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Petitioner: Mohammad Aslam Wadani VS Respondent: Presiding Officer, District Consumer Court, JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Shan Gul Title:Mohammad Aslam Wadani vs Presiding Officer, District Consumer Court,
JUDGMENT
Reported As: 2023 YLR 130 Result: Appeal allowed Judgment JUDGMENT MUHAMMAD SHAN GUL, J.---Through the present judgment F.A.O. No.75 of 2014 titled as "Muhammad Aslam Wadani v. Presiding Officer, etc." as also F.A.O. No.133 of 2014 titled as "Rafique Ahmad v. Presiding Officer, etc." are sought to be decided. 2. Both appeals seek to challenge Order dated 07.12014 passed by the Presiding Officer, District Consumer Court, D.G. Khan whereby he accepted the claim of respondent No.2 in part and awarded him compensation amounting to Rs.1,65,000/- to be paid by the present appellants who were held jointly and severally liable. 3. The judgment/Order under challenge in the present matter fits the bill of a perfect wedding replete with all the works but without a bridegroom. The. Order under challenge, quite academic in nature, meticulously attends to the preliminary objections raised by the appellants, addresses them with the help of precedent case law and, therefore, is quite appropriate in the particular context of addressing preliminary and legal objections raised by the appellants. However, while doing so the Order under challenge completely and blithely ignores and forgets the main issue before the court and, therefore, does not address the actual issue involved in the matter. To this extent the matter needs to be remanded to the District Consumer Court, D.G. Khan so as for the court to rehear the matter and pass an appropriate Order that fulfills the requirements of section 2(9) and (14) and Order XX, Rule 4 of the Code of Civil Procedure, 1908 as also section 31 of the Punjab Consumer Protection Act, 2005. The District Consumer Court, while it sheds appropriate light on the preliminary objections and addresses them, fails conspicuously and falls manifestly short in identifying, discussing, considering and addressing the main issue involved.
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Complainant's Grievance: 4. In his complaint under section 25 of the Punjab Consumer Protection Act, 2005 ("the Act, 2005"), the complainant (Qaiser Abbas) stated that defendant No.1 (Muhammad Aslam Wadani/Appellant No.1) operates a car showroom at Jampur Road, Dera Ghazi Khan and the complainant approached defendant No.1 for the purpose of purchase of a car. Complainant bought an already used Suzuki Cultus bearing Registration No. MNA-470 from defendant No.1 against a consideration of Rs.5,85,000/- but the car, after its purchase did not operate well due to various mechanical defects and the complainant had to spend Rs.50,000/- for the mechanical works required to keep the car operational but even this could not properly fix the car. Frustrated, the complainant went back to defendant No.1 and asked him to sell the car (Suzuki Cultus/MNA-470) and arrange an alternative. Defendant No.1 arranged an already used Cuore Daihatsu car (owned by defendant No.2, appellant in the connected F.A.O. No.133 of 2014) for a sum of Rs.625,000/-. Complainant exchanged the Suzuki Cultus/MNA-470 with Cuore Daihatsu bearing Registration No. MNA-4546 and paid the differential of Rs.40,000/- to defendant No.1 upon the representation of defendant No.1 that the engine of the Cuore Daihatsu/MNA-4546 is 100% in order and that the said car has not been re-painted. The second car i.e Cuore Daihatsu/MNA-4546 also did not operate well and upon inspection, a motor mechanic confirmed that not only the engine is in a dilapidated state but the car has also been re-painted. The complainant asked defendant No.1 to cancel the transaction but defendant No.1 instead agreed to pay a sum of Rs.115,000/- to the complainant, being the expenditure that the complainant had incurred in getting Cuore Daihatsu/MNA-4546 fixed and operational. However, later Defendant No.1 did not pay the said amount. Complainant served a Notice on 02.07.2013 upon defendant No.1 in compliance of Section 28(1) of the Act, 2015 and after receiving no response from defendant No.1, on 26.07.2013 filed a complaint under Section 25 before the learned Consumer Court, Dera Ghazi Khan claiming Rs.165,000/- (Rs.115,000/-. as the expenditure incurred and Rs.50,000/- as damages) as well as costs and counsel fee. What is clearly discernible is the fact that there is no mention whatsoever of any commission being given to defendant No.1 as consideration for providing services for the first transaction. Even in respect of the second transaction there is no clear indication to this effect either. Defendants' Stance/Written Statement: 5. Defendant No.2, appellant in the connected appeal, did not appear before the learned Consumer Court and was proceeded against ex parte. Defendant No. 1, in his written statement contested the claim of the complainant on various legal and factual grounds. Defendant No.1 refused to have sold Suzuki Cultus/MNA-470 to the complainant but admitted that the exchange of Suzuki Cultus/MNA-470 with Cuore Daihatsu/ MNA-4546 was arranged by defendant No. 1. However defendant No.1 refused to take any obligation in case of defect in Cuore Daihatsu/MNA-4546 since he stated that the complainant bought Cuore Daihatsu/MNA-4546 after getting it examined by a car mechanic as well as a denting expert and that defendant No. 1 merely arranged the deal and never represented anything about the physical or mechanical condition of Cuore Daihatsu/ MNA- 4546 to the complainant. Defendant No.1 also denied the version of the complainant about the price of the Cuore Daihatsu/MNA-4546 and stated that value of Suzuki Cultus/MNA-470 was Rs.585,000/- and that of Cuore Daihatsu/MNA-4546 was Rs.575,000/- and the complainant was paid Rs.10,000/-, being the difference of both. Even in the defence version, there is no mention whatsoever of any quid pro quo changing hands. Impugned. Judgment/Order: COMPLAINT ABOUT FAULTY SERVICE ORDER; The claimant is represented by Sardar Mohammad Arif Khan Gurmani Advocate while defendant No. 1 is being represented initially by Syed Farrukh Bukhari Adovcate and subsequently by Sheikh
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Tanzil-Ul-Rehman Ashraf Advocate while defendant No.2 is being proceeded against ex-parte with reference to Rule 14 of PCP Rules 2009. 2. The case pertains to District D.G.Khan and the Court is on tour at District Courts Complex D. G. Khan. 3. The case is at the stage of the arguments and the parties are prepared for the arguments. 4. I have heard the arguments and perused the file in the light of the arguments. Now I proceed to dispose off the complaint by discussion in the following paragraphs. 5. Briefly stated the grievance of the claimant is aggrieved by the purchase of a used car from the defendants which was allegedly shown to be in proper condition but exposed to be of worse condition causing loss to the claimant. It is requested by the claimant that the defendants should be directed to pay Rs.1,65,000/- as compensation for the loss along with counsel fee and litigation charges to the claimant. 6. Defendant No.1 has contested the complaint by filling his separate written statement to the effect that he was instrumental in the exchange of cultus car with cure car in which the amount of Rs.10,0001-was paid to the claimant as difference of the price of the both vehicle amounting to Rs.5,85,000/- of the cultus car and Rs.5,75,0001-of cure car; that there was no guaranty of engine or body was given by the answering defendant; that there is no custom or practice about providing the guaranty about the condition of vehicle purchased through the dealer at the showroom; that the claimant had taken the bargain after inspection of the vehicle from the mechanic and denture; that the defendant has not accepted any liability. The defendant has objected to the jurisdiction of this complaint and alia requested for grant of special costs. 7. Documents included in the file on behalf of the claimant consists of copy of CNIC of the claimant; Wakalatnama of his counsel; copy of License of Advocate; original postal receipt; copy of the certificate of registration of cure car; copy of sale receipt of cure care; brief affidavit and detailed affidavit of the claimant; original affidavit of one witness namely Asif Abbas along with copy of CNIC. 8. Defendant No.2 has absented himself after arranging with his counsel for the filling of memo. of appearance as such being proceeded against ex-parte with reference to Rule 14 of PCPR 2009. 9. Documents filed on behalf of defendant No.1 consists of the sale certificate; original Wakalat- nama; original affidavit of defendant No.1. 10. The law about proper procedure to be adopted for trial of the consumer Complaint by Consumer Court is being discussed in following marginal notes: - i) It is pertinent to note that although evidence is necessary to be recorded under S.30 of PCPA, 2005 for disposal of the complaints by the Consumer Courts but since the procedural laws known as the Code of Civil Procedure, 1908; the Code of Criminal Procedure, 1898; the Qanun-e-Shahadat Order, 1984 Order, 1984; the Bankers' Books Evidence Act, 1891; Special Rules of Evidence under section 118 of the Negotiable Instruments Act, 1881 are not strictly applicable to the proceedings of the Consumer Courts, as such the propriety demands that the regular evidence should not be recorded in such cases where the points for determination are mostly based on the copies of the admitted documents available in the file of the complaint or admitted in the pleadings. ii) It is further observed that in such cases where regular evidence is not recorded, it is proper and necessary to treat the copies of the documents annexed with the complaint and written statement including the documents filed during the pendency of the complaint, as prima facie proof and evidence of the parties for reaching to the safe and just conclusion in such cases which can be effectively disposed of without recording regular evidence. iii) I am of the view that since the PROCEDURE ON RECEIPT OF COMPLAINT is provided in S.30 of PCPA, 2005; as such if the intention of the legislature was to implement all the provisions provided in the Code of Civil Procedure, 1908; then it should not have been specified in S.30(3) that the
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consumer Court shall have the same powers as are vested in civil Court white trying a suit, under the Code of Civil Procedure, 1908 (Act XX of 1908), in respect of the matters narrated in Clauses- (a) to (e) Subsection (3) of S.30 of the PCPA, 2005. iv) It is observed that the matters incorporated in Clauses (a) to (e) of Subsection (3) of S.30 of PCPA, 2005 about which the powers given by the Code of Civil Procedure are to be exercised by the Consumer Court relate to the summoning and enforcing attendance of any defendant or witness and examining him on oath; the discovery and production of any document or other material object, which may be produced as evidence; the receiving of evidence on affidavits; issuing of any commission for the examination of any witness; and any other matter which may be prescribed. v) This Court is of the view that obvious meanings of last portion of quoted law in clause (e) relating to any other matter which may be prescribed" is to the effect that the list contained in clauses (a) to (4) is not exhaustive and any other matter may be prescribed in any provision of the same law under which the powers under the Code can be exercised by the consumer Court. My humble interpretation of the said clause by the Consumer Court to resolve the matter under the established procedure instead of remaining in the darkness and to avoid the failure of justice due to the absence of prescribed and to avoid the failure of justice due to the absence of prescribed procedure in the consumer law and consumer rules but the technicalities should not be allowed to hinder the path of justice in the said process. 11. The law about the jurisdiction of the consumer Court is being enunciated in following marginal notes:- A. As far as the plenary jurisdiction of this Court is concerned, it is hereby observed that ALTHOUGH it is provided under section 3 of PCPA, 2005 that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force while it is provided under section 36 of PCPA 2005 that all agencies of the Government shall act in aid of the Consumer Court in the performance of its function under this Act AND ALTHOUGH I am of the view that the interpretation of the term 'DEGORATION' in S.3 of PCP Act, 2005 is to the effect that the said word is used to convey the intent of the legislature to the effect that the provisions of Consumer Law should not be constructed, for barring the jurisdiction of the Consumer Courts UNLESS SPECIFICALLY OUSTED by other laws AND THAT it should be kept in mind while interpreting the jurisdiction of this Court that the procedure for redress of grievance provided in all the laws are to be followed in the forum provided under the said laws but the same grievance provided in all the laws are to be followed in the forum provided under the said laws but the same grievance can also be redressed by this Court on strength of section 3 read with section 36 of PCP Act, 2005 but it depends upon each case according to its classification. B. As far as general or statutory jurisdiction of the Consumer Court is concerned, I find that it is clear enough from the provisions of S.27/31/36 of PCPA, 2005 that the consumer Court is a branch of civil Courts specifically catered and tailored for the disputes between the manufacturer and sellers of products and consumers on the one hand as well as between the consumers and the service providers on the other hand, while the faulty and defective services or products are squarely within the jurisdiction of this Court. As far as pecuniary jurisdiction is concerned, I find that there is no pecuniary limit fixed by law for this Court. As far as territorial jurisdiction is concerned, I find that the cause of action is required to be wholly or partly arisen within the jurisdiction of the Court so as to vest the Court with territorial jurisdiction, 12. Reliance can be placed about scope of jurisdiction of the Consumer Court upon the rulings of the Superior Courts being provided for academic study in following marginal notes for facility of reference:-
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1) "point of jurisdiction can be raised at any time and at 'any stage and the jurisdiction upon a Court cannot be conferred with the consent of the parties." (Reference 2008 SCMR 240 referred in PLD 2013 Lahore 454 titled Allied Bank Ltd. Faisalabad v. Khalid Mehmood). 2) "The term damage as defined in section 2(d) is wide enough to cover the cases of all the respondents in the instant cases.... "(Reference PLD 2013 Lahore 454). 3) "The- term services as defined in section 2(k) upon its close analysis points out that the term services has not been given any restricted sense for the purpose of Punjab Consumer Protection Act 2005 and a generalized definition has been placed upon the term "service" and the adjective "includes" has been utilized by the legislator, to explain the concept of services and only three categories mentioned in its sub-clauses (i) (ii) and (iii) are excluded " (Reference PLD 2013 Lahore 454). 4) "The term claim has not been given any definition by the Punjab Consumer Protection Act (Act No.11) of 2005 and in order to understand the concept of claim we have to look into the definition of the "claim" as given in the legal dictionaries...." (Reference PLD 2013 Lahore 454). 5) "The Term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual professional public domestic legal statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends in the context in which it has been used an enactment "(Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454). 6) "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 stature extends upon the context and subject matter of the statute. The use of the word 'any's in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all"(Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454). 7) "In absence of any indication express or implied there is no reason to hold that authorities created by the statue are beyond purview of the Act. When banks advance loan or accept deposit or provide facility of locker they undoubtedly render service. A state Bank or nationalised bank renders as much service as private bank. No distinction can be drawn in private and public transport or insurance companies. Even the supply of electricity or gas which throughout the country is being made mainly by statutory authorities is included in it. The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test therefore is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility...." (Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454). 8) "In fact the Act requires provider of service to be more objective and care taking. It is still more in public services. When private undertakings are taken over by the government or corporations are created to discharge what is otherwise State's function one of the inherent objectives of such social welfare measures is to provide better efficient and cheaper services to the people. Any attempt therefore to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it "(Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454). 9) "A government or semi-government body or a local authority is as much amenable to the Act as any other private body rendering similar service. Truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized as public accountability is necessary for healthy growth of society "(Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454).
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10) "The concept introduced in the Punjab Consumer Protection Act No. II of 2005 of a service provider is wide enough to include therein the services provided by a bank which encompass all kinds of facilities advice or assistance being provided to its account holder " (Reference PLD 2013 Lahore 454). 11) "Banks provide or render service/facility to its customers or even non-customers. They render facilities/services such as remittances accepting deposits providing for lockers facility for discounting of cheques issue of bank drafts etc "(Reference AIR 2006 SC 2810 reproduced in PLD 2013 Lahore 454). 12) "Banking is business transaction between bank and customers "(Reference AIR 2000 SC 2181 referred in PLD 2013 Lahore 454). 13) "The case-law under the Financial Institutions (Recovery of Finance Ordinance, 2001 which defines the term customer in a different context has no relevance to the definition of the consumer as well as the service being provided by the bank which have been made amenable to the jurisdiction of the Punjab Consumer Courts (Reference PLD 2013 Lahore 454). 14) "The legislator has purposely given unrestricted meaning to the term claim in the Punjab Consumer Protection (Act Noll) of 2005. Thus it can be safely laid down that an account holder of the bank when defrauded by the bank or its employees can justifiably lodge a claim against the bank before the Consumer Courts established under rife Punjab Consumer Protection (Act No. II) of 2005 and therefore the District Consumer Court Faisalabad in the instant cases has rightly entertained the claims lodged by the respondents in the matter and accepted the same by directing the recovery of the actual losses Rs. 10,000/- in each case as legal expenses recoverable by the respondents from the appellant-bank " (Reference PLD 2013 Lahore 454). 15) "It follows from the above case-law that where the allegation against the consumer of electrical power is of dishonest consumption of energy through manipulation of or tampering with the metering equipment or other similar apparatus the Electric Inspector would still have the authority to entertain reference under section 26(6). In case the theft alleged is by means other than the tampering or manipulation of the metering equipment etc. the matter would fall exclusively under section 26- A of the Act outside the scope of powers of the Electric Inspector " (Reference PLD 2012 Supreme Court 371). 16) "Further as per section 54-C there is bar of jurisdiction on the Courts only to the extent of prohibiting the license from disconnecting supply of energy to the premises or requiring the licensee to restore the supply of energy to such premises when the consumer neglects to pay any charge for energy or any sum other than charge for energy assessed by the licensee in respect of supply of-energy to the premises. As such there is no bar for filling of the suit by an aggrieved person against any act of the QESCO/ WAPDA "(Reference 2011 YLR 215) 17) According to section 25, the Consumer Court got jurisdiction to entertain a claim for damages arising out of contravention of any provision of the Act, that Consumer Court is required and obliged to determine its jurisdiction being a Court of limited and special jurisdiction even if no objection is raised at the instance of the defendants questioning the jurisdiction; that since the Court is not a Court of general jurisdiction, therefore, it is its duty to examine the allegations contained in the complaint in order to determine its jurisdiction; that prayer for cancellation of sui gas bill and change of meter by no stretch of imagination could have conferred jurisdiction upon the consumer Court as the same falls outside the purview of consumer Court; that keeping in view the allegations and relief sought for consumer Court was not vested with any jurisdiction to take the cognizance of grievance of the claimant; that the appeal against cancellation of suit gas bill was accepted and the order under appeal was set aside resulting in dismissal of the complaint " (Reference 2012 CLD 1428 titled Messrs Sui Northern Gas Pipeline Limited v. Abdul Hameed).
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18) "Perusal of the above provisions shows that in order to invoke the jurisdiction of the consumer Court the complainant must first qualify to be a "consumer", To be a Consumer under the said Act a person must hire the "Service" for a certain consideration from the service provider. In case there is no, service being availed by the complainant and no consideration being paid in return for the said service the complainant does not qualify to be a Consumer and therefore the matter goes outside the fold of the said Act (Reference PLD 2010 Lahore 95). 19) "Any administrative step prior to the start of actual Service is not Service under the Act and does not fall within the fold of the CPA...." (Reference PLD 2010 Lahore 95). 20) "Jurisdiction of the Consumer Court is different from the constitutional jurisdiction. A consumer Court is to identify. a Consumer availing service and then if the said service is defective the Consumer Court is to fix damages and award the same. Consumer Court cannot issue a mandamus as has happened in the present case " (Reference PLD 2010 Lahore 95). 21) "The student appearing in the examination of the appellant-University cannot be described as a "Consumer" as defined in section 2(c) of the Punjab Consumer Protection Act, 2005 nor the appellant-University can be described as to be a "service provider" as envisaged in the provision of section 2(k) of the said Act "(Reference PLD 2011 Lahore 239). 22) "The schemes relating to the installment committees are out of the jurisdiction of the Consumer Court " (Reference PLD 2012 Lahore 319). 23) "The respondent No.2 has availed medical services after paying consideration and is therefore a consumer under the Act and the Consumer Court has the jurisdiction to try the complaint " (Reference PLD 2010 Lahore 214). 24) "Honourable High Court has clearly prohibited the cognizance of the Insurance claim by any other Court except the Insurance Tribunal with reference to sections 121 to 124 of the Insurance Ordinance, 2000" (Reference 2008 Lahore 219). 25) "It is settled law that once the legislature has made any special law for a particular purpose prescribing a forum or a Tribunal for decision of any…
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