1. Briefly stated contention of claimant is that he got booked a shipment of dresses for the "marriage ceremony" being held at America through TCS, Lari Adda Branch, Bahawalpur with respondent No.5 on 14.6.2013 with a cost of Rs.10,521/-. A time for twenty days was given to him for expected delivery of the consignment at America.
2. It is pertinent to mention that at the time of booking of consignment, respondent No.5 checked and verified the dresses and asked him to mention the cost of that shipment clearly at which claimant wrote the cost of shipment to be Rs.60,000/- that?s why an amount of Rs. 10,521/- was received from him.
3. After expiry of a period of twenty five days, applicant received a call from America that shipment has not yet been received, so claimant at once rushed to the office of respondent No.5 and enquired about the parcel at which respondent No.5 asked him to visit the office of respondent No.3. Respondent No.3 checked the consignment upon his computer and asked to come after two days.
4. On 11.7.13, when he contacted the office of respondent No.3, he received shocking news that consignment has been lost and claimant was asked to submit an application in writing about the same which he duly submitted in the office of respondent No.3.
5. After almost two weeks, claimant received a non-professional, unethical, un-logical and strange reply on 23.07.2013 from office of respondent No.2 in which the loss of parcel was confirmed but strange fully liability was denied extending lame excuses.
6. This was clear cut violation of section 7 of Provincial Consumer Protection Act 2005. Respondent No.1 has not only denied to pay the cost of the parcel, rather has offered to receive "one hundred dollors" which claimant refused.
7. Thereafter, claimant visited the office of respondent No3&5 repeatedly and made a lot of oral requests to search and locate the parcel but finally on 04.10.2013, they refused, rather misbehaved.
8. It was maintained that Federation of Pakistan was Regulatory Authority, who was to check such irresponsible attitude of the companies and to safeguard the fundamental rights of citizens of Pakistan.
9. That claimant has suffered a loss of Rs. 70,521/- and has to face embarrassment and disgrace from his relatives residing at America which cannot be redressed or compensated. Respondent No.2 to 5 have willfully breached the trust of claimant and have failed to comply with required compulsory "rules and regulations" of business in violation of "consumer rights" and has operated against the concept of "Morality, Business, Ethics and Norms of law and they have cheated and defrauded the claimant.
10. Due legal notice was served on 21.10.2013 and in response to that respondents contacted the claimant and assured redressal of grievance of claimant. Claimant visited their office again but respondents juggled with words and refused to compensate claimant on 19.11.2013.
11. Now, claimant claims his paid price of Rs.70,521/- alongwith two millions as compensation for mental torture, fatigue, embarrassment and disgrace and for taking strict legal action against respondent No.2 to 5, keeping in view the law of natural justice; cost of litigation may also be awarded.
12. Respondents contested the petition on legal and factual grounds submitting that version of claimant was that he got booked consignment of marriage dresses from Bahawalpur for America on 14.6.13 through receipt which could not reach its destination. It is further mentioned by the letter dated 11.7.13, 23.7.13 he had been informed regarding loss of shipment and as per contents of the petition, claimant has issued legal on 21.10.2013 and ultimately he filed the petition on 28.11.2013.
13. It was maintained that claimant has filed the claim after expiry of period of limitation as provided under Provincial Consumer Protection Act 2005; no concession, deduction or exclusion of time was available to the claimant under special law. Petition being badly barred by time was not maintainable and was not liable to be proceeded further. Even otherwise, no application for condonation of delay has been annexed with the file.
14. TCS was a Private Limited Company having mega business setup and it enjoys status of a juristic person who can sue and was liable to be sued in its on name. The respondent/defendant Nos.2 to 5 were just paid employees of the company performing specific duties with limited scope. TCS Private Limited Company has not been made a party to the proceedings and respondent Nos.2 to 5 has wrongly been impleaded.
15. If at all, claimant was considered to be a consumer, then service provider" was TCS Private Limited Company and he was no having any cause of action against respondent Nos.2 to 5 nor any effective order can be passed against them by this court as they were not "service providers"; claim suffers "Fatal Defects" of "Non-Joinder and Mis-Joinder" of parties.
16. It is established law that without crossing hurdle of maintainability and limitation of a lis merits or demerits of the case cannot be touched and as per discussion supra, the complaint in hand was neither maintainable nor within time, so was liable to be rejected.
17. It was maintained further that no evidence regarding concrete loss has been explained by the claimant, so he was not entitled to the damages as claimed for as provided under section 15 of Provincial Consumer Protection Act 2005. Petition has been moved on "ulterior motives" just to extort undue minority advantage from the TCS Company and to damage the repute of the company in Pakistan and abroad for which respondent?s company is entitled to special damages.
18. Lastly prayer was made for dismissal of the petition.
19. A separate application for rejection of claim has been moved by the respondent Nos.2 to 5 taking almost same grounds as taken in their written statement mentioned supra.
20. The above said petition has strongly been resisted by the respondents with submission that such petition cannot be filed in Consumer Court and the respondents has not denied the claim of claimant expressly or implidely, so in the way, they have accepted and admitted the claim of claimant.
21. It was maintained that it is fundamental principle of law that no one can be knocked out just on "technical grounds", so application filed by the respondents was nothing but hurdle in the way of justice.
22. It was maintained that the petition so moved by the respondents was self contradictory or an attempt to mislead this court and question of law and fact can only be determined after recording of evidence.
23. It was maintained that the receipts/terms issued by respondents were clear cut violation of section 11 of Provincial Consumer Protection Act 2005.
24. It was maintained further that petition moved under Order 7, Rule 11 of CPC was repugnant to the basic principle of natural justice.
25. It was maintained that respondents has caused loss to the claimant and claimant has already attached a letter issued by the company which in fact was cause of delay and now they want to take benefit of that delay on technical grounds which is against the spirit of law and is not sustainable.
26. Lastly prayer was maintained for dismissal of the petition and for decision of the case upon merits.
27. Arguments of Sohail Hussain Advocate, learned counsel on behalf of claimant and that of Sardar Dost Mohammad Chandia Advocate, learned counsel on behalf of respondents has been heard, record perused.
28. Main stress of learned counsel for the respondents is that Federation of Pakistan was having absolutely no concern with the matter in issue, so it was unnecessarily impleaded and it was rightly deleted from the array of respondents by learned predecessor of this court.
29. It was maintained that in fact TCS was a Private Limited Company which was having "legal entity" and it was having capacity to sue or to be sued.
30. When TCS was a Ltd Company then certainly it was to be sued through its "Board of Directors" but in this case, paid employees of the company has been impleaded, so in fact, it was not a case against TCS Company and in fact it is a case filed against none because case against the employees of company is not proceedable.
31. It was maintained further that in this case, consignment was got booked on 14.6.2013 and it was presumed that parcel was to reach at its destination on 21.6.2013, so it means cause of action has arisen the claimant on 21.6.2013.
32. It was maintained further that at alleged quarry of the claimant, respondent No.3 informed him on 11.7.13 that his consignment/parcel has lost; it means that at the most cause of action has started from this day.
33. In this complaint, claimant further says that he received a letter from respondents on 23.7.13 in which loss of parcel was confirmed but liability was denied by the company, so now it means that cause of action has arisen from this date.
34. Legal notice allegedly issued was duly replied by the respondents vide their letter dated 21.7.13 but it is strange enough to observe that the instant claim has been filed in the court on 28.11.13 while law on the point was that it was to be filed within a period of thirty days of arising of cause of action, so in this way, petition was badly barred by time and no sustainable.
35. It was maintained further that to get relief from any court of law, one was supposed to cross hurdles of maintainability and limitation and if, one succeeds to cross the formalities, merits of the case were to be touched. In this case, claimant has failed to cross the above said hurdles, so his petition is liable to be rejected and there is absolutely no need to touch merits/ demerits of the case in further.
36. On the other hand Mr. Sohail Hussain Advocate, learned counsel on behalf of claimant very strongly argued that if company has not been sued, then on whose behalf learned counsel for respondent is appearing in the court and is submitting his "power of attorney" and to whom he is representing.
37. It was maintained that all the companies and institutions are running in Pakistan under Federation of Pakistan that?s why Secretary for Communication has been impleaded and he was made party just to bring this fact in the notice of Federation of Pakistan that what fraud and mal practices were being done by TCS Company and so many other companies with the customers and Government of Pakistan was supposed to check the mal- functioning and mal-practices of the company at their end to safeguard the fundamental rights of people of Pakistan.
38. It was maintained that assertion of learned counsel for respondents that company was to be sued through "Board of Directors" is absolutely wrong because by their on resolution, they had already appointed Mr. Qamar Abbas, their Office President and External Affairs, as their attorney to file and defend the cases instituted in any court of law, photo copy of that minutes of the meeting "Board of Directors" of TCS (PVT) Ltd Company dated 2nd of December 2008 is already available on the file.
39. It was maintained that whenever, Presiding Officer of any court of law deliver some verdict, aggrieved party goes in appeal and makes said learned Presiding Officer as party in his on name and it never happens that Ministry of Law and Justice is ever impleaded as respondent/defendant.
40. Same is the case that when one is aggrieved by some act of a company then person responsible for that act is impleaded as respondent and in this case, Country Manager"/ Chief Executive Officer" TCS with Head Office at Karachi has specifically been impleaded as respondent No.2 alongwith Incharge Manager TCS, Bahawalpur and Incharge Operation TCS, Bahawalpur and Booking Clerk, Bahawalpur has duly been impleaded, so it cannot be considered that company was not impleaded properly.
41. It was maintained that fundamental rights of his client were involved and there are citation of Apex Courts of Pakistan that law always favours adjudication upon merits and technicalities are always to avoid and nobody can be deprived from his rights merely on the basis of technicalities.
42. It was maintained further that proposition in hand is even admitted from the mouth of the respondents and claimant has incorporated the company through Country Manager/CEO TCS Karachi, so it is a properly instituted petition which is maintainable by any stretch of imagination.
43. It was maintained further that he has annexed with the file a letter issued by the company in his name dated 26.8.13 in which he was informed that his matter has been closed once for all, so It means that company remained in contact with the claimant later on also through letters or e- mails and cause of action and determination of limitation was always a mixed question of law and in fact which was to be construed by the court strictly keeping in view the facts and circumstances in each eculier cases.
44. It was maintained that cause of action has arisen at final refusal of the respondents and this court has power to extend the time in suitable cases even for sixty days, so in this way, his case is well within time.
45. It was maintained further that when he visited the office of respondents for getting booked consignment they checked all the dresses personally and they got booked the same themselves and they received a writing from the claimant regarding price of the parcel and received fee as per value of the consignment that?s why he has paid Rs.10,521/- as fee for the consignment.
46. It was maintained that TCS Company was a big company and people trust this company than other companies that's why such huge amount was paid by the claimant.
47. It was maintained that the loss which claimant has suffered cannot be measured in terms of money because the dresses were for the "marriage ceremony" of his "Niece" and due to non delivery of the dresses, his value has been diminished in the eyes of his brother and his family members residing at America and they might have thought that claimant has not paid the full fee of the clothes that's why the consignment could not reach them and "marriage ceremony" was over.
48. It was maintained that he has instituted the petition against the company to teach them a lesson not to defraud with other customers and it is function of the court to safeguard and protect the rights of the customers, so exemplary damages be awarded alongwith return of paid price of the consignment because it is a admitted case of loss of his parcel which is proved through documentary evidence of the company itself.
49. I have considered the facts and circumstances of the matter with due care and cautions and gone through the entire record and found that no one can be knocked out merely on the basis of technicalities. The objections raised by the learned counsel for the respondents are jus technical in nature and Country Manager/CEO TCS Karachi has duly been impleaded, so it means that company has been impleaded properly, so claim is found maintainable and as per correspondence which was being carried out between claimant and respondents is considered, it means that case of claimant is within limitation and it is a suitable case in which concession of sixty days can be granted by the court because it is a matter of fundamental rights of customers and correspondence continued between claimant and company is a proved fact, so the concessions is hereby extended to the claimant.
50. As for as loss of consignment is concerned, it is admitted fact from documentary evidence of TCS Company itself.
51. Nutshell of my above findings is that the petition is maintainable and is within time and it is a fit case for award of damages against which there is no rebuttal on the part of respondents except technical grounds, so petition stands granted and respondents are asked to return the price of parcel with fee in the tune of Rs.70,521/-. They are burdened with compensatory costs in the tune of Rs.2,00,000/- as damages for mental agony and torture which claimant has suffered due to "faulty service" of the respondents and as cost of litigation.
52. File be consigned.