Anju Aggarwal vs Pawan Kumar Tiwari

Heard Mr. Ved Prakash Aggarwal, revisionist in person.

The above revision has been filed against the order of State Consumer Disputes Redressal Commission, Uttar Pradesh at Lucknow dated 06.05.2022 passed in Appeal No.284/2022 (arising out of the order passed by District Consumer Disputes Redressal Commission, Ghaziabad, dated 14.03.2022 passed in Misc. Case No.265/2020) whereby the complaint has been dismissed as not maintainable and the appeal has also been dismissed.

Anju Aggarwal filed consumer complaint (registered as Misc. Case No.265/2020) for directing Pawan Kumar Tiwari, Advocate (opposite party) to pay (i) Rs.9500/- to the complainant (ii) Rs.1750/- (iii) to pay Rs.30000/- as traveling expenses (iv) to pay Rs.200000/- as compensation for mental agony and harassment, (v) any other relief, which is deemed fit and proper in the fact and circumstances of the case.

In substance in the complaint it has been stated that the complainant engaged Shri. Pawan Kumar Tiwari, Advocate for filing a writ petition headed as Anju Aggarwal and Priti Goyal Vs. State of UP and 7 Ors. and paid Rs.5000/- as part of the fees and expenses on 17.12.2018 which was transferred in the account of opposite party by the husband of the complainant.  On 22.12.2018 again Rs.4500/- has been transferred in the account of the opposite party by the husband of the complainant. Thereafter writ petition no.43219 of 2018 was filed which was listed on 04.01.2019.  On that day the opposite party got the case adjourned and 18.01.2019 was fixed. The case was however listed on 21.01.2019.  On that day the case was again got adjourned for 14.02.2019 and that day the case was got adjourned for 05.03.2019.  On that day the opposite party did not attend the case and it was adjourned for 06.03.2019.  On that the counter affidavit was filed on behalf of respondent No.8.  Instead of taking time for filing rejoinder affidavit, the counsel for the petitioner got the writ petition dismissed with liberty to seek appropriate remedy before the authority concerned. It has been alleged that the opposite party has colluded with the counsel for the respondent in the writ petition and initially the case was got adjourned on several dates and later on it was got dismissed with liberty to seek appropriate remedy before the authority concerned in this way the opposite party has committed deficiency in service.

The District Consumer Dispute Redressal Commission, Ghaziabad by order Dated 14.03.2022 held that the term service has been defined under Section 2(42) of Consumer Protection Act, 2019, in which “any service free of charge or under a contract of personal service” have been excluded from the definition of the service. The service of an Advocate is a contract of personal service; therefore, the complainant was not a consumer and the complaint is not maintainable under Consumer Protection Act, 2019. On these findings the complaint was dismissed with liberty to seek relief before appropriate forum. The petitioner challenged the aforesaid order in Appeal No.284 of 2022. State Commission, by judgment dated 06.05.2022, held that the complainant has already made a complaint before Bar Council Uttar Pradesh against the opposite party, which would be decided in accordance with law. The appeal has been dismissed.  Hence, this revision has been filed.

We have considered the arguments of petitioner and examined the record. In substance, the allegations have been made in the complaint that the opposite party has took the papers and fees for filing a petition in High Court, but after filing of the petition it was got dismissed with liberty to seek appropriate remedy therefore, there was a deficiency in service on the part of the opposite party. The term service as defined in Section 2(42) of Consumer Protection Act, 2019 is quoted below: -

“(42) "service" means 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, telecom, boarding 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.”

This definition is similar to the definition of the service as under Section 2(1)(o) of the Consumer Protection Act, 1986. The term “service” came for consideration before a Bench of four Members of this Commission in Shri A.C.Modagi Vs. Cross Well Tailor & Anr., II (1991) CPJ 586 and this Commission noticed that the contract for service has been defined in Strouds Judicial Dictionary as follows:

“A contract to render services is not the same thing as a ‘contract of service’; semble, the latter implies some relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance.”  Then the following passage was noted from the judgment of Supreme Court in Vaish Decree College Vs. Laxmi Narain & Ors. AIR 1976 SC 888, page 902): -

“11.   From the above authorities it is clear that personal service stems from a master and servant relationship which is totally different from a lawyer-client relationship or other professional or technical relationship.  The reason for excluding the rendering of service ‘under a contract of personal service’ from the definition of ‘service’ under the Act is obvious.  Such an employee can be turned out of service by the master at will and, therefore, no occasion can arise for the master to complain about the deficiency in the rendering of service by the employee.”

Thereafter, the issue as to whether the services provided by the Advocate falls within the definition of ‘service’ as defined under Section 2(1)(o) of Consumer Protection Act, 1986 came up for consideration before this Commission in D.K. Gandhi Vs. M. Mathias, III (2007) CPJ 337 (NC).  In this case, this Commission found as follows: -

“3.  ….. The ambit and scope of Section 2(1)(o) of the Consumer Protection Act which defines ‘service’ is very wide and by this time well established. It covers all services except rendering of services free of charge or a contract of personal service.  Undisputedly, Lawyers are rendering service.  They are charging fees. It is not a contract of personal service. Therefor there is no reason to hold that they are not covered by the provisions of Consumer Protection Act, 1986.”

District Commission has referred the judgment of Supreme Court in Special Leave Petition (C) Diary No.24842 of 2021, Nandlal Lohriya Vs. Jagdish Chandra Purohit & Anr. In this case, the consumer commission have decided the complaint on merit against the Advocate and not on the ground of maintainable, therefore, this Judgment was not relevant for deciding the present case. The judgment of this Commission in D.K.Gandhi’s case (supra) has skipped notice from the District Commission and State Commission.  Judgments of both the foras are contrary to the judgment of National Commission in D.K. Gandhi’s case (supra) and are not good.

ORDER

In the result, the revision succeeds and is allowed and orders of District Consumer Disputes Redressal Commission dated 14.03.2022 and State Commission dated 06.05.2022 are set aside.  The matter remanded to the District Consumer Disputes Redressal Commission, Ghaziabad, who shall admit the complaint to its original number and shall proceed and decide on merit in accordance with law.