‘trade’ nor the services provided by the ‘Professionals’ could be treated at par with the services provided by a businessmen or traders, so as to bring them within the purview of the Consumer Protection Act, 1986 (now Consumer Protection Act, 2019) [the Act].
Justice Bela M Trivedi, in her judgment (Justice Pankaj Mithal authored a separate concurring opinion), observed, “The legislative draftsmen are presumed to know the law and there is 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 CP Act. Any interpretation of the Preamble or the scheme of the Act for construing ‘Profession’ as ‘Business’ or ‘Trade’; or ‘Professional’ as ‘service provider’ would be extending the scope of the Act which was not intended, rather would have a counter productive effect.”
"It is very well accepted proposition of the fact that Professionals could not be called Businessmen or Traders, nor Clients or Patients be called Consumers. It is also required to be borne in mind that the terms ‘business’ or ‘trade’ having a commercial aspect involved, could not be used interchangeably with the term ‘Profession’ which normally would involve some branch of learning or science", the court added.
Senior Advocates Narender Hooda, Guru Krishna Kumar, Manoj Swarup, Manan Mishra, Jaideep Gupta, Shekhar Naphade, D.K. Sharma and Vikas Singh represented the appellant, while Sr. Advocates Jaideep Gupta, Shekhar Naphade, Adish C. Aggarwala, Sukumar Pattjoshi, Arijit Prasad, Jayant Bhushan, Dinesh Kumar Goswami and S. Wasim Ahmed Quadri appeared for the respondents.
The Supreme Court set aside the impugned judgment of the National Consumer Disputes Redressal Commission (NCDRC) which relied on VP Shanta's (Supra) case and brought lawyers under the purview of the Act holding that a complaint against a lawyer would be maintainable if there was any deficiency in service rendered by them. The moot question for consideration was whether the legal services of the lawyer availed of by the client would be covered under the Act.
“Having regard to the role, status and duties of the Advocates as the professionals, we are of the opinion that the legal profession is sui generis i.e unique in nature and cannot be compared with any other profession,” the Bench clarified.
The Bench also remarked that the very purpose and object of the Act as re-enacted in 2019 was to protect the consumers from unfair trade practices and unethical business practices, and the Legislature never intended to include either the Professions or the services rendered by the Professionals within the purview of the said Act.
Therefore, a complaint alleging ‘deficiency in service’ against advocates practising legal profession would not be maintainable under the Act.
In its judgment, the Court clarified that professionals, both in the legal and medical fields could be sued or held liable for their alleged misconduct or tortious or criminal acts. “The fact that professionals are governed by their respective Councils like Bar Councils or Medical Councils also would not absolve them from their civil or criminal liability arising out of their professional misconduct or negligence. Nonetheless, as discussed hereinabove, we are of the opinion that neither the Professions nor the Professionals were ever intended to be brought within the purview of the CP Act either of 1986 or 2019,” the Court added.
The question as to whether a given relationship should be classified as a contract ‘for services’ as opposed to a contract ‘of service’ ( contract ‘of personal service’) had been a “vexed question of law and is incapable of being answered with exactitude without reference to the underlying facts in any given case.”
Considering the amount of direct control exercised by a client over how an advocate renders their services during the course of employment, the Court remarked that “the services hired or availed of an Advocate would be that of a contract ‘of personal service’ and would therefore stand excluded from the definition of “service” contained in the section 2(42) of the CP Act, 2019.”
Accordingly, the Supreme Court allowed the appeals.
Cause Title: Bar of Indian Lawyers v. D.K. Gandhi PS National Institute of Communicable Diseases & Anr. (Neutral Citation: 2024 INSC 410)
Appearance:
Appellant: Sr. Advocates Narender Hooda, Guru Krishna Kumar, Manoj Swarup, Manan Mishra, Jaideep Gupta, Shekhar Naphade, D.K. Sharma and Vikas Singh; AOR Ashok Kumar Singh, Daya Krishan Sharma, Akshay Amritanshu, Varun Punia, Anjani Aiyagari, Mohinder Jit Singh, Suveni Bhagat and Daya Krishan Sharma; Advocates Shantwanu Singh, Pragya Singh, Akshay Singh, Rahul Dubey, D K Sharma, Rohit Vats, Yashdeep, Samyak Jain, Ayush Raj, Ankit Swarup, Neelmani Pant, Apoorva Singh, Rishi Bhargava, Yashvi Aswani, Jasbir Singh Malik, Chandni Sharma, Shaurya Lamba, K. Maruthi Rao, Gaurav Yadava, Hardik Rupal, Satyam Aneja, Vishwaja Rao, Rahul Narang, Harshed Sundar, Nihar Dharmahikari, Rohit Vats, Shubham Rana, Piyush Goel and Sunita Sharma
Respondents: Sr. Advocates Jaideep Gupta, Shekhar Naphade, Adish C. Aggarwala, Sukumar Pattjoshi, Arijit Prasad, Jayant Bhushan, Dinesh Kumar Goswami and S. Wasim Ahmed Quadri; AOR N. Annapoorani, Devvrat, Shashank Shekhar; Advocates Manoj K. Mishra, Snehashish Mukherjee, Rashmi Malhotra, Puneet Singh Bindra, Sachin Sharma, Harshita Sharma, Sachita Chawla, Swati Setia, Devesh Kumar Agnihotri, Rohit Pandey, Meenesh Kumar Dubey, Yugandhara Pawar Jha, Amrendra Kumar Singh, Vibhu Shanker Mishra, Kumar Gaurav, Vikas Gupta, Pratap Venugopal, Chanchal Kumar Ganguli, Manish Goswami, Upendra Mishra, Ratnesh Kumar, Meghraj Singh, Pradeep Kumar Yadav
