1. Arguments heard and record perused. Facts of the case are that the petitioner approached the respondent for providing facility of Electronic burglar alarm system at his house. The respondent's team surveyed the residence of the petitioner to identify the requirements for making out the proposal, after conducting the survey the proposal estimating to Rs. 42,959/- was conveyed to the petitioner vide letter dated 8.5.09 After granting discount the final estimate was done for an amount of Rs. 41,000/- and Cheque dated 25-05-09 was issued for an amount of Rs. 41000/- in favour of the respondent.
2. 2 The agony of the petitioner started on the completion of the installation of the security system when it was pointed out by the petitioner that security gadgets were fixed on the moveable windows and leaving insecure fixed windows. On the complaint of the petitioner the respondent asked for additional amount of Rs. 35,270/ for providing extra security on the fixed windows, this act of the respondent has been termed malafide by the petitioner who requested the petitioner either to waive the additional payment to be spent on vibrators sensors or the respondent should give certificate about the full secure house. The version of the respondent is that the petitioner was explained the proposal in detail whereby the area at the Ejaz Malik V/s M/s Phoenix Armour (Pvt) Ltd. site were identified where every gadget was installed. That the petitioner was also asked for any further requirements but the petitioner showed his satisfaction that the petitioner duly signed the agreement dated 22-05-09 without mentioning or demanding any further equipment and gave his consent for the installation of company security system That on the completion of all the installation of electronic burglar alarm system at the petitioner's residence when the respondent's technical team visited the house for final survey, petitioner raised fixing of vibrator sensors issue.
3. According to the respondent version the requirement for the vibrator sensors was never discussed or desired earlier from the petitioner, that on the demand of the petitioner the technical staff had counted 42 windows in total at the site where vibrator sensors as required by the petitioner could be fixed. Subsequently, the petitioner changed his mind and asked the facility of vibrators sensors for eleven fixed windows of his choice and on the petitioner's request the revised proposal Ex-P/4 was sent to the petitioner for approval which was duly received by the petitioner on 15-06-09. It is further asserted by the respondent that electronic burglar alarm system has been installed at the residence of the petitioner but the same is not activated on the petitioner's desire.
4. 2 In order to prove his case the petitioner himself appeared as PW-1 and tendered his sworn affidavit Ex-P/1, respondent's quotation for installing security system Ex-P/1-A, agreement between the parties dated 22-05-09 is Ex-P/2, revise quotation Ex-P/4, invoice dated 27-01-03 is Ex- Ejaz Malik V/s M/s Phoenix Armour (Pvt) Ltd.
5. P/5, invoice dated 27-01-03 is Ex-P/5-A, complaint dated 25-06-09 Ex-P/7, and respondent's reply to legal notice dated 06-07-09 is Ex-P/8. In rebuttal Usman Gill Manager Sales of respondent's Company appeared as RW-1, his affidavit is Ex-R/1, he has produced letter dated 03-02-10 sent to the petitioner Ex-R/2, similarly Haider Ali Manager Technical Services of respondent's company has appeared as RW-2 his affidavit is Ex-R/3 and Muhammad Islam has appeared as RW-3 and his affidavit is Ex-P/5 3 Learned counsel for the respondent has argued that matter was firstly referred to the Consumer Council /Authority and then consumer authority referred the matter to this Court, that this Court only enjoys the jurisdiction to the extent of defective product and to the extent of faulty services. In this respect section 4 of the PCPA 2005 is very important which is read as under The manufacturer of a product shall be liable to a consumer for damages proximately caused a characteristic of the product that renders the product defective when such damage arose from a reasonable anticipated use of the product by a consumer About faulty services section 13 of the Act is also very material which reads as under A provider of services shall be liable to consumer for damages proximately caused by the provision of services that have caused damage.
6. Ejaz Malik V/s M/s Phoenix Armour (Pvt) Ltd.
7. According to the learned counsel first the technical team visited the spot and after checking all the points and locations and on the instruction of the client initially proposal/invoice is prepared and survey was conducted in the presence of the petitioner .Subsequently a proposal was prepared.
8. The first proposal is Ex-P/1-A which contains the detail of all equipments. After that the petitioner paid an Amount of Rs. 41000/-against this proposal the receipt of which Ex-P/3, all the equipments mentioned in Ex-P/1-A were installed at the premises of the petitioner. After installation finally the team again checked the spot at the final inspection, objection was raised by the petitioner that his house was not safe as vibrators sensors were not installed on fixed windows. The respondent made reply that all the equipments were installed in the presence of the petitioner and at the time of installation no such objection was raised therefore objection was a frivolous one. Subsequently, keeping in view the objection of the petitioner about the installation vibrators sensors the respondent again prepared a proposal/invoice in which vibrators was included and again revised expenditure was provided to the petitioner which is Ex-P/4 that this invoice was received by the petitioner on 15-06-09. The learned counsel for the respondent attracted the attention of this Court to the terms and conditions mentioned in Ex-P/1-A according to clause ( c) of which for additional work , cost of devices is payable in final before commencement of work. It is pertinent to note on petitioner's request the security alarm system which was installed at petitioner's residence was not Ejaz Malik V/s M/s Phoenix Armour (Pvt) Ltd. activated. The agreement dated 22-5-09 was executed between the parties which is Ex-P/2.
9. Elaborating the points that this Court enjoys the jurisdiction only when there is a defective product or faulty service and in case in hand security gadgets were installed at petitioner's resident but were not activated on petitioner's request.
10. According to clause (2) of agreement company is bounded to provide services regarding any complaint of complainant on installed gadgets. The question of faulty service does not arise in the case in hand hence the jurisdiction is barred. Section (2) (k) provides definition of services which is reads as under.
11. Services includes the provisions of any kind of facilitates advice or assistance such as provisions of medical, legal or engineering services but does not included i) the rendering of any services under a contract services.
12. According to him out of contract services under agreement dated 22-5-09 therefore this Court lacks jurisdictions.
13. 4 In order to reach at the conclusion the testimony adduced by the respondent is very material that all the RWs have admitted in their affidavits that the survey was conducted by their team and cost was estimated Rs. 42959/-but with discount it was finally determined at Rs. 41000/-. All the RWs have agreed that the agreement dated 25-05-09 was executed between the parties, all the RWs have agreed to the contents of the Ex-PW-1/A , all the RWs have admitted that their team comprising technical, engineers inspected Ejaz Malik V/s M/s Phoenix Armour (Pvt) Ltd. the site before providing the security arrangements, Ex-P/1 quotation is also admitted, all the RWs have admitted that there are about 42 fixed windows at the petitioner's house.
14. 5 In order to appreciate the pleadings I am guided by section 4 (2) (d) which deals faulty and defective services which is read as under:- "damages" means all damages caused by a product of service including damage to the product itself and economic loss arising from deficiency in or loss of use of the product of service"
15. The product shall be defective only if it is defective because it is not confirm to an express warranty of the manufacturer as provided in section 8 which is very material and reads as under.
16. "A product shall be defective when it does not conform to an express warranty made at any time by the manufacturer about the product if the express warranty has induced the claimant to use the product and the claimant's damage was proximately caused because the express warranty was untrue".
17. 5 As the services provided to the petitioner is defective one therefore, the claim is decided in the way that respondent will pay back Rs. 41000/- to the petitioner (subject to return of equipments if installed at the petitioner's house and that process shall be completed within one month) and respondent is also burdened with cost of Rs. 10000/- as compensation. Thus total claim is decreed to the extent of Rs. 51000/- whereas remaining claim of the petitioner is hereby dismissed being on the higher side. Parties are left to bear their own cost. After completion file be consigned to record room.