2. The file of present complaint was previously fixed on 27-09-2011 for final arguments which could not have been heard on fixed date because I was on leave for two days and the Reader of this court had fixed next date as 10-10-2011 without recording formal order but I had to go to honourable High Court at Multan on the next date as such this date was fixed by the Reader of this court by entry on the daily cause list.
3. The case is at the stage of the final arguments which have been heard today and the file has been perused by going through the evidence on the record as such I proceed to dispose of the complaint by discussion in the following paragraphs:-
4. The version of the claimant as alleged in the complaint is to the effect that she was surgically treated by defendant No.2 namely Mst Rukhsana LHV at the hospital of defendant No.1 namely Dr. Mehboob-ul-Rasheed by the name of Ahmad Clinic Jampur for clearing the clot of pregnancy on 01-11-2008; that her health deteriorated despite treatment; that she was directed by defendant No.1 to get her ultrasound report from Doctor Naveed Qadir Malghani who gave his report to the effect that "A lot of free fluid in peritoneal cavity"; that inflammation was detected by defendant No.1 from the said report; that the blood started oozing out of the mouth and nose of the claimant on 05-11- 2008; that it was reported in fresh ultrasound report by the other aforementioned doctor that the uterus of the claimant had been damaged and her intestine was torn; that she was referred by defendant No.1 to Doctor Malik Ashiq Hussain at Abdullah Hospital Multan on 05-11- 2008; that she was emergently operated upon immediately on the basis of the said report by Doctor Malik Ashiq Hussain; that the claimant remained admitted at Abdullah Hospital Multan w.e.f 05-11 2008 to 25- 11-2008; that the claimant was discharged on 26-11-2008 by direction about continuing the treatment; that the claimant had to be admitted again at the said hospital w.e.f 28-11-2008 to 08- 12-2008 and further remained admitted w.e.f 07-01-2009 to 26-01-2009; that the claimant had to be shifted to Multan by ambulance at both occasions due to bad health; that she was also got checked by Doctor Javed Iqbal Bajwani Jampur meanwhile on 07-01-2009; that her ultrasound was effected on 25-02-2009 from Talha Ultrasound; that her treatment was continued even at the time of the filing of the complaint; that she had to bear the expenses on the fees of the doctors, tests, room charges, hospital charges, travelling charges, meal charges, blood charges of 12 bottles, purchase of medicines total amounting to Rs.5,00,000/-; that the said expenses had to be suffered due to alleged negligence and improper treatment and faulty service of the defendants; that the said expenses should be got recovered from the defendants.
5. The version of defendant No.1 in his written statement is to the effect that there is no arrangement for surgical operation at his private hospital; that he is family doctor of the husband of the claimant; that her ailment was discussed with him by the husband of the claimant; that after some days of said consultation, he was shown the ultrasound report of the claimant brought by her husband and advised her husband to consult with Doctor Malik Ashiq Hussain of Abdullah Hospital; that he referred the claimant to Abdullah Hospital due to abdomen pain; that he does not know Mst. Rukhsana defendant No.2; that the husband of the claimant has to pay the price of the medicines taken from his clinic and pharmacy; that false case has been filed due to the demand of the arrears of the medicines. He has requested for dismissal of the complaint and also demanded damages and special costs.
6. The version of defendant No.2 in her separate written statement is to the effect that she is a nurse at government hospital Jampur; that she was on duty at 01-11-2008 at the time of alleged occurrence; that certificate of attendance and copy of service card is attached with written statement; that she does not know defendant No.1; that she has no contact with defendant No.1; that that she does not know the claimant; that she has no clinic of gynecolocy; that there is no proof annexed with the complaint against herself; that she had not gone to Ahmad Clinic; that she has no concern with the alleged occurrence. She has requested for dismissal of the complaint and award of damages and special costs.
7. In addition to the preliminary objections contained in the written statements, the defendants have also raised the objection by filing the applications dated 24-02-2010 about period of limitation by claiming the complaint as time barred on the ground that the period of limitation is 30 days by reliance upon S.28 of PCP Act 2005. Said applications have been contested by the claimant through her written replies with reference to S.28 (4) of PCP Act 2005. Learned counsel for the defendants have pressed said applications during the arguments by claiming the limitation as 30 days while the version of learned counsel for the defendants is to the effect that the limitation is one year.
8. Learned counsel for the claimant has relied upon the ruling reported as PLD 2003 SC 724 has been relied upon by learned counsel for the claimant in support of his version to the effect that the decision of the cases on merits always to be encouraged instead of non-suiting the litigation for technical reason including on limitation and also relied upon the ruling reported as 2004 CLC 1266 to the effect that after addition of Article 2-A in the Constitution of Pakistan, Supreme Court has departed from the previous practice and had insisted to avoid technicalities and that cases must be decided on merit.
9. I am of the view that the notion of both learned counsel for the defendants about 30 days as period of limitation is misconceived because said limitation is to be implemented in the cases relating to the expiry of the period of guarantee and warranty while the period of limitation in all other cases is one year. Since the cause of action is claimed to have arisen on 01-11-2008 while the complaint was filed on 01-06-2009 as such the same having been filed after eight months being within one year is within the period of limitation as such the applications filed by the defendants about the period of limitation are hereby dismissed.
10. I am of also the view that since the PROCEDURE ON RECEIPT OF COMPLAINT is provided in S.30 of PCP Act, 2005; as such if the intention of the legislature was to implement all the provisions provided in the Code of Civil Procedure, 1908, then it should not have been specified in S.30(3) that the consumer court shall have the same powers as are vested in civil court while trying a suit, under the Code of Civil Procedure, 1908 (Act XX of 1908), in respect of the matters narrated in Clauses (a) to (e) of the PCP Act, 2005.
11. The matters incorporated in Clauses (a) to (e) of Sub section (3) of S.30 of PCP Act, 2005 about which the powers given by the Code of Civil Procedure are to be exercised by the consumer court relate to: the summoning and enforcing attendance of any defendant or witness and examining him on oath; the discovery and production of any document or other material object which may be produced as evidence; the receiving of evidence on affidavits; issuing of any commission for the examination of any witness; and any other matter which may be prescribed.
12. Obvious meanings of last portion of quoted law in clause (e) relating to "any other matter which may be prescribed" is to the effect that the list contained in clauses (a) to (d) is not exhaustive and any other matter may be prescribed in any provision of the same law on which the powers under the Code can be exercised by the consumer court. My humble interpretation of the said clause is to the effect that other principles and powers contained in the said Code can also be used beneficially under the said clause by the consumer court to resolve the matter under the established procedure instead of remaining in the darkness and to avoid the failure of justice due to the absence of prescribed procedure in the consumer law and consumer rules but the technicalities should not be allowed to hinder the path of justice in the said process.
13. A glance on the SECTIONS of CPC shows that the principles of law are laid down regarding SUMMONS TO DEFENDANTS in S.27; SERVICE OF SUMMONS WHERE DEFENDANT RESIDES IN ANOTHER PROVINCE in S.28; SERVICE OF FOREIGN SUMMONS in S.29; POWER TO ORDER DISCOVERY AND THE LIKE in S.30; SUMMONS TO WITNESSES in S.31; PENALTY TO DEFAULT in S.32; POWER OF COURT TO ISSUE COMMISSIONS in S.75; COMMISSION TO ANOTHER COURT in S.76; LETTER OF REQUEST in S.77; COMMISSIONS ISSUED BY FOREIGN COURTS in S.78; SUITS BY OR AGAINST THE GOVERNMENT in S.79; EXEMPTION FROM ARREST AND PERSONAL APPEARANCE in S.81; WHEN ALIENS MAY SUE in S.83; SUPPLEMENTAL PROCEEDINGS in S.94; REVIEW in S.114; UNAUTHORISED PERSONS NOT TO ADDRESS COURT in S.119; EXEMPTION OF CERTAIN WOMEN FROM PERSONAL APPEARANCE in S.132; EXEMPTION OF OTHER PERSONS in S.133; ARREST OTHER THAN IN EXECUTION OF DECREE in S.134; EXEMPTION FROM ARREST UNDER CIVIL PROCESS in S.135; EXEMPTION OF MEMBERS OF LEGISLATIVE BODIES FROM ARREST AND DETENTION UNDER CIVIL PROCESS in S.135-A; PROCEDURE WHERE PERSON TO BE ARRESTED OR PROPERTY TO BE ATTACHED IS OUTSIDE DISTRICT in S.136; POWER OF HIGH COURT TO REQUIRE EVIDENCE TO BE RECORDED IN ENGLISH in S.138; OATH ON AFFIDAVIT BY WHOM TO BE ADMINISTERED in S.139; MISCELLANEOUS PROCEEDINGS in S.141; ORDER AND NOTICES TO BE IN WRITING in S.142; POSTAGE in S.143; ENFORCEMENT OF LIABILITY OF SURETY in S.145; SAVING OF INHERENT POWERS OF COURT in S.151.
14. A glance on the ORDERS of CPC shows that some are completely applicable while some can be applied only to the extent of certain RULES. The complete ORDERS which are applicable are enumerated as complete O.V(5) about ISSUE AND SERVICE OF SUMMONS; complete O.IX(9) about APPEARANCE OF PARTIES AND CONSEQUENCE OF NON APPEARANCE; complete O.X(10) about EXAMINATION OF PARTIES BY THE COURT; complete O.XI(11) about DISCOVERY AND INSPECTION; complete O.XII(12) about ADMISSIONS; complete O.XIII(13) about PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS; complete O.XVI(16) about SUMMONING AND ATTENDANCE OF WITNESSES; complete O.XVII(17) about ADJOURNMENT; complete O.XVIII(18) about HEARING OF THE SUIT AND EXAMINAION OF WITNESSES; complete O.XIX(19) about AFFIDAVITS; complete O.XXVI(26) about COMMISSIONS; complete O.O.XXVII(27) about SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY; complete O.XXVIII(28) about SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN; complete O.XXIX(29) about SUITS BY OR AGAINST CORPORATIONS; complete O.XXX(30) about SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN: complete O.XXXII(32) about SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND; complete O.XXXVIII(38) about ARREST AND ATTACHMENT BEFORE JUDGMENT; complete O.XLVIII(38) about MISCELLANEOUS.
15. Scattered provisions of CPC applicable to the consumer court are to be found in O.VI(6),R.2 about PLEADINGS TO STATE MATERIAL FACTS AND NOT EVIDENCE; O.VII(7),R.14 about PRODUCTION OF DOCUMENT ON WHICH PLAINTIFF SUES; R.15 about STATEMENT IN CASE OF DOCUMENTS NOT IN PLAINTIFF'S POSSESSION OR POWER; R.17 about PRODUCTION OF SHOP BOOK; R.18 about INADMISSIBILITY OF DOCUMENT NOT PRODUCED WHEN PLAINT FILED; R.22 about PROCEDURE WHEN PARTY NOT FOUND AT THE PLACE OF ADDRESS; R.25 about SERVICE BY OTHER MODES; O.VIII(8),R.1 about WRITTEN STATEMENT; O.XIV(14),R.4 about COURT MAY EXAMINE WITNESSES OR DOCUMENTS BEFORE FRAMING ISSUES; O.XV(15),R.4 about FAILURE TO PRODUCE EVIDENCE.
16. Definition of CONSUMER? is provided in section 2 (c) (i) of PCP Act 2005 which is being reproduced here under for the facility of reference:- "(c) "Consumer" means a person or entity who-
(i) buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or
(ii) Hires any services for a consideration and includes any beneficiary of such services: Explanation:-For the purpose of sub-clause "Commercial purpose" does not include use by any consumer of products bought and used by him only for the purpose of his livelihood as a self- employed person.
17. Definition of SERVICES" is provided in section 2 (k) of PCP Act 2005 which is being reproduced here under for the facility of reference:- "(k) "Services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering service but does not include-
(i) The rendering of any service under a contract of personal service;
(ii) The rendering of non-professional services like astrology or palmistry; or
(iii) A service, the essence of which is to deliver judgment by a court of law or arbitrator;".
18. 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. It is therefore proper to take an overview of the relevant provisions in the said perspective.
19. It is provided u/s 4 of PCP Act 2005 relating to the "LIABILITY FOR DEFECTIVE PRODUCTS" that:- "The manufacturer of a product shall be liable to a consumer for damages proximately caused by a characteristic of the product that renders the product defective when such damage arose from a reasonably anticipated use of the product by a consumer".
20. It is provided u/s 10 of PCP Act 2005 relating to the "RESTRICTION ON GRANT OF DAMAGES" that:- "Where the consumer has not suffered any damage from the product except the loss of utility, the manufacturer shall not be liable for any damages except a return of the consideration or a part there of and the costs".
21. It is provided u/s 13 of PCP Act 2005 relating to the "LIABILITY FOR FAULTY OR DEFECTIVE SERVICES" that:- "A provider of services shall be liable to a consumer for damages proximately caused by the provision of services that have caused damage".
22. It is provided u/s 15 of PCP Act 2005 relating to the "RESTRICTION ON GRANT OF DAMAGES" that:- "Where the consumer has not suffered any damages from the provision of service except lack of benefit, the service provider shall not be liable for any damages except a return of the consideration or a part there of and the costs".
23. 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.
24. As far as the prayer about the recovery of the damages is concerned, it is hereby observed that: the return of the consideration or a part thereof and the costs is provided in the law where the consumer has suffered the loss of utility or lack of benefit only while the manufacturer or service provider is also liable for the damages where the consumer has suffered any damage from the defective product u/s 10 & faulty service u/s 15; that the manufacturer or service provider is liable to a consumer for damages proximately caused by the defective product u/s 4 & faulty service u/s 13; that the liability of the manufacturer or service provider is not limited or excluded by the terms of any contract or notice about the defective product u/s 12 & faulty service u/s 17; that the disclosure of the details has been made essential about the product and service where the nature of the same is such that it is material to the decision of the consumer to enter into the contract with reference to the product u/s 11 & service u/s 16; that the standard for the provision of services is determined as such which a consumer could reasonably expect to obtain in Pakistan at the time of the provision of the service u/s 14; that the court is authorized to direct the defendant to pay reasonable compensation for any loss suffered due to negligence of the defendant u/s 31(e); that to award damages where appropriate u/s 31(f); that to award costs including lawyer's fees incurred on the legal proceedings u/s 31(g) of PCP Act, 2005.
25. 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.
26. In the present case, the parties were directed to produce their evidence which has been recorded through the appointment of Local Commissioners and by statements of the learned counsel for the parties.
27. The evidence of the claimant consists of her own statement as PW-1; statement of Dr. Ashiq Hussain Malik as PW-2; along with production of documentary evidence consisting of the original complaint as Ex.P-A; original medical prescriptions as Ex.P-1 to Ex.P-5; original sonogram report dated 04-11-2008 as Ex.P-6; original medical prescriptions as Ex.P-7 & Ex.P-8; laboratory report of Iqra Clinical Laboratory as Ex.P-9; (Ex.P-1 to Ex.P-9 under objection); Certificate of Dr. Ashiq Malik as Ex.PW.2/1; medical prescriptions of Dr. Ashiq Malik as Ex.PW.2/2 to Ex.PW.2/4; original prescription sheet of Abdullah Hospital Complex dated 07-01-2009 consisting of four pages as Ex.PW.2/5; original medical chart consisting of eight pages as Ex.PW.2/6; original prescription sheet of Abdullah Hospital Complex dated 28-11-2008 consisting of seven pages as Ex.PW.2/7; list of medicines as Ex.PW.2/8; original cash memos of Liaqat Medicos as Mark-9 to Mark-56; original laboratory reports of Heart Care Laboratory consisting of five pages as Mark-57; original ultrasonography report dated 21-11-2008 as Mark-58; original report of laboratory dated 01-12 2008 consisting of two pages as Mark-59; payment receipts of Health Care Abdullah Medical Center' consisting of seven receipts as Mark-60; test reports of Abdullah Medical Centre consisting of eleven reports as Mark-61.
28. The evidence of the defendants consists of statement of Dr. Mehboob-ul-Rasheed as DW-1; Mst.
Rukhsana Sarwar as DW-2 along with production of documentary evidence consisting of copy of degree as Ex.Dw.1/A; copy of the certificate of medical registration as Ex.DW.1/B; copy of provisional certificate as also Ex.DW.1/B; copy of character certificate as Ex.DW.1/C; copy of experience certificate as Ex.DW.1/D; original report of PC about summoning of defendant No.2 as Ex.DW.2/A; original robkar about summoning of defendant No.2 through police as Ex.DW.2/B; original report of police constable about summoning of defendant No.2 as Ex.DW.2/C; copy of the card of defendant No.2 issued by Pakistan Nursing Council as Exp.DA; copy of the card of defendant No.2 issued by Health Department as Exp.DB; original application about attendance report of defendant No.2 as Exp.DC.
29. I have observed from a critical perusal of the file in the light of the arguments that since the claimant has not examined any other witness about the alleged medical treatment by the defendants and also not examined her husband as essential witness and the summoned witness of the claimant examined as PW-2 has deposed in cross examination that the claimant had told her that she had got her operation from the hospital of some lady doctor and not from the hospital of Dr. Mehboob and also not from Mst. Rukhsana Sarwar, therefore I find that she has failed to prove her version and her complaint is liable to be dismissed.
30. As far as the claim of the defendants is concerned about the demand relating to the recovery of ordinary and special costs, the same is not proper to be awarded because defendant No.1 has claimed himself to be the family doctor of the husband of the claimant and he has admitted that he had referred the claimant to the other doctor but the fact remains that the defendants are precluded from the recovery of any cost from the claimant due to the admission of defendant No.1 about providing reference.
31. In accordance with above discussion, the complaint is hereby dismissed by leaving the parties to bear their own costs.
32. A copy of this order would be available for publishing on the internet to the website of Punjab Consumer Protection Council, Model Town Lahore, for public disclosure and easy access of information to the consumers relating to the products and services in accordance with R.25 of PCP Rules, 2009.
33. 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.