1. Case of the complainant is that he obtained under the "President Rozgar Scheme" an auto cab 150CC Rickshaw from the Sherazi Motors Gujranwala, an authorized agent of M/s Plum QINGQI Motors Ltd., respondent No.1, to earn his livelihood but on account of various defects in construction and design of the said auto cab and due to substandard material used therein, the complainant has miserably failed to earn the bread in order to keep the body and soul together. The case was contested by the respondent company raising various legal objections and also controverting the facts. It was contested that complainant purchased Rickshaw from National Bank on installment and till the full payment of amount National Bank is owner of Rickshaw. Respondent did not sale directly the Rickshaw in question to the complainant. The material used in the Rickshaw is technically sound, therefore, the Rickshaw is free from manufacturing and designing defect. Any damage to the Rickshaw is the result of complainant's negligence and improper use against the instructions given in users manual. The complainant has filed the case to avoid default in the payment of installments. The complaint is barred by time.
2. In order to prove his case complainant appeared as PW1 and Muhammad Rafiuqe as PW2.
Complainant also produced on record receipts of dispatch of legal notices Exh. "PA"&"PB", Acknowledgment Exh. "PC"&"PD", photo copies of legal notices mark "A", repairing receipts mark "B" to mark "E".
Mr. Ashaar Bashir Instructor Auto Mechanics, Govt. Apprentice Training College Gujranwala appeared as CW-1 and produced report Exh. "C-1"
Whereas respondent produced Abdul Moeed as RW1 and Mr. Muhammad Afaq as RW-2.
Respondents also produced affidavit of Abdul Moeed Exh. "RA", affidavit of Mr. Afaq Exh. "RB", Authority letter Exh. "R1", letter by the Chairman Punjab Provincial Transport Authority Exh. "R2", letter of Engineer Development Board Exh. "R3", letters of Pakistan Standard and Quality Control Authority Exh. "R4","R5","R6" &"R7"
3. I have heard the arguments and perused the record.
4. It was contended by the learned counsel for the respondent that the complaint is out of time. In support of this objection reference has been made to subsection 4 of section 28 of Punjab Consumer Protection Act, 2005. Learned counsel for the respondent has pointed out that the case should have been filed within 30 days of the arising of cause of action. He also took the plea that a warranty for the period of 6 months or 6000 Km, which ever is earlier, had been provided to the consumer by the company and keeping in view the proviso of subsection 4 the extension if applied, which has not been asked by complainant in this case, can only be allowed upto 60 days from the expiry of warranty. According to the learned counsel for the respondent vehicle was purchased on 14-07-07. The maximum period for filing the claim ended on 14-03-08 whereas case was filed on 16-10-08 with 215 days inordinate delay. The learned counsel for the respondent further pointed out that if a special law has itself fixed the limitation period, no provision of Limitation Act shall be applicable.
5. I have given my anxious consideration to the arguments put forth on behalf of the respondent company. Before proceedings further, it would not be out of place to reproduce the relevant provision of subsection 4 of section 28 of Punjab Consumer Protection Act, 2005.
"A claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action: Provided that the Consumer Court, having jurisdiction to hear the claim, may allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period: Provided further that such extension shall not be allowed beyond a period of sixty days from the expiry of the warranty or guarantee period specified by the manufacturer or service provider and if no period is specified one year from the date of purchase of the products or providing of services".
6. I am of the view that if case of the complainant is considered falling under subsection 4 where the maximum period for filing the claim has been mentioned as 30 days from the arising of cause of action, even then the case is not out of time. The term "cause of action" has not been defined in the Punjab Consumer Protection Act, 2005. So much so this term even not has been defined in the Code of Civil Procedure. However, according to one authoritative judgment, cause of action means bundle of facts necessitating the institution of case. After all, cause of action is not some thing irreversible fixed or immutable or static. It has often been held by the law Courts that some cause of action are re-occurring causes of action i.e which accrues on the accrual of resistance from the other side. In the context of cause of action concerning immovable property it has been repeatedly held that every fresh denial of right from the side of defendant furnishes the plaintiff with a fresh cause of action. It has also been held time and again that when ever adverse entry in record of right i.e "Register Haqdaran Zameen" or "Jama Bandi", furnishes the person against whom that entry had been made with a fresh cause of action. Considered from this angel it can be safely held that whereas the concerned consumer or user of the defective product feels dissatisfied with its working and starts grumbling about its quality or use worthiness, a fresh cause of action accrues in favour of the complainant. That being so, if the articles in question is defective and creating problems for the user, whenever such problem confronts him on daily basis, there can be no denying the fact that on each such occasion a reoccurring cause of action arise in his favour for presentation of claim under the legal provision cited above. As per version of the complaint the auto cab/Rickshaw is causing problem daily and even on a day before filing of the claim in the Court whereas continuous denial of the respondent company to concede demand of the complainant is giving rise to a continuous cause of action. Hence the objection of learned counsel for the respondent is repelled.
7. Another objection agitated by the respondent company that necessary legal notice as provided under subsection 1 of section 28 was not served by the complainant before filing the claim in the Consumer Court and under subsection 3 this Court has been barred to entertain the claim of such complainant who has failed to provide proof that the notice was dully delivered. Compliance of this mandatory provision, penal consequences of non compliance of which has been sparked in sub section 3, was no doubt indispensable and unavoidable. Ofcourse, it can be a fatal blow to the case which can not succumb to this injury because this provision on the face of it is of mandatory in character. In as much as the Consumer Court has been restrained from entertaining a claim in the absence of the service of requisite notice under subsection (1). This provision has accordingly created an embargo on the jurisdiction of this Court, which appears to be quite in line with the similar prohibition envisaged by section 197 of the Cr.Pc which is to the effect that in the absence of a proper sanction by the dully authorized and empowered authority the Court of criminal jurisdiction shall not entertain any complaint or take cognizance of the offence specified there in.
8. I have gone through the file of this case. Copy of the legal notice alongwith postal receipt showing dispatch of the same has been placed on record, therefore, this objection of the learned counsel of the respondent has no legs to stand any more. It was also argued by the learned counsel for the respondent that as per section 28(3) of the Punjab Consumer Protection Act, 2005 if the mandatory notice prior to filing of claim before the Consumer Court has been responded to by the other party, a consumer in such a situation has lost the authority to invoke the jurisdiction of Consumer Court and such a consumer if so desire can only brought his claim before an ordinary Court of Civil jurisdiction. To make it convenient, I would like to reproduce the relevant provision as under:- 28 (3) " No claim shall be entertained by Consumer Court unless the consumer or the Authority has given notice under sub-section (1) and provides proof that the notice was duly delivered but the manufacturer or service provider has not responded thereto".
9. In my humble view the primary purpose of this provision was that the trader/respondent should not be taken at surprise when he is summoned by the Consumer Court. This provision has also been enacted in order to provide to the parties an opportunity of resolving the matter amicably prior to stepping in the corridor of a Court. Duty has been cost upon the consumer to certify that the manufacturer or service provider was approached for settlement of the dispute. The intention of the legislature in this case seems to minimize the institution of cases before the Consumer Court by way of mutual understanding. Another step of similar nature for reconciliation at pretrial stage has also been provided vide section 29 of Act ibid. In case the manufacturer/service provider has responded to the notice served by the consumer and consumer is not satisfied by explanation offered to him, he can brought the matter before the Consumer Court for its ultimate decision. In the cases not responding to the notice or even responding thereto but dissatisfaction of the consumer to this response shall give rise to a cause of action to knock the door of Consumer Court.
Had the intention of the legislature been so as argued by the counsel for respondents, there should have been specifically provided a blockade in the way of consumer to approach the Consumer Court. So jurisdiction of Consumer Court in no case hinges on the response of the manufacturer or the service provider to the legal notice of a consumer.
10. The complaint has also been resisted on the ground that the only relief prayed for on behalf of the complainant is that adequate amount of damages should be awarded to him, which is, stricto senco not a relief claimable under the law. The objection thus, has failed to made any impression on me. Since I have already taken cognizance of the matter, it is now for me to decide as to which precise and exact relief, the complainant can be held entitled, regardless of the form or frame of the compliant or the relief prayed for therein. As held in the case of PLD 1965 Lahore 172 that it is always open to the Court to mould its relief according to the change in the circumstances. Even otherwise the law is well settled that pleadings in Mufassal Courts should not be very strictly construed or discarded for non compliance of technical legal provisions. The basic purpose for which a pleading is drafted or prepared has to be uncovered by examining the entire context and not by merely keeping into consideration the relief clause thereof. Having considered the grievances advanced by the complaint, by examining and analyzing the entire subject matter, I am of the view that the complaint has been lodged under the Punjab Consumer Protection Act, 2005 and it has to be necessarily dealt with and disposed of in accordance with the provision thereof. There can be, therefore, no question of non suiting the complainant on the score of such flimsy technical objections.
11. As far as objection of learned counsel that complainant has not purchased the Rickshaw from the respondent and National Bank is the owner of the product has only locus standie to bring any case before the Court is concerned, I would like to go through sub clause (1)(c) of section (2) of the Punjab Consumer Protection Act, 2005 whereby a person who obtains on lease any product and also any user of such product is a consumer. National Bank has extended a facility of financing only whereas the Rickshaw in question is being used as a self employed person by the complainant who being the end user of the product can not be non suited by any means. Being the actual and factual aggrieved person it is the complainant who has locus standie to ask for the relief .
12. Now coming to the evidence on record we are confronted with the statement of complainant as PW-1 who in the witness box stated that on the 3rd day of taking charge, Rickshaw become out of order. The matter was brought in the notice of concerned quarters. The company's approved mechanic tried to set right the fault but after a few days Rickshaw become again non operational.
He has got repaired Rickshaw so many time by spending money from his pocket. He used to replace the engine oil regularly.
13. During the course of trial this Court directed Mr. Ashar Bashir Instructor Auto Mechanics, Govt.
Apprentice Training College Gujranwala to inspect thoroughly the Rickshaw in question and submit his technical report. He appeared as CW1 and placed on record his inspection report Exh. "PB" , according to which Engine over heats due to insufficient design of cooling by manufacture. The over heating badly affects different parts of the engine. It burns and consumes the engine oil which lost the viscosity and badly lower down the performance of lubrication system. Oil seals due to over heating starts leakage. It shortens clutch disk life. Driving seat due to over heating affects performance of driver physically and mentally. Timing/cam drive chain not match properly with cam drive socket. It is manufacturing / designing fault. Due to this practice timing/cam drive chain can slip out any time during engine running. Starting trouble CNG regulator/ECU CDI unit, starter, charging system performance was found abnormal. It is manufacturing/designing fault. Exhaust system Muffler/silencer mounted beside of engine and under side of driver seat. It is manufacturing/ design is also one of the cause of engine over heating. Engine power is insufficient as per vehicle requirement. Charging system low charge the battery. Low quality parts have been used in clutch system like clutch cables/disks etc. Transmission working good but gear shifting mechanism not designed property. Low quality parts used in differential like as gears, bearing seal.
Low quality parts used in final drive like as axles, bearing. From fork, Steering handle, steering bearings, fork, wheel bearings fabricated with sub standard quality. Suspension system need more development.
14. RW-1 Abdul Moeed appeared and stated that best parts have been used in the Rickshaw which have been certified by Pakistan Standard and Quality Control Authority, Engineering Development Board and Ministry of Transport. Whenever complainant approached the respondents his complaints were attended. The necessary spare parts were replaced free of cost. The defects emerged in the Rickshaw are due to mishandling of the Rickshaw by the user as instruction contained in the manual were not fallowed. User manual Exh. R3 were produced on record by the respondent.
15. I have gone through the evidence and other relevant record placed before the Court by the parties. Complainant/ Rickshaw driver is not highly educated person from whom we can expect the operation and maintenance of Rickshaw to a high mark level. No body from Engineering Development Board. Govt. of Pakistan Standard and quality Control Authority has physically inspected each and every Rickshaw manufactured by the respondents at the plant. No one appeared in the Court from the above said authorities with the claim that maintenance of quality and standard by the respondents during the manufacturing process was constantly monitored.
The above said authorities have also failed to determine the meteorological specification of the parts used in the Rickshaw. RW-1 has admitted that various complaints form the users of the Rickshaw manufactured by respondent company were received as result of which a free service camp was arranged at Gujranwala District. According to this RW some of the parts used in the Rickshaw are supplied at the manufacturing plant by out side Venders and there is no certificate about quality and standard of these spare parts.
16. The most reliable and trust worthy evidence we find in this case is the statement of CW-1 Mr. Ashaar Bashir Instructor (Auto), Govt. Apprentices Training Centre, Gujranwala. He has detected various defects in the engine of the Rickshaw in question. Expertise or testimony of this CW can not be doubted being an independent witness.
17. The defects in the Rickshaw started to appear soon after its purchase by complainant which could not be removed even by the Mechanics of service center established by the respondent company. As far as version of the respondents that the defects in the Rickshaw were due to negligence of the complainant and carelessness and non maintenance is concerned nothing has been produced on the record to prove the same and mere bald assertion in this regard can not be treated as a piece of evidence. Only wearer knows where the shoe pinches. The Pakistan Standard and Quality Control Authority, Engineering Development Board officials while sitting in the air- conditioned offices issued the requisite certificates and inspite of flood gate of complaints emerging in various districts from the users of Rickshaw regarding its functioning none of the Govt.
Organization has dare to indulge in the matter uptill now.
18. From a plane reading of the language employed by the legislature to the clause expressly defining "defect" in the act, it appears that the clear intent was to give the widest amplitude to the word "defect" pertaining to goods for the purpose of this statute. This definition does not seem to confine the word "defective" within any narrow of technical limitations. On the other hand, it is deliberately couched in the widest horizon of there being any fault, imperfection or short coming casting its not so wide so to bring within its import every deviation for requirements spelt out in the definition related to the quality, quantity, potency, purity or standards of goods. Therefore, the definition of "defect" is intended by the legislature to be cast in the widest terms and consequently has to be liberally construed. From the evidence keeping in view such definition of "defect" as laid down in the Act, it is found that there is relevant evidence on record adduced from either side that as soon as the Rickshaw was pled on road by the claimant after its delivery to him from the contenting defendant, major defects came to the surface to the astonishment of the claimant, therefore, he had to take it to the warranty dealer again and again.
19. The upshot of the above whole discussion is that the claimant has proved his case up to the hilt, therefore, I have no hesitation to reach an irresistible conclusion that he is entitled to be damnified for providence to him the defective Rickshaw. The complaint is accepted and respondent company is directed to replace the engine of the Rickshaw within a period of two months of its handing over by the complainant to its dealer respondent No. 2 with a new one free from any defect. Complainant is directed to hand over the Rickshaw to respondent No.2 immediately.
Respondents are directed to pay Rs.5000/- as litigation charges alongwith usual counsel fee Rs.11,000/- to the complainant. File be consigned to record room after its due completion.