2. The case is at the stage of the final arguments which have been heard today and the file has been perused with assistance of learned counsel for the parties as such I proceed to dispose off the complaint by discussion in the following paragraphs:-
3. The grievance of the petitioner is to the effect that the detection bill of Rs.20,346/- dated 19-01- 2010 has been issued to him due to the grudge about previous litigation between the parties. He has requested that the same should be cancelled and he should be awarded Rs.25,000/- as damages and Rs.10,000/- as counsel fee in addition to the contempt proceedings on the basis of alleged violation of the order dated 23-12-2009 which was passed in the previous litigation.
4. The version of the respondents in their joint written reply is to the effect that the petitioner has accepted the theft of electricity by some affidavit filed in the office of the respondents; that the previous petition of the petitioner was dismissed in default; that the present petition is based on malafide; that the petitioner is estopped by his affidavit because he was prepared to pay the disputed bill according to his affidavit; that the connection was got restored by the petitioner in the previous litigation by exercising fraud with the court; that the disputed charges were imposed after visit of military intelligence team on the basis of 'phase polarity change'; that the petition is false; that there is no question of the alleged threat; that the allegations contained in the petition are denied; that the petition should be dismissed; that action should be taken against the petitioner for filing false petition.
5. The version of the respondents in the ancillary application for seeking the dismissal of the petition is to the effect that the Consumer Court has been prohibited by Honourable High Court from determination of the detection bill according to the un-reported judgment titled Mst. Shaheen Akhtar & another Vs. Superintending Engineer MEPCO & others passed in F.A.O No.78/09 passed on 07 12-2009.
6. The parties were directed by this court to establish their version through evidence.
7. Oral evidence of the petitioner consists of the cross examination of the petitioner as PW-1.
Documentary evidence of the petitioner consist of the detailed affidavit of the petitioner as Ex.P-1; copy of CNIC of the petitioner as MarkP-1; copy of the bill of January 2010 as Mark P-2; copy of receipt about installation of meter as Mark P-3; original bill of 11/2009 as Ex.A-1; bill of 10/2009 as Ex.A-2; bill of 02/2010 as Ex.A-3; bill of 03/2010 as Ex.A-4; bill of 04/2010 as Ex.A-5; attested copy of order dated 22-12-2009 / 23-12-2009 / 04-01-2010 jointly as Ex.A-6.
8. Oral evidence of the respondents consists of the statement of respondent No.2 as sole witness.
Documentary evidence of the respondents consists of the copy of notice dated 13-10-2009 as Ex.D- 1; copy of detection report as Ex.D-2; copy of meter checking report as Ex.D-3; copy of meter reading record as Ex.D-4; another copy of meter reading record as Ex.D-4/1; original bill relating to April 2011 as Ex.D-5; original affidavit of one Mansoor Ali as Ex.D-A.
9. It is pertinent to observe that the ELECTRICITY is a PRODUCT according to the definition provided in the Sale of Goods Act, 1930 and the said definition has been made applicable on the cases under PCP Act, 2005 by S.2 (j) of the latter Act.
10. It is also observed that the AUTHORITY providing the ELECTRICITY as a product comes within the definition of the MANUFACTURER under S.2 (h) as such the AUTHORITY is obliged to fulfill all the responsibilities of a MANUFACTURER of the product under S.4 to 12 & 18 to 20 being supplied in dual capacity of the MANUFACTURER along with responsibilities of the SERVICE PROVIDER under S.13 to 17 of PCP Act, 2005. The responsibilities of the respondents are therefore dual as MANUFACTURERS as well as SERVICE PROVIDERS. The expectation of the public about better services of the MEPCO is therefore genuine and enforceable under the law.
11. As far as the effect of the alleged affidavit produced as Ex.D-A is concerned, it is hereby observed that the said affidavit has been incorrectly attributed towards the present petitioner whereas the same is actually of another person namely Mansoor Ali. Therefore I find that the same is not binding on the present petitioner.
12. As far as the assertion of the learned counsel for the petitioner is concerned about the request to initiate action against the SDO about the submission of forged affidavit; it is hereby observed that since the petitioner has not summoned the alleged deponent of the said affidavit as witness who is being stated by the learned counsel for the respondents to be the real brother of the petitioner, as such the said affidavit cannot be declared as forged on the basis of the available evidence. It is therefore sufficient to observe that the said affidavit is not binding against the present petitioner. The request for initiating action about the said affidavit is however rejected.
13. I have observed from the perusal of the file in the light of the arguments that since the present proceedings basically relate to the alleged contempt and since it is not a new case and since the alleged charges are shown to be the result of the previous litigation between the parties as such the ruling of Honourable High Court is not applicable on the facts of the present case.
14. As far as the prayer about the recovery of the damages is concerned, it is hereby observed that: the return of the consideration or a part thereof and the costs is provided in the law where the consumer has suffered the loss of utility or lack of benefit only while the manufacturer or service provider is also liable for the damages where the consumer has suffered any damage from the defective product u/s 10 & faulty service u/s 15; that the manufacturer or service provider is liable to a consumer for damages proximately caused by the defective product u/s 4 & faulty service u/s 13; that the liability of the manufacturer or service provider is not limited or excluded by the terms of any contract or notice about the defective product u/s 12 & faulty service u/s 17; that the disclosure of the details has been made essential about the product and service where the nature of the same is such that it is material to the decision of the consumer to enter into the contract with reference to the product u/s 11 & service u/s 16; that the standard for the provision of services is determined as such which a consumer could reasonably expect to obtain in Pakistan at the time of the provision of the service u/s 14; that the court is authorized to direct the respondent to pay reasonable compensation for any loss suffered due to negligence of the respondent u/s 31(e); that to award damages where appropriate u/s 31(f); that to award costs including lawyer's fees incurred on the legal proceedings u/s 31(g) of PCP Act, 2005.
15. 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.
16. Since there is no explanation in the present petition about any other damages except the loss of utility or lack of benefit as such I find that the petitioner is not entitled to recover the damages or counsel fee.
17. I have observed that since the disputed charges are shown to be the indirect result of the previous litigation between the parties as such not justified therefore the impugned bill is liable to be cancelled. However the respondents cannot be punished in the contempt of court due to absence of direct violation of any specific order of this court.
18. The ancillary application filed on behalf of the respondents for seeking dismissal of the main petition is liable to be dismissed.
19. In accordance with above discussion, the application filed by the respondents for seeking the dismissal of the main petition is hereby dismissed while the main petition is hereby accepted partly to the extent of the cancellation of the disputed charges while the petition is dismissed to the extent of the request about contempt proceedings and grant of damages and counsel fee.
Consequently the impugned charges contained in the disputed bill and subsequent fines imposed due to non payment of the said bill are hereby cancelled and modified bill is directed to be issued by showing the excess amount paid by the petitioner as credit towards future payment.
20. Parties are left to bear their own costs.
21. A copy of this order be provided free of costs to the representative of the respondents along with issuance of a copy through post to the RO MEPCO for compliance.
22. A copy of this order is directed to be made available for publishing on the internet to the website of Punjab Consumer Protection Council Secretariat, 135-J, Model Town, Lahore for public disclosure and easy access of information to the consumers relating to the products and services in accordance with Rule 25 of PCP Rules, 2009.
23. The file of this petition 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.