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Introduction
Professionals are required to discharge their
obligations and commitments diligently and befitting with quality
and standards of services. The laws of the land mandate that the
professionals should provide services to the consumers in a required
manner exercising duty of care and while doing so they should not
commit any negligent act. In order to protect the interest of the
consumers against the breach of duty, the deficient services have
been defined by the statute and legal actions have been initiated on
the erring professionals. The services rendered by architects have
also been covered by the relevant laws of the country.
It has been often asked by the Architects why the
legal action taken against architects whenever buildings or any
other built form collapses of which they are the architects, without
inquiring their faults and circumstances leading to the collapse.
The suo motu action against architects have brought disrepute,
embarrassment and mental agony to them, at a time, when they are
unconnected with reasons responsible for the collapse of building.
What is the professional liability of architects
for the buildings which have been designed and its construction and
completion is supervised by them and thereafter, remain under the
control and management of owners/ occupants, and not under the
superintendence of an architect who was originally engaged for the
design and supervision of construction. In reality, the longevity
and stability of the building are dependent upon the observance of
safety and maintenance norms.
Although Council of Architecture has prescribed the
Conditions of Engagement and Scale of Charges, the question of
professional liability of architects during the post completion
period of the project remained a vexed question for many years.
It has been the constant desire and earnest request
of the professionals that Council of Architecture being a statutory
body regulating the Architectural Education and Profession
throughout the country, it should formulate guidelines on
architect's professional liability. Keeping this end in view, the
Council has prescribed guidelines on "Architect's Professional
Liability" to make aware of the architects and the owners and
occupiers of the buildings in what manner and under which
circumstances an architect should be held responsible for the
negligent act/ deficient services and at the same time, it
highlights the clients/ occupiers' duties and responsibilities to be
undertaken by them to preserve the longevity of the building. This
document has been approved by the Council of Architecture at its
40th meeting held on 12th &
13th April, 2002, vide Resolution No.302, as guidelines
to the Architects and user organisations / individual clients.
Prof. Vijayshrikrishna Sohoni
President
1.0 Professional Duties of Architect:
1.1 Service: "Service", as defined under
Section 2 (1) (o) of the Consumer Protection Act, 1986, means
service of any description which is made available to potential
users and includes the provision of facilities in connection with
banking, financing insurance, transport, processing, supply of
electrical or 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. In other
words, rendering professional service by an architect for
"consideration" falls within the ambit of "service". The
relationship between the Client and the Architect is that of
recipient and provider of service. The professional services
rendered by the architect mean the services rendered pursuant to the
Conditions of Engagement and Scale of Charges, entered into between
the Client and the Architect.
1.2 Competence: An architect, being a
professional, shall possess the required knowledge and skill i.e.
proficiency and competence for discharging his professional duties
and functions. These are governed under the provisions of the
Architects Act, 1972 and the Architects (Professional Conduct)
Regulations, 1989, framed thereunder.
1.3 Duty of care: It means duty to exercise
utmost skill and care. When an architect offers professional
advice/architectural services, implicitly undertakes that he is
possessed of the knowledge and skill for the purpose. Thus, an
architect shall bring to his task a reasonable degree of knowledge
and skill and must exercise a reasonable degree of care.
1.4 Duties: The duties that are required to
be performed by an architect for various types of projects have been
prescribed by the Council of Architecture under the Conditions of
Engagement and Scale of Charges for respective areas in the field of
architecture. The documents stipulate the parameters within which
the Architect is required to function. However, the Conditions of
Engagement and matters related therewith for a given project shall
be carried out in accordance with the terms and Conditions of
Agreement executed between the Client and the Architect.
2.0 Professional Conduct:
An architect shall be required to comply with the
standards of professional conduct and etiquette and a code of ethics
set out in clauses (i) to (xxv), read with exceptions covered by
sub-clauses (a) to (h) of sub-regulation (1) of Regulation 2 of the
Architects (Professional Conduct) Regulations, 1989. Violation of
any of the provisions of sub-regulation (1) shall constitute a
professional misconduct.
3.0 Client's - Owner's/
Occupant's duties and responsibilities:
The Owner - Client shall discharge all his
obligations connected with the project and engagement of the
Architect in accordance with the Conditions of Agreement as agreed
upon. Further, the Client(s)-Owner(s) / Occupant(s) upon completion
of the building shall maintain it properly to safeguard and preserve
the longevity of the building.
4.0 Professional Negligence:
4.1 Negligence: "Negligence" of an architect
means failure to take reasonable degree of care in the course of his
engagement for rendering professional services.
4.2 Deficient Service:
4.2.1 "Deficiency", as defined under Section
2(1)(g) of the Consumer Protection Act, 1986, means any fault,
imperfection, shortcoming or inadequacy in the quality, nature and
manner of performance which is required to be maintained by or under
any law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in
relation to any service.
4.2.2 An architect is required to observe and
uphold the Council's Conditions of Engagement and Scale of Charges
while rendering architectural services in terms of Regulation 2 (1)
(xii) of the Architects (Professional Conduct) Regulations, 1989.
Thus, failure to provide any service/services that is/are necessary
for discharge of his duties and functions for the project for which
he has been engaged, amount to deficient service.
4.3 Exceptions:
An architect is not liable for any liability, if
the damage to the building has occasioned in the following
circumstances :
4.3.1 Use of building for the purposes other than
for which it has been designed.
4.3.2 Any changes/ modifications to the building
carried out by the owner(s)/occupant(s) without the consent or
approval of the architect who designed and/ or supervised the
construction of the building.
4.3.3 Any changes/alterations/modifications carried
out by consulting another architect without the knowledge and
consent of erstwhile architect or without obtaining No Objection
Certificate from him.
4.3.4 Illegal/unauthorised changes/alteration/
renovations / modifications carried out by the owner(s)/occupant(s).
4.3.5 Any compromise with the safety norms by the
owner(s)/ occupant(s).
4.3.6 Distress due to leakage from terrace,
toilets, water logging within the vicinity of the building and that
would affect the strength/stability of the structure or general
well-being.
4.3.7 Lack of periodical maintenance or inadequate
maintenance by the owner(s)/occupant(s).
4.3.8 Damages caused due to any reasons arising out
of `specialised consultants' deficient services with regard to
design and supervision of the work entrusted to them, who were
appointed/ engaged in consultation with the Client.
4.3.9 Damages caused to the building for the
reasons beyond the control of the architect.
5.0 Professional Negligence and Deficiency in
Services - Professional Misconduct :
Any person aggrieved by the professional negligence
and/ or deficiency in services provided by the architect, the matter
shall be referred to the Council of Architecture under Rule 35 of
the Council of Architecture Rules, 1973, to adjudicate whether the
architect is guilty of professional misconduct or not.
6.0 Professional Liabilities:
6.1
Indemnity Insurance: The architect is required to indemnify
the client against losses and damages incurred by the client through
the acts of the Architect and shall take out and maintain a
Professional Indemnity Insurance Policy, as may be mutually agreed
between the Architect and the Client, with a Nationalised Insurance
Company or any other recognized Insurance Company by paying a
requisite premium.
6.2 Maintenance of Record: The architect is
required to maintain all records related to the project for a
minimum period of 4 years after the issuance of Certificate of
Virtual Completion.
6.3 Duration: The architect's liability
shall be limited to a maximum period of three years after the
building is handed over to / occupied by the owner, whichever is
earlier.
7.0 Nature of Liability:
An architect is liable for the negligent act which
he committed in the performance of his duties. The action against an
architect can be initiated by the Client on satisfying the following
conditions :
(a) There must exist a duty to take care, which is
owed by an architect to his client.
(b) There must be failure on the part of an
architect to attain that standard of care prescribed by law, thereby
committed breach of such duty;
and
(c) The client must have suffered damage due to
such breach of duty.
7.1 Disciplinary action under the Architects
Act, 1972
If an architect is found guilty of professional
misconduct, he is liable for disciplinary action by the Council of
Architecture under Section 30 of the Architects Act, 1972.
7.2 Civil and Criminal action in the Courts of
Law
7.2.1 The disciplinary action taken by the Council
of Architecture against the architect who has been found guilty of
professional misconduct does not absolve him of his liabilities
under the Code of Civil Procedure,1908 and the Code of Criminal
Procedure,1973, if any.
Some of the relevant laws include, The Law of
Torts, The Consumer Protection Act, 1986 and The Indian Penal Code
1860, etc.
* Prescribed under regulation 2(1)(xii) of the
Architects Professional Conduct Regulations, 1989. This revised
document was approved by the Council of Architecture at its 40th
Meeting held on 12th and 13th April, 2002, vide Resolution No.
303.
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