1. CH. MUHAMMAD MASOOD JAHANGIR, J.--- This appeal has been directed under section 33 read with section 34 of the Punjab Consumer Protection Act, 2005 against the order dated 31-7-2008 passed by the learned Presiding Officer, District Consumer Court, Lahore whereby the application filed by the appellant under section 28 of the Act ibid seeking rejection of the complaint filed by respondent No.1 under section 27 of the Act ibid, being barred by time, has been dismissed.
2. 2.Arguments heard and the record perused.
3. 3.The respondent No.1 filed a complaint under section 27 of the Consumer's Court Act, 2005 on 7-5- 2008 with the assertion that on 13-3-2006 he had purchased a car from the appellant on leasing financed by Habib Bank Ltd. (respondents Nos.2 and 3), which was found to be a faulty product, but the same continued despite issuances of notices to the appellant and the promises made by him.
4. The respondent No.1 made the prayer as under:--- In the light of the above it is humbly requested that the respondents be ordered to return the amount already paid by the plaintiff: It is also prayed that respondents be ordered to make the payment to the Plaintiff for the expenditure incurred on this motor car.
5. Moreover it is also requested that the Plaintiff and his family having faced a great amount of mental agony, torture and humiliation by mere acts of the respondents be ordered to pay, Rs.20,00,000 as compensation/damages.
6. Any other relief which Plaintiff is entitled, may also be granted, please."
7. The said application was duly replied by the appellant with almost 15 preliminary objections that the same was not maintainable on the score of limitation and on merit the stance has been taken that respondent No.1 (plaintiff) committed gross negligence in maintaining the car in violation of the Handbook and warranties. Moreover, the performance thereof might have been affected due to lack of reasonable care and neglect during usage besides use of substandard spare parts. Then during the pendency of the said complaint, the appellant filed an application under section 28 of the Act ibid for rejection of the complaint being not maintainable on account of limitation. The learned trial court has dismissed the said application vide order dated 31-7-2008 and the operative part thereof reads as under:--- "4.After hearing the arguments of both the learned counsel for the parties and perusing the record.
8. The petitioner has placed on record Letters dated 19-8-2007 and 24-1-2008 to prove that correspondence had taken place between the parties and as a result respondent No.1 had apprised the petitioner vide Letter dated 29-4-2008 that spare parts are available and he may contact them. Grievance of the petitioner is that from the day one the car is creating problem and respondent No.1 has failed to respond. The petitioner has a continuing cause of action, as the grievance was never redressed by respondent No.1. However, Limitation is a mixed question of law and fact, which cannot be decided without recording the evidence of the parties.
9. In view of the aforesaid reasons, the application under section 28 of the PCPA, 2005 of respondent No.1 is dismissed.
10. 4.The main contention of learned counsel for the appellant is that the car had been purchased by the plaintiff-respondent No.1 on 13-3-2006 the warranty whereof expired on 12-3-2007 and as per proviso second to section 28 ibid such claim could be filed on or before 12-5-2007, but the respondent No.1 filed the instant claim with the delay of about one year on 7-5-2008, which was hopelessly barred by time. In support of his contention he has placed reliance on the case-law reported as Muhammad Aslam v. General Manager Pioneer Pakistan Seed Limited, Lahore and 4 others (2014 CLC 154) and Coca-Cola Beverages Pakistan Limited v. Ashiq Ali (PLD 2014 Lahore 196).
11. 5.The learned counsel for the appellant has stressed that by invoking the provisions of section 28 ibid the complaint filed by respondent No.1 before the learned Consumer Court be rejected while declaring the same to be time-barred. For ready reference, the said provision is reproduced 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.
12. (2)The manufacturer or service provider shall, within fifteen days of the receipt of the notice, reply thereto.
13. (3)No claim shall be entertained by a Consumer Court unless the consumer or the Authority has given notice under subsection (1) and provides proof that the notice was duly delivered but the manufacturer or service provider has not responded thereto.
14. (4)A claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action: Provided that the Consumer Court, having jurisdiction to hear the claim, may allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period: Provided further that such extension shall not be allowed beyond a period of sixty days from the expiry of the warranty or guarantee period specified by the manufacturer or service provider and if no period is specified one year from the date of purchase of the products or providing of services."
15. 6.From the bare perusal of the aforesaid section it may be observed that no exact limitation has been provided for a consumer to lodge a claim, who has suffered damage as he has firstly to issue a written notice by calling upon a' manufacturer or provider of services that a product or service was defective or faulty, or the conduct of the manufacturer or service provider was in contravention of the provisions of this Act and he should remedy the defects or give damages whereas the consumer has suffered damage or ceased to contravene the provisions of this Act.
16. Then the manufacturer or service provider has to reply the said notice within fifteen days after the receipt thereof. It has been further provided that the Consumer Court will not entertain any claim unless the consumer or the Authority has given notice under subsection (1) and provided proof that the notice was duly delivered but the manufacturer or service provider did not respond thereto. A period of thirty days for filing a claim by the consumer or the Authority has been provided from the arising of the cause of action. However, through the provisos the powers of the Consumer Court have been defined for allowing extension in the stipulated period in filing a claim up to sixty days from the expiry of the warranty or guarantee period specified by the manufacturer or service provider and if no period is specified one year from the date of purchase of the products or providing of services.
17. A 7.According to the said provision the period of limitation has to be calculated from the date when the cause of action accrued. Moreover no claim can be lodged unless a notice is issued and proof is provided that the notice was duly delivered but the manufacturer or service provider did not respond thereto. As such the impugned order passed by the learned Consumer Court to the effect that "*Limitation is a mixed question of law and fact, which cannot be decided without recording the evidence of the parties" does not suffer from any illegality or jurisdictional defect, but the same is perfectly in consonance/with the aforesaid provision. The case-law relied upon by learned counsel for the appellant is not applicable to the facts and circumstances of the present case as therein the matter was finally adjudicated upon by the concerned Consumer Courts after recording of the evidence whereas the instant appeal has been filed against the interlocutory order and the parties have still to adduce the evidence in support of their respective claims/stances including the point of time when the cause of action exactly accrued especially in view of the observation "*The petitioner has placed on record Letters dated 19-8-2007 and 24-1- 2008 to prove that correspondence had taken place between the parties and as a result respondent No.1 had apprised the petitioner vide Letter dated 29-4-2008 that spare parts are available and he may contact them***" in the impugned order.
18. B 8.Apart from the above, this court is also constrained to observe that the Legislature by the promulgation of the Punjab Consumer Protection Act, 2005 has not provided any remedy against the interlocutory order, but an appeal can only be filed against the final order. For ready reference both these provisions are reproduced hereunder:--- "33.Appeal.--- Any person aggrieved by any final order of the Consumer Court may file an appeal in the Lahore High Court within 30 days of such order.
19. 34.Finality of Order.--- Every order of the Consumer Court, if no appeal has been preferred against such order under the provisions of this Act, shall become final."
20. C The instant appeal filed under section 33 read with section 34 ibid against the interlocutory order is not maintainable and the office of this court is directed to take care of these provisions in future while entertaining such like appeals against the interlocutory orders passed by the District Consumer Courts.
21. D 9.Consequently, I do not find any exception to interfere with the impugned order, which is maintained and this appeal on merits as well as being incompetent is dismissed.
22. E