COMPLAINT ABOUT FAULTY SERVICES
1. The case is at the stage of providing case-law while arguments were heard on previous date. The parties have not provided any case-law and relied upon their arguments as such I have perused the file of the present case today in the light of the arguments and I proceed to dispose off the complaint by discussion in the following paragraphs.
2. Briefly stated the version of the claimant as alleged in the complaint is to the effect that he paid Rs.20,000/- and delivered his passport and ID card to the defendant on 08-03-2011 because the defendant had agreed to provide visa and air ticket from D.G.Khan to Karachi then to Jaddah; that balance of Rs.50,000/- was paid after 10 days; that the defendant demanded more cash for air travel from D.G.Khan to Karachi; that he asked the claimant to travel to Karachi by Dawoo bus service instead; that it was told to the defendant that the claimant was an old man of 63 years and suffering from heart problem and other concomitants of old age; that the defendant declined to give his visa and snatched the documents from the claimant aided and abetted by his employees and not only insulted him but also forced him to leave his office by pushing and shoving; that the claimant beseeched the defendant several times to honour the agreement but in vain resulting in the visa becoming invalid; that all the huge money spent on securing the passport and medical certificate went down the drain; that the claimant wanted to visit the holy places of for spiritual satisfaction but was prevented from gaining profound satisfaction of being present at sacred shrines of the saints due to the conduct of the defendant; that the legal notice was dispatched through post on 08-04-2011.
3. The detailed request of the claimants is to the effect that the court may grant an order for:- i. Awarding 10 Lac rupees as damages to causing great mental agony and depriving the claimant from having profound spiritual satisfaction. ii. Returning to the complainant 70,000/- rupees paid for securing visa and air ticket. iii. The return of the expenses incurred in securing passport i.e. 5,000/- rupees. iv. The return of the expenses incurred in securing medical certificate. v. The return of the original copies of the passport and ID card of the claimant. vi. The cancellation of the license of the defendant. vii. The fees of the pair of the counsels i.e. 60,000/- rupees for both.
4. The defendant has contested the complaint by filing his written statement as Managing Director of Dawn Air Travels Private Limited containing preliminary and legal objections to the effect that the complaint is based on malafide; that the defendant has been bothered without any legal justification; that the defendant is entitled to special costs; that no relationship of consumer exists between the parties; that the claim is not within jurisdiction of this court; that the claimant had only deposited Rs.20,000/- and not paid remaining Rs.50,000/-; he could not travel due to death of his near relative; that the claimants has been the source of the breach of the agreement himself; that the defendant reserves his right to proceed for legal action against the claimant; that the claimant has been requesting for completion of the visa and ticket without payment of remaining amount of Rs.50,000/-; that the claimant had expressed that he could not travel due to death of his relative on demand of the payment of Rs.50,000/-; that the proposal about journey by bus is mental creation of the claimant himself; that the remaining paragraphs of the complaint are also incorrect; that the complaint is incorrect and baseless; that the complaint should be dismissed with costs.
5. The evidence of the claimant consists of the statement of the claimant as AW-1; statement of one of learned counsel for the claimant about production of documentary evidence and further statement of both counsel jointly about production of fee certificate as additional evidence while documentary evidence of the claimant consists of original affidavit of the claimant as Ex.A-1; original receipt of Rs.20,000/- as Ex.A-2; original postal receipt as Ex.A-3; original fee certificate as Ex.A-4; copies of licenses of both counsel of the claimant as Mark-P.1 & Mark-P.2; counterpart of legal notice as Mark-P.3.
6. The evidence of the defendant consists of his own statement as RW-1 and statement of his learned counsel about closing of oral evidence and further statement about closing of documentary evidence.
7. It has been pointed out by learned counsel for the claimant that the issuance of legal notice has been mentioned in paragraph No.8 of the complaint which is stated in the written statement to be incorrect but the defendant has admitted about receiving of the notice in his statement as DW-1.
8. I have observed that the defendant cannot object to the jurisdiction of this court because he has admitted the relationship of service provider and consumer with the claimant by admission about receiving of Rs.20,000/- as advance amount for providing the visa and air ticket. The objection about the jurisdiction is therefore rejected.
9. I have observed from perusal of the evidence that version of the claimant about payment of Rs.20,000/- as advance has been admitted by the defendant in the written statement as well as in his own statement as RW1 while the payment of remaining amount of Rs.50,000/- is also deemed to be admitted by the defendant because the suggestion of his learned counsel has been recorded in the cross examination of the statement of claimant to the effect that "it is correct that I have paid the amount of Rs.50,000/-". No further proof is required about the remaining payment after the said suggestion which amounts to the admission of the defendant and it is settled law that the facts admitted are not required to be proved.
10. Next question for determination is the liability for default in the travel of the claimant. I have observed that since the defendant has denied the receiving of the legal notice in the written statement but admitted about receiving the same in his statement and since he has denied the receiving of the balance amount of Rs.50,000/- in the written statement but the same has been admitted to be paid during cross examination of the claimant as AW-1 by the suggestion about said payment. It was therefore necessary for the defendant to prove that the claimant was debarred from the journey due to death of his near relative but he has not substantiated said allegation by cogent evidence therefore I find that the fault lies with the defendant for not providing the air ticket and visa due to which he has become liable for return of the payment of Rs.70,000/- to the claimant alongwith the return of the passport and ID card and medical certificate in addition to the counsel fee.
11. As far as the recovery of counsel fee and litigation charges and mode of its proof is concerned, it is observed that the recovery of the lawyer's fee and litigation charges is legalized by S.31 of PCP Act 2005 and the same is not necessary to be proved and no evidence is required from the counsel about the receiving of the counsel fee when the same is specifically pleaded in the complaint itself as Rs.60,000/- while the appearance of the both learned counsel to conduct the case and the signatures of the both learned counsel on the complaint and on the Wakalatnama are the acknowledgements of the receipt of the said amount as legal fee, therefore the claimant is entitled to recover the same from the defendant to the extent of the said amount. But the additional amount of Rs.10,000/- mentioned in the certificate Ex.A-4 on account of alleged remuneration of the bar clerks of learned counsels for the claimant cannot be recovered because the said amount was not claimed in the complaint or in the legal notice.
12. It is necessary to be pointed out that the rights of the consumers have been limited by providing the restrictions on the grant of damages / compensation by Ss.10 & 15 while liability of the defendants is limited by Ss.4 &.
13. To comprehend the concept about restrictions on grant of damages properly, it is necessary to ponder about Ss.4 & 10 jointly when the case is about defective products and Ss.13 & 15 jointly when the case is about faulty or defective services.
13. It is pertinent to note that the grant of damages is curtailed even under the Contract Act, 1872 being the law of the land 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.
14. 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.
15. It is therefore concluded that the demand of Rs.10 Lacs is deemed to be the demand for remote and indirect damages which are not permissible to be granted either under general law of contracts or under the law of consumers and the same are prohibited by S.15 of PCP Act, 2005. It is also observed that the expenses incurred on the passport and medical certificate are also deemed to be remote charges and cannot be recovered under consumer law.
16. For what has been discussed above, the present complaint is partly accepted to the extent of the recovery of Rs.70,000/- as originally paid amount and Rs.60,000/- as counsel fee, total Rs.1,30,000/- alongwith the direction about return of the passport and ID card and medical certificate. The complaint is therefore dismissed to the extent of remaining relief.
17. This order would become final u/s 34 of PCP Act 2005, if the appeal is not preferred within period of 30 days after obtaining of the copy of this order under S.33 of PCP Act 2005 & Rule 18 of PCP Rules 2009 in accordance with the Rules of Procedure of Honourable High Court.
18. 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.
19. 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.
20. 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.