Advocates Liable for Negligence Under Consumer Law

TEAM CODE : R100
2017 INTRA LAW SCHOOL MOOT COURT COMPETITION
BEFORE THE HON’BLE
SUPREME COURT OF
INDIA
PRITHVIRAJ & Ors ---APELLANT
V.
KANISHQ ---RESPONDENT
MEMORIAL FOR THE RESPONDENT

2017 LAW SCHOOL MOOT COURT COMPETITION B.H.U
LIST OF ABBREVIATIONS
AIR: ALL INDIA REPORTER
SCC: SUPREME COURT CASES
NCDRC: NATIONAL CONSUMER DISPUTES REDRESSEL COMMISSION
A.C: APPEAL CASES
O.S: ORDINARY SUIT
CPA: CONSUMER PROTECTION ACT
SC: SUPREME COURT
HC: HIGH COURT
1|P a g e

2|P a g e

TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………………………………………………………03
STATEMENT OF JURISDICTION………………………...……………………………….06
STATEMENT OF FACTS………………………………………………………………..…07
STATEMENT OF ISSUES………………………………………………………………….08
SUMMARY OF ARGUMENTS ADVANCED…………………………………………….09
ARGUMENT ADVANCED…………………………………………………………….......11
ISSUE 1 : whether an advocate can omit his/her duty negligently without facing any liability
?..............................................................................................................................................11.
ISSUE 2 : Are advocates also included under the ambit of consumer protection act ?.........16
ISSUE 3 : Can an advocate be made liable for deficiency of services and is client a consumer
?..............................................................................................................................................19
ISSUE 4 : Is there a violation of article 19(1)g of the constitution of India ?........................21
PRAYER FOR RELIEF……………………………………………………………………...23
3|P a g e

INDEX OF AUTHORITIES
CASES
1. Hedley Byre & Co. Ltd. V. Heller & partners……………………………………………11
[1964] A.C 465; [1963] 3 W.L.R 101; [1963] 2 AII E.R 575
2. White v. Jones; 1995 A.C 207…………………………………………………………….11
3. Stovin v. Wise; [1996] A.C 923 at 994 A-B………………………………………………12
4.Arthur J.S Hall & Co. v. Simons; [2000] 3 W.L.R 543……………………………………13
5. D.P Chadda v. Narain Mishra AIR 2001 SC 457……………..………………………….13
6.A. regd. Society v. union of India & Ors 1994 (5) SCC 557………………………………14
7. Hussainara Khatoon v. Home secy, state of Bihar 1980 (1) SCC 81……………………..14
8. Lucknow Development Authority v. M.K Gupta [1994] 1 SCC 243……………………..16
9. V.N Nair v. Compolitan Hospitals (P) Ltd; [1991] CPJ 444…………......………………16
10.K. Ramaswamy v. Jaya Vittal [1991] CPJ 688...…………………………………………17
11. Premier Automobiles v. Jayesh Fabrics; II[1995] CPJ (N.C)……………………………17
12. Srimati v. Union of India; [1997] CPJ 99……...………………………………………...17
13. Donoughe v. Stevenson; [1932] A.C 562……………………..…………………………18
14. R.K Kannappan v. K.P.K Komalam II[2005] CPJ 673 (T.N)……………………………19
15.S.Mahendran v. Chirayinkil C.P Bandra Kumar 1992 (2) C.P.R 667……………………19
4|P a g e

BOOKS
LAWYERS LIABILITY, by EVANS, HUGH., 2ND EDITION, SWEET & MAXWELL
ISBN CODE-0-421-77040-6
SUBRAMANYAM’S COMMENTARIES ON ADVOCATES ACT 1961,by LAL, C.S., 2ND
EDITION, LAW PUBLISHER (INDIA) PVT. LTD; ISBN CODE-81-7111-110-1
FUNDAMENTAL RIGHTS AND THEIR ENFORCEMENTS, by RAI, U.R,,PHI
LEARNING PVT. LTD.; ISBN CODE-978-81-203-4432-7
INTRODUCTION TO THE CONSTITUTION OF INDIA, by Dr. Basu, D.D.,20TH
EDITION, LEXIS NEXIS; ISBN CODE-978-81-8038-559-9
LAW OF CONSUMER PROTECTION (PRINCIPLES AND PRACTICE), by SINGH,
AVTAR,4TH EDITION., EASTERN BOOK COMPANY
LEGISLATIONS
1.Law of Torts
2.The Constitution of India (1950
3.The Advocates Act (1961)
4.Consumer Protection Act (1986)
5|P a g e

WEBSITES
http://www.livelaw.com
http://www.swarb.co.uk
http://www.e-lawresourses.co.uk
http:// www.indiakanoon.org
http://www.vmslaw.edu.in
6|P a g e

STATEMENT OF JURISDICTION
It is humbly submitted that the appellant has approached the Hon’ble Supreme court of India
under the article 32 of the constitution of India. The respondent submits to the same.
7|P a g e

STATEMENT OF FACTS
1.Kanishq,resident of vijaynagarh, who owned 10 acres of agricultural land under a survey
no. 10/5 filed a suit numbered as O.S 239/2017before the civil judge for the declaration and
injuction against Devraj. During the suit he counterclaimed on devraj..The suit decreed in
favour of kanishq. Devraj field Regular appeal before the First Appellate court. On receipt of
Appeal notice kanishq engaged a lawyer sri. Prithviraj and gave him fifty thousand rupees as
initial fees. However, sri. Prithviraj, sought several adjournments to argue on behalf of
Kanishq. He did not turn up to argue even when it was posted for final argement.
2. The appellate court reversed the findings of the trail court and decreed the counter claim in
O.S 239/2017. In its judgement the appellate court noted the absence of respondent’s
advocate and pointed the non-cooperation of sri Prithviraj.
3. Sri Prithviraj adviced kanishq to file second appeal against the judgement of the first
Appellate court and referred the name of sri. Ajathshatru... Kanishq engaged Ajathshastru and
paid him one lakh rupees but here, he delayed the submission of appeal and the limitation
period was over.
4. kanishq filed a case against both he advocates before the National Consumer Disputes
Redressal Commission (NCDRC),at New Delhi for ‘deficiency of service’ and claimed a
compensation of 1 crore rupees
5. kanishq accused the advocates for negligence and they defended them by citing the
immunity of the advocate in consumer protection act, 1986. However, NCDRC upholds the
claim of kanisq and directed the advocates to pay a compensation of 1 crore rupees. Now
both the advocates file a case in the honourable supreme court against the NCDRC judgment.
8|P a g e

STATEMENT OF ISSUES
ISSUE 1 : whether an advocate can omit his/her duty negligently without facing any
liability ?
ISSUE 2 : Are advocates also included under the ambit of consumer protection act ?
ISSUE 3 : Can an advocate be made liable for deficiency of services and is client a
consumer ?
ISSUE 4 : Is there a violation of article 19(1)g of the constitution of India ?
9|P a g e

SUMMARY OF ARGUMENTS ADVANCED
ISSUE 1 : whether an advocate can omit his/her duty negligently without facing any
liability ?
No. an advocate cannot omit his/her duty negligently without facing any liabilities because
the advocate has a fudiciary relationship with the client which is based on trust which a client
has towards him/her. Thus a duty of care exists and if this duty is breached it will amount to
negligence and will give rise to tortious liability. Now even the law does not grant full
immunity to advocates. Advocates Act, 1961 also provide
for the rules of conduct of the Advocates.
ISSUE 2 : Are advocates also included under the ambit of consumer protection act ?
Yes. In the case of Srimathi v. Union of India The decision in this case has given rise to
another controversy and that concerns the applicability of CPA to the legal profession in
India. With regard to the contention that once section 3 was declared unconstitutional, no
person could institute any proceeding before the consumer forums. The High Court held that
even if the section was declared to be unconstitutional “other sections of the Act will
continue to be intact and if the services of the advocate fall within the definition of service
under section 2(1)(o) of the Act, then it will certainly be open to a client to proceed against
the advocate before the Consumer Redressal Forum.”
ISSUE 3 : Can an advocate be made liable for deficiency of services and is client a
consumer ?
10 | P a g e

Yes as an advocate is responsible for deficiency of services.The lawyers render service and
charge a fee for it, the basic requirement of service under CPA, 1986. A lawyer may not be
responsible for the favourable outcome of a case, but he should be liable if there is a
deficiency in rendering the promised services. There is a need to examine the amplitude of
the term ‘deficiency in services’ under this Act. The question whether all the acts or omission
of the legal practitioners may constitute the deficiency in service as defined under the CPA,
1986, will be answered in Arguments Advanced.
The Consumer Protection Act section 2 (d)(ii) defines ‘consumer of services’, as “any person
who hires or avails of any services for consideration which has been paid or promised…”
Therefore to prove that a client of an advocate is a consumer, he has to satisfy the following
criteria:
a) Services are hired or availed of: Means if any person goes to advocate and hires or
avail of his services, he is called a consumer. In other ways if it is established that a
particular act constitutes hiring of services, the transaction falls within the net of the CPA and
vice-versa.
b) Consideration must be paid or payable: Consideration is regarded necessary for hiring
or availing of services. However, its payment need not necessarily be immediate. It can be in
instalments
ISSUE 4 : Is there a violation of article 19(1)g of the constitution of India ?
No ,because article 19(1)g which contains the right to practice any profession, or to carry on
any occupation, trade or business. But this freedom is not absolute and is subjected to some
reasonable restrictions.
11 | P a g e

ARGUMENTS ADVANCED
ISSUE 1:-
Whether an advocate can omit his/her duty negligently without facing any liability ?
An advocate is a person who has a legal responsibility of representing his client in court,
He/she puts and upholds his/her client’s interest and help the client to get justice.
The above issue is concerned with whether the an advocate can omit his/her duty negligently
without facing any liability. The counsel do not agree with this and will put its arguments to
prove it.
1.1 Duty of care and liability of an advocate
An advocate has a duty of care towards his client and if he breaches that duty of care ,he is
committing tort of negligence and has to face tortious liability .
In the present case appellant ,that is, shri prithviraj and shri ajatshatru both have breached
their duty of care without any lawful justification and thus they will be liable of the tort of
negligene and will have to face tortious liability that was decided by National Consumer
Disputes Redressel Commission (NCDRC).
Advocates owe duties of care to disappointed beneficiaries (that is, Clients) who do not
obtain the expected benefit under a will because of their negligence (The Beneficiary
Principle). In the case of Hedley Byre & co. ltd. V. Heller & partners ltd.1
1
[1964]A.C 465; [1963] 3 W.L.R 101;[1963] 2AII E.R 575
12 | P a g e

(Held in The House of lords) liability was imposed despite the fact that the beneficiaries have
not relied upon the solicitors. It was held in this case that ; irrespective of any contract, if
someone who is possessed of a special skill undertakes to apply that skill for the assistance
of another person who relies upon such skills, then a duty of care will rise.
In certain circumstances a professional advisor may be liable even in the absence of
contractual or fiduciary relationship between himself and the peson who has suffered some
economic loss.
Lord Delvin considered the sort of relationship which gave rise to a responsibility towards
those who act upon information or advice and so created a duty of care towards the person
so acting. He said “I do not understand any of your lordships to hold that it is a responsibility
imposed by law upon certain type of persons or in certain sorts of situations. It is a
responsibility that is voluntarily accepted or undertaken; either generally where a general
relationship, such as of solicitor and client or bank and customer is created or specifically in
relation to a particular transaction”.
Thus, it made any advocate or solicitor liable to his client because he owes a duty of care
towards his client which has to be followed irrespective of whether there exists a contract or
not.
Thus in this case both the advocates shri Prithviraj and shri Ajatshatru will be held liable
because both of them owe a duty of care to their client kanishq . Prithviraj did not take case
of kanishka case seriously and sought for various adjournments to argue on behalf of
kanishq. He did not turn up to argue even when it was posted for final arguments due to
which the court gave ex-parte decision in favour of his opponent Devraj. Shri Ajathshatru
also delayed in filing second appeal and filed it after the limitation period was over which
resulted in the rejection of appeal by the second court of appeal. Thus it was the negligence
13 | P a g e

and breach of duty of care of both which made their client suffer and thus they are tortuously
liable under negligence.
The Beneficiary Principle has been uphold by the house of lords abiet by only a 3:2 majority
in white v. Jons2
Facts in brief is as follows :
As a result of a family row, Mr. Barrat made a will which left nothing to his children. He was
soon reconciled with them, and wanted to change it. He therefore sent a letter to the
defendant solicitors which gave instructions for a new will leaving £9,000 to each of them.
The defendants made 2 appointments to see Mr. Barrat, but did not keep them, and he died 3
days before a third one.
Turner, J. held that defendant solicitors owed no duty of care to the plantiff, but the decision
was reversed by the court of Appeal, whose decision was upheld by the house of lords, albeit
on different grounds.
Sir Nicholls, Donald said that “……..if solicitors was not so liable, he would go scot
free…….they cannot accord with the objectives the law seeks to attain when imposing upon
solicitors and other professional advisors a duty to exercise due professional skill and care.”
This argument based on general deterrence of providing the defendant with a financial
incentive to exercise greater care has found judicial support in other cases like lord Hoffman
in Stovin v. Wise3.
Lord Goff adds 2 further reasons to explain the impulse to impose liability. He considered
that the right to leave one’s assets to whoever one pleases is significant one, and gifts under a
will make a substantial difference to many of the recipients. The denial of liability would
2 1995 A.C 207

3
[1996]A.C 923 at 994 A-B
14 | P a g e

mean that such beneficiaries would suffer badly.
1.2 Immunity of an advocate
An advocate is no longer immune from any claim for negligence by a disappointed client for
negligence by a disappointed client in relation to court work and pre-trail work intimately
connected with it. The application of the principle of abuse off process to actions against
lawyer is a most recent development. If a lawyer’s negligence lead to the conviction of his
client, any claim against lawyer is an abuse of process, as it would be a collateral attack on
the earlier decision. This rule no longer applies to earlier civil litigation, but only criminal
conviction.
The House of lords in Arthur J.S Hall & Co. (a firm) v. Simons4 gave a historical
decision. This case is both recent and revolutionary. No previous professional negligence
case has ever involved a 7-judge House of Lords, and these are few enough cases which have
reached that tribunal. In abolishing advocate’s immunity their lordships have overturned a
doctrine which has been established for centuries and which has been established for
centuries and which has been examined by the House of Lords twice in the last 30 years.
1.3 Professional misconduct in The Advocates Act 1961
Section 35 of The advocates act 1961 says that professional misconduct is grave when the
advocate betrays the confidence of his client and gravest, when he deliberately attempts to
mislead the court.
The client places his faith and fortune in the hands of the counsel for the purpose of that case
the court places its confidence in the case, after case and day after day.5
4
[2000]3W.L.R 543
5
D.P Chadda v. Narain Mishra, AIR 2001 SC 457 at pp. 463,464,465: 2001 (2) SCC 221 : J.T. 2000 (S-
3) S.C. 505 : 2000 (1) S.L.T. 13.
15 | P a g e

1.4 Can lawyers abstain from their duty to represent their client in court ?
No, lawyers cannot abstain from their duty. It is illustrated as follows:-
The services rendered by the advocates to their clients are regulated by a contract between the
two besides statutory limitations, restrictions and guidelines incorporated in the Advocates
Act, the Rules made thereunder and Rules of procedure adopted by the Supreme Court and
the High Courts. Abstaining from the courts by the Advocates, by and large, does not only
affect the persons belonging to the legal profession but also hampers the process of justice .
In Common Cause, A Regd. Society v. Union of India & Ors.6 it was observed, "Since
litigants have a fundamental right to speedy justice as observed in Hussainara Khatoon v.
Home Secy., State of Bihar 7[1it is essential that cases must proceed when they appear on
board and should not ordinarily be adjourned on account of the absence of the lawyers unless
there are cogent reasons to do so. If cases get adjourned time and again due to cessation of
work by lawyers it will in the end result in erosion of faith in the justice delivery system
which will harm the image and dignity of the Court as well". Noting casual and indifferent
attitude of some of the lawyers and expecting improvement.
Thus, the advocated cannot omit their duty and in case of omission can face tortious liability.
Therefore Prithviraj and Ajatshatru have to pay compensation of 1 crore rupees as directed by
NCDRC to Kanishq.
6
1994 (5) SCC 557
7
1980 (1) SCC 81
16 | P a g e

Issue 2 :-
Are advocates also included under the ambit of consumer protection act.
Introduction
The tendency of lawyers’ work to address congeries of problems associated with particular
types of clients, organized the profession into types of lawyers.8 In all contexts, the work of
lawyers should be and in most cases, regulated. This regulation is necessitated by the fact that
clients need to be able to rely on their lawyers for advice and representation, and tribunals,
courts and other authorities need to be able to rely on lawyers’ integrity.9 However lawyering
is nothing but accountability.10 Just joining the bar as a legal practitioner is not the beginning
or end of the professional journey.11 While providing legal services like other professionals,
lawyers invite liability for negligence or deficiency in services in various laws.12
2.1 advocates under the ambit of consumer protection
Does the lawyer’s relationship with his client envisage a service under sec. 2 (1)(0) of the
CPA? If yes, then the client is a consumer under sec.2 (1)(d)(ii) of CPA. The term ’service’ is
defined under sec 2 (1)(0). "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
8 Stewart Macauloy, “Lawyers and Consumer Protection Laws,” (Law and Society Review, Vol.14.No.1
(Autumn, 1979)). P.120
9 By Michael Kagan, “Setting Standards of Ethics, Competence and Accountability for Legal Aid in
the Context of UNHCR RSD,” Available @ kaganethicswpproposal.
10
Dr. S. Mustafa Alam Nagui, “Consumer Protection Act, 1986 and Professional Obligation,”
(1stedn., Faridabad: Allahabad Law Agency Law Publishers, 2005, P.150).
11
Lalitkumar Singh, “A View on the Legal Profession,” (AIR, 2006), P.2
12
B.S. Venugopal, “Civil Liability of the Lawyers for Deficiency in Services : A Critical Analysis,”
(JILI, Vol.53:2, 2011), P.275
17 | P a g e

other energy, board 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. As held in Lucknow Development
Authority v.M.K.Gupta,13 this definition has three parts – the main part, the inclusory
part and exclusory part. The inclusory parts are merely illustrative whereas the main part is
expansive to cover any form of service.
In V.P.Nair v. Cosmopolitan Hospitals (P) Ltd.14 it was held that “the definition of
service appearing in the main part is most comprehensive in nature.” This comprehensiveness
has to be compared with K.Rangaswamy v. Jaya Vittal,15 perhaps the first reported case
on the issue. The complainant in this case had engaged the services of an advocate at
Bangalore for conducting a civil writ petition before the Karnataka High Court by paying
consolidated fee of Rs.2500. The complainant allegedly paid Rs.2000 to the advocate through
two cheques when the said writ petition came up for hearing. It was passed over to the next
day on account of the absence of the respondent’s counsel. The said case was not decided on
the next date, too. In the meanwhile, the respondent demanded Rs.3000 more but the
complainant expressed his inability to pay the said amount. The respondent failed to appear
on behalf of the complainant on the day of the next hearing and the case of the complainant
was accordingly dismissed.
Aggrieved at this attitude of the advocate, the complainant filed a complaint against the
advocate for his professional misconduct. The question in this case before the Consumer
Dispute Redressal Commission was whether by virtue of section 35 of Advocates Act, 1961,
advocates are amenable to Consumer Protection Act, 1986. The National Consumer Dispute
13
(1994) 1 SCC 243
14
(1991) CPJ 444
15
(1991) CPJ 688
18 | P a g e

Redressal Commission answered the question in the affirmative and held that the service
offered by the respondent to the complainant was one under the ‘contract of personal service’
and therefore could not be considered as ‘service’ within the meaning of CPA. According to
the Commission, the complainant was not a consumer within the meaning of section 2 (d) of
CPA and the dispute between him and the respondent could not be termed as a “consumer
dispute”.
However, in Premier Automobiles v.Jayesh Fabrics,16 the State Commission has held
liable an advocate, Viplav Sharma, for collusion, fabrication and destruction of documents.
The State Commission also sent a copy of adverse findings to the Bar Council, Delhi, for
taking action against the said advocate. However, on appeal, the National Commission, while
setting aside the order of the State Commission, had reached the conclusion that without any
such material or evidence on record and without providing any reasonable opportunity to the
advocate, without following rules of natural justice, the said conclusion and the direction to
the Bar Council of India were without jurisdiction.
The above issue once again arose in Srimathi v. Union of India,17 a case decided by the
Madras High Court. In this case; the Court held that the consumer forums have got the
necessary jurisdiction to deal with the claims against the advocates. The decision in this case
has given rise to another controversy and that concerns the applicability of CPA to the legal
profession in India. With regard to the contention that once section 3 was declared
unconstitutional, no person could institute any proceeding before the consumer forums. The
High Court held that even if the section was declared to be unconstitutional, “other sections
of the Act will continue to be intact and if the services of the advocate fall within the
definition of service under section 2(1)(o) of the Act, then it will certainly be open to a client
16
111 (1995) CPJ 24 (NC)
17
(1997) 5 CTJ 99
19 | P a g e

to proceed against the advocate before the Consumer Redressal Forum.” The court further
observed that the object of the petitioners to exclude the advocates from the purview of the
Consumer Redressal Forum could not be achieved by the grant of the prayer made in the writ
petitions, namely, to declare section 3 of the Act as unconstitutional.34
Issue 3:-
Can an advocate be made liable for deficiency of services and is client a consumer ?
3.1 Deficiency in Service in Case of Lawyers
The lawyers render service and charge a fee for it, the basic requirement of service under
CPA, 1986. A lawyer may not be responsible for the favourable outcome of a case, but he
should be liable if there is a deficiency in rendering the promised services. There is a need to
examine the amplitude of the term ‘deficiency in services’ under this Act. The question
whether all the acts or omission of the legal practitioners may constitute the deficiency in
service as defined under the CPA, 1986, is to be answered.
The basic facet of the legal profession is the lack of simplistic definition of negligence. The
test of “a prudent man’ as laid down in Donoughue v. Stevenson18 is unknown to the
legal profession, and mere negligence as understood above, unaccompanied by moral
deficiency does not constitute professional misconduct. A dictum of a special bench of
Madras High Court has clearly held that neglect of duties would not amount to professional
misconduct, since the element of moral deficiency is the main ingredient of professional
misconduct.
The CPA, section 2 (1)(g) clearly defines the term ‘deficiency in service’. Therefore the
deficiency must be in relation to and always in term of a service which an advocate provides
to the client. Thus if the grievance pertains to a matter which does not fall in the definition of
18
(1932) A.C 562
20 | P a g e

service (section 2 (1)(o)), the concept of deficiency would not apply. In other way advocate
would not be liable to the client under CPA, 1986.
In R.K.Kannappan v. K.P.K. Komalam,19 the professional fee was deducted
from land acquisition compensation. Contention that 10% towards fee was deducted from the
amount awarded by the Sub-Court as agreed between parties, was not acceptable. Deficiency
in service was proved. Complaint was rightly allowed by the forum.
In S. Mahendran v. ChirayinkilC. P. Badra Kumar,20 where advocate failed to file a
suit; it amounted a deficiency in service on the part of the advocate. The complainant was
held entitled to costs fixed by the NCDRC and was directed to be paid by the opposite
party to the complainant within one month.
3.2 Client : A Consumer
The Consumer Protection Act section 2 (d)(ii) defines ‘consumer of services’, as “any person
who hires or avails of any services for consideration which has been paid or promised…”18
Therefore to prove that a client of an advocate is a consumer, he has to satisfy the following
criteria:
a) Services are hired or availed of: Means if any person goes to advocate and hires or avail
of his services, he is called a consumer. In other ways if it is established that a particular act
constitutes hiring of services, the transaction falls within the net of the CPA and vice-versa.19
b) Consideration must be paid or payable: Consideration is regarded necessary for hiring
or availing of services. However, its payment need not necessarily be immediate. It can be in
installments. For the services provided without charging anything in return; the person
19
II (2005) CPJ 673 (TN)
20
1992 (2) CPR 667
21 | P a g e

availing the services is not a consumer under the Act. For e.g.: A client hires an advocate to
file a suit for recovery of money from his employer. He promises to pay fee to the advocate
after settlement of the suit. That client is a consumer under the Act.
The C.K.Johnnyv.Jaisundaram,21 is an instance for the above reasons, where it has been
held that “a client is a consumer as he has availed the service of the advocate for appropriate
consideration.”The draft for Legal Practitioners (Regulation and Maintenance of Standards in
Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010., also
defines “Consumer of Legal Profession” includes the clients of legal professionals and
anyone who might have recourse to legal services because of a legal issue and those who are
using or may be contemplating using services provided by the legal professionals in relation
to the legal services arising out of a legal issue.
Conclusion:-
Thus it can be concluded from the above facts and arguements –
(a) Client is a consumer. Therefore kanishq is a consumer
(b) Advocates also comes under the ambit of consumer protection law. Therefore both
Prithviraj and Ajathshastru will be liable as per the directions of NCDRC.
(C) The negligence on the part of both the advocates amount to ‘deficiency of services’
ISSUE 4 :-
Is there a violation of article 19(1)g of the constitution of India ?
21
(1995) CPJ 311
22 | P a g e

No ,because article 19(1)g which contains the right to practice any profession,
or to carry on any occupation, trade or business. But this freedom is not absolute
and is subjected to some reasonable restrictions.
Even the honourable high court of Allahabad said that the right to practice law
is not an absolute right but only restricted in nature and limitation on such a
right can always be placed.
So the liability imposed by NCDRC on both the advocates do not influence
their fundamental right of freedom to practice their profession but it is a civil
wrong which they have committed and has to bear liability for it.
23 | P a g e

PRAYER FOR RELIEF

In the light of the issues raised, arguments cited, may this Hon’ble Supreme Court be pleased
to:
1. Hold Sri. Prithviraj and Sri. Ajathshatru liable for negligence and the damage cause to
Kanishq due to it.
2. Uphold the decision of the NCDRC make both the advocates, reimburse to Kanishq
3. Remove the stay against the operation and execution of award.
4. Pass such a judgement which could help clients like Kanishq who have suffered from the
negligence of Advocates.
5 The relief to Kanishq should be provided as early as possible because he has no means of
learning livelihood after loosing his land due to the negligence of both the advocates.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Respondent as in duty bound, shall humbly pray.
COUNSELS FOR THE RESPONDENT
TEAM CODE: R100
24 | P a g e

Advocates Liable for Negligence Under Consumer Law

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Advocates Liable for Negligence Under Consumer Law

Uploaded by

Copyright:

Available Formats

TEAM CODE : R100

2017 INTRA LAW SCHOOL MOOT COURT COMPETITION

BEFORE THE HON’BLE

PRITHVIRAJ & Ors ---APELLANT

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

AIR: ALL INDIA REPORTER

SCC: SUPREME COURT CASES

NCDRC: NATIONAL CONSUMER DISPUTES REDRESSEL COMMISSION

A.C: APPEAL CASES

O.S: ORDINARY SUIT

CPA: CONSUMER PROTECTION ACT

SC: SUPREME COURT

HC: HIGH COURT

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

SUMMARY OF ARGUMENTS ADVANCED…………………………………………….09

ISSUE 4 : Is there a violation of article 19(1)g of the constitution of India ?........................21

PRAYER FOR RELIEF……………………………………………………………………...23

MEMORIAL FOR THE RESPONDENT

2. White v. Jones; 1995 A.C 207…………………………………………………………….11

3. Stovin v. Wise; [1996] A.C 923 at 994 A-B………………………………………………12

4.Arthur J.S Hall & Co. v. Simons; [2000] 3 W.L.R 543……………………………………13

5. D.P Chadda v. Narain Mishra AIR 2001 SC 457……………..………………………….13

8. Lucknow Development Authority v. M.K Gupta [1994] 1 SCC 243……………………..16

9. V.N Nair v. Compolitan Hospitals (P) Ltd; [1991] CPJ 444…………......………………16

10.K. Ramaswamy v. Jaya Vittal [1991] CPJ 688...…………………………………………17

11. Premier Automobiles v. Jayesh Fabrics; II[1995] CPJ (N.C)……………………………17

12. Srimati v. Union of India; [1997] CPJ 99……...………………………………………...17

13. Donoughe v. Stevenson; [1932] A.C 562……………………..…………………………18

14. R.K Kannappan v. K.P.K Komalam II[2005] CPJ 673 (T.N)……………………………19

15.S.Mahendran v. Chirayinkil C.P Bandra Kumar 1992 (2) C.P.R 667……………………19

MEMORIAL FOR THE RESPONDENT

LAWYERS LIABILITY, by EVANS, HUGH., 2ND EDITION, SWEET & MAXWELL

SUBRAMANYAM’S COMMENTARIES ON ADVOCATES ACT 1961,by LAL, C.S., 2ND

EDITION, LAW PUBLISHER (INDIA) PVT. LTD; ISBN CODE-81-7111-110-1

FUNDAMENTAL RIGHTS AND THEIR ENFORCEMENTS, by RAI, U.R,,PHI

LEARNING PVT. LTD.; ISBN CODE-978-81-203-4432-7

INTRODUCTION TO THE CONSTITUTION OF INDIA, by Dr. Basu, D.D.,20TH

EDITION, LEXIS NEXIS; ISBN CODE-978-81-8038-559-9

LAW OF CONSUMER PROTECTION (PRINCIPLES AND PRACTICE), by SINGH,

AVTAR,4TH EDITION., EASTERN BOOK COMPANY

2.The Constitution of India (1950

3.The Advocates Act (1961)

4.Consumer Protection Act (1986)

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

advocate and pointed the non-cooperation of sri Prithviraj.

period was over.

compensation of 1 crore rupees

MEMORIAL FOR THE RESPONDENT

ISSUE 4 : Is there a violation of article 19(1)g of the constitution of India ?

MEMORIAL FOR THE RESPONDENT

SUMMARY OF ARGUMENTS ADVANCED

immunity to advocates. Advocates Act, 1961 also provide

for the rules of conduct of the Advocates.

the advocate before the Consumer Redressal Forum.”

MEMORIAL FOR THE RESPONDENT

1986, will be answered in Arguments Advanced.

avail of his services, he is called a consumer. In other ways if it is established that a

b) Consideration must be paid or payable: Consideration is regarded necessary for hiring