Design Dissertation Topic - Disaster Resilient Housing

ASSIGNMENT NO 2 TOPIC: Professional and legal responsibilities of the

Architect towards the client and the contractor
SUBMISSION BY: DAKSHATA KOLI -17020

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.

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.