' AMIN-UD-DIN KHAN, J.---Through this appeal filed under section 33 of the Punjab Consumer Protection Act, 2005 (II of 2005) (hereinafter referred as "Act") the appellant has challenged the judgment passed by the learned Judge Consumer Court, Gujranwala dated 15-9-2011 whereby a claim filed under section 25 of the Act has been accepted.
2. Brief facts of the case are that Ashiq Ali, respondent/ complainant on 25-10-2009 purchased one litre bottle of Sprite allegedly prepared and manufactured by the appellant-company from a shop in his village Ludhaywala and after cleaning the bottle before serving to his family members he found a dead worm in it and did not de-seal the same, hence, filed the complaint claiming damages to the tune of one million rupees.
3. Reply was filed, wherein contentions of the claimant were controverted. A preliminary objection was raised that claim has been filed after the prescribed period of limitation, therefore, same is not proceed able before the court and further that the bottle in question (Sprite) is not manufactured by the respondent rather it is counterfeited and manufactured by some local beverage company.
The parties were invited to produce their evidence. Both the parties produced their respective evidence. Vide impugned judgment dated 15-9-2011 learned Judge, Consumer Court imposed a fine of Rs,25,000/- upon the respondent-appellant and granted litigation charges to the tune of Rs:10,000/- to the complainant-respondent.
4. Learned counsel for the appellant argues that as per story of the respondent he purchased the disputed beverage on 25-10-2009 from village "Ludhay Wala" but at the time of cleaning the bottle before opening the same found a dead worm inside the bottle, whereupon a notice was issued to the respondent-appellant company on 21-11-2009. Reply was received on 10-12-2009 and complaint was filed on 21-12-2009. States that under section 28(4) of the Act, claim is to be filed within 30 days from the accrual of cause of action and states that according to the respondent- complainant the cause of action accrued on 25-10.2009 when according to him he purchased the bottle and has seen the dead worm in it. Further argues that when it was denied by the appellant- respondent that this beverage is not manufactured by the appellant-company and it was prayed that opinion be taken from an Expert but the learned court declined the application, therefore, fell in error while without any record presuming that the said beverage was manufactured by the appellant-company. Learned counsel refers section 10 of the Act which is reproduced as under:- "10. Restriction on grant of damages.--- Where the consumer has not suffered any damage from the product except the loss of utility, the manufacturer shall not be liable for any damages except a return of the consideration or a part thereof and the costs."
' While referring section '10 reproduced above, argues that when admittedly the product has not been used and no damage has been caused to the respondent, therefore, the learned Consumer Court was not competent to grant damages. Further that though the respondent-complainant has filed an application for permission to amend the date of purchase from 25-10-2009 to 15-11-2009 in order to bring his claim within limitation but states that his application for amendment was rejected and then even when he appeared as a witness he has stated the date of purchase as 25- 10-2009, therefore, this was a contradictory matter and it was established that the claim has been filed after the prescribed period of limitation, therefore, was not proceedable. States that when application was filed for expert evidence with regard to the manufacturing of the, beverage in question by the appellant-company or by any other local manufacturer by counterfeiting the same, the learned Consumer Court was bound to invite the expert evidence when the unopened bottle was available with the court. To substantiate this contention relies on "Messrs DAWLANCE UNITED REFRIGERATION INDUSTRIES PVT. LIMITED through Branch Coordinator v. Muhammad Jameel"
(2012 CLD 1461). Further states that even the complainant has not mentioned the specific shop wherefrom he has purchased the same, so that the appellant may start proceedings with regard to the selling of the counterfeited beverages showing the trademark of the appellant company.
Further while referring section 31 of the Act states that in case of proof of the claim of the respondent, the court was at the most competent to ask the respondent to replace the product or return the money and therefore, states that the order impugned is absolutely without jurisdiction.
Further that when the complaint was filed after the prescribed period of limitation without filing application for condonation of delay, the learned Consumer Court was having no jurisdiction to entertain the same.
5. On the other hand, learned counsel for the respondent-complainant argues that inadvertently the date of purchase of product was written as 25-10-2009 and states that notice was sent and application for amendment was moved though it was rejected. When confronted to the learned counsel that whether the application for condonation of delay was filed, the reply is in negative.
Further argues that case of the respondent-complainant comes under section 4 of the Act and not under section 10 of the Act. Argues that as it was a food stuff and section 10 relates to utility of the product which is not applicable on the food stuff. Lastly argues that nominal damages have been granted though complainant has claimed damages of Rupees One Million.
6. I have heard learned counsel for the parties at full length and have gone through the record with their able assistance.
7. When complainant appeared as a witness and made statement that he purchased the bottle on 25-10-2009 and now the story that the product was purchased on 15-11-2009 and amendment in the complaint was refused and therefore it is confirmed that he purchased the product on 25-10- 2009. If it was the case of respondent before the learned Consumer Court that the product was actually purchased on 15-11-2009 why the complainant when appeared as witness before the court stated date of purchase as 25-10-2009, learned counsel for the complainant stated that in order to make his statement in consonance with the pleadings he has stated so. I am afraid that argument is not valid to justify his statement. Admittedly the cause of action accrued to him on the same day when according to him he had the knowledge that it is defective product i,e, on 25-10- 2009 and the complaint has been filed on 21-12-2009 in accordance with section 28(4) of the Act whereas limitation for filing of claim is 30 days from the cause of action, therefore, complaint was certainly filed after the prescribed period of limitation. Admittedly, application for condonation of delay was not filed, delay was not condoned by the learned Consumer Court, therefore, when the complaint has been filed after the prescribed period of limitation without prayer of condonation of delay, the learned Presiding Officer was having no jurisdiction to entertain the IA complaint.
8. I have noticed that the learned lower court has wrongly construed the statement of the witness of appellant company to presume that he has admitted that the product is manufactured by the company whereas he has not stated so. He has stated that the product contains the mark of the company but it is counterfeited one and not manufactured by the company. In this eventuality the learned Consumer Court was bound to first procure the expert evidence under section 30(1)(c) of the Act to determine that whether the same has been manufactured by the company or is counterfeited one. So far as matter of lodging of F.I.R. In the area wherefrom complainant purchased the product is concerned, he has not denied but showed his ignorance with regard to the registration of criminal case against the persons manufacturing the counterfeited product of the appellant company. So far as matter of application of section 4 or section 10 of the Act is concerned, I do not agree with the arguments advanced by learned counsel for the respondent that this case falls under section 4 of the Act and not under section 10 of the Act, this case certainly falls under section 10 of the Act when no damage was caused and product was not used, therefore, the court was not justified to grant the damages. In this view of the matter, the impugned judgment dated 15-9-2011 passed by the learned Judge Consumer Court is against the law, therefore, while allowing this appeal, same is set aside.