COMPLAINT ABOUT CORRECTION OF ILLEGAL BILL
2. The case is at the stage of the decision while the arguments were heard on the previous date and this date was fixed for the decision.
3. I have perused the file in the light of the arguments as such I proceed to dispose off the complaint by discussion in the following paragraphs.
4. Briefly stated the claimant has challenged the bill of October 2010 for Rs.16,041/- by way of the main complaint. He has further challenged the bill of December 2010 for Rs.24,256/- through ancillary application dated 20-01-2011. He has also challenged the bill of January & February 2011 for Rs.28,327/- through another ancillary application dated 03-02-2011. He has also challenged the bill of April 2011 for Rs.40,787/- through contempt application dated 05-05 2011. He has requested that contempt proceedings should be initiated against the defendants for violation of earlier orders of this court and also requested that the disputed charges mentioned in the complaint as well as three ancillary applications should be cancelled and correct bill should be issued.
5. The version of the defendants in the written statement and written replies is to the effect that the claimant is being charged the bill of average units as 438 units being big house due to meter dead stop from 10/2010 to 12/2010 according to running connected load; that the bill is correct and justified; that the claimant should be directed to pay his energy bill; that the bill of Rs.40,787/- has been set aside vide T/o No.1686 dated 11-05-2011.
6. It is observed that the defendants have already replaced the defective meter with healthy meter and issued modified bill in compliance with orders dated 03-02-2011 & 24-03-2011.
7. The parties were directed by this court to establish their version through evidence but evidence could not have been recorded due to non availability of the SDO who was required for cross examination on the affidavits filed by the claimant as the right of cross examination was closed and the arguments were heard.
8. I am of 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. I am also of the view that certain cases can be effectively disposed off without recording regular evidence and by reliance upon the copies of the documents annexed in the file of the court for quick disposal so as to avoid the technicalities and un-necessary delay in the disposal of cases. It is further observed that 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 are capable of disposal without recording regular evidence just like the present case.
16. The documents to be relied upon by the claimant and included in the file consist of the copy of CNIC of the claimant; detailed affidavit of the claimant; detailed affidavit of the witness of the claimant; copy of the legal notice issued by the claimant; original postal receipt about issuance of legal notice; copies of the disputed bills.
17. It is essential to observe 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.
18. 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 respondents 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.
19. 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 respondent to pay reasonable compensation for any loss suffered due to negligence of the respondent 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.
20. 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.
21. Since there is no explanation in the present petition about any other damages except the loss of utility or lack of benefit as such I find that the claimant is not entitled to recover the damages or counsel fee.
22. I have observed that the Meter Readers have a routine duty for charging average units in accordance with connected load relating to the defective meters and said average units are mentioned in the bills as consumed units although not shown in the meter.
23. I am of the view that the Meter Reader should not be allowed to exercise such power to enhance the reading on the papers fictitiously without showing the same on the meter itself and that the average units should be charged in appropriate cases only in the papers and not superfluously shown to be consumed in the meter as consumed units on the basis of the report of the Meter Reader.
24. As far as the disputed charges are concerned, I find that it was the responsibility of the defendants to change the defective meter immediately instead of continuing to impose average charges on the basis of the defective meter. The meters are generally installed in the open air and away from the concerned premises as such the consumer is not liable for the defect in the meter.
Therefore I find that the disputed charges could not have been charged if the meter would have been changed timely.
25. In the present case, old defective meter has been replaced with healthy meter during the pendency of the present case as such I find that the consumption of the said meter is proper to be taken as the basis for the calculation of the average charges which were liable on the previous meter.
26. Consequently, I find that the disputed charges contained in the bills of October 2010 for Rs.16,041/-; December 2010 for Rs.24,256/-; January & February 2011 for Rs.28,327/-; April 2011 for Rs.40,787/- are therefore liable to be cancelled and replaced with the average units to be calculated on the basis of the reading of fresh meter instead of the basis of the connected load.
27. It is observed with reference to the contempt application that the act of the defendants about replacing of the meter and temporary reduction in compliance with interim orders of this court is crucial to be approved as a welcome gesture recommended to be adopted by all and sundry for timely alleviation of the grievances and to assuage and alleviate the sufferings of the distressed consumers so as to encourage redressal of the grievances even prior to the appearance before the consumer court instead of remaining adamant, annoying, boisterous, disruptive, harsh, importunate, mulish, obdurate, persistent, raucous, rigid rowdy, rude, stiff, strict, stubborn, unruly, rough and tough, even during the pendency of the complaint before the courts.
28. I am of the view that the staff of the institutions and departments and entities handling public dealings should be considerate, altruistic, civilized, gentle, moderate, caring, openhanded, copious, bountiful, goodhearted, philanthropic, benevolent, humanitarian, generous, caring, understanding, kind and thoughtful towards the grievances of the public.
29. As far as the contempt proceedings are concerned, I find that the conduct of the defendants has remained co-operative during the proceedings of the present complaint because they have not only replaced the defective meter but also kept aside the amount mentioned in the contempt application by issuance of amended bill in compliance with interim orders of this court, therefore they are not liable to the punishment for the alleged contempt of court in the given scenario.
30. In accordance with above discussion, the complaint alongwith ancillary applications are partly accepted to the extent of the cancellation of the disputed charges while the contempt application is dismissed to the extent of the request about the punishment. Consequently the impugned charges contained in the disputed bills and subsequent fines imposed due to non payment of the said bills are hereby cancelled and modified bill is directed to be issued on the basis of the average units to be calculated on the basis of the reading of fresh meter instead of the basis of the connected load and to show the excess amount if already paid by the claimant as credit towards future payment.
31. Parties are left to bear their own costs.
32. This order would not become final u/s 34 of PCP Act 2005, if the appeal is 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.
33. 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.
34. A copy of this order is to be provided free of costs to the representative of the defendants along with issuance of a copy through the claimant by hand to the RO MEPCO for compliance.
35. 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.
36. 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.