COMPLAINT ABOUT FAULTY SERVICE & RECOVERY OF DAMAGES
2. The case is at the stage of the arguments which have been heard and file has been perused in the light of the arguments as such I proceed to determine the objections of the defendants and assertions of the claimant by discussion in the following paragraphs.
3. Briefly stated the grievance of the claimant is to the effect that the claimant is noble and respectable citizen; that he has paid the installments of the amount of Rs.1,47,750/- towards the allotment of plot of land measuring five Marlas in the colony being promised to be developed by the defendants namely 'Bahrain City'; that the promised facilities have not been provided by the defendants; that the colony is not registered with the government; that the defendants have refused to complete the development of the colony even after issuance of legal notice; that they have threatened the claimant for dire consequences of any legal action against them. The claimant has requested that damages amounting to Rs.10,00,000/- should be got recovered from the defendants as damages for bait advertisement and false representation and mental tension along with Rs.50,000/- as litigation charges and counsel fee.
4. The defendants have jointly contested the complaint firstly by filing application under Order 7 Rule 11 CPC and then by joint written statement by contending that the complaint does not fall within purview of the Consumer Act; that it has been filed to blackmail; that it is based upon the contract enforceable through the civil court; that that no loss has been suffered by the claimant; that the entitlement of the claimant to acquire the plot of land has been cancelled due to shortage of installment; that the claimant wants to damage good will of the business of the defendants; that that the complaint is incorrect and baseless and liable to be dismissed with Rs.10,000/- as fine and reasonable damages should be awarded to the defendants along with dismissal of the complaint.
5. The application filed under Order 7 Rule 11 CPC has been contested by the claimant by filing his written reply with prayer for dismissal with denial of the allegations contained in the said application.
6. As far as the request for grant of 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 the recovery of the damages or compensation or litigation charges through this court.
9. It is further observed that whenever tortious act is the subject matter of the consumer complaint instead of the grievance about the quality of the product or services in the form of allegation of humiliation etc., then the complaint is liable to be returned for filing civil suit because the humiliation and threats constitutes civil remedy therefore the complaint is not maintainable in the consumer court about recovery of the damages about humiliation etc.
10. I have observed on the basis of perusal of S.21 and 22 of PCP Act 2005 that the plot of land cannot be treated as the product for the purpose of the Consumer Act as such the complaint cannot be filed in the Consumer Court about all disputes relating to the breach of contracts and agreements relating to the sale and purchase of plot of land because specific law is available on the subject by the name of Specific Relief Act and civil suit is liable to be filed by the aggrieved person if he is disappointed from the agreement.
11. As far as the allegation of bait advertisement relating to the providing of the services is concerned, I find that such complaint can be lodged only by such aggrieved person who has become the owner of the disputed plot after completion of all the installments and full payment on the basis of the allotment of the plot so as to complain that the services advertised should be provided or damages should be paid in case of non providing the services.
12. In my view, such complaint is to be treated as premature which is filed by such person on the ground of non providing of the advertised or promised services who has not yet got the allotment of the disputed plot in his favour. The present complaint is therefore liable to be returned on both scores being not about the product and premature to the extent of the services.
13. In the present case, the claimant is at the stage of the payment of remaining installments and his membership has not matured into ownership and it is possible that he might have been only under wrong impression of the disputed scheme which might not have been actually deficient and such dispute is proper to be settled only by the civil court.
14. I am of the view that even if the claimant is no more interested to get the plot and only wants to recover the amount paid in furtherance of the agreement to sell but he would have to file the suit for specific performance of the agreement through the civil court to get the money back.
15. Meanwhile the defendants are advised to co-operative with the claimant for amicable settlement so as to avoid further litigation between the parties if the scheme is still operative and if they plan to complete the scheme and if the claimant wants to continue with the scheme on payment of remaining installments.
16. In accordance with above discussion, the complaint is hereby disposed off by way of return for the filing of civil suit if so required to be filed.
17. Parties are left to bear their own costs.
18. 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.