1. Complainant's case is that he purchased motor car DAIHATSU COURE, Registration No. GAA/08/1350, Engine No.R055576 Chassis No.L5015-7556310 on March 01, 2008 from respondent No.2, Toyota Motors Gujranwala, manufactured by respondent No.1, M/S Indus Motor Company Ltd., Karachi. Soon after the purchase, complainant found during the use of the said vehicle an unwanted noise generating from right pillar. Operation of the driving seat was lurking, thrashing and freely move of engine, besides, unbearable noise from trunk lid. Respondent No.2 was informed with the request to attend the faults but he failed to satisfy the complainant. On 18-03-09 necessary legal notice was served to respondents and ultimately the instant complaint was filed.
2. The case was contested by the respondents raising some legal objections as well as controverting the facts. Contention of respondents is that complainant wrote a letter to Indus Motor Company after one year of the purchase of vehicle, meaning thereby he used the vehicle for one year without any complaint. The alleged defect might have been caused by a major accident. The defects alleged do not come within the ambit of section 4(2)(a)&(d) of the Punjab Consumer Protection Act, 2005.
3. In order to prove his case complainant himself appeared as PW-1 and Ashar Bashir Instructor Auto Mechanic PW-2. Complainant also produced the following documents:- Letter for inspection report Exh."PA", Inspection report Exh. "PB" Form F of Vehicle in question Exh.
"PC", Sale certificate Exh. "PD", Sale invoice Exh. "PE", copy of legal notice mark "A", copy of reply to legal notice Exh. "PF", receipt of dispatch legal notice Exh. "PG"W"PH".
Respondent did not produce any witness.
4. I have heard the arguments and perused the record.
5. Relationship between the parties is not denied. Admittedly complainant purchased the vehicle manufactured and assembled by respondent No.1 through its authorized dealer respondent No.2.
As far as arguments of learned counsel that the complaint has been filed much after the limitation period is concerned, I have gone through the record. The vehicle was purchased on 01-03-08.
According to the complainant within a short span of time certain defects in the vehicle emerged which were brought into the notice of respondent No.2 on various occasions and after a long wrangling, legal notice dated 18-03-09 was dispatched by complainant to the respondents in reply to which respondents once again invited the complainant to approach them but he preferred to bring his claim before the Court.
6. The respondent company has raised various legal objections and also controverted the facts out of which some preliminary legal objections about maintainability of the complaint are being dealt with hereunder. 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 and keeping in view the proviso of subsection 4 the extension if applied, which has not been asked for 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 01-03-08. The maximum period for filing the claim ended on 01-04-08 whereas case was filed on 25-04-09. 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.
7. 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".
8. 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.
9. 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".
10. 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.
11. As far as defects in the vehicle are concerned complainant while appearing as PW stated that pillar were not properly welded. Driving seat was unbalanced some noise was constantly coming from trunk lid. He visited respondent No.2 8/10 times without any fruitful result. One of the important piece of evidence on the record is the inspection report of Mr. Ashar Bashir Instructor Auto Mechanic, Govt. Apprentices Training Centre, Gujranwala who on the direction of the Court inspected the vehicle in question. He appeared as PW2 and placed on record inspection report Exh.
"PB". According to his inspection note, he noticed:-
(1) Abnormal noise during driving on bumpy road. According to this witness it is a manufacturing fault.
(2) Lurch of driving seat which is also a manufacturing defect.
(3) Trunk lid (Diggi) moves up and down smoothly but creates abnormal noise which is also a manufacturing defect. This PW out rightly rejected the complaint regarding thrashing etc.
12. The PW-2 categorically rejected the suggestion that these defect have arisen on account of use of vehicle for a period of one year. I have not been able to find out any reason to doubt the testimony of PW2. No objection was raised by the respondents throwing into challenge the expertise of this witness.
13. From the analysis of record and statement of PWS, this Court is convinced that respondents provided a defective product to the complainant and subsequently failed to remove these defects which reflects deficiency in service on the part of the respondents, therefore, respondents are directed to remove these defects as pointed out by PW2 in his report Exh. "PB" by sending this vehicle at assembling plant within a period of 30 days from handing over of the vehicle by the complainant and deliver the vehicle to complainant free from any defect. The complainant is directed to hand over the vehicle in question to respondent No.2 immediately. The vehicle before its delivery to the complainant shall be examined by Mr. Ashar Bashir Instructor Auto Mechanic, Govt.
Apprentices Training Centre, Gujranwala at the showroom of respondent No.2 under intimation to this Court and he will submit his report regarding the fitness of vehicle to Court. Rs.3000/- as fee of the expert is fixed which shall be paid by respondents at the time of inspection. Respondents are held liable to pay Rs.50,000/- as compensation to the complainant. Besides, litigation charges Rs.5000/- for providing of defective product and deficient service respondents are also held liable to pay fine of Rs.10,000/- each which shall be deposited in the State treasury within one month of passing of this judgment without fail. The complaint is allowed in the above said terms. File be consigned to record room after its due completion. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.