COMPLAINT ABOUT FAULTY SERVICE
2. The court is no tour at Layyah.
3. The case is at the stage of the arguments. I have heard the arguments and perused the record in the light of the arguments. Now I proceed to dispose off the complaint by discussion in the following paragraphs.
4. Briefly stated the version of the claimant is to the effect that he purchased a pair of shoes of brown color size 45 for Rs.1.099-01 from shop Manager of Service Shoes Store Circular Road Layyah on 13-12-2011; that he came to know on 01-02-2012 that the soles of the shoes were broken when a friend in the society exclaimed that the claimant might have been the victim of financial crises due to wearing broken shoes; that the claimant returned with heavy heart due to humiliation caused by the broken shoes; that he complained to the Manager on next morning who agreed after some arguments and discussion to get the claim about replacement of shoes from the company at Lahore in about 15 days; that now the Manager has told the claimant to do whatever he can for redress of his grievance, hence this complaint. It is requested by the claimant that his grievance should be remedied under Act of 2005.
5. The Manager has contested the complaint by filing his written statement to the effect that he has already made efforts for the replacement of the defective shoes by sending the claim to the company at Lahore; that the claimant had gone back in anger; that the claim has been received back after approval; that he has not committed any insult of the claimant; that the claimant has not returned to receive the claim; that the replaced shoes can be acquired by the claimant at any time; that false and baseless story has been concocted by the claimant for filing the present complaint; that the defendant being employee of the company is duty bound to respect the customers; that the rest of the complaint is incorrect and based on falseness; that it is wastage of precious time of the court; that the complaint is incorrect, against the law, against the facts, baseless, concocted, false, not maintainable, liable to be dismissed. It is requested by the defendant that the complaint should be dismissed with costs.
6. 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; special rules of evidence u/s 118 of the Negotiable Instruments Act, 1881 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 just like the present case.
7. 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.
8. 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.
9. 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.
10. It is 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.
11. I have observed that since the claimant has not impleaded the Service Company through its Managing Director and not verified the complaint as required by the PCP Rules 2009 and not appended the copy of legal notice sent by him and also not appended the postal receipt about issuance of legal notice as required by PCP Act 2005 while the defendant is the shop Manager who appears to have handled the case of the claim of the shoes of the claimant in proper manner by getting the same approved to full extent from the concerned company without any loss to the claimant and since the defendant is ready to provide new pair of shoes to the claimant as stated by his learned counsel during the arguments as such I find that the claimant is not entitled to recover damages or compensation or litigation charges and it is sufficient relief that the claimant is entitled to receive new shoes or return of sale price.
12. In accordance with above discussion, the complaint is partly accepted to the extent of the replacement of new shoes or return of sale price.
13. Parties are left to bear their own costs.
14. 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.
15. 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 defendant that the costs to be incurred for and during the application for implementation would be liable to be recovered from him.
16. One attested copy of this order is directed to be provided to the claimant and one copy to the defendant on filing the applications without court fee tickets even if 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.
17. 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.