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Petitioner: ASHFAQ AHMED KHAN and others VS Respondent: PTCL and others
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title: ASHFAQ AHMED KHAN and others vs PTCL and others Case No.:Consumer Appeals No, 5, 6 of 2014 and 113, 185 of 2015,Crl. A. Nos. 11, 15, 40 of
JUDGMENT
Reported As: PLD 2016 Islamabad 112, PLJ 2016 Islamabad 437 Result: Case remanded Judgment JUDGMENT By this single judgment I intend to decide all the captioned consumer appeals as common questions of law and facts are involved in all these appeals. 2In Consumer Appeal No, 113/2015 the appellant has prayed for setting aside of judgment dated 08-05-2015 and has further prayed that respondents be framed and punished in accordance .With Section 9 of Islamabad Consumer Protection Act, 1995 for infringement of appellants fundamental rights guaranteed by the Constitution and having committed criminal breach of trust by indulging in unfair trade practice Le. Issuance of SIM in the name of appellant without his consent by misusing copy of his CNIC (lying in their custody as trust). It is also prayed that compensation and damages to the tune of Rs, 100,000/- may also be granted to the appellant/complainant being victim of unfair trade practice/criminal breach of trust. The respondents may also be directed to disclose number of third SIM illegally sold in the name of appellant (by misusing his CNIC) to a third person alongwith details of number of SIM, name of unauthorized seller , purchaser and user of third SIM. 3The facts in brief relating to Consumer Appeal No, 113/2015 are that the appellant, purchased two SIMs No, 03455547802-3 from Telenor/Respondent No, 1 however , a third SIM was illegally sold by Respondent No, 1 to a third person without express consent/knowledge of appellant by misusing his CNIC. The appellant asked Respondent No, 1 to divulge number of third SIM, name of its unauthorized seller and purchaser/user which was refused whereupon the appellant filed a complaint before the Additional Distric t Judge Islamabad which was dismissed in a slipshod manner on 25%05-2013 hence, the instant appeal. 4The brief facts relating to Consumer Appeal No, 185/2015 are that appellant handed over Japan made remote controller of Sony TV set to the responde nts on 03-11-2014 for minor repair which was retained by them however , after one week the respondents informed the appellant that original remote control set cannot be repaired and
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retained the same for sending it to Sony Company's main workshop. They persuaded the appellant to purchase a copy of remote control from them for Rs,500/-which was purchased against a sum of Rs,500/- The said remote control was found defective and on the very next day the appellant visited workshop of respondents and demanded the replacement of defective remote control but respondents flatly refused and even usurped original remote control. The appellant filed a complaint before the Consumer Court, Islamabad however , the said complaint was dismissed vide order dated 14-3 0-2015, hence, the instant consumer appeal. 5The brief facts relating to Consumer Appeal No, 05/2016 are that on 30-11-2010 the complainant got installed a landline telephone connection and broadband internet from PTCL/Respondent No, 1. The said internet connection was 1 Mbps. However , respondents upgraded the said broadband internet conne ction of 1 Mbps to 2 Mbps and then to 4 Mbps. Resultant, the appellant was being charged against the broadband connection of 4 Mbps without any lawful justification. The appellant filed a complaint before the Additional District Judge, Islamabad and the Court concerned vide order dated 21-12-2015 imposed a penalty of Rs,40,000/- upon the Respondent No, 1 along with compensation of Rs, 100,000/- payable to the appellant. Hence, the instant appeal filed by the appellant alleging therein that the amount of compensation be enhanced from Rs, 100,000/- to Rs, 10,000,000/- and has further prayed that the respondents be directed to pay a Rs,200,000/- as cost of litigation. Hence, the instant appeal. 6Brief facts relating to Consumer Appeal No, 06/2016 are that on 20-03-2016 a landline telephone, broadband internet connection and smart TV was installed at the address of the appellant and appellant was regularly paying the bill of the same. The smart TV connection of the complainant was not working for the last two weeks however , despite repeated requests Respondent No, 1 did not pay any heed to the requests of the appellant. The appellant asked Respondent No, 1 for 1 Mbps but the respondents upgraded the 1 Mbps to 2 Mbps and then to 4 Mbps without any lawful authority . Resultantly , the appellant was being charged against the broadband connection of 4 Mbps without any lawful justification. The appellant filed a complaint before the Additional District Judge, Islamabad and the Court concerned vide order dated 21-12-2015 imposed a penalty of Rs,40,000/- upon the Respondent No, 1 alongwith compensation of Rs, 100,000/- payable to the appellant. Hence, the instant appeal filed by the appellant alleging therein that the amount of compensation be enhanced from Rs, 100,000/- to Rs, 10,000,000/- and has further prayed that the respondents be directed to pay a Rs,200,000/- as cost of litigation. Hence, the instant appeal. 7Brief facts relating to Criminal Appeal No, 11/2016 are that through the instant appeal, the appellants have assailed the order dated 21-12-2015 passed by learned Additional District Judge, Islamabad whereby the appellants have been ordered for payment, of fine of Rs,40,000/- along with compensation of Rs, 100,000/- payable to Respondent No, 1. Hence, the instant appeal. 8. Brief facts rel&ing to Criminal Appeal No, 15/2016 are that through the instant appeal, the appellants have assailed the order dated 21-12-2015 passed by learned Additional District Judge, Islamabad, whereby the appellants have been ordered for paymen t of fine of Rs,40,000/- alongwith compensation of Rs, 100,000/- payable to Respondent No, 1. Hence, the instant appeal. 9. Brief facts relating to Criminal Appeal No, 40/2016 are that through the instant Criminal Appeal, the appellant has, assailed the order dated 22.01.2016 passed by the learned Additional District Judge, Islamabad whereby the complaint of the appellant was dismissed on the ground that only payment receipt of the product has been annexed with the plaint wherein it was written "service warranty one year". The learned Additional District Judge further declared that from the plain reading of receipt suggests that the responsibility of respondent does not extend to the replacement of product i.e, the geyser rather the respondent was only liable for service of product within year of its purchase, hence the instant appeal. 10.Arguments of learned counsel for the parties in each of the above mentioned appeals as well as learned Standing Counsel and learned State Counsel have been heard, record perused. 11From the meticulous perusal of the orders assailed by the appellants through the captioned appeals it transpires that the same have been passed by the "Authority" in terms of Islamabad Consumer Protection Act, 1995. However , from the perusal of the said orders it is very much evident that the same have been passed without
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taking into consideration the very spirit of law and the procedure to be adopted as per the golden principles laid down by the legislature and refined /modified with the passage of time to bring improvements towards achieving the destination of substantial justice to ultimately meet the ends of equity and fair play as guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. Certainly to reach at a just and fair conclusion, the procedure and mechanism set forth by the law in its true perspective is required to be follow ed strictly . However , the orders assailed by the appellant through the captioned appeals, reflect a different impression. While dealing with the complaint in each and every matter , the "Authority" has undertaken the entire exercise only by comparing and perusal of pleadings of the parties i.e, complaint, reply of complaint submitted by the respondent and attached documents, hence, it is important to understand the core question as:-- 1. What procedure has to be followed when punishment is awarded and; 2. What procedure has to be followed while awarding compensation. 3. What would be the minimum standard to be applied while resolving the controversy under the term "inquiry" 4. What would be the minimum standard of evidence required in Consumer Complaints. 5. What are the implication of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 upon the grey areas of Islamabad Consumer Protection Act, 1995? 12.Before parting with these questions it is necessary to overview the provisions of Islamabad Consumer Protection Act, 1995 in order to protect the interest of the consumer which is evident from its preamble is reproduced here under:- "An Act to provide for protection and promotion of the rights and interests of the consumers " 13. Three W ords are Oven special weightage i.e, promotion, protection and interest: (a) Promotion means "The action of promoting someone or something to a higher position or rank or the fact of being so promoted" (b) Protection means "A legal or other formal measure intended to preserve civil liberties and right" (c) Interest means "The feeling of wanting to know or learn about something or someone. Hence it is made clear by the legislatur e while using the above mentioned words that the main person whose interests/rights and feelings are to be protected is a "consumer" in Islamabad Consumer Protection Act, 1995. The said Act is the first Law of its nature passed by the Parliament, therefore, it is considered as initial legislation on the subject and thereafter Provincial Assemblies also step forward for the following legislation:-- 1. The Punjab Consumer Protection Act, 2005. 2. The Punjab Consumer Protection Rules, 2009. 3. The Khyber Pakhtunkhwa Consumers Protection Act, 1997. 4. The Baluchistan Consumers Protection Act, 2003. 14.The most important aspect of this law is word "Consumer" defined in Section 2 (c) of the Act ibid which is reproduced as under:-- (i) Buys goods for a consideration which has been paid or partly paid and partly promised to be paid or under any system of deferred payment or any system of deferred payment or hire purchase and includes any user of such goods but does not include a person who obtains such goods for re-sale or for any commercial purpose; or (ii) hires any goods or services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services. 15. However , in order to understand the above term, the comparison available in different legislations of the world have been perused and the conclusion arrived at is:-- At present there is no universally agreed definition of the term "consumer" for legal purposes. However , its definition has been attempted and debated at length by various jurists and consumer activists, and a good deal of literature is available, for example, Nadel (1971), Smith (1990), Sethi & Seetharaman (1994), Rachagan (1997), etc. (a) The definition of "consumer" in the guidelines given for a Model Law for Consumer Protection in Asian countries, drafted by Dr. Sothi Rachagan defines "consumer" as a person who acquires or uses goods or services of a kind ordinarily acquired for personal, domestic, or household use of consumption; and does not acquire the
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goods or services, or hold himself or herself out as acquiring the goods or services , primarily for the purpose of re- supplying them in trade; or consuming them in the course of a process of production or manufacture; or in the case of goods, repairing or treating in trade other goods or fixtures on lands. Consumer related legislation in the developing countries has been reviewed by Dr. S. Sothi Rachagan in order to draw out their comparison and contrast, which is set forth herein below: (b) The Brazilian Consumer Protection Code, 1990 (BCPC) contains four definitions of the term "consumer". The first two definitions are general or residual and apply when either of the other two specific definitions are not applicable. The third definition applies only to products and services liability , whereas the fourths definition applies only to commercial practices. The BCPC offers protection to legal entities regardless whether they are profit- making or not in nature. However , the corporate consumers are provided protection only when they use goods or services as end users. (c) The Consumer Act of Philippines 1991 (CAP) restricts the definition of consumer to a 'natural person', who is a purchaser , lessee or recipient of consumer products, services or credit. This definition is further amplified in the definition of consumer products and services as meaning 'goods, services and credits', which are primarily for personal, family , household, or agricultural purposes. In contrast to the BCPC, the CAP excludes all corporations including charities. However , it is importa nt to note that it includes all goods bought by individuals for agricultural purposes, even when the individual is a large-scale planter engaged in wholly commercial agriculture. (d)The Indian Consumer Protection Act, 1986 (ICPA) provides two definitions of consumer; one in relation to goods and the other in relation to services. In relation to goods, it excludes persons who obtain goods for resale or any commercial purpose, thus excluding self-employed persons. It was amended in 1993 to change definition in order to include self-employed persons in it by way of an explanation, which qualifies that 'commercial purpose' of earning his livelihood by means of self-employment.' However , the definition of consumer in relation to services is broad, and includes not only persons who hire any service for themselves for a consideration but also beneficiaries of such services. 16The other important definitions includes "Services" and "Unfair Trade Practice " used in Islamabad Consumer Protection Act, 1995 which are reproduced as under:- (e) "Services" includes services of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, manufacturing processing, accountancy , supply of electrical, mechanical or any other form of energy , boarding or lodging, entertainment, medicine, education, construction work, amusement. Catering, security or purveying a news or other information, and similar other services, but does include the rendering of any service free of charge or under the contract of personal service; and (f) "unfair trade practice" means a trade practice which, for the purpose of sale, use or supply of any goods or for provision of any service or for their promo tion, adopts one or more of the following practices, causes loss or inquiry though hoarding, black-marketing, adulteration, selling of expired drugs, food items and commodities unfit for human consumption, or charging for the goods and service in excess of the prices fixed by an authority authorized to do so under any law for the time being in force or in furtherance of such sale, use or supply makes any statement, whether orally or in writing, or by chalking on walls or through sign-boards on neon-sign or by distributing pamphlets or by publication in any manner , including through electronic media, by 17.Islamabad Consumer Protection Act, 1995 provides two way protection to the consumer i.e, (i) by way of punishment to be awarded to a person playing unfair trade practice with the consumer while adopting Criminal Procedure and (ii) by granting compensation to the consumer . Islamabad Consumer Protection Act, 1995 differentiate the procedural aspect of punishment and compensation, which can be observed from the following table:-- Criminal procedure for punishment Procedure for compensation 1Complaint Sec 8(1) Complaint Sec 8(1) -do-
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A complainant may in respect of any goods sold or delivered or any service provided or supplied or against any unfair trade practice file a complaint with the Authority . 2Sec 8 (3) Where on examination of the complaint received under sub- section (1) or sub-section (2), the Authority is of the opinion that any right of the consumer has been infringed, it shall cause the notice of the complaint to be served on the respondent who shall be required to give his reply within a period of seven (7) days.Sec 8 (3) -do- 3Sec 8 (4) After considering the complaint and the reply of the respondent after providing the parties an opportunity of being heard, or if no reply is received and after such inquiry as the Authority may deem appropriate it may pass such orders as the circumstance may require.Sec 8 (4) -do- Section 8A Without prejudice to the foregoing provisions and in addition to the powers exercisable by the Authority where any right of a consumer is infringed or contravened by way of profiteering, hoarding, black-marketing, adulteration of food items, selling of expired items of food and other item unfit for human consumption of charging for goods and services in excess of the prices fixed by the competent authority under any law for the time being in force, it shall be tried by -a special Magistrate appointed under Section 14A of the Code of Criminal Procedure, 1898, (Act VI of 1898) in a summary manner as provided in Sections 262 to 265 of the said Code Sec 9 (1) Penalties Where any right of consumer required to be protected under Section 5 of the Act is in any way infringed, the person responsible for such infringement shall be punished with imprisonment which may extend to two years, or with fine which may extend to forty thousand rupees, or with both. Sec 9(2) Whoever makes advertisement through print or electronic media or be chalking on walls or in any other manner in contravention of Section 7, he shall be punished with imprisonment which may extend to two years, or with fine, which may extend to thirty thousand rupees, or with both.Sec 9 (3) The Authority may , where it may deems appropriate, order for payment of compensation to the consumer to the extent the consumer has suf fered any damage or loss through any unfair trade practice. Sec 9(4) The Authority may where it deems necessary for protection of the rights of other consumers, order for confiscation of any goods or material or direct for their destruction. Hence, from the above comparison following words/terms are surfaced which are the basic factors to be considered necessary by the Authority/ Court while adjudicating upon the consumer complaints:- 1.Examination
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2.Opinion. 3.Consideration, considering. 4.Opportunity of being heard. 5.Inquiry . 6.Deem appropriate All these terms /key words are not defined specifically in the Islamabad Consumer Protection Act, 1995, however , the terms are defined/explained in the different law books /judgments/dictum laid down by the superior Courts in the following manner:- 1.Examination According to Black Law Dictionary "Examination" means "An investigation; search; interrogation. In Criminal Practice it means "an investigation by a magistrate of a person who has been charged with crime and arrested, or of the facts and circumstances which are alleged to have attended the crime and to fasten suspicion upon the party so charged, in order to ascertain whether there is sufficient ground to hold him to bail for his trial by the proper Court"? In Trial Practice "The examination of a witness consists of the series of questio ns put to him by a party to the action, or his counsel for the purpose of bringing before the Court and jury in legal form the knowledge which the witness has of the facts and matters in dispute, or of probing and sifting his evidence previously given." 2.Opinion According to Webster Dictionary , opinion is a belief stronger than impression and less strong than positive knowledge. It can also be called a view; judgment, etc. The words' to opine' mean (I) to think, (ii) to suppose, or (iii) to hold or express an opinion. And the word 'opinion means (I) a belief not based on absolute certainty or positive knowledge but on what own mind; (ii) an evaluation, impression or estimation of the quality or worth of a person; (iii) to formal judgment of an Expert on a matter in which his/her advise is sought; (iv) the statement by a judge bearing on a case. PLD 1995 Kar .436 Section 13 of the Income Tax Act, 1922, defines the word 'opinion as: "An opinion on the basis whereof a statutory authority is proceedings, may be accurat e or erroneous, but it must be an honest opinion or conviction, based on tangible material capable of sustaining such opinion, and not a mala fide opinion or a colourable exercise of statutory power PLD 1988 Lahore. 725 With reference to Sec. 309 Cr. P.C., it has been, held that the word 'opinion' implies that the assessors should apply their minds and then come to the conclusion of guilty or not guilty . For this purpose they must consider the facts, apply the law to them and thereafter draw their conclusions. PLD 1960 kar .1; PLR 1960(1)422. The use of the word 'opinion' in Sec. 16 of the Criminal Law Amendment Act (XIV of 1908) is significant and it clearly shows that the legislature intended the criterion to be purely subjective and not objective. PLD 1964 Kar.478. Martial Law Order (CMLA] No, 12, para. 2 Word "opinion" used in Para. 2 is equivalent to the word "satisfaction" mentioned in certain other enactments dealing with preventive detention. Forming of opinion by detaining authority is a must and essential ingredient in detention cases. Opinion or satisfaction of detaining authority has to be clearly mentioned in order itself and not to be presumed. It is further held that detention in the absence of such an opinion or satisfaction, is illegal. PLD 1979 Lahore 91. 3. Consideration-Considering. Word 'consideration' has been discussed and referred to in Volume I of Second Edition of "Words and Phrases Legally Defend" by John B. Saunders. Butterworths. 1969 Edition as under:-- "A 'consideration'. I apprehend, is something which one takes into account as a factor in arriving at a decision." (Hanks v . Minister of Housing and Local Government (1963) I All ER 47). The Concise Oxford Dictionary , 7th Edition at page 201 gives the meaning of the word 'consider' as "contemplate mentally , weigh merits of (course of action, claim candidate, etc.)". Chamber 21st Century Dictionary at page 292 defines 'consideration' as "a fact, circumstance, etc. to be taken into account"
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"Due consideration" has been defined by Black's Law Dictionary , 5th Edition of 1979 at.page 448 as under:-- "To give such weight or significance to a particular factor as under the circumstances it seems to merit, and this involves discretion. (United States ex rel. Maine Patato Growers and Shippers Association v. Interstate Commerce Commission, 66 App. t).0 398, 88 F .2d 780, 783)" Even otherwise, the term "due consideration" interpreted in its perspective can only mean proper , serious, reasonable, fair and honest application of mind and evaluation of comparative rights and records of eligible candidates. 2003 MLD 98 . 4. Opportunity of being heard. Opportunity defined in the Black's Law Dictionary by Bryan A Garner Eighth Edition means that the fact alleged doer of an act was present at the time and place of the act. Wherein the term opportunity to be heard has been defined as the chance to appear in a Court or other Tribunal and present evidence and argument before being deprived of a right by governmental authority . The opportunity to be heard is a fundame ntal requirement of procedural due process. It ordinarily includes the right to receive fair notice of hearing, to secure the assistance of counsel, and to cross-examine adverse witnesses. Hearing.---"The word "hearing" therefore , means taking of evidence or consideration of question relating to suit enabling the Judge to come to a final adjudication and not consideration of merely an interlocutory matter". PLD 1983 SC (AJ&K) 223. "Means date on which either evidence recorded or arguments heard, or other steps taken by Court towards further proceedings". PLD 1973 Lahore 659. "Hearing of a case"--Meaning and scope- -Hearing (of a case) meant a meaningful, purposeful and effective hearing which enabled a judge to understand the legal and factual proposition involved in the matter as opposed to an illusionary and cursory hearing conducted barely as a formality and to bring on record mere compliance of the rule of hearing--Where effective hearing was not provided, it shall tantamount to non-hearing of the party concerned and the legal consequences of…
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