1. The court is on tour at Layyah. The court was not on tour at Layyah on previously fixed date i.e 06- 01-2012 and this date was fixed by the Secretary of this court by entry on the file cover and cause list.
2. Briefly stated the version of the claimant is to the effect that he is employed as sub-engineer in building department of government and resident of Layyah city; that SIM bearing No.03006767067 was obtained by him in his name since the starting of network of MOBILINK JAZZ in Layyah city in the year 2004; that the claimant was using said number since 2004; that all of his official and private acquaintances were in the said SIM; that all of his associates have the same number; that said number was closed suddenly in the night of 16-11-2011; that the claimant suffered from mental and physical tension due to the closure; that the claimant made contact with the defendant on 18-11- 2011; that duplicate SIM was issued by the defendant with the saying that the number would be activated within ten days; that the copy of letter is annexed; that the number being used by the claimant was issued to some other person who is using the same and the calls and SMS of the claimant are being received by said person; that the reputation, prestige and official goodwill of the claimant is at stake; that great loss is being caused to the claimant. He has requested that the SIM should be activated by transfer in the name of the claimant and the misuse of the same at other port should be stopped and for awarding of damages amounting to Rs.500000/-.
3. The version of the defendant namely Mohammad Abbas Managing Director of the defendant franchise in the written statement is to the effect that one Mr. Saleemullah had replaced the SIM by one JSR Muhammad Azam; that they have sent the complaint to the coordinator of the mobile company at Zonal office D.G.Khan; that they have done what they could from their end.
4. I have observed that since the claimant has admitted during the arguments that his SIM was transferred from some other franchise who is not party to the present complaint and not from the present defendant and since it is also being admitted by the claimant that the SIM has been re- activated in his name during the pendency of the present complaint and since the defendant is shown to have fulfilled his responsibility by forwarding the complaint of the claimant to the zonal office of the mobile company as such it is the duty of the said company to take strict action against the concerned franchise in accordance with law while the claimant is at liberty to file the complaint to the Pakistan Telecommunication Authority Islamabad against the concerned mobile company and against the concerned franchise office, if no action is taken by the mobile company against the disputed franchise office, because PTA is competent authority to redress the grievance of the consumers in such cases and the jurisdiction of this court is barred u/s 3 of PCP Act 2005 in such cases. The complaint is therefore deemed to be returned for filing before PTA.
5. As far as the request about recovery of the damages and litigation charges is concerned, I find 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.
6. 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.
7. 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 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.
8. In accordance with above mentioned discussion, the complaint is hereby disposed off by return for filing before PTA, if so required to be filed after waiting for the reasonable period for action of the mobile company against the disputed franchise office.
9. The parties are left to bear their own costs.
10. A copy of this order is to be sent by the claimant through registered post or courier service to the zonal office of the mobile company for information so that they should look into the matter more seriously and so as to redress the grievance of the claimant by settlement out of court so that the claimant may not resort to the filing of the fresh complaint to PTA.
11. This order would become final u/s 34 of PCPA 2005, if the appeal is not preferred after the expiry of the 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.
12. A copy of this order would be 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.
13. The file of this complaint is to be consigned to the record room of this court at D.G.Khan 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.