1. 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 discuss and decide and dispose off the matter in accordance with the findings in the following paragraphs.
2. Briefly stated the version of the claimant through Mohammad Yaseen representative is to the effect that she is consumer of electricity under reference No.14- 15224-0978400-U; that the house consists of 2-1/2 Marlas and four person are residing in one room by using two energy savers and a fan and electric motor; that normally 250/ 300 units are consumed; that Rs.23725 have been charged in the bill of July; that the bill was corrected vide letter dated 06-07-2011 by change of the charges from the said rate to Rs.8210/-; that the bill of September/ October charging Rs.25636/- is incorrect, baseless, in-effective against the rights of the clamant and liable to be cancelled. The claimant has requested for the cancellation of the latest bill containing the arrears amounting to Rs.25636/- and also requested for recovery of Rs.50,000/- as damages along with counsel fee with request for prohibition for disconnection.
3. The version of the defendants in their joint written statement filed on behalf of the SDO is to the effect that the connection is being used by Mr. Yaseen being son in law of the claimant; that the meter was checked by the meter inspector and found that the meter was out of the design; that estimated units were charged from 01/2011 to 07/2011 as per connected load; that the faulty meter accuracy is doubtful; that very nominal estimated units were charged without defective code; that no application filed for change of defective meter; that the charges are correct and lawful according to the Electricity Act; that the disputed amount has not been paid within 30 days under protest.
4. 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 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.
5. It is proper to be observed that the ELECTRICITY is a PRODUCT according to the definition provided in the Sale of Goods Act, 1930 and the said definition has been made applicable on the cases under PCP Act, 2005 by S.2 (j) of the latter Act. It is also observed that the AUTHORITY providing the ELECTRICITY as a product 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 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 expectation of the public about better services of the MEPCO is therefore genuine and enforceable under the law.
6. 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.
9. Since there is no explanation in the present complaint about any other damage except the loss of utility or lack of benefit as 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.
10. One of the objections of the representative of the defendants is to the effect that this court has no power to issue temporary injunction or restraining order or mandatory order due to absence of any relevant provision in the PCP Act 2005 or PCP Rules 2009 while the contention of learned counsel for the claimant is to the effect that every court under every law having the power to grant final relief is also empowered to grant temporary relief by operation of the general clauses of law.
11. I have observed that the contention of learned counsel for the claimant is correct and since this court has the power to grant the relief about cancellation of disputed bill and restoration of connection as such this court is also authorized by general law to issue injunctive or restraining or mandatory orders to safe guard the subject matter of the litigation and to protect the purpose of the complaint from being frustrated by issuance of interim orders and the said orders are binding against the defendants and disobedience constitutes contempt and this court is empowered to get the violation undone by further order with consequences enumerated in S.32 of PCP Act, 2005.
12. As far as the objection raised by the defendants is concerned about the claimant being represented by another person, it is observed that every user of electricity even if he is not owner of the concerned premises comes within the definition of the consumer under the law while the representative is being alleged by the defendants to be the user of supply as such he is entitled to be treated as the consumer and the matter is within the jurisdiction of this court and the complaint is maintainable in accordance with law.
13. I have observed that the reason for imposing average units given by the defendants to the effect that the meter is out of design is not plausible and it is duty of the defendants to install the meter of new design instead of penalizing the claimant for not applying for the replacing of the old meter. The claimant is therefore entitled to the replacing of the old meter and cancellation of the disputed charges and all subsequent bills are also liable to be corrected accordingly up to the change of the meter in accordance with actual reading of the existing meter.
14. For what has been discussed in foregoing paragraphs, the complaint is hereby accepted to the extent of the direction about restoration of connection and installation of new meter and cancellation of disputed charges and issuance of modified bill relating to the disputed period by segregation of the actually consumed units in accordance with the actual reading on the meter and to issue the future bills on the basis of the actual reading till the replacement of the existing meter and to give the credit of the excess amount previously paid in connection with the disputed bill however the complaint is being dismissed to the extent of the recovery of the damages and counsel fee.
15. It is however observed that the contempt application pending in the separate file relating to the present case would remain pending for further proceedings in accordance with law and the next date fixed in the file of the said application is 17-01 2012.
16. Parties are left to bear their own costs.
17. 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.
18. 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.
19. A copy of this order is to be provided to the representative of the defendants along with issuance of a copy through the claimant by hand to the RO / SDO MEPCO for compliance.
20. 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.
21. 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.