1. A claim for damages amounting to Rs.500000/- has been filed by petitioner/claimant Muhammad Farooq S/O Muhammad Rafique against the respondents under Punjab Consumer Protection Act 2005.
2. 2 The allegation in the petition is that the petitioner Muhammad Farooq purchased a Refrigerator of Mitsubishi brand from Alhamd Electronics situated at Irfan Chambers Temple Road, Lahore owned by Respondents Number 3 and 4 for an amount of Rs.30000/- on 9-4-2007. According to the terms and conditions of the warranty was 5 years for the compressor and 1 year for the service and spare parts. The Refrigerator was installed in the house of the petitioner on the same day. It was found that the Refrigerator was not working .The petitioner lodged a complaint with the respondents on 10-04-2007 but no effort was made by the respondents to remove the same.
3. Thereafter the petitioner served a legal notice through post to the respondents on 28-4-2007which was also not responded to. The petitioner again approached the respondents in person to get the fault removed from the Refrigerator but the respondents refused to accede to his demand. Hence this petition.
4. 3 The respondents were summoned. The respondents No.3 and 4 appeared through their Counsel on 2-6-2007 and respondents No. 1and2 were represented by their manager Chaudhry Anwar-ul- Haque. Respondents No. 1and2 also filed a Vakalat Nama on 11-06-2007 and the case was fixed for reply of the respondents. Written reply was filed by respondents No.1and2 on 13-6-2007.
5. 4 The respondents No.3and4 absented themselves and were proceeded Ex-Parte on 13-06-2007.
6. Time was given to both the parties for Pre trial Re Conciliation but the same could not be materialized. Hence on the divergent pleadings of the parties, following issues were framed on 16- 06-2007.
7. ISSUES: 1 Whether the petition does not disclose any cause of action and is not maintainable in its present form and is liable to be dismissed? OPR 2 Whether the Petitioner is estopped by his own act and conduct to file a petition for damages?
8. OPR 3 Whether the petition is barred by law? OPR 4 Whether the petition is false, frivolous, misconceived and malicious and has been filed to harass and humiliate the respondent? OPR 5 Whether the petitioner is entitled to damages/compensation as claimed by him? OPP 5 Evidence of the petitioner was recorded as PW1 and the case was adjourned for the evidence of the respondent for 22-06-2007. On 22-06-07 respondents No.3 and 4 who had been proceeded against Ex-Parte joined the proceedings and filed a Vakalat Nama. But did not file any application for setting aside Ex-Parte Order dated 13-6-2007. However under the law they had a right to join Ex- Parte proceedings at any stage. On behalf of respondents No.1and2 RW1 Mirza Junaid Sharif and RW2 Anwar-ul-Haq Manager appeared as witnesses. Respondent No. 4 appeared as his own witness as RW3. Both the parties closed their evidence on 19-06-2007and 27-06-2007 respectively.
9. 6 It is contended by the learned counsel for the petitioner that admittedly the Refrigerator purchased by the petitioner from the respondents was defective and the respondents were duty bound to replace the same with a new Refrigerator as they had paid a handsome amount of Rs.30000/- in cash to the respondents for a brand new Refrigerator. He has further contended that it has been proved through evidence by the respondents themselves that the Refrigerator was choking due to technical fault. Hence the petitioner is entitled for replacement with a new Refrigerator or refund of its price and he also be compensated for mental agony, he has suffered..
10. He has further contended that the requirements of Section 28 of the Punjab Consumer Protection Act 2005 has been fulfilled. Photo Stat copies of legal notices are Mark A to D and receipts of postal service is Ex P3 to Ex P6. He has prayed that his petition be accepted.
11. 7 On the other hand the Respondents had denied the receiving of notices under Section 28 of Punjab Consumer Protection Act 2005. They have further contended that the fault occurred in the Refrigerator due to mishandling as the same was placed by the petitioner in the kitchen where the temperature was high and they have been sending their technicians to remove the fault but the petitioner did not cooperate and if the Refrigerator was sent to their Service Centre as advised then they would have removed the defect. He has further contended that the petitioner is not entitled to grant of damages under Section 10 of the Punjab Consumer Protection Act 2005. He has prayed that the petitioner has failed to prove his claim and they are still ready and willing to remove the defect from the Refrigerator if the same is sent to their Service Centre and has prayed that this petition be dismissed.
12. 8 After hearing the arguments on behalf of both the parties and scanning the evidence produced by them, My issue wise findings are as follows: ISSUES: ISSUES NO. 1, 3 AND 4.
13. Issues No.1, 3and 4 are interlink and their onus is on the respondents. There is no evidence on record produced by the respondents to prove that the petition does not disclose any cause of action or the same is not maintainable. Nor the same is barred by any law nor the same is false, frivolous, misconceived and malicious and has been filed to harass and humiliate the respondents. Hence issues No.1, 3 and 4 are decided against the respondents.
14. ISSUE NO.2 The onus of issue number 2 was on the respondent. However there is no Estopple against the petitioner to file a petition for damages. According to Section 10 of the Punjab Consumer Protection Act 2005 which is quoted as under for ready reference: Section 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." In this case the petitioner/consumer has not suffered any damages except the loss of utility. Hence this issue is decided in favour of the respondents to the extent of damages.
15. ISSUE NO.5.
16. The onus of proofing this issue was on the petitioner/claimant. To prove this issue the petitioner has himself appeared as PW1. It is an admitted fact and has been proved through evidence that the respondent No.3and4 is dealers of respondents No.1 and 2 i.e. Orient Group of Companies who are dealing/manufacturing Refrigerators of Mitsubishi brand. It is also not denied in evidence that the petitioner has not purchased a Refrigerator on 9-04-2007 from the respondents No.3and4. Receipt of the Refrigerator is Ex P1. Warranty certificate is Ex P2. Manual of instructions is Ex C1. Legal notices dispatched to the respondents under Section 28 of the Punjab Consumer Protection Act 2005are mark A to D and their postal receipts are Ex P3 to Ex P6. Compliance of Section 28 of Punjab Consumer Protection Act 2005 has been proved by the petitioner.
17. Respondents No.1 and 2 have admitted in their written reply that the oil from the compressor had choked the evaporator coil and have alleged that the same has occurred due to mishandling of the Refrigerator. No evidence have been produced to prove that any mishandling has been done by the petitioner as the same was installed in the house of the petitioner by the employee of respondent No.3. It has also been admitted by all the respondents that they have been receiving the complaints from the petitioner about the fault in the Refrigerator.
18. The petitioner had paid a handsome amount of Rs30000/- for a new Mitsubishi Refrigerator from his hard earned money and the respondent should have supplied a Refrigerator to the petitioner free from all defects. It has been proved through evidence that the Refrigerator delivered to the petitioner was defective and under the law the petitioner is entitled for replacement of the same with a new refrigerator. The refrigerator delivered to the petitioner being defective has lost its utility.
19. Warranty certificate of the Refrigerator is Ex P2. The petitioner purchased the Refrigerator on 9-04- 2007 and is deprived of its utility for the last 3(three) months. Issue No.5 has been partly proved by the petitioner and the same is decided in favour of the petitioner and against the respondents.
20. Relief: In view of the above findings the petition is partly accepted and the same is decreed. The respondents No.1and2 of Orient Group of Companies are ordered to replace the Mitsubishi Refrigerator delivered to the petitioner with a brand new Refrigerator within 10(ten) days from today. The Orient Group of Companies is also burdened with cost of Rs.10000/-(ten thousand) like wise respondent No.3 Alhamd Electronics through their proprietor Sheikh Haider is also burdened with costs of Rs10000/- as the Orient Group of Companies had delivered the Refrigerator to the petitioner through respondent No.3. File be consigned to record room after due completion