1. By way of this single judgment above mentioned three claims one filed by Malik Shafiq Ahmed advocate and other two instituted by Mr. Fazl-e-Razik Janjua Advocate (hereinafter to be called claimants) are being decided together as common question of law i.e. non-fulfillment of section 28 of the Punjab Consumer Protection Act, 2005 (hereinafter to be called Act) in its letter and spirit is involved.
2. There is no need to refer facts of all three claims because a question has arisen that whether a claim filed before expiration of fifteen days after receipt of notice to rival side can be entertained by a consumer Court? Before I proceed to mention relevant dates in this context of all claims, I will like to reproduce section 28 of the Act, which is as under: - "28. Settlement of Claims (1) A consumer who has suffered damage, or Authority in other cases, shall, by written notice, call upon a manufacturer or provider of services that a product or service is defective or faulty, or the conduct of the manufacturer or service provider is in contravention of the provisions of this Act and he should remedy the defects or give damages where the consumer has suffered damage, or cease to contravene the provisions of this Act.
(2) The manufacturer or service provider shall, within fifteen days of the receipt of the notice, reply thereto.
(3) No claim shall be entertained by a Consumer Court unless the consumer or the Authority has given notice under sub-section (1) and provides proof that the notice was duly delivered but the manufacturer or service provider has not responded thereto.
(4) .....
3. In claim No. 138 filed by Malik Shafiq Ahmad Advocate, legal notice is dated 01.12.2012, which was dispatched to other side on 06.12.2012 and received on 10.12.2012. Claim was filed before this Court on 13.12.2012 that means before twelve days of expiration of fifteen days period.
4. In other two claims legal notices are dated 10.12.2012 which were posted to other side on 12.12.2012 and claims were brought in Court immediately on next day i.e. 13.12.2012, which means that still limitation of fifteen days available for defendant for responding after receipt of notices had not started.
5. Learned counsel for claimants contends that section 28 of the Act, with regard to limitation of fifteen days for a manufacturer or services provider is not mandatory so if claimants have approached this Court before expiry of said period, it will not be fatal to them. He also maintains that section 28 of the Act, does not create a restriction or barrier for claimants to come to a consumer Court before fifteen days particularly when even after expiration of that period defendants have not responded to legal notices.
6. On the other hand, learned counsels for defendants in claims Nos.138 and 140 argue that sub- section 2 and 3 of section 28 of the Act, are to be read together and not in isolation so position shall remain that Court cannot entertain a claim before expiry of fifteen days available to a contestant for responding to legal notice.
7. I have heard arguments of both sides.
8. I am in agreement with learned counsels for defendants that subsection 2 and 3 are to be read together and not in isolation. Sub-section 1 of section 28 imposes a condition on consumer to call upon other side by written notice to remedy the defects etc. Sub-section 2 than gives right to a defendant which is for responding to a notice within fifteen days. Subsection 3 however relates to Court as well as claimant simultaneously. This provision in fact restrains consumer Court to entertain a claim unless claimant qualifies at least three conditions and those are: - Giving a notice under subsection-1 to manufacturer or services provider Provision of proof about delivery of notice to manufacturer or services provider and that Manufacturer or services provider has not responded to the notice.
9. As word "and" has been used under sub-section 3 so all conditions must co-exist before a claim has to be entertained by Court. The words "has not responded thereto" in sub-section 3 are also to be read with sub-section 2 which gives right of fifteen days to manufacturer or services provider for reply to legal notice. It means that under sub-section 3 proofs must be that fifteen days time was available to a manufacturer or services provider and in that period of fifteen days no reply was made by him.
10. If, in view of above position, a consumer files claim in Court, the Court has not authority at all to entertain that claim and there is no escape from said mandatory provision of the Act hence in case of violation of subsection 3 it shall be definitely fatal to consumer.
11. Therefore, I have no hesitation to hold that all these claims were not liable to be entertained because of non-fulfillment of conditions laid in sub-section 3 of section 28 of the Act hence all claims are rejected. However, this rejection shall not forfeit rights of claimants to file fresh claims after qualifying all conditions as well as by observing period of limitation for filing a claim before this Court. All files shall be consigned to record room after their due completion.