MUHAMMAD SHAN GUL, J.---Through the present judgment F.A.O. No.75 of 2014 titled as "Muhammad Aslam Wadani v. Presiding Officer, etc." as also F.A.O. No.133 of 2014 titled as "Rafique Ahmad v. Presiding Officer, etc." are sought to be decided.
2. Both appeals seek to challenge Order dated 07.12014 passed by the Presiding Officer, District Consumer Court, D.G. Khan whereby he accepted the claim of respondent No.2 in part and awarded him compensation amounting to Rs.1,65,000/- to be paid by the present appellants who were held jointly and severally liable.
3. The judgment/Order under challenge in the present matter fits the bill of a perfect wedding replete with all the works but without a bridegroom. The. Order under challenge, quite academic in nature, meticulously attends to the preliminary objections raised by the appellants, addresses them with the help of precedent case law and, therefore, is quite appropriate in the particular context of addressing preliminary and legal objections raised by the appellants. However, while doing so the Order under challenge completely and blithely ignores and forgets the main issue before the court and, therefore, does not address the actual issue involved in the matter. To this extent the matter needs to be remanded to the District Consumer Court, D.G. Khan so as for the court to rehear the matter and pass an appropriate Order that fulfills the requirements of section 2(9) and (14) and Order XX, Rule 4 of the Code of Civil Procedure, 1908 as also section 31 of the Punjab Consumer Protection Act, 2005. The District Consumer Court, while it sheds appropriate light on the preliminary objections and addresses them, fails conspicuously and falls manifestly short in identifying, discussing, considering and addressing the main issue involved.
Complainant's Grievance:
4. In his complaint under section 25 of the Punjab Consumer Protection Act, 2005 ("the Act, 2005"), the complainant (Qaiser Abbas) stated that defendant No.1 (Muhammad Aslam Wadani/Appellant No.1) operates a car showroom at Jampur Road, Dera Ghazi Khan and the complainant approached defendant No.1 for the purpose of purchase of a car. Complainant bought an already used Suzuki Cultus bearing Registration No. MNA-470 from defendant No.1 against a consideration of Rs.5,85,000/- but the car, after its purchase did not operate well due to various mechanical defects and the complainant had to spend Rs.50,000/- for the mechanical works required to keep the car operational but even this could not properly fix the car. Frustrated, the complainant went back to defendant No.1 and asked him to sell the car (Suzuki Cultus/MNA-470) and arrange an alternative. Defendant No.1 arranged an already used Cuore Daihatsu car (owned by defendant No.2, appellant in the connected F.A.O. No.133 of 2014) for a sum of Rs.625,000/-. Complainant exchanged the Suzuki Cultus/MNA-470 with Cuore Daihatsu bearing Registration No. MNA-4546 and paid the differential of Rs.40,000/- to defendant No.1 upon the representation of defendant No.1 that the engine of the Cuore Daihatsu/MNA-4546 is 100% in order and that the said car has not been re-painted. The second car i.e Cuore Daihatsu/MNA-4546 also did not operate well and upon inspection, a motor mechanic confirmed that not only the engine is in a dilapidated state but the car has also been re-painted. The complainant asked defendant No.1 to cancel the transaction but defendant No.1 instead agreed to pay a sum of Rs.115,000/- to the complainant, being the expenditure that the complainant had incurred in getting Cuore Daihatsu/MNA-4546 fixed and operational. However, later Defendant No.1 did not pay the said amount. Complainant served a Notice on 02.07.2013 upon defendant No.1 in compliance of Section 28(1) of the Act, 2015 and after receiving no response from defendant No.1, on 26.07.2013 filed a complaint under Section 25 before the learned Consumer Court, Dera Ghazi Khan claiming Rs.165,000/- (Rs.115,000/-. as the expenditure incurred and Rs.50,000/- as damages) as well as costs and counsel fee.
What is clearly discernible is the fact that there is no mention whatsoever of any commission being given to defendant No.1 as consideration for providing services for the first transaction. Even in respect of the second transaction there is no clear indication to this effect either.
Defendants' Stance/Written Statement:
5. Defendant No.2, appellant in the connected appeal, did not appear before the learned Consumer Court and was proceeded against ex parte. Defendant No. 1, in his written statement contested the claim of the complainant on various legal and factual grounds. Defendant No.1 refused to have sold Suzuki Cultus/MNA-470 to the complainant but admitted that the exchange of Suzuki Cultus/MNA-470 with Cuore Daihatsu/ MNA-4546 was arranged by defendant No. 1. However defendant No.1 refused to take any obligation in case of defect in Cuore Daihatsu/MNA-4546 since he stated that the complainant bought Cuore Daihatsu/MNA-4546 after getting it examined by a car mechanic as well as a denting expert and that defendant No. 1 merely arranged the deal and never represented anything about the physical or mechanical condition of Cuore Daihatsu/ MNA- 4546 to the complainant. Defendant No.1 also denied the version of the complainant about the price of the Cuore Daihatsu/MNA-4546 and stated that value of Suzuki Cultus/MNA-470 was Rs.585,000/- and that of Cuore Daihatsu/MNA-4546 was Rs.575,000/- and the complainant was paid Rs.10,000/-, being the difference of both. Even in the defence version, there is no mention whatsoever of any quid pro quo changing hands.
Impugned. Judgment/Order: COMPLAINT ABOUT FAULTY SERVICE ORDER; The claimant is represented by Sardar Mohammad Arif Khan Gurmani Advocate while defendant No. 1 is being represented initially by Syed Farrukh Bukhari Adovcate and subsequently by Sheikh Tanzil-Ul-Rehman Ashraf Advocate while defendant No.2 is being proceeded against ex-parte with reference to Rule 14 of PCP Rules 2009.
2. The case pertains to District D.G.Khan and the Court is on tour at District Courts Complex D. G.
Khan.
3. The case is at the stage of the arguments and the parties are prepared for the arguments.
4. I have heard the arguments and perused the file in the light of the arguments. Now I proceed to dispose off the complaint by discussion in the following paragraphs.
5. Briefly stated the grievance of the claimant is aggrieved by the purchase of a used car from the defendants which was allegedly shown to be in proper condition but exposed to be of worse condition causing loss to the claimant. It is requested by the claimant that the defendants should be directed to pay Rs.1,65,000/- as compensation for the loss along with counsel fee and litigation charges to the claimant.
6. Defendant No.1 has contested the complaint by filling his separate written statement to the effect that he was instrumental in the exchange of cultus car with cure car in which the amount of Rs.10,0001-was paid to the claimant as difference of the price of the both vehicle amounting to Rs.5,85,000/- of the cultus car and Rs.5,75,0001-of cure car; that there was no guaranty of engine or body was given by the answering defendant; that there is no custom or practice about providing the guaranty about the condition of vehicle purchased through the dealer at the showroom; that the claimant had taken the bargain after inspection of the vehicle from the mechanic and denture; that the defendant has not accepted any liability. The defendant has objected to the jurisdiction of this complaint and alia requested for grant of special costs.
7. Documents included in the file on behalf of the claimant consists of copy of CNIC of the claimant; Wakalatnama of his counsel; copy of License of Advocate; original postal receipt; copy of the certificate of registration of cure car; copy of sale receipt of cure care; brief affidavit and detailed affidavit of the claimant; original affidavit of one witness namely Asif Abbas along with copy of CNIC.
8. Defendant No.2 has absented himself after arranging with his counsel for the filling of memo. of appearance as such being proceeded against ex-parte with reference to Rule 14 of PCPR 2009.
9. Documents filed on behalf of defendant No.1 consists of the sale certificate; original Wakalat- nama; original affidavit of defendant No.1.
10. The law about proper procedure to be adopted for trial of the consumer Complaint by Consumer Court is being discussed in following marginal notes: - i) It is pertinent to note that although evidence is necessary to be recorded under S.30 of PCPA, 2005 for disposal of the complaints by the Consumer Courts but since the procedural laws known as the Code of Civil Procedure, 1908; the Code of Criminal Procedure, 1898; the Qanun-e-Shahadat Order, 1984 Order, 1984; the Bankers' Books Evidence Act, 1891; Special Rules of Evidence under section 118 of the Negotiable Instruments Act, 1881 are not strictly applicable to the proceedings of the Consumer Courts, as such the propriety demands that the regular evidence should not be recorded in such cases where the points for determination are mostly based on the copies of the admitted documents available in the file of the complaint or admitted in the pleadings. ii) It is further observed that in such cases where regular evidence is not recorded, it is proper and necessary to treat the copies of the documents annexed with the complaint and written statement including the documents filed during the pendency of the complaint, as prima facie proof and evidence of the parties for reaching to the safe and just conclusion in such cases which can be effectively disposed of without recording regular evidence. iii) I am of the view that since the PROCEDURE ON RECEIPT OF COMPLAINT is provided in S.30 of PCPA, 2005; as such if the intention of the legislature was to implement all the provisions provided in the Code of Civil Procedure, 1908; then it should not have been specified in S.30(3) that the consumer Court shall have the same powers as are vested in civil Court white trying a suit, under the Code of Civil Procedure, 1908 (Act XX of 1908), in respect of the matters narrated in Clauses-
(a) to (e) Subsection (3) of S.30 of the PCPA, 2005. iv) It is observed that the matters incorporated in Clauses (a) to (e) of Subsection (3) of S.30 of PCPA, 2005 about which the powers given by the Code of Civil Procedure are to be exercised by the Consumer Court relate to the summoning and enforcing attendance of any defendant or witness and examining him on oath; the discovery and production of any document or other material object, which may be produced as evidence; the receiving of evidence on affidavits; issuing of any commission for the examination of any witness; and any other matter which may be prescribed. v) This Court is of the view that obvious meanings of last portion of quoted law in clause (e) relating to any other matter which may be prescribed" is to the effect that the list contained in clauses (a) to (4) is not exhaustive and any other matter may be prescribed in any provision of the same law under which the powers under the Code can be exercised by the consumer Court.
My humble interpretation of the said clause by the Consumer Court to resolve the matter under the established procedure instead of remaining in the darkness and to avoid the failure of justice due to the absence of prescribed and to avoid the failure of justice due to the absence of prescribed procedure in the consumer law and consumer rules but the technicalities should not be allowed to hinder the path of justice in the said process.
11. The law about the jurisdiction of the consumer Court is being enunciated in following marginal notes:- A. As far as the plenary jurisdiction of this Court is concerned, it is hereby observed that ALTHOUGH it is provided under section 3 of PCPA, 2005 that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force while it is provided under section 36 of PCPA 2005 that all agencies of the Government shall act in aid of the Consumer Court in the performance of its function under this Act AND ALTHOUGH I am of the view that the interpretation of the term 'DEGORATION' in S.3 of PCP Act, 2005 is to the effect that the said word is used to convey the intent of the legislature to the effect that the provisions of Consumer Law should not be constructed, for barring the jurisdiction of the Consumer Courts UNLESS SPECIFICALLY OUSTED by other laws AND THAT it should be kept in mind while interpreting the jurisdiction of this Court that the procedure for redress of grievance provided in all the laws are to be followed in the forum provided under the said laws but the same grievance provided in all the laws are to be followed in the forum provided under the said laws but the same grievance can also be redressed by this Court on strength of section 3 read with section 36 of PCP Act, 2005 but it depends upon each case according to its classification.
B. As far as general or statutory jurisdiction of the Consumer Court is concerned, I find that it is clear enough from the provisions of S.27/31/36 of PCPA, 2005 that the consumer Court is a branch of civil Courts specifically catered and tailored for the disputes between the manufacturer and sellers of products and consumers on the one hand as well as between the consumers and the service providers on the other hand, while the faulty and defective services or products are squarely within the jurisdiction of this Court. As far as pecuniary jurisdiction is concerned, I find that there is no pecuniary limit fixed by law for this Court. As far as territorial jurisdiction is concerned, I find that the cause of action is required to be wholly or partly arisen within the jurisdiction of the Court so as to vest the Court with territorial jurisdiction,
12. Reliance can be placed about scope of jurisdiction of the Consumer Court upon the rulings of the Superior Courts being provided for academic study in following marginal notes for facility of reference:- 1) "point of jurisdiction can be raised at any time and at 'any stage and the jurisdiction upon a Court cannot be conferred with the consent of the parties."
(Reference 2008 SCMR 240 referred in PLD 2013 Lahore 454 titled Allied Bank Ltd. Faisalabad v.
Khalid Mehmood).
2) "The term damage as defined in section 2(d) is wide enough to cover the cases of all the respondents in the instant cases.... "(Reference PLD 2013 Lahore 454).
3) "The- term services as defined in section 2(k) upon its close analysis points out that the term services has not been given any restricted sense for the purpose of Punjab Consumer Protection Act 2005 and a generalized definition has been placed upon the term "service" and the adjective "includes" has been utilized by the legislator, to explain the concept of services and only three categories mentioned in its sub-clauses (i) (ii) and (iii) are excluded " (Reference PLD 2013 Lahore 454).
4) "The term claim has not been given any definition by the Punjab Consumer Protection Act (Act No.11) of 2005 and in order to understand the concept of claim we have to look into the definition of the "claim" as given in the legal dictionaries...." (Reference PLD 2013 Lahore 454).
5) "The Term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual professional public domestic legal statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends in the context in which it has been used an enactment "(Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454).
6) "The word 'any' dictionary means 'one or same or all'. In Black's Law Dictionary it is explained thus word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "same" or "one" and its meaning in a given stature extends upon the context and subject matter of the statute. The use of the word 'any's in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all"(Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454).
7) "In absence of any indication express or implied there is no reason to hold that authorities created by the statue are beyond purview of the Act. When banks advance loan or accept deposit or provide facility of locker they undoubtedly render service. A state Bank or nationalised bank renders as much service as private bank. No distinction can be drawn in private and public transport or insurance companies. Even the supply of electricity or gas which throughout the country is being made mainly by statutory authorities is included in it. The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test therefore is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility...." (Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454).
8) "In fact the Act requires provider of service to be more objective and care taking. It is still more in public services. When private undertakings are taken over by the government or corporations are created to discharge what is otherwise State's function one of the inherent objectives of such social welfare measures is to provide better efficient and cheaper services to the people. Any attempt therefore to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it "(Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454).
9) "A government or semi-government body or a local authority is as much amenable to the Act as any other private body rendering similar service. Truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized as public accountability is necessary for healthy growth of society "(Reference AIR 1994 SC 787 reproduced in PLD 2013 Lahore 454).
10) "The concept introduced in the Punjab Consumer Protection Act No. II of 2005 of a service provider is wide enough to include therein the services provided by a bank which encompass all kinds of facilities advice or assistance being provided to its account holder " (Reference PLD 2013 Lahore 454).
11) "Banks provide or render service/facility to its customers or even non-customers. They render facilities/services such as remittances accepting deposits providing for lockers facility for discounting of cheques issue of bank drafts etc "(Reference AIR 2006 SC 2810 reproduced in PLD 2013 Lahore 454).
12) "Banking is business transaction between bank and customers "(Reference AIR 2000 SC 2181 referred in PLD 2013 Lahore 454).
13) "The case-law under the Financial Institutions (Recovery of Finance Ordinance, 2001 which defines the term customer in a different context has no relevance to the definition of the consumer as well as the service being provided by the bank which have been made amenable to the jurisdiction of the Punjab Consumer Courts (Reference PLD 2013 Lahore 454).
14) "The legislator has purposely given unrestricted meaning to the term claim in the Punjab Consumer Protection (Act Noll) of 2005. Thus it can be safely laid down that an account holder of the bank when defrauded by the bank or its employees can justifiably lodge a claim against the bank before the Consumer Courts established under rife Punjab Consumer Protection (Act No. II) of 2005 and therefore the District Consumer Court Faisalabad in the instant cases has rightly entertained the claims lodged by the respondents in the matter and accepted the same by directing the recovery of the actual losses Rs. 10,000/- in each case as legal expenses recoverable by the respondents from the appellant-bank " (Reference PLD 2013 Lahore 454).
15) "It follows from the above case-law that where the allegation against the consumer of electrical power is of dishonest consumption of energy through manipulation of or tampering with the metering equipment or other similar apparatus the Electric Inspector would still have the authority to entertain reference under section 26(6). In case the theft alleged is by means other than the tampering or manipulation of the metering equipment etc. the matter would fall exclusively under section 26- A of the Act outside the scope of powers of the Electric Inspector "
(Reference PLD 2012 Supreme Court 371).
16) "Further as per section 54-C there is bar of jurisdiction on the Courts only to the extent of prohibiting the license from disconnecting supply of energy to the premises or requiring the licensee to restore the supply of energy to such premises when the consumer neglects to pay any charge for energy or any sum other than charge for energy assessed by the licensee in respect of supply of-energy to the premises. As such there is no bar for filling of the suit by an aggrieved person against any act of the QESCO/ WAPDA "(Reference 2011 YLR 215)
17) According to section 25, the Consumer Court got jurisdiction to entertain a claim for damages arising out of contravention of any provision of the Act, that Consumer Court is required and obliged to determine its jurisdiction being a Court of limited and special jurisdiction even if no objection is raised at the instance of the defendants questioning the jurisdiction; that since the Court is not a Court of general jurisdiction, therefore, it is its duty to examine the allegations contained in the complaint in order to determine its jurisdiction; that prayer for cancellation of sui gas bill and change of meter by no stretch of imagination could have conferred jurisdiction upon the consumer Court as the same falls outside the purview of consumer Court; that keeping in view the allegations and relief sought for consumer Court was not vested with any jurisdiction to take the cognizance of grievance of the claimant; that the appeal against cancellation of suit gas bill was accepted and the order under appeal was set aside resulting in dismissal of the complaint "
(Reference 2012 CLD 1428 titled Messrs Sui Northern Gas Pipeline Limited v. Abdul Hameed).
18) "Perusal of the above provisions shows that in order to invoke the jurisdiction of the consumer Court the complainant must first qualify to be a "consumer", To be a Consumer under the said Act a person must hire the "Service" for a certain consideration from the service provider. In case there is no, service being availed by the complainant and no consideration being paid in return for the said service the complainant does not qualify to be a Consumer and therefore the matter goes outside the fold of the said Act (Reference PLD 2010 Lahore 95).
19) "Any administrative step prior to the start of actual Service is not Service under the Act and does not fall within the fold of the CPA...." (Reference PLD 2010 Lahore 95).
20) "Jurisdiction of the Consumer Court is different from the constitutional jurisdiction. A consumer Court is to identify. a Consumer availing service and then if the said service is defective the Consumer Court is to fix damages and award the same. Consumer Court cannot issue a mandamus as has happened in the present case " (Reference PLD 2010 Lahore 95).
21) "The student appearing in the examination of the appellant-University cannot be described as a "Consumer" as defined in section 2(c) of the Punjab Consumer Protection Act, 2005 nor the appellant-University can be described as to be a "service provider" as envisaged in the provision of section 2(k) of the said Act "(Reference PLD 2011 Lahore 239).
22) "The schemes relating to the installment committees are out of the jurisdiction of the Consumer Court " (Reference PLD 2012 Lahore 319).
23) "The respondent No.2 has availed medical services after paying consideration and is therefore a consumer under the Act and the Consumer Court has the jurisdiction to try the complaint "
(Reference PLD 2010 Lahore 214).
24) "Honourable High Court has clearly prohibited the cognizance of the Insurance claim by any other Court except the Insurance Tribunal with reference to sections 121 to 124 of the Insurance Ordinance, 2000" (Reference 2008 Lahore 219).
25) "It is settled law that once the legislature has made any special law for a particular purpose prescribing a forum or a Tribunal for decision of any dispute the Courts should not encourage deviation from such course" (Reference 1988 CLC 1718).
26) "Complete hierarchy has been provided under Insurance Ordinance, 2000 for regularization and promotion of Insurance industry and for protection of interest of policy-holders and matters connected therewith and jurisdiction of all Courts including civil Court other than the Tribunal in the matter of claims under Insurance policy is barred under section 122(3) of Insurance Ordinance, 2000 and the High Court in exercise of appellate jurisdiction remitted the case to Insurance Tribunal constituted under section 122 of said Ordinance "(Reference 2009 CLD 960).
27) "The laws framed in exercise of authority conferred by item No.29 of the Federal Legislative List in the Fourth Schedule to the Constitution of the Islamic Republic of Pakistan, 1973 as competent federal legislation prevailed over conflicting provincial legislation under Art. 143 of the Constitution and that the provisions of a special law on a subject excluded the application of a general law to that subject with specific jurisdiction and Punjab Consumer Protection Act, 2005 being provincial law of general jurisdiction by holding that the suit before the Consumer Court is not maintainable (Reference 2012 CLD 846).
28) "According to dictionary meanings word "animal" would include birds" "Contract for supply of chicks between parties would not fall within meaning of supply of any product" "Such claim was dismissed for not being maintainable before Consumer Court " (Reference 2011 YLR 2780).
29) "Improper functioning of the refrigerator was a technical matter and the Consumer Court instead of deciding the matter on oral evidence should have invited expert evidence within the meaning of S.30 of the Punjab Consumer Protection Act, 2005 " (Reference 2012 CLD 1461).
30) "Question of jurisdiction is always a fundamental question which must be decided at initial stage of proceedings even though not raised by the parties and estoppel cannot be invoked to defeat the statute or enactment affecting the jurisdiction and any order without jurisdiction is nullity and' be ignored and the failure of counsel to properly advise judge is not a Complete excuse" (Reference 2009 CLD 960).
31) "Question of jurisdiction being of paramount nature should be decided first on priority basis without recording evidence on issues relating to the merits of the Case "(Reference 2007 SCMR 1126).
32) "There is no cavil to the proposition that Eden Developers are a private limited company and being a juristic person can be used through its Directors etc. but its functionaries cannot be sued in their personal capacity. "(Reference Abdul Majid v. Anees Ahmed Malik etc. W.P.No.2913 of 2009).
33) "It is clear that the Special law will prevail over the law of general application If (Reference PLD 1985 Supreme Court 159).
13. An Overview of the study of the Punjab Consumer Protection Act, 2005 is being provided in following marginal note for facility of reference:- "The return of the consideration or a part thereof and the costs is provided where the consumer has suffered the loss of utility or lack of benefit only while the manufacturer or service provider is also liable for the damages where the consumer has suffered any damage from the defective product under section 10 and faulty service under section 15; the manufacture or service provider is liable to a consumer for damages proximately caused by the defective product under section 4 and faulty service under section 13; the liability of the manufacturer or service provider is not limited or excluded by the terms of any contract or notice about the defective product under section 12 and faulty service under section 17; the disclosure of the details has been made essential about the product and service where the nature of the_ same is such. that it is material to the decision of the consumer to enter into the contract with reference to the product under section 11 and service under section 16; the standard for the provision of services is determined as such which as consumer could reasonably expect to obtain in Pakistan at the time of the provision of the service under section 14; the Court is authorized to direct the defendants to pay reasonable compensation for any loss suffered due to negligence of the defendants under section 31(e); to award damages where appropriate under section 31(f); to award costs including lawyer's fees incurred on the legal proceedings under section 31 (g) of PCPA, 2005.
14. The concept and scope of the recovery of the damages, litigation charges, counsel fee, compensation is being provided in following marginal notes:- a) It is proper to consult all the relevant provisions of the laws of consumers in the true perspective. It is being observed that to comprehend the concept of restrictions on grant of damages properly it is necessary to ponder about Ss.4 and 10 jointly when the case, is about defective products and Ss.13 and 15 jointly when the case is about faulty or defective services. It is explained that the rights of the consumers have been limited by providing the restrictions on the grant of damages/compensation by Ss.10 and 15 while liability of the manufacturer or service provider is limited by Ss. 4 and 13 of PCPA. b) It is pertinent' to note that the grant of damages is curtailed even under Contract Act 1872 in which it is provided in sections 72 to 75 that the damages should be proportionate to the los and not excessive by mentioning that such compensation for loss or damages caused by a breach of contract is not to be given for any remote and indirect loss or damage sustained by reason of the breach. It is an embargo placed by the general law of contacts upon the powers of the Courts about grant of damages. c) It is also observed that further-embargo on the quantum of damages to be awarded by the Consumers Court has been placed by the law provided in sections 4, 10, 13 and 15 of PCPA by declaring that the manufacturer or service provider shall be liable to a consumer for damages proximately caused by anticipated use of the product or provision of services that have caused damage but he shall not be liable for any damages except a return of the consideration or a part thereof and the costs in such cases where the consumer has not suffered any damages from the provision of service except lack of benefit or loss of utility.
15. An extract of the authoritative and exhaustive ruling reported as 2012 CLD 6 pronounced by Hon'ble Supreme Court of Pakistan about scope of the powers of the Courts for grant of damages and to distinguish between "general damages and special damages" is being provided in following marginal note for the facility of reference:- -...."The principle is therefore well settled that damages are intended to put a person in the same position as he would have been in had he not received the injury ...." (Reference 2012 CLD 6 titled Abdul Majeed Khan v. Tawseen Abdul Haleem with reliance on 1997 CLC 546; 2003 CLC 99; 1993 SCMR 441; 2009 SCMR 2769; PLD 2005 SC 99; AIR 1970 SC 376; AIR 1974 Allahabad 147; 1973 SCMR 555; 2009 SCMR 276; 2004 YLR 173; AIR 1947 PC 108; 1996 PLC C.S. 691; 1990 MLD 597; AIR 1994 Supreme Court 787; PLD 2002 Supreme Court 667; PLD 1965 SC 505; PLD 1965 SC 310; AIR 1945 Lahore 35; AIR 1947 Privy Council 173 and PLD 1986 SC 499.
16. As far as the mandatory provision about issuance of legal notice is concerned, I find that the notice is shown to be issued by filing a copy of the joint notice and postal receipt addressed to the defendant in the file as substantial compliance' of the mandatory provision of S.28 of PCPA, 2005, therefore the opportunity to redress the grievance is still available for amicable settlement as provided under section 29 of PCPA, 2005 by treating the notice issued by this Court as notice of the grievance of the claimant.
17. As far as the principle of estoppel is concerned, I find that the claimant cannot be ousted from the Court on account of any such previous agreement the conditions of which are harsh and not acceptable to him as provided under sections 12 and 17 of PCP Act, 2005 by providing that :- "The liability shall not be limited or excluded by the terms of any contract or by any notice".
18. As far as the period of limitation is concerned, it is observed that the complaint can be filed within one year of arising of cause of action under section 28 of PCPA, 2005 because it is clarified in last proviso of said section that the period of limitation can be "extended" by the Court "if no period is specified" up to one year from the date of purchase of the products or providing of services. I am of the view that thirty days as period of limitation extendable to sixty days is provided only for the cases relating to the expiry of the period of guarantee and warranty while the period of limitation in all other cases is extendable to one year from the date of the arising of the cause of action or purchase of the defective products or hiring of the defective services.
Present complaint is therefore within period of limitation by extension of the time.
19. As far as the recovery of counsel fee and mode of its proof is concerned, I am of the view that the recovery of the lawyer's fee is legalized by S.31 of PCP Act, 2005 and the same is not necessary to be proved and no evidence is required from the counsel about the receiving of the counsel fee when the same is specifically pleaded in the complaint itself while the appearance- of the learned counsel to conduct the case and the signatures of the learned counsel on the complaint and on the wakalatnama are the acknowledgments of the receipt of the said amount as legal fee, while the clerk fee is deemed to be included in the fee of the counsel and cannot be separately recovered.
20. As far as present complaint is concerned, I have come to the conclusion that the defendants are liable to compensate jointly and severally the loss of the claimant suffered by him as described in the complaint and supported by the affidavits while the counsel fee is deemed to be included in the amount determined by the claimant whereas defendant No.1 is to act as the surety on behalf of ex-parte defendant No.2 for recovery of the said amount.
21. In accordance with above discussion, the complaint is partly accepted for the grant of Rs.1,65,000/- to be paid by the defendants jointly or severally to the claimant along with liability to defendant No.1 as surety for recovery of the said amount from defendant No.2 while the complaint is disposed of relating to the remaining relief accordingly.
22. This order would become final under section 34 of PCPA, 2005 if the appeal is not preferred within prescribed period under section 33 of PCPA, 2005 and Rule 18 of PCP Rules, 2009 in accordance with the Rules of Procedure of Hon'ble High Court.
23. In' case of delay in compliance, the claimant is entitled to get the order implemented by filing the application for implementation with reference to sections 31, 32 and 36 of PCP Act, 2005, if so required with the warning to the defendants that the order would be implemented by attachment and fine and arrest and detention up to the maximum limit prescribed by law in case of violation or non-compliance.
24. One attested copy each of this order is directed to be provided to the parties free of charge with the clarification that extra copies would be liable to be issued at their own expenses while one copy each is to be sent to the defendants at the responsibility of the claimant with the warning that the consequences of non-compliance and appeal would ensue during one month after providing the copy.
25. The file of this complaint is to be consigned to the record room of this Court duly page marked with proper index and after due completion and made available for issuance of attested copies and kept under safe custody till the period fixed for destruction in accordance with the Rules and Orders of Honible Lahore High Court.,(PRESIDING OFFICER) D & S.J./P.O, D.C.C., D.G.K"
6. The Presiding Officer of the District Consumer Court, Dera Ghazi Khan,through Order dated 07.02.2014 partially accepted the complainant's complaint holding defendants Nos.1 and 2 as jointly and severally liable and ordered them to pay a sum of Rs.165,000/- to the complainant.
7. It is crystal, however, that the Order so passed fails to qualify as a speaking Order or judgment in respect of the actual and pivotal issue involved in the matter. One small paragraph (i.e. paragraph No.20) highlighted in bold for facility of reference, is the only discourse or narrative in the rather lengthy Order about the main point of contention between the competing parties. What is equally stark and clamours for remand is the absence of any discussion whatsoever in the Order about the aspect of consideration. Whether any consideration for services was paid, how much, on what basis and if not, then could the complaint be perpetuated and countenanced in the absence of such quid pro quo. The Order is absolutely silent!
8. At the same time Order dated 07.02.2014 decided the issues of jurisdiction and limitation in favour of the complainant after a lengthy legal discussion. Though the learned Judge enumerated the documents tendered in evidence by the complainant in Paragraph-7 and by defendant No.1 in Paragraph-9, yet the judgment/Order nowhere discusses either the points of contention i.e. the divergent stances taken by the parties requiring judicial adjudication in order to evaluate the claim of the appellant or for that matter the strength of evidence produced by one party in juxtaposition with that adduced by the other party.
9. A simple perusal of pleadings in the matter shows that defendant No.1 not only contested the amount paid by the complainant but also contested his liability stating that necessary expert opinion regarding the physical and mechanical condition of the car was obtained by the complainant from a third party prior to the purchase thereby absolving respondent No.1 of any obligation regarding such physical and mechanical condition of the car. Defendant No. l's contentions aside, the impugned Judgment/Order does not even discuss the merits of the allegations of the complainant or evaluate the value of evidence (documentary and affidavits) adduced by the complainant.
10. The question that begs attention is what should be the attributes of a judicial Order, in order for it to qualify as a valid judgment/Order? The following provisions of Code of Civil Procedure, 1908 shed light as follows: Section 2(9)
"Judgment" means the statement given by the Judge of the grounds of a decree or order: Order XX, Rule 4
4. (1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.
(2) Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.
Order XLI, Rule 31
(31) Contents, date and signature of judgment.--The judgment of the Appellate Court shall be in writing and shall state:--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled."
Black's Law Dictionary, Revised Fourth Edition "Decision" ".........................................
A judgment or decree pronounced by a Court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it.
The findings of fact and conclusions of law which must be in writing and filed with the clerk."
"Judgment". "A sense of knowledge sufficient to comprehend nature of transaction.
An opinion or estimate. The conclusion in a syllogism having for its major and minor premises issues raised by the pleadings and the proofs thereon.
The formation of an opinion or notion concerning something by exercising the mind upon it.
The official and authentic decision of a Court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. "
Reliance with advantage is also placed on a judgment of the Apex Court reported as "Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another" (PLD 2004 SC 219) at paragraph No.16 wherein it has been held as follows:- "Various 'expressions like judgments, decision, order or sentence have not been defined in Chapter 3-A nor in the Constitution. These expressions have, therefore, been used in their dictionary meaning.
Particularly the expression "decision" in Article 203GG seems to have been used in a generic sense which would include and which may include the judgment i.e. reasons, an order say of confiscation of property, and/or an order of payment of compensation or sentence like that of imprisonment or fine."
Section 2(14) of the Code of Civil Procedure, 1908 defines an Order to mean formal expression of a decision of a civil court. The term Order ordinarily means a decision made in writing. The term 'decision's appearing in Section 2(14) refers to judicial determination in accordance with evidence.
Kindly see "Bakhtawar etc. v. Amin etc" (1980 SCMR 89) and "Islamic Republic of Pakistan through Secretary Ministry of Interiror and Kashmir Affairs, Islamabad v. Abdul Wali Khan MNA former President of Defunct National Awami Party" (PLD 1976 SC 57).
11. The above dictionary definitions, statutory provisions and judgments make it abundantly clear that a judgment/Order must of necessity clearly highlight the issues which require adjudication and provide reasons for adjudication made on the said issues (on the basis of law and evidence/proof). The essential fragments of a judgment/Order are obviously lacking in the impugned judgment/Order which does not mention the divergent facts, issues arising out of such divergent facts and adjudication on such issues and merely goes on to declare:--- "20. As far as the present complaint is concerned, I have come to the conclusion that the defendants are liable to compensate jointly and severally the loss of the claimant suffered by him as described in the complaint and supported by the affidavit while the counsel fee is deemed to be included in the amount determined by the claimant whereas defendant No.1 is to act as the surety on behalf of defendant No.2 for recovery of the said amount."
12. Paragraph-20 contains decision of the Court upon the claim of the Complainant but the entire remaining impugned judgment/Order is silent upon what constitutes the basis of such decision.
13. In "Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd., and others" (2019 SCMR 1726), it has been held as follows:- "7. The issue raised in the instant lis has serious implications. Whether it is the trial court or the court of appeal the lis before either of the two has to be decided with due application of mind which should be a writ large on the face of the judgment. Else the rule providing for a reasoned judgment would be reduced to a dead letter. A judgment delivered by the trial Court would not be a judgment in the real sense of the word if it does not conform to the requirements of Rule 5 of Order XX of the C.P.C. Similarly, a judgment delivered by the first court of appeal and final court of fact would not be a judgment if it does not conform to the requirements of Rule 31, Order XLI of the C.P.C. The rationale or raison d'etre behind these provisions is that not only the party loosing the case but the next higher forum may also understand what weighed with the court in deciding the lis against it. Such exercise cannot be dispensed with even in the cases of affirmative judgments otherwise who would know that arguments addressed were accepted or rejected with due application of mind. A perusal of the impugned judgment would reveal that the Division Bench of the High Court did not state the points of determination, decision thereon and reasons therefor. What led the Division Bench of the High 'Court to affirm the finding handed down by the learned Single Judge of the High Court has neither been adverted nor alluded to. Arguments of the learned counsel for the parties have been reproduced in the impugned judgment but whose arguments merited acceptance and whose arguments merited rejection have been eluded altogether. The judgment against this background cannot be said to have been rendered in substantial compliance with Rule 31 of Order XLI, C. P. C........ "
14. In "Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others" (2015 SCMR 1550), it has been held as follows:- "5. Termination of a lis undoubtedly is through a verdict of a court which is a decision disposing of a matter in dispute before it (the Court) and in legal parlance, it is called a "JUDGMENT"......It should be emphasized here that a judgment should supply adequate reasons for the conclusion reached and arrived at and should be reflective of application of proper judicial mind by the Judge and it should not be a mechanical and not speaking judgment in nature.
It may be reiterated that without a judgment, there is no concept of justice and/or fruitful outcome of litigation which without any fear of contradiction means that the State lacks an effective justice system. In such a situation, I would, rather, go to the extent of saying that if the Judge/the Court does not pronounce a judgment for resolving the legal and factual issues involved in a dispute before it at all, the very purpose of the judicial branch of the State will be frustrated and eroded. If there is no judgment in terms of law, the entire judicial setup shall be rendered farce and illusionary, which obviously shall in turn disturb the equilibrium between the pillars of the State upon which it rests, resulting into serious impairment of the functioning of the State." ,
15. In "Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others" (PLD 2002 SC 84), it has been held as follows:- "5....11 would be advantageous to note that judicial pronouncement (judgment) by a Judicial Officer should be based on the evidence/material available on record and reasons must be outcome of the evidence available on record and on the basis of such reasons conclusion should be drawn and if the order lacks of these ingredients it cannot be termed to be a judicial verdict (judgment) in strict senso and at the best such pronouncement can be termed to be an administrative order incapable to settle controversy judicially between the parties. Confronted with such situation we. were inclined to remand the case by setting aside judgment to the High Court... ..."
16. In "Mst. Sabahat Idrees and another v. Mst. Clare Benedicta Conville and 4 others" (2007 MLD 1732), it has been held as follows:- "15., A judgment means the judicial decision of a Court or a Judge, it need not necessary deal with all the matters in issue in a suit, but, may determine only those issues, the decision of which will have the effect, either adjudicating all the matters in controversy or will result in a final disposal of the suit. The essential element of a judgment is that there should be a statement of grounds for decision. It should contain a conscious statement of the case, the points for determination, 'decision of the Court with regard to issues and the reason for decision. The judgment should not only state finding but also the evidence and how it supports the findings. Reliance is placed on cases titled "Z.Z. Ahmad (Retd.) Deputy Inspector General of Police v. National Bank of Pakistan"
(PLD 1991 SC 363), "Mst. Nasim Bashir v. Abdul Jabbar" (2004 MUD 510), "Abdul Zahir v. Haji Gulab" (2002 CLC 4) and "Pakistan Tobacco Company Ltd. v. -Pakistan Chest Foundation" (PLD 1998 Lahore 100)."
15-A. It is a settled principle of law that a Court is required to give its own reasons by discussing the facts and the evidence on &cord for pronouncing a judgment and if the Court fails to give its own reasons, it would be deemed that the Court had acted with material irregularity and illegality and in that eventuality; the decision or the judgment given by the Court would not be sustained in the eye of law. Reference can be placed on "Ali Muhammad v. Muhammad Hayat and others"
(1982 PSC (cases) 804), PLD 1998 Lahore 100 (supra) and "Anjuman Tajran Outside Delhi Gate Lahore and 15 others v. Chief Administration of Awl Punjab -Awan-e-Auaaf and another" (2001 CLC 136)."
16. Perusal of the judgment of the trial Court as well as that of learned lower Appellate Court clearly reveals that the learned trial Court while deciding the most material issues starting from Issues Nos.31 to 46 only recorded and recapitalized the arguments of learned counsel for the respondent-defendants and thereafter without discussing the same; decided the issues simply saying that the counsel for the appellants plaintiffs fails to rebut the said arguments, whereas, the Court was required to give its own finding. Since the judgments of both the Courts below before me is nothing but to recaptivalize of the arguments of counsel for the respondent without any indication, discussion or opinion of the Court with regard to the said arguments or the evidence on the record.
17. A final judgment determines the principal matter in question conclusively so that if it is given for the plaintiff it is conclusive against the defendant and if it is given for the defendant, it is conclusive against the plaintiff. Such judgment being judgment in personam should fully determine their rights and a Judge is required to have used all his skills in highlighting each and every point under controversy and his own reasons for agreeing with either of the parties on those points.
18. Since, the Court has failed to give its own decision and the reasons for decision on the issue.
Judgment, so pronounced, cannot be termed as to be judgment as defined in sub-clause (9) of section 2 and sub-rule (2) of rule 4 of Order XX, C.P.C., as held in "Ghee Corporation of Pakistan Ltd. and 2 others v. Habib Bank Ltd. and 2 others" (PLD 1984 Lahore 421).
A judgment passed on non-speaking Order is liable to be set aside and if a judgment is not in accordance with law; the same in liable to be set aside and required a fresh decision from the Court after re-writing the judgment on the same evidence."
17. In "Z.Z. Ahmad (Reid.) Deputy Inspector General of Police v. National Bank of Pakistan" (PLD 1991 SC 363), it has been held as follows:- "...........The term 'judgment', means 'a concise statement of the case, the points for determination and decision thereon and the reasons for such decision' (vide clause (2) of Rule 4 of Order XX, C.P.C.) In this case, the judgment passed on 7.12.1976 neither contains any concise statement of the case nor the points for determination nor the decision thereon nor the reasons for the decision....... "
18. In all the above cases, judicial Orders were gauged against the barometer of clear ascertainment of issues requiring judicial determination i.e settling of facts in issue and relevant facts (to prove which evidence must be adduced), evidence adduced by parties, evaluation of such evidence and then decision reached by means of clear and apparent application of judicial mind to the issues and evidence. The Orders and judgments lacking such ingredients were considered as nonexistent and cases were remanded back to the forums which rendered such impugned Orders since such Orders being non-speaking lacked judicial sanctity.
19. Furthermore and irrespective of the issue of strict application of Code of Civil Procedure, 1908 or Qanun-e-Shahadat Order, 1984, the learned Consumer Court is bestowed with powers to adjudicate upon the rights and liabilities of the parties and to pass legally binding, judicially executable judgments/ Orders imposing fulfilment of obligations upon parties and directing payment of compensation as well as damages under Section 31 of the Act, 2005. Hence, a final Order of a Consumer Court passed under Section 31 must, at the very least, pass the test of being a legally valid judgment/Order depicting independent application of judicial mind upon the critical aspects of a controversy.
20. It may also be mentioned here that the provision of reasons in a judgment/Order is as necessary and imperative as water is for fish. Reasons inject life into a judgment/Order and provide its basis. In the present matter, the non-provision of any reasons for allowing the claim is conspicuous and stark and even on this count alone the impugned judgment/Order cannot be sustained and the matter has to be remanded.
21. In "Siemens Engineering and another v. Union of India and another" (AIR 1976 SC 1785) it has been held as follows:- The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere presence of compliance with it would not satisfy the requirement of law.
22. In Supreme Court of India "(Jagtamba Devi v. Hem Ram and others" on 4 February, 2008 (2008) 3 SCC 509), it has been held as follows:- "10. Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity.
The emphasis on recording reasons is that if the decision reveals the "inscrutable of ", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale - is that the affected party can. know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out The "inscrutable face, of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance."
23. In "Punjab-Haryana High Court Commissioner of Income Tax v. Vikas Chemi Gum India"
(2005) 196 CTR P H 123) it has been held as follows:- "9. As regards question No. (ii), we find that the Tribunal has neither considered the points raised by the appellant nor assigned any reason for approving the order passed by the CIT(A). To put it differently, the order of the Tribunal is a non-speaking order and is thus, vitiated due to violation of the rules of natural justice."
24. In view of what has been discussed above, F.A.O. No.75/2014 is allowed. The Order dated 07.2.2014 is hereby set aside and declared to be of no legal effect and the claim filed by the respondent shall be deemed to be pending before the District Consumer Court, D.G. Khan which shall consider the claim afresh after issuing notice to the appellants herein. The matter shall be heard afresh and after hearing of necessary parties the matter shall be brought to its logical conclusion by means of an Order that contains reasons and addresses the contentions raised by the parties.
25. This Court was minded to remand this matter only for the purpose of rewriting the Order but since pivotal issues have not been determined at all and since no narrative/discourse is available in the Order about the actual issue on the basis of which the claim has been preferred and allowed and, likewise, since there is no discourse in the Order either about how the learned Judge came to the conclusion he reached, it is indeed necessary that the matter be looked at afresh and from the beginning. It is, therefore, that the present matter is being remanded to the District Consumer Court. D.C. Khan so as to be taken up afresh.
26. In view of F.A.O. No.75/2014 having been allowed and the impugned Order having been set aside and the matter having been remanded to the District Consumer Court, D.G. Khan to be considered afresh after issuance of notices to necessary and proper parties. F.A.O. bearing No.133/2014 has borne fruit for all practical purposes and the appellant in F.A.O. No.133/2014 who is cited as defendant No.2 in the complaint shall also be afforded postulates of due process by the District Consumer Court, D.G. Khan and shall be allowed to defend the claim filed against him before the District Consumer Court.
27. Allowed in the above terms.