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An advocate losing a case after arguing is not a ground for filing a consumer complaint as the same does not amount to deficiency in service

Nandlal Lohariya v Jagdish Chand Purohit and others [2021]

Application No. 24842 of 2021

Supreme Court of India

Shah MR and Nagarathna BV, JJ

November 8, 2021

Reported by Faith Wanjiku and Bonface Nyamweya

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Advocates –litigation-advocate losing a case- where an advocate lost a case after arguing- whether the three advocates of the petitioner after losing the case after arguing amounted to a ground for the petitioner to file a consumer complaint for deficiency in service.

Advocates-litigation-consumer complaint -an advocate losing a case- an advocate losing a case after arguing- whether the three advocates of the petitioner after losing the case after arguing amounted to a ground for the petitioner to file a consumer complaint for deficiency in service-whether the petitioner merited the claimed Rs.15 lakhs compensation from the three advocates who were alleged of deficiency in service.

Brief facts:

The petitioner had filed three complaints: no. 101 of 2014, 102 of 2014 and 01 of 2015 before the District Consumer Disputes Redressal Commission, Pratapgarh (District Forum) through his three advocates against BSNL. All the three complaints were dismissed on merit by the District Forum. Later, the petitioner filed a complaint against the three advocates on the basis of deficiency in service on their part in contesting his cases before the District Forum. It was the petitioner’s allegation that the advocates failed to perform their duties well, notwithstanding the complaints being filed with a delay of 365 to 630 days.

Issues:

i. Whether the three advocates of the petitioner after losing the case after arguing amounted to a ground for the petitioner to file a consumer complaint for deficiency in service.

ii. Whether the petitioner merited the claimed Rs.15 lakhs compensation from the three advocates who were alleged of deficiency in service.

Held:

  1. There was a huge delay of 593 days in preferring the special leave petition against an order dated November 25, 2019. The Supreme Court considered the special leave petitions on merits that the petitioner therein filed three complaints (Nos. 101/2014, 102/2014 and 01/2015) before the District Forum through his three advocates against BSNL. All the three complaints came to be dismissed by the District Forum on merits. After dismissal of the complaints, the petitioner therein filed a complaint against the three advocates who appeared on behalf of the petitioner in the aforesaid three complaints alleging deficiency in service on their part in contesting his cases before the District Forum.
  2. It was alleged that all the three advocates had not performed their duties properly. The said complaints were also filed with delay of 365 to 630 days. The petitioner therein claimed for a compensation of Rs.15 lakhs from the advocates alleging deficiency in service in contesting the three complaints which were dismissed. The said complaint filed against the three advocates came to be dismissed by the District Forum. The appeal preferred by the petitioner therein before the State Commission also came to be dismissed, which was the subject matter of the revision petition before the National Commission. By the impugned judgment and order(s), the learned National Commission had dismissed the said revision petition, as also, the review application.
  3. The District Forum, the State Commission and the National Commission had rightly dismissed the complaint filed by the petitioner therein filed against the three advocates who appeared on behalf of the petitioner in the aforesaid three complaints, which as such were dismissed on merits. There were no observations by the District Forum against the advocates that there was any negligence on the part of the advocates in prosecuting and/or conducting the complaints. In the common order, it had been specifically observed by the District Forum that the allegations in the complaints were not proved and due to which all the three complaints were liable to be dismissed. Once the complaints came to be dismissed on merits and there was no negligence on the part of the advocates at all, it could not be said that there was any deficiency in service on the part of the advocates who appeared on behalf of the complainant and lost on merits.
  4. The complaint filed by the petitioner against the three advocates was liable to be dismissed and was rightly dismissed by the District Forum and the same had been rightly confirmed by the State Commission and thereafter by the National Commission. Only in a case where it was found that there was any deficiency in service by the advocate, there could be some case. In each and every case where a litigant had lost on merits and there was no negligence on the part of the advocate/s, it could not be said that there was any deficiency in service by the advocate/s.
  5. If the submission advanced on behalf of the petitioner was accepted, in that case, in each and every case where a litigant had lost on merits and his case was dismissed, he would approach the consumer fora and pray for compensation alleging deficiency in service. Losing the case on merits after the advocate argued the matter could not be said to be deficiency in service on the part of the advocate. In every litigation, either of the party was bound to lose and in such a situation either of the party who would lose in the litigation could approach the consumer fora for compensation alleging deficiency in service, which was not permissible at all.
  6. There was no substance in the present special leave petitions. The Supreme Court would have dismissed the special leave petitions with exemplary costs, however, as the present proceedings arose out of the order passed by the consumer forum, the court refrained from imposing any exemplary costs while dismissing the present special leave petitions.

The special leave petitions were dismissed on the ground of delay as well as on merits. Pending applications, if any, also stood disposed of.

Relevance to Kenya’s legal system

Consumer rights are sheltered in article 46 (1) of the Constitution of Kenya 2010. Sub-article (1) (a) provides for the consumer right to goods and services of reasonable quality and (1) (d) gives the leeway for compensation for loss or injury arising from defects in goods or services.

The Civil Procedure Rules 2010, order 2, rule 4 speaks of matters which must be specially pleaded. It states that a party shall in any pleading subsequent to a plaint plead specifically any matter like performance, release, payment, or any fact showing illegality. Order 2, rule 10 explains about the particulars of pleading like misrepresentation, fraud, breach of trust, willful default or undue influence on which a party pleading relies. Order 4, rule 5 highlights that the defendant’s interest and liability have to be shown. Order 4, rule 6 is eloquent that every plaint shall state specifically the relief which the plaintiff claims.

Section 5 (1) of the Consumer Protection Act, 2012, illustrates about the quality of goods and services whereby it asserts that the supplier is deemed to warrant that the goods or services supplied under a consumer agreement are of a reasonably merchantable quality. Subsection (3) provides that any provision, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any condition or warranty under this Act is void.

The Advocates Act, 1989 (Rev 2012) in section 32B elucidates on the standards of work and remuneration. It notes that the chief justice shall, on recommendation of the Council of the Society, prescribe the standards of work that may be performed by a person employed as an in-house advocate under this act. Section 55 talks of advocates being officers of court hence bound by the discipline code thereof. Section 60 explains about complaints against advocates and observes that a complaint against an advocate of professional misconduct, which expression includes disgraceful or dishonorable conduct incompatible with the status of an advocate, may be made to the tribunal by any person.

In Kimani Ng’ondu Mburu v Catherine Waithira Mwangi T/A Waithira Mwangi & Co. Advocates [2013] eKLR, the plaintiff’s claim against the defendant was based on professional negligence and he sought special damages and interest. However, the High Court made a determination that it was not the plaintiff’s role to sign the claim forms rather if there was to be any action over the reassessment of the compensatory damages for the plaintiff, such would have had to come before court by way of Judicial Review and the only document that the plaintiff may have been required to sign in that connection would have been a supporting affidavit. The court found no merit in the plaintiff’s case hence it was dismissed with costs to the defendant.

On the other hand, in Conrad Masinde Nyukuri & another v Robson Harris & another [2021] eKLR, the High Court allowed the application and gave the 2nd respondent 60 days from the date of the judgement to honor his professional undertaking to the 1st applicant, failure to which the applicant would be at liberty to enforce the same. The applicants were therefore entitled to recover the costs of the suit from the 2nd respondent.

As a natural consequence, the Indian case finds platform in the Kenyan jurisprudence.

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