Full Judgment Text & Judicial Ruling

2025 C L D 1141 [Islamabad] Before Mohsin Akhtar Kayani and Saman Rafat Imtiaz, JJ MURTAZA TALPUR---Appellant Versus LEOPARDS COURIER SERVICES---Respondent Criminal Appeals Nos. 422 of 2022 and 16 of 2023, decided on 3rd June, 2024. (a) Islamabad Consumer Protection Act (III of 1995)--- ----Ss.8(1) & 9(3)---Punjab Consumer Protection Act (II of 2005), S.31---Extent of jurisdiction of Islamabad Consumer Court---Scope---Whether Consumer Court can award general/special damages---Consumer Court's jurisdiction to award broader damages examined---Consumer Court can entertain full spectrum of damage claims---Punjab Consumer Protection Act, 2005 permits broader remedies including legal costs---Phrase "any damage or loss"---Meaning and interpretation---Its interpretation includes emotional and financial harm---Senior citizen stranded abroad after flight cancellation---Rs. 500,000 claimed for distress and loss---The moot point which came up for determination before the High Court was as to "whether the Islamabad Consumer Court, under Section 9(3) of the Islamabad Consumer Protection Act, 1995, was legally empowered to award general and special damages, including compensation for mental agony, emotional distress, litigation expenses, and financial loss, arising from an unfair trade practice, or whether such remedies fell exclusively within the jurisdiction of civil courts?"---This moot point encapsulated the core legal controversy adjudicated in the case, i.e., the extent of the jurisdiction of the Islamabad Consumer Court and the interpretation of the phrase "any damage or loss" in light of legislative language, judicial precedents, and comparative statutory analysis (e.g., Punjab Consumer Protection Act, 2005)---The previously prevailing interpretation by the High Court was that under S. 9(3) of the Islamabad Consumer Protection Act, 1995, the Consumer Court could not award general or special damages, instead, only the actual damage or loss suffered could be compensated, and any broader claim for damages had to be pursued through a civil suit before a court of general jurisdiction---Due to this legal conflict, the matter was referred to the Division Bench for authoritative interpretation of the scope of S. 9(3) of the Islamabad Consumer Protection Act, 1995---Held: Requiring the consumer to seek special damages and general damages for the same cause of action from a different forum will only lead to multiplicity of proceedings---Since the plain language of S. 9(3) of the Islamabad Consumer Protection Act, 1995 authorized the learned Islamabad Consumer Court to award compensation for damage or loss without any restriction (except that it must be damage or loss suffered on account of any unfair trade practice) and the Islamabad Consumer Court may frame issues, record evidence, etc., there was no reason why only the consideration paid may be recovered under the Islamabad Consumer Protection Act, 1995 but not any other type of damage even if suffered on account of an unfair trade practice---The word 'any' used in S. 9(3) of the Islamabad Consumer Protection Act, 1995 before the words 'damage or loss' implied a wide scope of damages and loss and included all or every damage or loss suffered by the consumer on account of 'unfair trade practice' (as defined in the Islamabad Consumer Protection Act, 199)---In comparison to the Punjab Consumer Protection Act, 2005, the general and special damages including mental distress and agony were recoverable thereunder where facts and circumstances entitled the consumer to damages over and above the consideration paid---The appeals were allowed and the impugned judgments were set aside by remanding the matter to the Consumer Court to record evidence in respect of the claim of the appellants with regard to general damages allegedly suffered by them on account of mental torture, shock, agony and financial loss and expenses, etc.---Cases remanded. TCS (Private) Limited v. Mst. Haseena Begum PLD 2022 Lah. 524 and Noor Bibi and 13 others v. Meer Muhammad alias Meer Jan and 4 others 2018 CLC 87 ref. Ashfaq Ahmed Khan v. PTCL and others PLD 2016 Isl. 112; Messrs Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Lucknow Development Authority v. M.K. Gupta AIR 1994 SC 787; Noman Ahmed and 14 others v. Capital Development Authority through Chairman and another PLD 2021 Isl. 75; Consumer Unity and Trust Society, Jaipur v. The Chairman and Managing Director, Bank of Baroda, Calcutta (1995) 2 SCC 150 and Abdul Haq Khan v. Haji Ameerzada and others PLD 2017 SC 105 rel. (b) Islamabad Consumer Protection Act (III of 1995)--- ----Ss.8(1) & 9(3)---Punjab Consumer Protection Act (II of 2005), S.31---Comparative analysis of Punjab and Islamabad consumer protection laws---Whether Consumer Court can award general/special damages---Consumer Court empowered to grant full compensation---Statutory language allowing recovery beyond price paid---The provisions of the Punjab Consumer Protection Act, 2005 serve as a useful comparison in this regard---Section 31 of the Punjab Consumer Protection Act, 2005 provides the actions the Punjab Consumer Court can order the defendant to take in the stipulated circumstances---Examination of S. 31 of the Punjab Consumer Protection Act, 2005 reveales that price or charges paid by the claimant; compensation for loss; damages; and actual costs including lawyer's fees incurred on the legal proceedings are treated as separate and distinct remedies that could be ordered by the Punjab Consumer Court---It was clear from Ss. 10 & 15 of the Punjab Consumer Protection Act, 2005 that the consideration paid and cost incurred is a component of damages which is treated as a separate remedy only because it is the consumer's sole remedy in the stipulated circumstances and in contradistinction thereto, the Islamabad Consumer Protection Act, 1995 does not expressly restrict the recovery of damages to return of the consideration amount or cost incurred in any given circumstances rather it empowers the Consumer Court to order compensation for any damage or loss suffered through any unfair trade practice as may be deemed appropriate---Since the plain language of S. 9(3) of the Islamabad Consumer Protection Act, 1995 authorizes the Islamabad Consumer Court to award compensation for damage or loss without any restriction (except that it must be damage or loss suffered on account of any unfair trade practice) and the Islamabad Consumer Court may frame issues, record evidence, etc., there was no reason why only the consideration paid may be recovered under the Islamabad Consumer Protection Act, 1995 but not any other type of damage even if suffered on account of an unfair trade practice---Consumer Court Islamabad was empowered to award compensation to a consumer for any damages or loss suffered through any 'unfair trade practice' including but not limited to consideration paid provided the consumer was able to prove such damages. Noman Ahmed and 14 others v. Capital Development Authority through Chairman and another PLD 2021 Isl. 75 ref. Abdul Haq Khan v. Haji Ameerzada and others P L D 2017 SC 105 rel. (c) Islamabad Consumer Protection Act (III of 1995)--- ----Ss.8(1) & 9(3)---Scope of 'compensation' in consumer protection law---Purpose of compensation explained---Restoration to pre-injury position'---The concept of compensation or damages is to make the injured person whole or in other words to restore him to the same position as he was in prior to the injury insofar as money can do so---Where a consumer has been a victim of an unfair trade practice he may not always be placed in the same position he occupied before he suffered the damage through the unfair trade practice merely by return of the consideration he had paid. Noman Ahmed and 14 others v. Capital Development Authority through Chairman and another PLD 2021 Isl. 75 and Mehr Ashraf v. Station House Officer PLD 2022 Lah. 328 ref. (d) Islamabad Consumer Protection Act (III of 1995)--- ----Ss. 8(1) & 9(3)---Jurisdiction of the Consumer Court---Scope---Factors to be considered while adjudicating a complaint---Application of Qanun-e-Shahadat (10 of 1984)---While adjudicating upon a complaint under the Islamabad Consumer Protection Act, 1995 especially while awarding compensation in terms of S. 9(3) thereof, the court shall conduct an inquiry which includes: (i) Framing the points of determination/issues; (ii) Requiring oral evidence or evidence through affidavits; (iii) Allowing parties to cross-examine the witnesses; (iv) Producing documentary evidence; (v) Calling record from any authority, company, office; (vi) Summoning any expert witness to resolve the technical question of issue related to proposition in hand; (vii) Principles of Qanun-e-Shahadat, 1984, have to be applied. (e) Islamabad Consumer Protection Act (III of 1995)--- ----Ss.8(1) & 9(3)---Jurisdiction of the Consumer Court---Vested jurisdiction must be exercised---Failure to exercise jurisdiction defeats the very purpose of granting jurisdiction---Multiplicity of proceedings to be avoided---Same cause of action should not lead to parallel litigation---Consumer Courts are designed for consolidated and swift redress of claims, not partial or piecemeal remedies---Refusal to exercise vested jurisdiction not only tends to defeat the purpose of conferring jurisdiction but also exposes litigants to unnecessary hardship, expenditure and multiplicity of proceedings---Requiring the consumer to seek special and general damages for the same cause of action from a different forum will only lead to multiplicity of proceedings. Noor Bibi and 13 others v. Meer Muhammad alias Meer Jan and 4 others 2018 CLC 87 ref. (f) Islamabad Consumer Protection Act (III of 1995)--- ----Ss.8(1) & 9(3)---Jurisdiction of the Consumer Court---Litigation costs, entitlement to---Scope---Costs awarded as reimbursement for expenses incurred by successful party---As far as the litigation costs claimed by the appellants was concerned such costs by their very nature were actual costs awarded to reimburse the successful party for the expenses incurred by it---The general rule is that costs follow the event---Costs is a pecuniary allowance made to the successful party for its expenses in prosecuting and defending an action---Therefore, in the present case the Islamabad Consumer Court was not justified in refusing to allow the appellants an opportunity to prove that they were entitled to compensation for damage or loss suffered by them allegedly on account of mental torture and agony, expenses, financial loss, and litigation cost---The appeals were allowed and the impugned judgments were set aside by remanding the matter to the Consumer Court to record evidence in respect of the claim of the appellants with regard to general damages allegedly suffered by them on account of mental torture, shock, agony and financial loss and expenses, etc.---Cases remanded. Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 rel. Dileep Kumar Doshi for Appellant (in Crl. Appeal No. 422 of 2022). Bebbr Sattar for Appellant (in Criminal Appeal No. 16 of 2023). Sajjad Zafar for Respondent (in Criminal Appeal No. 422 of 2022). M. Hafeez for Respondent (in Criminal Appeal No. 16 of 2023). Date of hearing: 25th April, 2024. JUDGMENT SAMAN RAFAT IMTIAZ, J.--- 1. By this common judgment, we intend to dispose of Criminal Appeals Nos. 422/2022 and 16/2023 arising out of Judgment and Order dated 20-10-2022 and 07-12-2022 respectively passed by the learned Judge Consumer Court, Islamabad ("Islamabad Consumer Court") and which have been referred to this Division Bench constituted by the Honorable Chief Justice of Islamabad High Court in pursuance of the Orders dated 09.02.2023 and 28-08-2023 passed by a Single Bench of this Court to consider, inter alia, whether the Consumer Court constituted under the Islamabad Consumer Protection Act, 1995 ("Islamabad Consumer Protection Act") is empowered to grant general and special damages, as well as cost of litigation. Facts in Criminal Appeal No. 422 of 2022 2. This Criminal Appeal has been filed by the Appellant [Murtaza Talpur] against the Judgment dated 20-10-2022 ("Impugned Judgment") passed by the Islamabad Consumer Court. 3. The brief facts of the case as per the Memo of Appeal are that a friend of the Appellant sent him 70 kg mangoes from Hyderabad through the Respondent [Leopards Courier Service] on 30-06-2022. The Appellant received 7 boxes of mangoes in Islamabad which were broken and badly damaged. The seals were open and more than 20kg mangoes were missing. The Appellant contacted the Respondent for redress of his grievance but all in vain. 4. The Appellant filed complaint under Section 8(1) of the Islamabad Consumer Protection Act before the Islamabad Consumer Court. The learned Islamabad Consumer Court allowed the complaint vide the Impugned Judgment only to the extent of the consignment cost amounting to Rs.2,800/- but rejected the claim of recovery of damages for mental torture and agony, and litigation cost by relying upon Ashfaq Ahmed Khan v. PTCL and others PLD 2016 Islamabad 112, hence this appeal. Facts in Criminal Appeal No. 16 of 2023 5. This Criminal Appeal has been filed by the Appellant [Nuzhat Shaheen Awan] against the Order dated 07-12-2022 ("Impugned Order") passed by the Islamabad Consumer Court. 6. The brief facts of the case as per the Memo of Appeal are that the Respondent [Serene Air Private Limited] issued flight confirmation No. CKGXZQ to the Appellant for departure from Islamabad to Jeddah on 26-05-2022 at 4 a.m. by flight ER-1801 and return to Islamabad from Jeddah on 23-06-2022 at 9 a.m. on flight ER-1802 and received payment of Rs.93,435/-. On 30-05-2022, the Respondent sent an SMS and on 11-06-2022 an email informing the Appellant that flight ER-1802 from Jeddah to Islamabad on 23-06-2022 has been cancelled due to operational reasons. The Respondent stranded the Appellant on foreign soil without making return journey arrangement rather offered the reimbursement of half of the amount of actual return airfare. The Appellant is a female and senior citizen. The Respondent's gross negligence caused emotional distress, mental agony, waste of time and monetary losses to the Appellant to the tune of Rs. 500,000/-. 7. The Appellant filed complaint under Section 8(1) of the Islamabad Consumer Act before the learned Islamabad Consumer Court. The learned Islamabad Consumer Court dismissed the complaint while observing inter alia that the Consumer Court cannot award damages incurred in lawyer's fees, expenses, and damages and that the Appellant should institute a civil suit for recovery of damages with regard thereto, hence this appeal. Arguments 8. The learned counsel for the Appellants relied upon Section 9(3) read with Section 2(f)(i), of the Islamabad Consumer Protection Act to argue that the respective complaints of the Appellants fell within the ambit of .unfair trade practice. and in view thereof compensation could be granted by the Islamabad Consumer Court. They further submitted that reliance of the Islamabad Consumer Court upon Ashfaq Ahmed Khan (Supra) is misplaced as according to the latest view expressed in Waqas and Brothers Enterprises (Private Limited) v. Messrs DHL Express and another PLD 2021 Islamabad 333 damages can be granted. Alternatively it was submitted that at the very least the Islamabad Consumer Court was empowered to impose penalty pursuant to Section 9(1) of the Islamabad Consumer Protection Act. 9. On the other hand, the learned counsel for the Respondents opposed the arguments made on behalf of the Appellants and submitted that the Appellants failed to produce any evidence before the Islamabad Consumer Court to prove the claim of damages for mental torture and agony, and litigation cost as claimed. It was, therefore, argued that the learned Islamabad Consumer Court has validly and justly decided the complaints vide the Impugned Judgment and Order and that the instant appeals are liable to be dismissed. Referral by Single Bench to Division Bench 10. Initially, the instant criminal appeals were fixed before a Single Bench of this Court who disagreed with the earlier view taken in the case of Ashfaq Ahmed Khan (Supra) (followed by the learned Islamabad Consumer Court in rejecting the Appellants. claim of general damages) to the extent that it was held that under Section 9(3) of the Islamabad Consumer Protection Act, general or special damages cannot be awarded by the Consumer Court rather loss or damage actually suffered is to be considered as measuring factor to award the same to the consumer whereas general or special damages may be recovered by a suit filed in a civil court of competent jurisdiction. The relevant portion is reproduced as under: "22. Compensation under Islamabad Consumer Protection Act, 1995 is only to be given in case of unfair trade practice, if proved after holding an enquiry by the Authority. However, the provision of Section 9(3) of the Act imposes restriction to award compensation upon the Authority only to the extent the consumer has suffered any damage or loss through the act of unfair trade practice, hence, it can safely be concluded that under this law general damages cannot be awarded rather actually suffered loss or damage is to be considered as measuring factor to award the same only to the consumer. 23. Consumer right to claim special or any other kind of damages under general law is protected notwithstanding the claim awarded by the Authority under Islamabad Consumer Protection Act, 1995, therefore, the consumer can file separate claim/suit in the Court of general jurisdiction for his relief." [Emphasis added]. 11. While following the principle settled in Messrs Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423, the Single Bench vide orders dated 09-02-2023 and 28-08-2023 referred the matter of interpretation of Section 9(3) of the Islamabad Consumer Protection Act to a larger bench which led to the constitution of this Division Bench by the Honorable Chief Justice. These cases have, therefore, been fixed before this Division Bench for an authoritative pronouncement of the law on the scope of section 9(3) of the Islamabad Consumer Protection Act, 1995. Section 9(3) of the Islamabad Consumer Protection Act 12. Before going further, let us consider the provision under discussion i.e. Section 9(3) of the Islamabad Consumer Protection Act which is reproduced herein below: 9. Penalties.- (1) ... (2) . (3) The Authority may, where it deems appropriate, order for payment of compensation to the consumer to the extent the consumer has suffered any damage or loss through any unfair trade practice. [Emphasis added]. 13. As may be seen from the above reproduction, Section 9(3) of the Islamabad Consumer Act empowers the learned Islamabad Consumer Court to order, where it deems appropriate, payment of compensation for any damage or loss suffered by the consumer. The only caveat is that the compensation that may be ordered is to the extent of damage or loss suffered by the consumer through 'any unfair trade practice'. In other words, compensation may be granted only for the damage or loss suffered by the consumer as a consequence of any 'unfair trade practice' as defined in the Islamabad Consumer Protection Act and not for damage or loss incurred by the consumer for any act or omission which does not constitute an 'unfair trade practice' thereunder. 14. Next we must consider the use of the word 'any' appearing before the words 'damage or loss' in Section 9(3) ibid which is not without significance. To this end, we quote the following passage from the judgment rendered by the Indian Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta AIR 1994 Supreme Court 787 wherein the word 'any' as used in the definition of 'service' in the erstwhile Consumer Protection Act, 19861 in force and effect in India came under discussion and it was held that the word 'any' is of wide amplitude: "4. . Clause (o) of the definition section defines it as under: "Service" 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 loading 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 contract of personal service. It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words 'any' and 'potential' are significant. Both are of wide amplitude. The word 'any' dictionary means 'one or same or all'. In Black's Law Dictionary it is explained thus, word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "same" or "one" and its meaning in a given statute depends upon the context and subject matter of the statute'. The use of the word 'any' in the context it has been used in Clause (o) indicates that it has been used in wider sense extending from one to all." [Emphasis added]. 15. Similarly, the word 'any' as used in Section 9 (3) of the Islamabad Consumer Protection Act before the words 'damage or loss' implies a wide scope of damages and loss and includes all or every damage or loss suffered by the consumer on account of 'unfair trade practice' (as defined in the Islamabad Consumer Protection Act). Punjab Consumer Protection Act, 2005 16. The provisions of the Punjab Consumer Protection Act, 2005 serve as a useful comparison in this regard. Section 31 of the Punjab Consumer Protection Act, 2005 provides the actions the Punjab Consumer Court can order the defendant to take in the stipulated circumstances and is reproduced as follows: "31. Order of Consumer Court.---If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely:- (a) to remove defect from the products in question; (b) to replace the products with new products of similar description which shall be free from any defect; (c) to return to the claimant the price or, as the case may be, the charges paid by the claimant; (d) to do such other things as may be necessary for adequate and proper compliance with the requirements of this Act; (e) to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant; (f) to award damages where appropriate; (g) to award actual costs including lawyers fees incurred on the legal proceedings; (h) to recall the product from trade or commerce; (i) to confiscate or destroy the defective product; (j) to remedy the defect in such period as may be deemed fit; or (k) to cease to provide the defective or faulty service until it achieves the required standard." [Emphasis added]. Examination of Section 31 of the Punjab Consumer Protection Act, 2005 reveals that price or charges paid by the claimant; compensation for loss; damages; and actual costs including lawyer's fees incurred on the legal proceedings are treated as separate and distinct remedies that can be ordered by the Punjab Consumer Court. 17. Insofar as price or charges paid by the claimant and damages are concerned, the Punjab Consumer Protection Act, 2005 contains certain parameters regarding the consumer's entitlement in terms of Sections 4, 10, 13 and 15 which are reproduced as follows: 4. Liability for defective products.---(1) The manufacturer of a product shall be liable to a consumer for damages proximately caused by a characteristic of the product that renders the product defective when such damage arose from a reasonably anticipated use of the product by a consumer. (2) A product shall be defective only if- (a) it is defective in construction or composition as provided in section 5; (b) it is defective in design as provided in section 6; (c) it is defective because an adequate warning has not been given as provided in section 7; and (d) it is defective because it does not conform to an express warranty of the manufacturer as provided in section 8. 10. Restriction on grant of damages.---Where the consumer has not suffered any damage from the product except the loss of utility, the manufacturer shall not be liable for any damages except a return of the consideration or a part thereof and the costs. 13. Liability for faulty or defective services.---A provider of services shall be liable to a consumer for damages proximately caused by the provision…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Islamabad High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant