COMPLAINT ABOUT FAULTY SERVICES
1. The case is at the stage of ex-parte arguments which have been heard and file has been perused as such I proceed to dispose off the complaint by discussion in the following paragraphs.
2. Briefly stated the version of the claimant is to the effect that she was not properly treated for infertility by the defendant despite bait advertisement resulting in the delay in her treatment along with expenses of Rs.2,20,000/- alongwith other expenses amounting to Rs.1,00,000/- and ultrasound expenses Rs.1500/- along with addition of the additional amount of Rs.2,00,000/- due to which the claimant has become physical and mental patient and also developed other diseases having no hope of conception. She has requested for recovery of said expenses along with Rs.5,00,000/- as damages and Rs.30,000/- as counsel fee along with further request for banning institution of the defendant.
3. The complaint was initially contested by the defendant by filing his written statement along with Wakalatnama of Mohammad Farrukh Shehzad Ghouri Advocate by raising certain preliminary objections along with explanation that he is only administrator of the concerned institution where two doctors as mentioned in the written statement come on monthly visit and inspect the patients.
He has denied any treatment of the claimant by himself however admitted that he had advised the claimant to go to Karachi for her treatment. He has requested for dismissal of the complaint along with grant of special costs.
4. The ex-parte evidence of the claimant consists of original affidavit of the claimant as Exp.1; original affidavit of Kokab Nadeem witness as Exp.2; original prescription receipt as Exp.3; four original laboratory reports as Exp.4 to Exp.7; original prescription receipt as Exp.8; original laboratory report as Exp.9; original medicine receipt as Exp.10; original laboratory report as Exp.11; two original laboratory reports as Exp.12 and Exp.13; original advertisement poster as Exp.14; original laboratory receipt as Exp.15; original patient profile as Exp.16; copy of license of counsel as Mark P.A: copy of CNIC of the witness as Mark P.B; copy of legal notice as Mark P.C; copy of postal receipt as Mark P.D; copy of FIR as Mark P.E.
5. Additional ex-parte evidence of the claimant consists of original payment receipt as Exp.17; original receipt amounting to Rs.20,000/- as Exp.18; original receipt amounting to Rs.80,000/- as Exp.19; original receipt amounting to Rs.100,000/- as Exp.20.
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 are not strictly applicable to the proceedings of the Consumer Courts, as such the propriety demands that the regular evidence should not be recorded and it is sufficient to produce ex-parte evidence through filing of the affidavits of the claimant and witnesses and documents.
7. As far as the request for action against the defendants 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 as such I find that the rate of Rs.5,00,000/- as demanded by the claimant is to be reduced to reasonable extent in the interest of justice.
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.
10. I have observed from a perusal of the ex-parte evidence in the light of the arguments of learned counsel for the claimant that the defendant is responsible for bait advertisement keeping in view the brochures and hand-bills produced in evidence therefore liable to pay damages to the claimant.
11. It is however observed that the quantum of damages is to be reduced from the rate of Rs.5,00,000/- demanded by the claimant because the concerned doctors have not been impleaded as parties. The claimant is therefore held entitled to recover Rs.1,00,000/- as damages for bait advertisement.
12. As far as the mode of proof of the counsel fee is concerned, it is observed that the recovery of the lawyer's fee is legalized by S.31(g) 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 same when the same is specifically pleaded in the complaint itself as Rs.30,000/- while the appearance of the learned counsel to conduct the case is the acknowledgement of the receipt of the said amount as legal fee, therefore the claimant is entitled to recover the same from the defendant.
13. As far as the expenses allegedly incurred by the claimant on her treatment are concerned, it is observed that said expenses are not fully substantiated by receipts in evidence except Rs.990/- on the basis of receipt Exp.15; Rs.2,000/- on the basis of receipt Exp.17; Rs.20,000/- on the basis of receipt Exp.18; Rs.80,000/- on the basis of receipt Exp.19 and Rs.1,00,000/- on the basis of receipt Exp.20, total amounting to Rs.2,02,990/- as expenses.
14. It is clarified that the application for cancellation of this order, if filed on behalf of the defendant for taking the benefit of ex-parte nature of the order, then the whole claim would be deemed to have been restored including the part of claim which is not being granted presently, while the possibility for the grant of the remaining relief would be considered on its own merits during the fresh proceedings in fresh round of litigation, in accordance with law. The right of the defendant is however reserved with reference to Rule 14 of PCP Rules 2009 to move the application for cancellation/ modification to be filed within one month failing which the right for seeking cancellation/modification would be deemed to have been forfeited in accordance with law.
15. In accordance with above findings, the complaint is partly accepted to the extent of the recovery of Rs.1,00,000/- as damages & Rs.2,02,990/- as expenses & Rs.30,000/- as counsel fee, total amounting to Rs.3,32,990/- and dismissed to the remaining extent.
16. The claimant is entitled to get this 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 also be liable to be recovered from the defendant.
17. 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.