COMPLAINT ABOUT FAULTY SERVICES
1. The court is on tour at Layyah. I was on leave on previously fixed dates i.e., 27-03-2012 & 31-03- 2012 and this date was fixed by the Secretary of this court by entry in the weekly cause list of pending cases.
2. The case is at the stage of the arguments of learned counsel for the defendants which have been heard today while the arguments of learned counsel for the claimant were heard on 20-03- 2012 and rebuttal arguments have also been heard today. I have perused the file in the light of the arguments. Now I proceed to dispose off the complaint by discussion in the following paragraphs.
3. Briefly stated the grievance of the claimant is to the effect that he was a party to the prize scheme of Honda CD motor cycle run by the defendants; that the prize of motor cycle was allocated to him in a draw after payment of several installments; that he was informed by telephone number 0301-5698323 by the defendants about the prize; that sweet treat was demanded by the defendants from the claimant; that the claimant paid the price of the treat to the defendants in presence of the witnesses namely Ghulam Abbas & Mohammad Hussain; that the motor cycle was promised to be handed over after three days; that the signatures were obtained on plain paper from the claimant; that the defendants refused to give the motor cycle on the fixed date; that the claimant has sent legal notice to the defendants. The claimant has requested that action should be taken against the defendants and motor cycle should be recovered along with transfer letter or Rs.63,000/- as alternate relief along with any other admissible relief.
4. The defendants have contested the complaint by filing their joint written statement in which they have contended that the claimant has no concern with them; that no such motor cycle was drawn as prize in any draw in favour of the claimant; that the complaint has been filed at the instance of one Hafeez Ullah having dispute about payments with the defendants only to harass the defendants; that said person has remained silent partner with the defendants for certain period; that that an application was submitted by Shahid Mehmood defendant about the dispute at police station Fatehpur copy of which is attached as 'Annexure A'; that the claimant had sworn an affidavit dated 25-04-2011 about culmination of dispute the copy of which is attached as 'Annexure B'; that the complaint is not maintainable; that the claimant has no right to issue notices to the defendants; that the complaint and notices are just to harass the defendants without any justification; that the defendants are entitled to the recovery of special costs in case of dismissal of the complaint; that the complaint is incorrect, against the law, against the facts, concocted, misleading and liable to be dismissed. The defendants have requested for dismissal of the complaint.
5. The evidence of the parties has been recorded in accordance with the instructions contained in Rule 6 (a) of National Judicial Policy read with Order XXVI of CPC by appointment of local commissioners on payment of Rs.500/- per witness as fee.
6. Learned counsel for the defendants has pointed out certain contradictions and discrepancies in the evidence of the claimant while it is contended by learned counsel for the claimant that the facts which have been admitted by the defendants in their evidence are not required to be proved and the defects of the evidence pointed out by learned counsel for the defendants are stated to be not fatal for the claimant.
7. A perusal of the evidence shows that the issuance of receipts about deposit of installments has been admitted by Zahid Mehmood defendant No.2 as DW-1 in his statement during cross examination. It is also admitted that the transaction of the claimant might have been with Hafeez Ullah who is admitted to be the partner of the defendants to the extent of two prize draws. This admission tallies with the production of two receipts produced as Ex.P.2 & Ex.P.3.
8. It is however clarified that the admission of the defendants can be treated only to the extent of the membership of claimant in the disputed prize scheme run jointly by the defendants with their third partner namely Hafeez Ullah Shah but the fact remains that the draw of prize of motor cycle has been denied by the defendants and not proved by the claimant by cogent evidence. The claimant has not alleged his own presence at the time of alleged draw and he has also not alleged the presence of his witnesses at the time of alleged draw. The claimant has stated as PW-1 that he had informed the witnesses about telephonic information received by him from the defendants about the alleged draw. The statements of the witnesses as PW-2 & 3 are therefore falsified in which they have claimed to be present at the time and place of alleged draw. There is no other documentary or oral evidence about alleged draw. The claimant has not procured the record of telephone data about the alleged call from the concerned company. He has also not summoned the record of the telephone of the defendants about the alleged call. He has not specified that who was the person out of the defendants who was talking on the telephone about the alleged draw.
There is the possibility that it might have been any fictitious person passing wrong information by posing himself to be one of the defendants by such telephone call.
9. As far as the part of the story about sweet treat is concerned, the same is also not proved because there are contradictions about the mode of purchase and offering of sweet treat between the witnesses. The claimant is alleging that he got the sweet fetched by some boy while Mohammad Hussain PW-2 has alleged that the sweet was fetched by Ghulam Abbas PW-3 on payment of Rs.100/- by the claimant while PW-3 has stated that he fetched Jalaibian as sweet out of Rs.100/- paid by the claimant. The statements of the two witnesses about fetching of sweet by PW-3 is belied by the statement of the claimant as PW-1 to the effect that the sweet was fetched by some boy.
10. It has been contended by learned counsel for the defendants that the claimant has executed compromise deed produced as Ex.D.1 due to which he is being alleged to be estopped to conduct present complaint. I have observed that the said document relates to some dispute about LAIN DAIN (transaction of money) while there is no mention of the dispute about draw of prize in connection with disputed motor cycle scheme in the said document. The same is therefore not relevant in this case to estop the claimant. Even otherwise, the disputed scheme is in violation of criminal law and it is settled principle that there is no estoppal against law. It is also settled principle that compromise cannot be effected in non compoundable criminal cases. The offence of maintaining prize scheme is punishable u/s 294-B PPC which appears to be non compoundable.
The claimant is therefore not estopped to bring the present complaint despite said agreement.
11. I have observed that offering of prize for promotion of any scheme has been declared an offence by S.294-B of Pakistan Penal Code, 1860 which is being reproduced hereunder for the facility of reference:- "294-B. Offering of prize of in connection with trade, etc. Whoever offers or undertakes to offer, in connection with any trade or business or sale of any commodity, any prize reward or other similar consideration, by whatever name called, whether in money or kind, against any coupon, ticket, number or figure, or by any other device as an inducement or encouragement, to trade or business or to the buying of any commodity, or for the purpose of advertisement or popularizing any commodity, and whoever publishes any such offer, shall be punishable with imprisonment of either description for a term which may extend to six months, or with fine, or with both."
12. In accordance with quoted section of law, the scheme being run by the defendants amounts to an offence and soliciting the people by such scheme amounts to bait advertisement u/s 22 of the Punjab Consumer Protection Act, 2005 therefore I find that although the claimant has failed to prove the draw of the alleged motor cycle as prize in the disputed scheme and although he is not entitled to recover the motor cycle or price thereof on the basis of alleged draw of lots but he is found to be entitled to recover compensation in connection with bait advertisement.
13. In view of above situation, the amount of damages is hereby fixed at half price of the alleged price of the disputed prize being Rs.63,000/- while the half amount comes to Rs.31,500/-. The claimant is therefore entitled to recover the said amount as compensation from the defendants jointly and severally.
14. In accordance with above discussion, the complaint is partly accepted to the extent of the recovery of the compensation amounting to Rs.31,500/- and the defendants are directed to pay the said amount to the claimant and to discontinue the illegal scheme immediately.
15. Parties are left to bear their own costs.
16. 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.
17. 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.
18. 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.