COMPLAINT ABOUT FAULTY SERVICES
1. The case is at the stage of ex-parte arguments which have been heard and file has been perused as such I proceed to dispose off the complaint by discussion in the following paragraphs.
2. Briefly stated the version of the claimant is to the effect that he purchased 11/2 Ton A.C. of PEL brand on 24-03-2011 for Rs.38000/- with guarantee of one year; that the fitting was performed by personnel of the defendant; that the working of the A.C. was not proper from the time of fitting; that new stabilizer was installed on advice of the defendant; that the working of the AC remained defective; that the claimant demanded replacement but the defendant said that the supervisor of the company would visit and to be told about the complaint; that the supervisor never visited; that the AC has not been replaced; that the defendant has been postponing the matter; that the legal notice has been responded by the defendant with threats; that the defendant has told the claimant to do whatever he can and claimed that he has no respect for the consumer court; that the defendant has provided faulty service by violation of guarantee; that the claimant has suffered financial and mental tension. The claimant has requested for the change of AC and recovery of Rs.200000/- as fine and Rs.20000/- as counsel fee.
3. The complaint was initially contested by the defendant by filing written statement to the effect that the AC had been working for three months; that the brunt compressor was changed by them; that AC had been working for one week after repair; that the demand of the claimant about replacement is not acceptable because the guarantee was for repair and not for replacement; that the claimant should contact with the concerned company; that they are prepared to get the matter solved.
4. The ex-parte evidence of the claimant consist of his own original affidavit of claimant as Ex.P-1; original postal receipt as Ex.P-2; copy of CNIC of the claimant as Mark P.A; copy of legal notice as Mark P.B; copy of purchase receipt as Mark P.C. The right of the claimant to produce additional evidence has been reserved to be produced if the case is to be contested by the defendant.
5. I have observed from a perusal of the file that the version of the claimant is established to the extent that the defendant is responsible for the proper working of the AC and liable to replace even in the absence of the guarantee of the concerned company because it is the matter between the shop keeper and the company to get the defective AC replaced from the company but the purchaser is not liable to contact the company because the purchaser has bought the AC from the shop of the defendant and the responsibility of the shop keeper cannot be shifted to the company for the purpose of replacement of defective product. The defendant has admitted in the written statement that the AC became defective after three months due to burning of the compressor and that the AC worked for only one week after replacement of the compressor. It indicates inherent defect in the AC. The defendant is equally liable for said defect because he has sold the defective product from his shop.
6. As far as the request for recovery of the damages is concerned, 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.
7. 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.
8. 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 or compensation or counsel fee or litigation charges through this court under the law of consumers.
9. In accordance with above discussion, the claimant is entitled to the replacement of defective AC or return of price Rs.38000/- in addition to the recovery of counsel fee Rs.20,000/- from the defendant, therefore the complaint is partly accepted to the said extent and the defendant is directed to replace the AC with new AC of same brand or to return the price in lieu of return of the AC and also to pay Rs.20000/- as counsel fee to the claimant while the complaint is partly dismissed to the extent of the recovery of Rs.200000/- as damages.
10. The claimant is entitled to get this 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 defendant that the costs to be incurred for and during the application for implementation would also be liable to be recovered from the defendant.
11. Stringent action would be liable to be taken u/s 32(2) read with S.36 of PCP Act, 2005 for implementation of this order through arrest, detention, attachment, auction, against the defendant.
12. This order would become final u/s 34 of PCPA 2005, if the appeal or application is not preferred under S.33 of PCP Act, 2005 & Rule 18 of PCP Rules, 2009 in accordance with the Rules of Procedure of Honourable High Court.
13. A soft copy of this order would be available for publishing on the internet to the website of Punjab Consumer Protection Council Directorate, 135-J, Model Town, Lahore for public disclosure and easy access of information to the consumers relating to the products and services under Rule 25 of PCP Rules, 2009.
14. The file of this complaint is to be consigned to the record room 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.