COMPLAINT ABOUT FAULTY SERVICES
2. The case is at the stage of the proper order while arguments were heard on the previous date and sample medicines were also inspected in presence of learned counsel for the parties. Now I proceed to discuss the arguments in the following paragraphs.
3. Briefly stated the version of the claimant is to the effect that the injection prescribed by defendant No.3 was purchased by him from the medical store established by defendant No.3 in his medical center which is alleged to be defective due to the presence of foreign body in the same which might have been proved fatal if injected for the life of the claimant due to precaution of the dispenser who pointed out the same to the claimant before injecting the same; that defendant No.3 has treated the claimant with harsh attitude when he complained about the defect in the injection; that the claimant has impleaded defendant No.2 as manufacturer and defendant No.4 as distributor and defendant No.5 as incharge of medical store along with concerned company as defendant No.1 and concerned doctor as defendant No.3; that legal notices issued on 23-02-2012 have not been responded by the defendants. He has demanded the recovery of Rs.2 crore each from defendants No.1 & 2; Rs.1 crore from defendant No.3; Rs.50,00,000/- from defendant No.4 and Rs.10,00,000/- from defendant No.5 as damages and also requested for grant of Rs.30,000/- as counsel fee and Rs.10,000/- as fee of bar clerk and also requested for recovery of undetermined litigation charges.
4. The defendants have jointly contested the complaint in their written statement by raising some preliminary objections to the effect that the claimant can not claim any damages because he has not utilized the injections; that the disputed product is time tested and highly effective product which is being used throughout the country without any complaint; that the claim for damages about mental stress etc falls within the jurisdiction of civil court and not Act of PCP; that the complaint has been filed with mala fide intention with ulterior motives just to blackmail; that the complaint is false, frivolous and vexatious; that the claimant has not approached with clean hands; that the respondents shall suffer irreparable loss and injury to their repute, business and good will and requested for dismissal of the complaint by denial of the allegations contained in the complaint and also objected against the jurisdiction of this court.
5. 1st objection contained in the joint written statement of the defendants is to the effect that since the claimant did not utilize disputed injection therefore can not claim any damages. I am of the view that the damages can be claimed in such situation when the use of the disputed medicine or food article etc results in the deterioration of the health of the claimant which is not the case in the present complaint. There is no allegation that the health of the claimant has suffered due to the use of disputed injection, therefore I find that the complaint is liable to be dismissed to the extent of the recovery of the damages.
6. 2nd objection contained in the joint written statement of the defendants is to the effect that two injections got injected by the claimant did not cause any injury and impairment to the claimant therefore no question can be raised relating to the hygiene and efficacy of the product. I am of the view that since the particle of foreign body is being detected in the liquid form of the sample of the disputed injection being available in the custody of the Secretary of this court having been deposited by the claimant as such the quality of that particular vile of the disputed injection can not be claimed up to mark therefore the claimant is entitled to recover the price of the said injection from the defendants along with counsel fee and litigation charges keeping in view of the spirit of S.10 & 15 of PCP Act 2005.
7. It is observed that it is settled law that the manufacturer or service provider is not liable for any damages except a return of the consideration or a part thereof and the costs, specifically where the consumer has not suffered any damages from the product or provision of service except lack of utility/ benefit.
8. It is pertinent to note that the grant of damages is curtailed even under Contract Act, 1872 in which it is provided in S.73 to 75 that the damages should be proportionate to the loss and not excessive by mentioning that such compensation for loss or damage caused by breach of contract is not to be given for any remote and indirect loss or damage sustained by reason of the breach. It is an embargo placed by the general law of contracts upon the powers of the courts about grant of damages.
9. It is also observed that further embargo on the quantum of damages to be awarded by the consumers courts has been placed by the law provided in S. 4, 10, 13 & 15 of PCP Act by declaring that the manufacturer or service provider shall be liable to a consumer for damages proximately caused by anticipated use of the product or provision of services that have caused damage but he shall not be liable for any damages except a return of the consideration or a part thereof and the costs in such cases where the consumer has not suffered any damages from the provision of service except lack of benefit or loss of utility as such I find that the claimant is not entitled to recover the damages through this court under the law of consumers.
10. 3rd objection is to the effect that the complaint is falls within the jurisdiction of civil courts. It is observed that whenever tortious act is the subject matter of the consumer complaint instead of the grievance about the quality of the product or services, then the complaint is liable to be returned for filing civil suit because the humiliation and threats and use of force to oust the claimant from the clinic constitutes civil remedy therefore the complaint is proper to be returned to the extent of said allegation for filing before the learned civil court. The objection is accordingly upheld.
11. 4th objection is to the effect that the complaint has been filed with mala fide intention. I have observed that since speck of black is visible in the liquid form of the disputed injection as such mala fide intention can not be attributed to the claimant for filing the present complaint. The objection is therefore rejected.
12. 5th objection contained in the joint written statement of the defendants contains the request for dismissal of the complaint being false, frivolous and vexatious. It is observed that the disputed speck in the liquid form of the disputed injection is prima-facie proof of the bonafide of the claimant. The objection is therefore rejected.
13. 6th objection is to the effect that the claimant has not come with clean hand. I have observed that such like objection could have been raised if there would have not been any defect in the disputed injection but since the defect is visible in the sample therefore no such objection can be raised as such accordingly rejected.
14. 7th objection is to the effect that if the complaint is not dismissed then the respondents shall suffer irreparable loss and injury to their repute, business and goodwill. I have observed that the goodwill of the defendants can not be shattered by the defect in a single injection and they are responsible for the alleged defect in the said injection therefore the complaint can not be dismissed on this account. The objection is therefore rejected.
15. Additional objection elaborated by learned counsel for the defendants during the arguments is to the effect that the concerned manufacturer company is still not party to the complaint. I am of the view that it is not fatal for the complaint due to omission to implead the said manufacturer because it is presumed to be the joint venture of various companies by preparation of the formula by one company and license of other and manufacturing by still another. It is therefore clarified that the relief can be acquired by the claimant without impleading other as parties even against the seller of the disputed injection. The objection is therefore rejected.
16. In accordance with above discussion, the complaint is partly accepted to the extent of the entitlement of the claimant to recover the price of disputed injection along with Rs.30,000/- as counsel fee and Rs.10,000/- as litigation charges jointly and severally from any one of the defendants while the complaint is deemed to be returned to the extent of the remaining relief for the purpose of filing civil suit, if so required to be filed.
17. The samples would remain in safe custody for 90 days and afterwards be disposed off if appeal is not filed.
18. This order would become final u/s 34 of PCP Act 2005, if the appeal is not preferred within period of 30 days under S.33 of PCP Act 2005 & Rule 18 of PCP Rules 2009 in accordance with the Rules of Procedure of Honourable High Court.
19. In case of delay in compliance, the claimant is entitled to get the order implemented by filing the application for implementation with reference to S.31, 32 & 36 of PCP Act, 2005, if so required with the warning to the defendants that the costs to be incurred for and during the application for implementation would be liable to be recovered from them.
20. The file of this complaint is to be consigned to the record room of this court duly page marked with proper index and after due completion and made available for issuance of attested copies and kept under safe custody till the period fixed for destruction in accordance with the Rules & Orders of Honourable Lahore High Court.