1. The case is at the stage of ex-parte arguments which have been heard and I have perused the file of the present case 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 defective mobile telephone set purchased on 21-09-2011 by the claimant from the defendants for price of Rs.9000/- has been refused to be replaced or returned on repeated request despite promise about the return in case of defect with the allegation that the defendants have ousted the claimant in presence of the witnesses from their shop by pushing him out of the shop and they have kept the accessories of the mobile set with them. The claimant has demanded the recovery of Rs.9000/- as price and Rs.2, 00,000/- as damages and Rs.30, 000/- as counsel fee by alleging no action despite issuance of legal notice.
3. Defendant No.1 namely Rehman is shown to have appeared on 15-11-2011 but failed to appear on the adjourned date while joint registered envelope containing the notice for 25-10-2011 is shown to have been refused to be received according to the report of postman and both the defendants are being proceeded against ex-parte with reference to Rule 14 of PCP Rules 2009 vide order dated 23- 11- 2011.
4. The claimant was directed to prove the version by production of ex-parte evidence with reference to Rule 14 of PCP Rules 2009.
5. The ex-parte evidence of the claimant consists of original affidavit of claimant as Ex.P-1; original affidavit of Waheed Khan Babar as witness as Ex.P-2; original postal receipt as Ex.P-3; copy of CNIC of the claimant as Mark P.A; copy of legal notice as Mark P.B.
6. I have observed from perusal of ex-parte evidence in the light of the ex-parte arguments of learned counsel for the claimant that the version of the claimant is prima-facie proved by ex-parte evidence therefore he is entitled to the recovery of Rs.9,000/- as price of the disputed mobile and recovery of Rs.30,000/- as counsel fee however the damages demanded at Rs.2,00,000/- is to be reduced to Rs.9,000/- on the basis of the discussion in the following paragraphs in which the principles for the grant of damages and special costs have been elaborated.
7. As far as the recovery of counsel fee and litigation charges and mode of its proof is concerned, it is observed that the recovery of the lawyer's fee and litigation charges is legalized by S.31 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 counsel fee when the same is specifically pleaded in the complaint itself as Rs.30000/- while the appearance of the learned counsel to conduct the case and the signatures on the complaint and on the Wakalatnama are the acknowledgements of the receipt of the said amount as legal fee, therefore the claimant is entitled to recover the same from the defendants.
8. 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. 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.
9. It is pertinent to note that the grant of damages is curtailed even under the Contract Act, 1872 being the law of the land 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.
10. 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.
11. It is clarified that if the defendants would apply for cancellation of this order by filing the application for setting aside ex-parte order, 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 alongwith possibility of the refusal to grant even the relief being granted in these ex-parte proceedings during the fresh proceedings either after recording the evidence or in summary manner for proceeding further with the present case in accordance with law. The right of the defendants 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.
12. In accordance with above discussion, the complaint is partly accepted to the extent of the return of disputed mobile on recovery of Rs.9,000/- as sale price and recovery of further amount of Rs.9,000/- as damages and Rs.30,000/- as counsel fee while the remaining relief is with-held.
13. 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 or if the application for cancellation of this order is not filed in the given period.
14. 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.
15. 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.
16. 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.