Grounds
For referring the SC order to larger Bench
(
Lawyers not service providers under consumer protection act)
1. Dharangadhra Chemical Works Ltd.
vs. State of Saurashtra and Others., AIR 1957 SC 264.
There
is unresolved issue in the judgment which has been pin -pointed by the judges
themselves, the question of distinction on the basis of job assignment;
Vakalatnama for representation or expert advice for hiring services
“In my opinion it is impossible to lay down
any rule of law distinguishing the one from the other. It is a question of fact
to be decided by all the circumstances of the case. The greater the amount of
direct control exercised over the person rendering the services by the person
contracting for them the stronger the grounds for holding it to be a contract
of service, and similarly the greater the degree of independence of such
control the greater the probability that the services rendered are of the
nature of professional services and that the contract is not one of service.”
There
is no clear version as to what way this degree can be measure. Does this mean
that providing expert opinion and other legal drafting’s etc, advocate is
service provider and representing in the court on the strength of VAKALATNAMA
is not a service provider?
2. Mathew
Jackob v State of Punjab 2005 CTJ 1085 SC
National
commission while concluding his judgement had also referred to the case
of Mathew
Jackob v State of Punjab 2005 CTJ 1085 SC, wherein Apex court had held that in law of negligence,
professionals, such as lawyers, doctors, architects and others are included in
the category of persons professing some special skill and professional may be
held liable for negligence.
“Every
professional including advocates, charted accountants, doctors etc who provides
services by receiving payment is a service provider under consumer protection
act “
3. V.Shanta
v Indian Medical Association SC 1995
While
explaining the relationship between the doctor and patient, SC held that
relationship between the doctor and patient is a contract for service and not
contract of service
4
Srimathi V Union of India AIR 1996 Mad 427
Incidentally
this argument was earlier also discussed in the matter of Srimathi
V Union of India AIR 1996 Mad 427-That the Fact That Advocates Are Governed by
The Statutory enactment and rules framed thereunder
are subject to the disciplinary control of the statutory body but it was held
that there is no provision to enable the bar council to deal with the dispute
between the advocate and the client to compensate him for the damages and
refund the money.
·
K Vishnu v National Consumer Dispute Redressal
Commission (NC)2000
This
National commission earlier also in the matter of K Vishnu v
National Consumer Dispute Redressal Commission had observed in 2000 that
even if the advocate is regarded as officer of the court and is a part of the
justice system, he cannot be set free from his basic role of services to his
client for the consideration received.
·
A special word ‘not limited to’ used in the
definition of service alongwith number of services quoted
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