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Judgment
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.283/2022 (arising out of the order passed by District Consumer Disputes Redressal Commission, Ghaziabad, dated 14.03.2022 passed in Misc. Case No.266/2020) whereby the complaint has been dismissed as not maintainable and the appeal has also been dismissed with cost of Rs.10000/-.
Ved Prakash Aggarwal filed consumer complaint (registered as Misc. Case No.266/2020) for directing Rajesh Singh, Advocate (opposite party) to pay (i) Rs.18350/- to the complainant with interest @ 18% per annum, (ii) Rs.1750/- with interest @18% per annum, (iii) to pay traveling expenses for doing pairavee in the complaint before Bar Council of Uttar Pradesh filed against the opposite party (iv) Rs.200000/- as compensation for mental agony and harassment, (v) Rs.20000/- as the cost of the litigation and (vi) 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 met with Shri Jayanti Vikram Singh in the chamber of an Advocate at Ghaziabad Court, who introduced himself to be an assistant of Rajesh Singh, Advocate (the opposite party). The complainant handed over papers for filing a Public Interest Litigation (PIL) in Allahabad High Court and Rs.7500/- towards the fees and expenses. Thereafter, PIL No.56775 of 2015 was filed, which was disposed of on 06.10.2015. Thereafter, the complainant met with opposite party on 13.07.2018 and handed over documents for filing a petition. As and when the complainant made inquiry in respect of filing of that petition, the opposite party informed that he was preparing the case and asked the complainant to come Allahabad to get his Photo-ID. The complainant went on Allahabad on 17.11.2018 in the chamber of the opposite party and met to his colleague as opposite party was not available in chamber. The complainant was informed that father of the opposite party was suffering from illness, therefore, he was in difficulty and was not available in chamber. By that time the writ petition was not prepared and later on whenever the complainant tried to talk with the opposite party on phone, the phone was not picked up nor reply of message on WhatsApp was given. The complainant was asked to give Rs.5000/-, which was transferred by the complainant in the account of opposite party on 30.11.2018, but the opposite party did not proceed with the drafting and filing of the petition. The complainant sent a letter dated 08.02.2019 through a registered post although the registered post was not received back to the complainant nor the opposite party has given any reply of that letter. The complainant then went at the residence of opposite party on 24.02.2019 then again Rs.5000/- was demanded, which was transferred in the account of the opposite party on 25.02.2019, but the opposite party has neither prepared the petition nor filed it. 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 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.283 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 with cost of Rs.10000/-. 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 although the opposite party has accepted the papers and fees for filing a petition in the High Court, but he has not filed it, 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 false 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 foras 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.