SULTAN TANVIR AHMAD, J.---This judgment shall decide present First Appeal filed by Messrs TCS (Private) Limited (the `Appellant ') and F.A.O. No.128 of 2012 filed by Mst. Haseena Begum (the 'Respondent'), as both the appeals are arising out of same order dated 06-06-2012 passed by learned District Consumer Court, Multan, under the Punjab Consumer Protection Act, 2005 (the 'Act).
2. Per claim of the Respondent, filed under section 25 of the Act, she obtained courier services of Appellant for the purposes of delivering admission-form of her son namely Abdul Rafay Javed to M/s Rashid Lateef Medical College (Private), Lahore (the 'Addressee') for which she paid Rs.130/- on 06-10-2011 to the Appellant, who assured to deliver the consignment to the Addressee on 07-10- 2011. Upon failure on the part of the Appellant to deliver the consignment, she lodged an inquiry and was informed about one day's delay in delivery of the consignment with the reassurance that the same shall be delivered to the Addressee, however Appellant could not deliver the consignment till expiry of the admission phase (10-10-2011) and ultimately legal notice was sent on 20-10-2011, which was never responded by the Appellant, leaving her with no other choice but to lodge a complaint for ruining the carrier of her son and causing mental agony, distress, anguish and loss for which she claimed Rs.1,000,000/-. This claim was contested by the Appellant while raising various objections as to the facts as well as law.
3. The parties led their respective evidence. The Respondent appeared as PW-1 and her affidavit is brought on record as Ex.P-1. Copies of the legal notice, TCS receipt, Bank receipts, acknowledgment due and postal receipt are on record as Ex.P-2 to Ex.P-7. On behalf of the Respondent, Syed Mujahid Ali, Assistant Manager Customer Service, TCS appeared as RW-1 and his affidavit is brought on record as EX.R-1.
4. After assessm ent of evidence and hearing the parties, learned District Consumer Court, Multan reached to the following conclusion:- "Respondents have admitted that due to their negligence, the disputed shipment could not be delivered to the actual addressee in time RW1 has stated that in his cross-examination that wrong delivery was done due to their fault on which they apologies the petitioner on telephone. It is settled law that admitted fact do not need to be proved. Respondents have themselves admitted their fault on their behalf which means they provided faulty and defective services to the petitioner. The disputed shipment was the receipt of deposited of fee for getting prospectus to Rashid Lateef Medical College Lahore so that the son of the petitioner could get admission in that college. It is a hard fact that due to non-delivery of the disputed shipment in, time to Rashid Lateef Medical College Lahore, neither the petitioner received any prospectus nor she could apply for admission of his son in time. This all happened due to poor services of the respondents. Therefore when the defective and poor services have been proved by the petitioner, the petition in hand is hereby accepted with costs and the respondents are directed to return Rs.130/-, the charges of disputed shipment. They are also directed to pay to the petitioner Rs.1974/-+1974/- which were deposited by the petitioner in bank as per EXP4 and EXP5. The petitioner has demanded Rs.1 million for mental torture, monitory loss and loss of academic career of son of the petitioner, however she has not given any detail of the above said loss in her complaint and in her statement. Therefore, she is granted Rs.1 lac as compensation." Aggrieved from the same, both parties have the filed appeals.
5. Syed Hurr Ali Shah, learned counsel for the Appellant has argued that by mistake, consignment was delivered to Hameed Latif Medical College, Lahore instead of the Addressee and upon realizing this, the consignment was traced and sent to destination; learned trial Court has wrongly held the Appellant responsible. It is further contended that section 15 of the Act imposes restriction on grant of damages or compensation, except return of the consideration, since the Respondent has suffered no loss but lack of the benefit of the service. Learned counsel has vehemently argued that the award of Rs.100,000/- as compensation in the absence of proof of actual loss or damage is in violation of law. Learned counsel while reading the provisions of the Act has submitted that service provider's interest is required to be equally protected and giving wider interpretation to the Act or its provisions shall unduly stretch the scope opening floodgates towards unwanted claims and exploitation of service providers. It is added that services were obtained by the mother of the student who allegedly lost his chances of admission and she being consignee has suffered no direct loss, whereas the son having no proximity or contractual relationship does not fall within the definition of customer.
6. Conversely, Mirza Muhammad Irfan Baig, learned counsel for the Respondent has argued that loss claimed is result of natural chain of events and claim for the entire amount prayed in the suit/complaint was liable to be decreed. It is contended that due to the gross negligence on the part of the Appellant not just the son of the Respondent has lost one year but it caused mental agony, distress etc. which is the usual result of faulty service that can be caused to a mother in the given circumstances of the case. It is contended by learned counsel for the Respondent that the Respondent specifically has chosen services of the Appellant as it claims to be one of the most premium courier service in the Country and the mission statement of the Appellant widely circulated throughout the Country asserting to be the best logistic backbone delivering in array of service to the businesses and the consumer. It is further contended that the Act has been promulgated to curb the exploitation of the citizens in the hands of the service providers, hence its relevant provision are to be liberally interpreted, covering the claim of the respondent and any restricted approach shall nullify the very purpose of the particular legislation.
7. The discussions' that have taken before this Court and the available record have raised following points, requiring pronouncement:- 1). The nature and purpose of the Act (for the consumer services) and as to whether the same is required to be approached liberally, extending its benefit to cover the cases like one in hand?
2). Whether the Respondent is not entitled to damages or compensation, except return of consideration, in view of the restriction imposed under section 15 of the Act?
3). Category of 'persons covered under the Act to maintain action for faulty services.
4). Whether award granted to the claimant/ Respondent requires independent proof of each item of claim with reference to the evidence.
8. To properly appreciate the contentions of learned counsel of the parties as well as their approach towards the relevant provisions of the Act and to resolve the controversies; it is appropriate to start with the preamble of the Act, which is as follows:- Whereas, it is expedient to provide for protection and promotion of the rights and interest of the consumers, speedy redress of consumer complaints .and for matters connected therewith; ...
(Emphasis supplied)
Reading of preamble of the Act reflects that the legislature has promulgated the Act for protecting interest of the consumers, to promote their rights and to provide speedy remedy for the redressing of their complaints. To achieve the purpose vide range of powers are given to the authority and forum of counsel for consumers in Part-VI of the Act. At the same time, duties have been imposed upon service provider including the duty to give proper disclosure in terms of section 16 of the Act.
Restrictions are imposed from making any false, deceptive or misleading statement by way of Part-V of the Act. Detailed reading of the Act in the light of the afore reproduced the preamble as well as the long title reflects that the legislation is beneficial in the sense that it tends to protect public from exploitation and the acts of individuals by imposing obligations, with whom they stand in relationship of customer. This legislation is required to be construed in correct perspective to fructify the legislative intent underlying the enactment and its beneficial provisions are to be interpreted liberally to extend the benefit upon whom it is conferred by the legislature. In this regard reliance can be placed on "Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others" (PLD 2000 SC 207), "Charan Singh v. Healing Touch Hospital and others" (AIR 2000 SC 3138) and "Spring Meadows Hospital and another v. Harjol Ahluwalia through K.S. Ahluwalia and another" (1998) 4 Supreme Court cases 39). The following observations in Spring Meadow Hospital case (Supra), by the Supreme Court of India, while interpreting similar provisions, are relevant:- "8. Before we examine the aforesaid questions it would be appropriate to notice the scenario in which Parliament enacted the Consumer Protection Act (hereinafter referred to as "the Act"). The United Nations had passed a resolution in April 1985 indicating certain guidelines under which the Government could make law for better protection of the interest of the consumers. Such laws were necessary more in the developing countries to protect the consumers from hazards to their health and safety and make them available speedier and cheaper redress. Consumerism has been a movement in which the trader and the consumer find each other as adversaries. Till last two decades in many developed and developing countries powerful consumer organizations have come into existence and such organizations have been instrumental in dealing with the consumer protection laws and in expansion of the horizon of such laws. In our country the legislation is of recent origin and its efficacy has not been critically evaluated which has to be done on the basis of experience. Undoubtedly the Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act gives a comprehensive definition of consumer who is the principal beneficiary of the legislation but at the same time in view of the comprehensive definition of the term "consumer" even a member of the family cannot be denied the status of consumer under the Act and in an action by any such member of the family for any deficiency of service, it will not be open for a trader to take a stand that there is no privity of contract. The Consumer Protection Act confers jurisdiction on the Commission in respect of matters where either there is defect in goods or there is deficiency in service or there has been an unfair and restrictive trade practice or in the matter of charging of excessive price. The Act being a beneficial legislation intended to confer some speedier remedy on a consumer from being exploited by unscrupulous traders, the provisions thereof should receive a liberal construction.
(Emphasis supplied)
9. The Respondent in her claim has complained about the purported faulty courier services and neglect of responsibility of delivering the consignment by specific date at a particular address.
Other essentials and the losses suffered because of the alleged faulty service are given in paragraph No.4 of the plaint, in the following words:--
10. When the Respondent-lady gave evidence, she maintained her stance that she initially adopted and deposed that on the lines of aforementioned claim in her affidavit (Ex.P-1). She was subjected to cross-examination but hardly any dent could be created.
11. On the other hand and in response to the aforesaid, the Appellant while submitting written statement has evasively denied the claim, by adopting the stance that the Respondent and her son have not suffered any loss due to the delay on the part of the Appellant, in paragraphs 3 and 4, as follows:- Astonishingly, despite the admission of the mistake, not just the Appellant has failed to respond the legal notice, rather he has pleaded that the claim of Respondent has brought bad name for the Appellant. The Assistant Manager of TCS tendered his affidavit (Ex. R1) and in paragraph 4 of the same following stance is taken:-
12. When the said Assistant Manager appeared for cross- examination he gave following answers to the questions put to him which are highly relevant:- - If the disputed packet had been delivered to the addressee at the right time then the admission of son of the petitioner might had been accepted on merits.
Although legal notice was received by us but we did not send any reply to the petitioner."
13. Though the liability as well as damage done to the Respondent is denied but throughout the trial, nothing is brought on record to show that .how fault at the part of the Appellant has not caused the damage for which the compensatory award is granted to the Respondent by the learned District Consumer Court.
14. Next controversy arising out of contradictory positions adopted by the learned counsel of the parties is regarding award of damages or compensation to the Respondent, except return of consideration, in view of the restriction imposed under section 15 of the Act, which is as follows:-
15. Restriction on grant of damages.
Where the consumer has not suffered any damages from the provision of service except lack of benefit, the service provider shall not be liable for any damages except a return of the consideration or a part thereof and the costs."
(Emphasis supplied)
Evaluation of the above reflects that service provider's responsibility is limited to return of consideration or a part thereof and costs in addition thereto, when no damage is suffered by consumer, however where the faulty service has caused damage to the customer, the restriction in this section does not apply. The qualification for claiming the damages is given in section 13 of the Act, which is reproduced below:--
13. Liability for faulty or defective services.---A provider of services shall be liable to a consumer for damages proximately caused by the provision of services that have caused damage."
(Emphasis supplied)
Careful examination of sections 15 and 13 as well as its surrounding provisions reflects that a customer who suffers a harm/damage meets the criteria when the claimed damages have proximate relationship with the faulty service. The word "proximity" is normally used as a convenient label to describe a relationship between the parties by virtue of which the defendant can reasonably foresee that his Act or omission is liable to cause damage to the claimant of the relevant type [reference can be made to the case titled Muirhead v. Industrial Tank Specialties Ltd. (1985) 3 All ER 705]. The word 'proximate' in above section has also been used to describe not only the relationship between the parties, but the connection between service provider's negligence or faulty service and the customer's damage.
15. The legislature has also fixed the standard and level that is required to be maintained by the service providers, as follows:- "14. Standard of provision of services.
(1) Where the standard of provision of a service is regulated by a special law, provincial or federal, the standard of services shall be deemed to be the standard laid down by such special law.
(2) Where the standard of a service has not been provided for in, any law or by the professional or trade body concerned, the standard shall be that which at the time of the provision of the service, a consumer could reasonably expect to obtain at that time in Pakistan."
16. The legislature, while giving substitute system of consumer justice by way of speedy trial, required to be concluded within six months, provides extensive range of remedies starting from damages, compensatory awards, costs, recovery of prices for the individual sufferer, at the same time aims to bring about a quality improvement in the approach of the service provider and services through the Act. Section 31 of the Act provide as follows:- "31. Order of Consumer Court.
If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely:
(a) xxx
(b) xxx
(c) to return to the claimant the price or, as the case may be, the charges paid by the claimant;
(d) to do such other things as may be necessary for adequate and proper compliance with the requirements of this Act;
(e) to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant;
(f) to award damages where appropriate;
(g) to award actual costs including lawyers' fees incurred on the legal proceedings;
(h) xxx
(i) xxx
(j) to remedy the defect in such period as may be deemed fit; or
(k) to cease to provide the defective or faulty service until it achieves the required standard."
The remedies above can be granted in addition to each other and in appropriate cases more than one direction or remedy can be granted. Not merely the harm or mental pain, agony, discomfort, losses suffered by individual customer but it is quality of the services and conduct of its provider upon which concentration is also required in the cases of established negligence. To achieve required standards and quality service the Consumer Courts are also empowered to issue direction of ceasing to provide faulty service, for the welfare of the consumers, until the service provider achieves the required standards.
17. Reverting to the facts of the case, the service provider/Appellant is an ingrained courier service provider, renowned and specialized for the particular field. The utilization of such services for delivery of important documents has turn out to be a common phenomenon, practice as well as requirement of public for over the past about two decades. The Appellant, which assert to be one of the most premium courier service, with the mission statement widely circulated throughout the Country, claiming to be the best logistic backbone delivering in array of service to the businesses and the consumer, further lifts the expectation and the Customers are fully entitled to expect that their consignments are to be delivered to the destinations as undertaken by the service providers.
18. It is reasonably foreseeable or ought to have foreseen by a reasonable courier service provider that faulty services in terms delayed delivery of the consignment, no delivery or delivery at wrong address can cause loss ranging between costs of sei vice to sizeable extent, depending upon the circumstances of each case. Distress, mental agony or grieve due to loss of job, admission or important assignments M. and/or decrease in chances of the said opportunities are also natural result and flow of the negligent or faulty services of the kind involved.
19. The contention as to the Respondent falling out of the categories of permissible claimant(s) being not directly affected from the service as the claimant is not the one who actually lost admission due to purported faulty service, is also not inspiring. Both the hirer who paid consideration for the services and beneficiary of such service are covered within the definition of the Customer as provided in section 2(c)(iii) of the Act.
Section 2(c): 'Customer' means a person or entity who -
(i) xxx
(ii) Hires any services for a consideration and includes any beneficiary of such services; Above definition is comprehensive enough to include the one who hired the service for consideration and at the same time in view of the broad definition even other beneficiaries cannot be denied the action, provided the same is brought due to damage caused by any faulty service and it is not permissible for a service provider to take a position that there is no privity of contract.
In my opinion, in the given circumstances of the present case, both the mother (Respondent) being direct hirer and her son being another beneficiary could have maintained the claim, subject to fulfillment of remaining conditions.
20. As far as the dispute and arguments by learned counsel of the parties regarding the grant of award and its quantification are concerned, it appears that while granting the award the learned District Consumer Court was vigilant about the settled law as to special damages and the award of damages that is general in nature. The losses capable of calculation with reasonable certainty being special damages can only be allowed when not just explicitly pleaded but proof of each item of such claimed losses is given with reference to the evidence on 'record, whereas inexact losses like pain, suffering etc. can be compensated as general, which can be assessed by the Courts in its discretion, required to be exercised according to the facts and circumstances of each case. The award of Rs. 100,000- (in addition to return the charges of disputed shipment, costs and loss of amount deposited in bank) allowed by the learned District Consumer Court being reasonable compensation, is just and fair in the circumstances of the present case. The law laid down by the Honourable Supreme Court of Pakistan, in the cases "Abdul Majeed Khan v. Tawseen Abdul Haleem and others (2012 CLD 6) and "Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary Ministry of Finance and others" (2013 SCMR 507), can be relied in this regard.
The Honourable Supreme Court while allowing general damages for mental agony and injury observed that failure quantify damages does not mean that a claimant is not entitled to general damages under the rule of thumb when sufficient material is brought on record. It will be advantageous to reproduce the following extract from Abdul Majeed Khan case (Supra):- "In case of general damages, the well-established principle is that damages must be such, which would compensate the injured. As far as money is concerned, it is true that loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses may not be accurately calculated in terms of coins, but for this reason alone, courts do not decline to grant compensation and the courts have formulated certain parameters and devised principles for evaluation or assessme nt of such general damages. Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to the victim. From the preponderance of authorities on this issue of quantification, it emerges that there is no yardstick or definite principle for assessing damages in such cases and it becomes difficult to access a fair compensation. In these circumstances, it is the discretion of Court, which may on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person, who has suffered such damage. The general damages are those, which law will imply in very violation of legal rights. They need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by judicial mind in such cases is that the conscience of Court should be satisfied that damages awarded would, if not completely, satisfactorily compensate the aggrieved party. However, adequate care should be taken in this regard while dilating on the quantum of awards and the Courts should be vigilant to see that claim is not fanciful or remote, the award should never rise to the reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony, but the Court should give the aggrieved party what it considers in all the circumstances a fair and reasonable compensation for his loss."
(Emphasis supplied)
21. The judgment passed by the learned District Consumer Court, in the afore-referred circumstances of the case, is found as per the record and the law. The appeals lacking merit are accordingly dismissed; with no order as to costs.