COMPLAINT ABOUT FAULTY SERVICES
1. The case is at the stage of ex-parte arguments which have been heard today and I have perused the file of the present case today in the light of ex-parte arguments 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 the street in which her house is situated was to be constructed by the grant of Rs.2,00,000/- in accordance with tender notice dated 27-10-2010; that the same has been cancelled without justification resulting in the collection of foul water of the sewerage in the street. The claimant has requested that her street should be constructed at the earliest and damages along with counsel fee should be paid to her.
3. The defendants were initially represented by Iftikhar Alam litigation officer who was directed to file the written statement but the same was not filed even on the adjourned date with costs as such there is no version of the defendants on the record due to omission to file the written statement and being proceeded against ex-parte with reference to Rule 14 of PCP Rules 2009.
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. Ex-parte evidence of the claimant is however also recorded which consists of the original affidavit of the claimant as Ex.P-1; original postal receipt as Ex.P-2; copy of the license of the counsel as Mark P.A; copy o CNIC of the claimant as Mark P.B; copy of legal notice as Mark P.C.
6. I am of the view that the MUNICIPAL SERVICES are deemed to be the FACILITIES as mentioned in the definition of the term SERVICES in S. 2 (k) of PCP Act 2005. The jurisdiction of the consumer court is clear enough from the provisions of S. 27 / 31/ 36 of PCP Act 2005. The ADMINISTRATION providing the MUNICIPAL SERVICES is obliged to fulfill all the responsibilities of a SERVICE PROVIDER under S. 13 to 17 of PCP Act 2005. The expectation of the public about better services of TMA is therefore genuine and enforceable under the law.
7. It is provided in the definition of the CONSUMER'in S. 2 (c) of the Act' that it means such a person or entity who "Hires any service for a consideration and includes the beneficiary of such services".
The beneficiary of the services hired by another is also included in the definition of the consumer.
The objection of the defendants about the definition of the term CONSUMER' is also not acceptable because the services of the defendants are presumed to be hired by the government for the benefit of the general public and every member of the public is presumed to be the beneficiary of the said services. The claimant is therefore entitled to be treated as the consumer being one of the beneficiaries of the services of the defendants hired by the government.
8. It is pertinent to note that there is the possibility of the objection of the defendants to the effect that the claimant is not the consumer because she has not paid any consideration for the alleged work to the TMA. This court is of the view that said objection is misconceived because it is clear from S.2 (k) of PCP Act (Act II of 2005) that the free services without payment of any fee are not excluded from definition of the term SERVICES' because said services do not fall within prohibitory clauses (i) to (iii) of the said clause in which the examples of the services excluded from the definition are given as the contract of personal services', astrology', palmistry', court of law', arbitration' while the examples of the services to be included in the definition are given as medical', legal' or engineering services'.
9. It is understood that the examples given by law about the services to be included in the definition of the services under S.2 (k) are not exhaustive and many other instances of both kinds of services can be included by practical experience in accordance with the nature of the cases but it can be safely found that the MUNICIPAL SERVICES' cannot be excluded from the definition of the SERVICES' by any stretch of imagination.
10. I have observed from a perusal of the file in the light of the arguments that since the defendants are deemed to be the service providers and since the claimant is deemed to be the tax payer as such she is entitled to be treated as the consumer of the TMA and the jurisdiction of this court to adjudicate the present complaint is not barred while the defendant is liable to arrange for the construction of the disputed street and drain by including the same in the next budget if the same is not possible earlier due to lack of funds in the budget of the current year.
11. I am of the view that the staff of the institutions and departments and entities handling public dealings should be considerate, altruistic, unselfish, civilized, gentle, moderate, caring, openhanded, copious, bountiful, goodhearted, philanthropic, benevolent, humanitarian, generous, caring, understanding, kind and thoughtful towards the grievances of the public.
12. They staff and officers of such entities should endeavor 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 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 after receipt of legal notices and even during the pendency of the complaint before the courts or by absenting themselves from the proceedings of the courts.
13. A perusal of the local law shows that it is provided in S.54 (1) (h) (i) that "(1) The functions and powers of the Tehsil Municipal Administration shall be to
(h) provide, manage, operate, maintain and improve the municipal infrastructure and services".
14. As far as the request about grant of damages 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.
15. 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.
16. 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.
17. 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.
18. It is clarified that if this order would be cancelled on application of the defendants then the whole claim would be deemed to have been restored including the part of claim which is being with-held for the time being, while the possibility for the grant of the remaining relief would be considered on its own merits alongwith possibility of the refusal to grant even the relief being granted in these ex-parte proceedings during fresh proceedings in accordance with law.
19. The right of the defendants is however reserved with reference to Rule 14 of PCP Rules 2009 read with S.33 of PCP Act 2005 to move the application for cancellation or modification of this order to this court or to file the appeal before Honourable High Court within one month failing which the right for seeking cancellation or modification might be deemed to have been forfeited in accordance with law.
20. In accordance with above discussion, the complaint is hereby accepted partly in ex-parte manner to the extent of the issuance of the direction to the defendants to arrange for the construction of the disputed street and sewerage in the next budget if the same is not possible to be constructed earlier while the request for the recovery of damages, litigation charges, costs and counsel fee is with-held.
21. Parties are left to bear their own costs.
22. This order would become final u/s 34 of PCP Act 2005, if the appeal is not preferred within period of 30 days u/s 33 of PCP Act 2005 & Rule 18 of PCP Rules 2009 in accordance with the Rules of Procedure of Honourable High Court or if the application for cancellation of this order is not moved u/r 14 of PCP Rules 2009 within prescribed period.
23. 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.
24. A copy of this order is to be provided to the representative of the defendants on demand along with issuance of a copy by hand or post to the TMO at the responsibility of the claimant for compliance.
25. 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.
26. 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.