COMPLAINT ABOUT FAULTY SERVICES
2. The case was previously at the stage of the decision while the arguments were heard on the previous date and the case was adjourned to 24-10-2011 for the decision without passing the order due to rush of other work but the court remained closed due to public holiday on the said date as such the file has been taken up today for the same purpose.
3. I have perused the file in the light of the arguments as such I proceed to dispose off the complaint by discussion in the following paragraphs.
4. Briefly stated the claimant wants to restore water supply scheme by TMA at Jampur city which is non operational for about ten years on the ground that the water supply is declared as municipal service with reference to clause XXII and also declared basic duty to provide water u/s 54 of the Punjab Local Government Ordinance 2001; that the public was being benefitted from the said facility; that the same was disrupted; that TMA has no power to withdraw municipal services and basic amenities from public; that the matter was highlighted through newspaper but in vain; that no other channel /remedy is left except to knock the door of the court; that the staff of water supply scheme is taking salaries without any duty; that TMA is required to be directed to restore the water supply scheme; that no action has been initiated on the legal notice issued by the claimant; that the TMA should be directed to perform municipal services and basic duties as required by the Punjab Local Government Ordinance 2001 read with Punjab Consumer Protection Act 2005.
5. The version of the defendants in the written statement is to the effect that the water supply scheme constructed by Public Health Engineering Department in 1995-96 was never handed over to TMA; that no connection was obtained by the public due to ground water being drinkable; that the under ground pipes have corroded; that TMA cannot bear the burden of the expenses of the scheme due to lack of funds; that the grant of Crores of rupees is required from the government of Punjab for operating the scheme; that the staff of water supply scheme is performing duties on disposal scheme; that the population of Jampur city consists of about 5,00,000/- people; that the claimant has himself remained posted in the Municipal Administration as Chief Officer in different periods without any progress of the disputed scheme; that the complaint is not maintainable; that the same may be dismissed.
6. I am of the view that since the PROCEDURE ON RECEIPT OF COMPLAINT is provided in S.30 of PCP Act, 2005; as such if the intention of the legislature was to implement all the provisions provided in the Code of Civil Procedure, 1908, then it should not have been specified in S.30 (3) that the consumer court shall have the same powers as are vested in civil court while trying a suit, under the Code of Civil Procedure, 1908 (Act XX of 1908), in respect of the matters narrated in Clauses (a) to (e).
7. The matters incorporated in Clauses (a) to (e) of Sub-section (3) of S.30 of PCP Act, 2005 (Act ii of 2005) about which the powers given by the Code of Civil Procedure are to be exercised by the consumer court relate to: (a) the summoning and enforcing attendance of any defendant or witness and examining him on oath; (b) the discovery and production of any document or other material object which may be produced as evidence; (c) the receiving of evidence on affidavits;
(d) issuing of any commission for the examination of any witness; and (e) any other matter which may be prescribed.
8. The obvious meaning of the last portion of the quoted law in clause (e) relating to "any other matter which may be prescribed" is to the effect that the list contained in clauses (a) to (d) is not exhaustive and any other matter may be prescribed in any provision of the same law on which the powers under the Code can be exercised by the consumer court.
9. My humble interpretation of the said clause is to the effect that other principles and powers contained in the said Code can also be used beneficially under the said clause by the consumer court to resolve the matter under the established procedure instead of remaining in the darkness and to avoid the failure of justice due to the absence of prescribed procedure in the consumer law and consumer rules but the technicalities should not be allowed to hinder the path of justice in the said process.
10. A glance on the SECTIONS of CPC shows that the principles of law are laid down regarding SUMMONS TO DEFENDANTS in S.27; SERVICE OF SUMMONS WHERE DEFENDANT RESIDES IN ANOTHER PROVINCE in S.28; SERVICE OF FOREIGN SUMMONS in S.29; POWER TO ORDER DISCOVERY AND THE LIKE in S.30; SUMMONS TO WITNESSES in S.31; PENALTY TO DEFAULT in S.32; POWER OF COURT TO ISSUE COMMISSIONS in S.75; COMMISSION TO ANOTHER COURT in S.76; LETTER OF REQUEST in S.77; COMMISSIONS ISSUED BY FOREIGN COURTS in S.78; SUITS BY OR AGAINST THE GOVERNMENT in S.79; EXEMPTION FROM ARREST AND PERSONAL APPEARANCE in S.81; WHEN ALIENS MAY SUE in S.83; SUPPLEMENTAL PROCEEDINGS in S.94; REVIEW in S.114; UNAUTHORISED PERSONS NOT TO ADDRESS COURT in S.119; EXEMPTION OF CERTAIN WOMEN FROM PERSONAL APPEARANCE in S.132; EXEMPTION OF OTHER PERSONS in S.133; ARREST OTHER THAN IN EXECUTION OF DECREE in S.134; EXEMPTION FROM ARREST UNDER CIVIL PROCESS in S.135; EXEMPTION OF MEMBERS OF LEGISLATIVE BODIES FROM ARREST AND DETENTION UNDER CIVIL PROCESS in S.135-A; PROCEDURE WHERE PERSON TO BE ARRESTED OR PROPERTY TO BE ATTACHED IS OUTSIDE DISTRICT in S.136; POWER OF HIGH COURT TO REQUIRE EVIDENCE TO BE RECORDED IN ENGLISH in S.138; OATH ON AFFIDAVIT BY WHOM TO BE ADMINISTERED in S.139; MISCELLANEOUS PROCEEDINGS in S.141; ORDER AND NOTICES TO BE IN WRITING in S.142; POSTAGE in S.143; ENFORCEMENT OF LIABILITY OF SURETY in S.145; SAVING OF INHERENT POWERS OF COURT in S.151.
11. A glance on the ORDERS of CPC shows that some are completely applicable while some can be applied only to the extent of certain RULES. The complete ORDERS which are applicable are enumerated as complete O.V(5) about ISSUE AND SERVICE OF SUMMONS; complete O.IX(9) about APPEARANCE OF PARTIES AND CONSEQUENCE OF NON APPEARANCE; complete O.X(10) about EXAMINATION OF PARTIES BY THE COURT; complete O.XI(11) about DISCOVERY AND INSPECTION; complete O.XII(12) about ADMISSIONS; complete O.XIII(13) about PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS; complete O.XVI(16) about SUMMONING AND ATTENDANCE OF WITNESSES; complete O.XVII(17) about ADJOURNMENT; complete O.XVIII(18) about HEARING OF THE SUIT AND EXAMINAION OF WITNESSES; complete O.XIX(19) about AFFIDAVITS; complete O.XXVI(26) about COMMISSIONS; complete O.O.XXVII(27) about SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY; complete O.XXVIII(28) about SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN; complete O.XXIX(29) about SUITS BY OR AGAINST CORPORATIONS; complete O.XXX(30) about SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN: complete O.XXXII(32) about SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND; complete O.XXXVIII(38) about ARREST AND ATTACHMENT BEFORE JUDGMENT; complete O.XLVIII(38) about MISCELLANEOUS.
12. Scattered provisions of CPC applicable to the consumer court are to be found in O.VI(6),R.2 about PLEADINGS TO STATE MATERIAL FACTS AND NOT EVIDENCE; O.VII(7),R.14 about PRODUCTION OF DOCUMENT ON WHICH PLAINTIFF SUES; R.15 about STATEMENT IN CASE OF DOCUMENTS NOT IN PLAINTIFF?S POSSESSION OR POWER; R.17 about PRODUCTION OF SHOP BOOK; R.18 about INADMISSIBILITY OF DOCUMENT NOT PRODUCED WHEN PLAINT FILED; R.22 about PROCEDURE WHEN PARTY NOT FOUND AT THE PLACE OF ADDRESS; R.25 about SERVICE BY OTHER MODES; O.VIII(8),R.1 about WRITTEN STATEMENT; O.XIV(14),R.4 about COURT MAY EXAMINE WITNESSES OR DOCUMENTS BEFORE FRAMING ISSUES; O.XV(15),R.4 about FAILURE TO PRODUCE EVIDENCE.
13. It is pertinent to note 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; the Qanun-e-Shahadat Order, 1984, the Bankers? Books Evidence Act, 1891 are not strictly applicable to the proceedings of the Consumer Courts, as such the propriety demands that the regular evidence should not be recorded in such cases where the points for determination are mostly based on the copies of the admitted documents available in the file of the complaint or admitted in the pleadings.
14. I am of the view that such cases can be effectively disposed off without recording regular evidence and by reliance upon the copies of the documents annexed in the file of the court for quick disposal so as to avoid the technicalities and un-necessary delay in the disposal of cases.
15. It is further observed that it is proper and necessary to treat the copies of the documents annexed with the complaint and written statement including the documents filed during the pendency of the complaint, as prima facie proof and evidence of the parties for reaching to the safe and just conclusion in such cases which can be effectively disposed off without recording regular evidence just like the present case.
16. The documents to be relied upon by the claimant and included in the file consist of the copy of CNIC of the claimant; copy of the legal notice issued by the claimant; original postal receipt about issuance of legal notice; copy of the clipping of newspaper.
17. The documents have not been filed by the defendants.
18. As far as the capacity of the claimant as the consumer or otherwise is concerned, it is observed that it is provided in the definition of the 'CONSUMER' in S.2 (c) of the 'Act' that it means such a person or entity who "Hires any service for a consideration and includes the beneficiary of such services". The beneficiary of the services hired by another is also included in the definition of the consumer. The objection of the defendant about the definition of the term 'CONSUMER' is also not acceptable because the services of the defendant are presumed to be hired by the government for the benefit of the general public and every member of the public is presumed to be the beneficiary of the said services. The claimant is therefore entitled to be treated as the consumer being one of the beneficiaries of the services of the defendant hired by the government.
19. As far as the possible objection about the plenary jurisdiction of this court is concerned, it is hereby observed that it is provided in S.3 of PCP Act 2005 that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The interpretation of the term "DEROGATION" in S.3 of PCP Act 2005 is to the effect that the said word is used to convey the intent of the legislature to the effect that the provisions of Consumer Law should not be DEROGATED by any other law being special law and the said word is not to be construed for barring the jurisdiction of the consumer courts unless specifically ousted by other laws.
20. Even otherwise the MUNICIPAL SERVICES are deemed to be the FACILITIES as mentioned in the definition of the term SERVICES in S.2 (k) of PCP Act 2005. The jurisdiction of the Consumer Court is clear enough from the provisions of S. 27 / 31/ 36 of PCP Act 2005.
21. The ADMINISTRATION providing the MUNICIPAL SERVICES is obliged to fulfill all the responsibilities of a SERVICE PROVIDER under S. 13 to 17 of PCP Act 2005. The expectation of the public about better services of TMA is therefore genuine and enforceable under the law.
22. It is pertinent to note that the objection of the defendant about non payment of tax is misconceived because it is clear from S.2 (k) of PCP Act (Act II of 2005) that the free services without payment of any fee are not excluded from definition of the term SERVICES' because said services do not fall within prohibitory clauses (i) to (iii) of the said clause in which the examples of the services excluded from the definition are given as the contract of personal services, astrology, palmistry, court of law, arbitration while the services to be included in the definition are given as medical, legal or engineering services.
23. It is understood that the said examples are not exhaustive and many other instances of both kinds of services can be included by practical experience in accordance with the nature of the cases but it can be safely found that the MUNICIPAL SERVICES'cannot be excluded from the definition of the SERVICES' by any stretch of imagination.
24. As far as the question 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.
25. 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.
26. 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 claimant is not entitled to recover the damages or litigation charges or counsel fee.
27. I am of the view that the staff of the institutions and departments and entities handling public dealings should be considerate, altruistic, unselfish, civilized, gentle, moderate, caring, openhanded, copious, bountiful, goodhearted, philanthropic, benevolent, humanitarian, generous, caring, understanding, kind and thoughtful towards the grievances of the public.
28. They should endeavor to assuage and alleviate the sufferings of the distressed consumers so as to encourage redressal of the grievances even prior to the appearance before the court instead of remaining adamant, annoying, boisterous, disruptive, harsh, importunate, mulish, obdurate, persistent, raucous, rigid rowdy, rude, stiff, strict, stubborn, unruly, rough and tough, even during the pendency of the complaint before the courts.
29. A perusal of the local law shows that it is provided in S.54 (1) (h) (i) that "(1) The functions and powers of the Tehsil Municipal Administration shall be to-" "
(h) provide, manage, operate, maintain and improve the municipal infrastructure and services, including-"--"(i) water supply and control and development of water sources, other than systems maintained by the Union and Village Councils;" "
30. For what has been discussed above, the present complaint is accepted to the extent off the issuance of the direction to the TMO TMA Jampur for making arrangements in the next annual budget to provide, manage, operate, maintain and improve the water supply scheme in accordance with law.
31. Parties are left to bear their own costs.
32. This order would not become final u/s 34 of PCP Act 2005, if the appeal is 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.
33. 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 defendant that the costs to be incurred for and during the application for implementation would be liable to be recovered from it.
34. A copy of this order is to be sent to the defendant through registered post along with issuance of a copy through the claimant by hand to the TMO TMA Jampur by registered post for compliance.
35. 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.
36. 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.