COMPLAINT ABOUT DEFECTIVE PRODUCT
1. The case is at the stage of the personal appearance of the representative of defendant No.1.
Shoaib Sarfraz Moughal is present in person as representative of defendant No.1. Wakalatnama has been filed by Rasheed Ahmad Khan Advocate on behalf of said representative. I have heard the arguments and perused the file in the light of the arguments. Now I proceed to discuss and 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 Split A.C. Model 126 LG on 18-12-2010 for Rs.29,000/- with guarantee written on the pad of defendant No.2; that the fitting was performed by personnel of the defendant on payment of Rs.1,300/- as fee; that the AC stopped cooling after few days; that the gas was refilled on payment of Rs.1,600/- through the mechanic deputed by defendant No.2; that defendant No.2 refused and insulted the claimant on demand of providing the AC free of defects on 05-10-2011; that no action has been taken by the defendants to redress the grievance despite receiving the notices; that the period of warranty was upto 17-12- 2011; that the previous complaint filed within period of warranty was within limitation; that the previous complaint was withdrawn to file the present complaint with permission of this court so as to implead defendant No.1 who was not party in the original complaint. The claimant has requested that either AC should be replaced or payment should be returned along with return of the charges paid to the mechanics. He has also requested for recovery of Rs.5,00,000/- as damages and Rs.40,000/- as counsel fee from the defendants.
3. The complaint was initially contested on behalf of the defendants by their representative namely Haider Farooq by filing written statement to the effect that the mechanic has not been impleaded as party who is proper to be produced to determine alleged defect; that the AC was not expected to leave cooling in winter season in which it was purchased; that 2nd complaint is said to be made after 10 months of purchase; that it is not expected from businessmen to insult their customers; that there is no guarantee of leakage of gas; that the company can replace if contacted.
4. The complaint has been contested on behalf of defendant No.1 in present proceedings by filing the written statement and by raising the objections to the effect that the notice was not sent; that the complaint is time barred; that first complaint was dismissed as withdrawn; that fresh complaint was allowed to be filed against defendant No.2 only after withdrawal of previous complaint; that the complaint is incorrect and baseless and to blackmail; that the contents of the written statement of defendant No.2 are relied upon by defendant No.1. It is requested that the complaint be dismissed with the grant of damages and costs to defendant No.1.
5. I am of the view that although evidence is necessary to be recorded under S.30 of PCP Act 2005 for disposal of the complaints by the Consumer Courts but since the procedural laws known as the Code of Civil Procedure, 1908; the Code of Criminal Procedure, 1898 and the laws regulating the recording of evidence like the Qanun-e-Shahadat Order, 1984, the Bankers' Books Evidence Act, 1891 & special rules of evidence u/s 118 of the Negotiable Instruments Act, 1881 are not strictly applicable to the proceedings of the Consumer Courts, as such the propriety demands that the regular evidence should not be recorded just like the present case.
6. It is observed that the ex-parte order dated 24-02-2012 has been partly cancelled to the extent of defendant No.1 by acceptance of its application No.2332/253/12 vide order dated 10-04-2012 by keeping the ex-parte order against defendant No.2 intact.
7. It is clarified that the findings contained in ex-parte order are being reproduced in this order due to the fact that the said order is still operative against defendant No.2 who acted as representative of defendant No.1 also while defendant No.1 has relied upon the contents of the written statement of defendant No.2 in addition to its own version as such previous findings are found to be operative against defendant No.1 also after providing it the opportunity to be heard specifically when the dealership of defendant No.2 cannot be denied by defendant No.1 in absence of any proof about the cancellation.
8. It was observed by this court in ex-parte order dated 24-02-2012 that "I have observed from a perusal of the file that the version of the claimant is established to the extent that the ex-parte evidence indicates inherent defect in the AC as such both the defendants are jointly and severally responsible for 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 defendant No.2 and the responsibility of the shop keeper cannot be shifted to the company for the purpose of replacement of defective product. It was also observed that Defendant No.2 is equally liable for said defect because he has sold the defective product from his shop while the company being impleaded as defendant No.1 and represented jointly by representative of defendant No.2 is responsible to implement the verdict of this court by providing new AC to defendant No.2 for onward delivery to the claimant or to refund the sale price to defendant No.2 for repayment to the claimant. It was also observed that the claimant has therefore no need to even implead the company as party.
9. As far as the request for recovery of the damages is concerned, it was 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".
10. It was also observed that "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".
11. It was 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 through this court under the law of consumers".
12. It was also observed that "the summoning of the postman or representative of the courier service to prove actual delivery of legal notice was not required but it is sufficient to produce original receipt about payment of charges or booking of the packet and production of the copy of the legal notice."
13. It was also observed that "as far as the mode of proof of the counsel fee is concerned, it is observed that the recovery of the lawyer's fee is legalized by S.31 (g) of PCP Act 2005 and the same is not necessary to be proved and no evidence is required from the counsel about the receiving of the same when the same is specifically pleaded in the complaint itself as Rs.40,000/- while the appearance of the learned counsel to conduct the case is the acknowledgement of the receipt of the said amount as legal fee, therefore I find that the claimant would be entitled to recover the counsel fee from defendant No.2 in case of delay in the replacement or return of disputed AC beyond statutory period of appeal".
14. It is clarified that the recovery of fee was conditional with non compliance of the ex-parte order.
15. It was also observed that "therefore I find that the claimant is not entitled to recover repair charges and litigation charges due to non production of receipts and also not entitled to recover the damages or compensation due to embargo placed by law on grant of damages but entitled to the replacement of disputed AC or recovery of sale price while the recovery of counsel fee is made conditional with the delay in the compliance of this order which would become payable in case of non compliance of this order after one month. The complaint is therefore liable to be dismissed to the extent of the recovery of Rs.5,00,000/- as damages and Rs.10,000/- as litigation charges and Rs.2,900/- as repair charges while recovery of Rs.40,000/- as counsel fee would remain conditional with the delay in the compliance of this order".
16. It is clarified that since the claimant has not challenged the said order in appeal as such he is deemed to have accepted the partly dismissal of his complaint to the extent of the damages and litigation charges and repair charges and contented himself with the direction about replacement of the disputed AC and with conditional order of payment of counsel fee in case of delay in the compliance of ex-parte order.
17. As far as the additional objection of defendant No.1 is concerned, relating to the withdrawal of previous complaint, I find that the said withdrawal has no adverse effect because the fresh complaint was filed with permission within original limitation after issuance of fresh notice.
18. As far as the objection about the period of limitation is concerned, I find that the same starts running in the cases relating to the period of warranty from the date of the expiry of the period of warranty which was 17-12-2011 in the present case and the complaint was proper to filed within 30 days after the expiry of said period i.e., up to 16-01-2012 while even the 2nd plaint was filed before the said date on 05-01-2012. The complaint is therefore within limitation. The objection is therefore rejected.
19. As far as the objection is concerned about no warranty for replacement given by the defendants, I find that the powers of the consumer court for direction about replacement of defective product are over and above from the guarantee or warranty in accordance with S.31 of PCP Act, 2005. There is no requirement about providing the guarantee or warranty to order about replacement of defective product or return of price under said section of law. The disputed AC is shown to be defective from very beginning. The claimant is therefore entitled to the replacement of the same or return of the price thereof on joint responsibility of both defendants.
20. In accordance with above discussion, the complaint is partly accepted in favour of the claimant and against defendant No.1 in contested form while keeping the partly acceptance of the complaint against defendant No.2 in ex-parte manner intact to the extent of the replacement of defective AC or return of price Rs.29,000/- jointly or severally from both defendants, therefore defendant No.1 is also directed to arrange with the dealer being defendant No.2 to replace disputed AC with new AC of same brand or to return the price in lieu of return of the AC within two months failing which they would be jointly or severally liable to pay Rs.40,000/- as counsel fee to the claimant while the complaint is dismissed to the extent of the recovery of damages and litigation charges and repair charges by attaching the grant or dismissal about recovery of counsel fee with the expected delay of two months.
21. 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 defendant No.1 that the costs to be incurred for and during the application for implementation would also be liable to be recovered equally from the said defendant.
22. This order would become final u/s 34 of PCP Act, 2005, if the appeal 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 within 30 days after issuance of certified copy of this order.
23. 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.