1.Today case was fixed for appearance of defendant but a 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 has arisen so arguments of claimant heard.
2. There is no need to refer facts of this claim because of query 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 of claim in this context, 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 legal notice is dated 09.01.2013, which was dispatched to other side on 19.01.2013 whereas claim was filed before this Court on 24.01.2013 that means before 10 days of expiration of fifteen days period.
4. What I find that sub-sections 2 and 3 of Section 28 of the Act are to be read together and not in isolation. Sub-section 1 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. Sub-section 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.
5. 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 proof 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.
6. If, in view of above position, a consumer files claim in Court, the Court has not authority at all to entertain the 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.
7. Therefore, I have no hesitation to hold that this claim was not liable to be entertained because of non-fulfillment of conditions laid in subsection 3 of section 28 of the Act hence it is rejected.
However, this rejection shall not forfeit rights of claimant to file fresh claim after qualifying all conditions as well as by observing period of limitation for filing a claim before this Court. File shall be consigned to record room after its due completion.