COMPLAINT ABOUT FAULTY SERVICE OF SNGPL
2. This date was fixed for the decision while the arguments were heard on previous date. I have perused the file in the light of the arguments. Now I proceed to dispose off the complaint by discussion in the following paragraphs.
3. The grievance of the claimant as alleged in the complaint is to the effect that he is the consumer of gas from the defendants; that the bill was not being issued to him since June 2010; that the bill received in October 2010 amounting to Rs.1,91,510/- caused grave shock to the claimant because the same was unbelievable being related to the small house of the claimant measuring five Marlas having abode of only four people; that the officers of the defendants have refused to modify the bill when contacted despite issuance of legal notice dated 28-11-2010. The claimant has requested that the bill should be exempted; that meter should not be removed; that damages including counsel fee amounting to Rs.1,50,000/- should be awarded to the claimant.
4. The version of the defendants in the joint written statement is to the effect that the claimant has no cause of action; that the facts given in the petition are absolutely incorrect; that that the contents of the petition are vague/ vexation and malicious; that the filing of titled petition is a desperate attempt of the petitioner to refrain/restrain SNGPL in recovering the bills; that gas connection was commissioned in the name of the petitioner bearing Consumer No.18390708558 now changed in Consumer No.20015400003 and gas meter No.MG-20578468 installed at his premises on 09-09-1996 which was changed with new gas meter No.21250153; that the consumer is not regular payer of gas bills; that he always pays the monthly gas bills after three to four months; that presently he is defaulter in tune of amounting to Rs.1,91,970/-; that the bills mentioned in detail in paragraph No.3 of the written statement were issued as per actual gas consumption/ gas passed through the gas meter; that no excessive reading charged from November 2009 to August 2010; that SNGPL has no personal grudge with the consumer; that the consumer is liable to pay the gas bills; that the consumer never visited at SNGPL Regional Office and no complaint for high gas bill was lodged at SNGPL office. It is requested by the defendants that the petition may be dismissed with costs.
5. It is pertinent to note that 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; special rules of evidence u/s 118 of the Negotiable Instruments Act, 1891 are not strictly applicable to the proceedings of the Consumer Courts, as such regular evidence is not being recorded in this court 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.
6. In the present case, however the parties were directed to produce regular evidence by observing that even the legal objections can not be properly determined without establishing factual grounds contained in the complaint, as such the present case cannot be properly disposed off without recording the evidence by appointment of the learned local commissioner (LLC) for recording the evidence with reference of Amended Rule 6 on page 37 of the Revised National Judicial Policy 2009 read with Order XXVI (26) of CPC vide order dated 02-02 2011.
7. It is further observed that in such cases where regular evidence is not recorded, 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, however regular evidence has been recorded in the present case which is being discussed accordingly.
8. Oral evidence of the claimant consists of the statement of one Kaleem Ullah being the son of the claimant and attorney as PW-1 and his neighbor namely Faisal Nawaz as PW-2 and statement of learned counsel for the claimant about production of documentary evidence.
9. Documentary evidence of the claimant consists of the original deed of power of attorney as Ex.P- A; postal receipt as Ex.P-B; copies of legal notice as Mark A to C; original affidavit of PW-2 as Ex.P-C; copy of current bill of March 2011 as Ex.P-D; original bill of February 2011 as Ex.P-E.
10. Oral evidence of the defendants consists of the statement of the Superintendent Billing namely Jam Ghualm Asghar as DW-1 and statement of learned counsel for the defendants about production of documentary evidence.
11. Documentary evidence of the defendants consists of the Authority letter of DW-1 as Ex.D-A; copy of billing history as Ex.D-B; copy of the report of Billing Officer as Mark DA; copy of the report of meter reading card as Mark DB; copy of the bill of May 2010 as Mark DC. The blank proforma of the contract for supply of gas has also been produced on behalf of the defendants during the arguments of learned counsel for the defendants under objection of learned counsel for the claimant.
12. It is pertinent to observe that distribution of the gas after purchase from the government by SNGPL amounts to the manufacturing of PRODUCTS and the AUTHORITY providing the GAS 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 by it 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 defendants are therefore dual as MANUFACTURERS as well as SERVICE PROVIDERS. The expectations of the public about better services of the COMPANY are therefore genuine and enforceable under the law.
13. A perusal of the evidence shows that the claimant has gone abroad and his attorney has repeated the contents of the complaint in his statement while PW-2 has established the fact that the claimant had gone to the office of the defendants for correction of the disputed bill along with this witness.
14. I have observed that the normal consumption of the claimant is very moderate. Billing history shows that the consumption was never so high as shown in the disputed bills.
15. I have observed that the excessive consumption of the gas in such circumstances indicates the leakage of gas without actual consumption and both the parties are equally responsible for the negligence about the said leakage.
16. It has been pointed out by learned counsel for the defendants that the self removal of the meter has been admitted in the evidence of the claimant due to which the claimant is debarred from claiming any relief with reference to the specimen proforma of the contract containing such condition.
17. Conversely contended by learned counsel for the claimant that the removal of the meter mentioned in his statement by PW-2 does not relate to the period of the disputed bill because the same relates to the period when the house was under construction having no nexus with the disputed bill.
18. I agree with the contention of learned counsel for the claimant due to the difference of the period of construction of the house from the period of the disputed bill. The temporary removal of the meter for the purpose of the construction is deemed to be the effort in good faith to safeguard the meter from expected damage. It is admitted by the authorized agent of the defendants as DW- 1 that the claimant has not delayed the payment of any previous bill. The objection of learned counsel for the defendants is therefore rejected.
19. I am conscious of the fact that when leakage is within the premises then the same is shown in the meter as consumption and that when the leakage is outside the premises beyond the meter then the same is not shown in the meter but it is noticeable that when the leakage is in the meter itself or for that matter, the leakage is in the main cock, service regulator, inlet pipe of meter or in the meter itself, then the consumer should not be saddled with burden of payment of full charges.
20. I am of the view that the Gas company is obliged to remove the leakage and to keep not only the meter in good repair but also the main cock, service regulator and inlet pipe of meter, free of charge. There is nothing on the record except the report of the Billing Officer to show the bona-fide service of the defendants to make any effort for removal of the leakage despite complaint of the claimant. It means that the company is equally responsible to the extent of half bill for the leakage of the gas being in the meter or in the auxiliary parts as mentioned above.
21. I am also conscious of the fact that the claimant is also equally responsible for the leakage equally due to his failure to get the same removed from private plumber. There is nothing on the record to suggest that the claimant had hired the services of any private plumber to remove the alleged leakage. He is therefore liable to shoulder the burden of half of the disputed charges.
22. As far as the preliminary objection about jurisdiction of this court is concerned, it is necessary to be observed that the provisions of PCP Act 2005 have been held to be in addition to and not in derogation of the provisions of any other law for the time being in force according to S.3 of the said Act. Therefore I find that the conditions contained in the agreement between the parties cannot be implemented due to prohibition of exclusions from liability contained in S.12 & S.17 of PCP Act 2005 to take away the plenary jurisdiction of jurisdiction of this Court relating to the domestic connections only with the clarification that the disputes relating to commercial connections should be dealt with OGRA itself.
23. It should be kept in mind while interpreting the jurisdiction of this court that the procedure for redress of grievance provided in all the laws are to be followed in the forum provided under the said laws. But the same grievance can also be redressed by this court on strength of S.3 read with S.36 of PCP Act 2005. It is provided in the latter section that all agencies of the Government shall act in aid of the Consumer Court in the performance of its functions under this Act. The objection against jurisdiction of the court is therefore rejected.
24. 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.
25. 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.
26. 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 or counsel fee.
27. As far as the ordinary costs are concerned, it is observed that since the defendants have co- operated by issuance of current bills during the pendency of the present case by compliance of the order of this court as such it is not proper to burden them even with ordinary costs due to equal liability of the parties for the excessive charges on account of the leakage of gas. The claimant is therefore not entitled to the proximate charges or litigation charges mentioned in S.13 & 31 of PCP Act, 2005.
28. For what has been discussed about, the complaint is partly accepted by cancellation of the half amount of the disputed bill and the defendants are directed to reduce the disputed charges up to 50% and make three equal monthly installments of the remaining bill by issuance of modified bill.
The complaint is however dismissed to the extent of the prayer for recovery of the damages, compensation, litigation charges, counsel fee.
29. Parties are left to bear their own costs.
30. This order would become final u/s 34 of PCP Act 2005, if the appeal is not 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.
31. In case of delay in compliance, 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 defendants that the costs to be incurred for and during the application for implementation would be liable to be recovered from them.
32. One attested copy of this order is directed to be provided to the claimant and one copy to the defendants jointly on filing the applications without court fee tickets even on plain papers free of costs by entry with signatures in token of receiving in Dak Register with the clarification that extra copies would be liable to be issued at their own expenses.
33. 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.