Adil on Consumer Laws

﷽ When sale cheating.1

1

is

held,

say—there’s

no

(Holy Prophet ‫)ﷺ‬

(Agreed.) 10: 970, §—2, Ch. XVIII, Unlawful Things in Trade of Mishkat-ul-Masabih.

pg. i

Adil on

Consumer Laws by ZEESHAN HUSSAIN ADIL Advocate High Court Lahore Published by Adil Publisher

Mobile: 0321-4730558 All legal and moral rights reserved by Zeeshan Hussain Adil. Disclaimer Note: due care and diligence has been taken while editing and printing the book, neither the author nor the publishers of the book hold any responsibility for any mistake that may have inadvertently crept in. Printed and bound in Pakistan.

Price in Pakistan Rs. 499. pg. ii

Price abroad $ 9.

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ADIL ON CONSUMER LAWS

Preface The Consumer Protection laws are the result of worldwide consumer protection movement. The Consumer Protection Act is the ‘benevolent piece of legislation’ which attracts special attention of the people interested in the welfare of the society and protection of the rights and interest of the consumer. There are various factors which motivated me to write/compile this book on consumer laws. The first factor is the “curiosity” — this book is the result of my research which I made for the answers to my questions. As I tried to understand one section of the PCPA, 2005 so I had to read other sections, different parts of the Act, the whole statute, the statute in pari materia, the legislative history of the consumer laws and the origin of the consumer laws. The second factor is the arguments of the learned lawyers and the reasoning of the hon’ble judges on the Consumer Laws, which I read in the judgments and observed in the court rooms. The third factor is the “empathy” with the readers of Consumer Laws— during my practice in the Consumer Court I have faced great difficulty due to non-availability of the precise and comprehensive book on the Consumer Laws. This book will help to understand the Consumer Laws in an easier way. I have tried to make this book simple and brief by dividing the commentary into section-paragraph, representing by symbol ‘§’, and instead of repeating the same thing again and again in different paragraphs I have referred the relevant paragraph numbers. As far as possible, I have written the names of the hon’ble judges and learned lawyers in the bibliographic sections especially mentioned in the Pakistani judgments. In my humble opinion the original commentators of the law are the lawyers and judges in the judgments. They are the original authors who interpret the laws and dispense justice. The directory of the District Courts and Councils has been given at the end of the book which can be helpful for the readers. Index has also been given at the end which is the key to open desired stuff in very short time. I have discussed the different sections of law in generic senses but defacto jus oritur; from fact springs law; law arises from fact. The purpose of this generic discussion is to give some idea about this Act which may help to understand the real spirit of the Consumer Laws. The Consumer Protection Act aims at the promotion and protection of the rights and interest of the consumers. The violation of the Consumer Protection Act is at the top as compare to other laws of the country. The reason is that every person of every age is the consumer of something but

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not every person knows about the Consumer Protection Act. In my humble opinion the purpose of the Consumer Protection Act should be included in the syllabus of the schools and colleges. It is pertinent to mention here that in Punjab the Consumer Protection Act, 2005 is not included in the syllabus of LL.B. However, in India the Consumer Protection Act 1986 is included in the syllabus of LL.B and it is being taught with the subject of the Law of Tort. In Pakistan the Consumer Protection Act should also be included in the syllabus of the LL.B In this book the Punjab Consumer Protection Act, 2005 has been given the leading position and other Consumer Acts of the country are included as appendices only for the comparative studies and to understand the legislative history of the consumer law. I could not present any judgment on the Consumer Acts enforced in other provinces of the country —due to non-availability of the judgments. The Indian Consumer Protection Act, 1986 attract special attention due to similarity of sections with Punjab Consumer Protection Act, 2005 and due to availability of the law of precedents. I have included The Pakistan Standard and Quality Control Authority Act, 1996 which can be very helpful for the readers. According to Chief Justice Cornelius ∗ "there is no subject in the world which receives continuously,...such intensive and fully documented study as the subject of law."2 It is very difficult to do such intensive legal study without help of modern technology. The precedents and relevant legal stuff on the Consumer Laws are available on different websites. I have tried to make this book a portable book especially for practicing lawyers, however, keeping in mind the requirements of the legal research and law of precedents, I have given web sources in the webliography, so that the reader can easily find out the relevant precedent for supporting their arguments in the Court. I have written/ compiled this book in about one year; the reason for such long period was the non-availability of the judicial precedents through conventional ways. Besides it is very hard for a practicing lawyer to write/ compile a book. I am highly grateful to my family and friends for their moral support specially Mr. Sharjeel Ijaz (Advocate High Court). I thank to Mr. Adeel Ijaz. (ITP) Mr. Farhat Abbas and Mr. Miran Khan for proof reading this book. I think this book would be a valuable gift for those who are interested in the public interest litigation. I am very glad to serve this noble profession of law and to general public by presenting this book. I am highly grateful to ∗ 2

Chief Justice of Pakistan (1968-1960). ROLE OF LAW IN PRESENT CHALLENGING TIMES. PLD 1964 JOURNAL 9.

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ADIL ON CONSUMER LAWS Almighty Allah for blessing me everything including for the idea and strength to write/compile this book. The readers are welcome to send their feedback for the improvement of this book.

(ZEESHAN HUSSAIN ADIL) Advocate High Court, Lahore. 0321-4730558

03.10.2013

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Dedication To Mr. Sameer Ijaz∗ my teacher, senior, mentor whose true, honest and generous personality is my first inspiration for this noble profession of law.



Advocate High Court Lahore; Author of Sameer’s Colony Manual, Lamberdari Grant, Sameer’s Revenue Laws. President and founder of the Abida Khatoon Mamorial Trust, Lahore which is providing free of cost quality education to the children of backward area under the institution of Suffa Science School.

vii pg. vii

Contents

Punjab Consumer Protection Act, 2005 Preface iv Dedication................................................................................................vii Contents..................................................................................................viii Tables ix Introduction..............................................................................................xiii

Part I.................................................................................11 PRELIMINARY.................................................................11 APPENDICES 1. Directory..............................................................................127 Bibliography........................................................................129 Webliography .....................................................................134 List of abbrivations.............................................................135 Index.....................................................................................138

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Tables AL-QUR'AN 17:35.........................................xxii 2:168.............................................1 2:172.............................................1 2:279.........................................103 26:181.......................................xxii 3: 57..........................................103 5:88...............................................1 6:751.........................................xxii 62:10.........................................xxii 78:11..........................................xxi

CONSTITUTIONAL ARTICLES Article 227..................................xxi Article 2-A...................................xxi Article 37(d)..............................101

STATUTES

HADITH cheating...........................i, xxiv, 64 claims.........................................90 defective thing....................xxiii, 64 measurement............................xxii medicine.....................................81 merchant...................................xxii monopoly..................................xxiii mutual consent...........................84 oath...........................................112 option in trade.............................85 responsible.................................81 trade..........................................xxii wages.......................................xxiii

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Balochistan Consumer Protection Act, 2003 Sec. 14 (2)..............91 Criminal Procedure Code, 1898 Section 195...........................114 Income Tax Ordinance, 2001 Sec. 182..........................................84 Indian Consumer Protection Act, 1986 Preamble.........................2 Indian Consumer Protection Act, 1986 Sec. 24-A.......................90 Indian Consumer Protection Act, 1986 Sec. 9.............................92 Indonesia Consumer's Protection Law 1999 Article 8(1)(h)...........1 Jammu Kashmir Consumer Protection Act, 1987 Sec. 18-A ................................................91 K.PK Consumers Protection Act, 1997 Sec. 13 (2).....................91 Malaysian Consumer Protection Act, 1999 Sec. 99(2)...............91 Pakistan Penal Code, 1860 Section 193...........................113 Pakistan Penal Code, 1860 Section 228...........................114

ADIL ON CONSUMER LAWS Pakistan Standards and Quality Control Authority Act, 1996. Sec. 2(h).................................63 Pakistan Standards and Quality LAHORE HIGH COURT Control Authority Act, 1996. (Allama v. Irfan)..........................26 Sec. 2(o).................................63 (Chairman v. M. Arshad)..........120 Pakistan Standards and Quality (Dr. Shamshad v. DCC)...............2 Control Authority Act, 1996. (M. Javed v. Abdul)....................27 Sec. 2(t)................................111 (M/s Dawlance v. M. Jameel).106, Pakistan Standards and Quality 107, 108, 113 Control Authority Act,1996. Sec. (Messrs Sui v. Abdul).................48 2(i)...........................................85 (Sayyed v. District Judge)..........12 Punjab Healthcare Act, 2010 Sec. (Zia v. Nadeem)..........................27 19............................................67 South African Consumer Protection Act,2008. Sec. 116 (1)............................................91 DISTRICT CONSUMER U.K Consumer Protection Act, COURT 1986........................................91 (Abdul v. G.M SNGPL)...............48 (Abdul v. Rizwan)...............49, 119 (Abdush v. EFU).........................50 (AlHaj v. G.M SNGPL)................48 RULES (Amjad v. Dr. Asma)...................67 11 of the PCPR, 2009................90 (Authority v. English)..................65 18 of the PCPR,2009...............124 (Authority v. King's)....................65 19 and 22 of the PCPR, 2009....90 (Authority v. Sarfraz)..................88 19 of the PCPR, 2009................89 (Ch. Jawad v. Proprietor)...........86 21 of the PCPR, 2009................89 (Ch. Rafique v. Soldier)..............84 22 of the PCPR, 2009................89 (DCO v. Allah Wasaya)..............88 23 of the PCPR, 2009................89 (DCO v. Khalid)........................127 25 of the PCPR, 2009..............116 (DDO v. Shoukat).......................88 3 of the PCPR, 2009..................87 (Dr. Abrar v. TMO)....................118 30 of the PCPR, 2009..............110 (Dr. M. Mohsin v. MD WASA). .106 4 , 5 and 6 of the PCPR,2009....87 (Fakhar v. Limit College)....39, 127 (Farzana v. Ch. Adnan)........30, 84 (Ghulam v. M/S Naeem)............87 (Ghulam v. Nighahat).......108, 109 SUPREME COURT OF (Haji v. Chief)..............................51 PAKISTAN (Haji v. Controller)......................49 (Abdul v. Tawseen) 31, 32, 34, 35, (Khalid v. Naseer).....................127 127 (Lal v. Naeem)............................50 (Dr. Mobashar v. FOP)...............xx (M. Afzal v. Divisional)....39, 66, 67 (Watan v. Federation)............8, 59 (M. Ali v. Regional Officer).......107

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THE PUNJAB CONSUMER PROTECTION ACT, 2005 (M. Anwar v. Haji).................30, 37 (Charan v. Healing). .5, 30, 36, 117 (M. Arshad v. Ch. Saeed).........107 (Common Cause v. Union of India) (M. Arshad v. The Manager)....94, ................................................93 114 (Fair v. N.K Modi).......................47 (M. Aslam v. Chief)...................107 (Indian Medical v. V.P. Shantha)5, (M. Hussain v. M/s Mobin).........53 44, 79 (M. Khalid v. Raza).....................30 (Indian Photographic v. H.D (M. Shahbaz v. M/S Jonny)65, 82, Shourie)....................................3 95 (Jacob v. State of Punjab)....67, 69 (M. Tariq v. Qazi)........................49 (Laxmi v. P.S.G).........................24 (M.S B.H v. M.S Leopard). .49, 82, (Lucknow v. M.K).........2, 120, 128 83, 108, 119 (Martin v. M. Ishfaq).............71, 72 (Malik v. DHA)....................36, 119 (Satpal v. Surindra)....................47 (Malik v. Rashid).......................105 (Spring v. Harjol)..........................3 (Manzoor v. Haji)......................104 (State v. Vishwabarathi).......4, 121 (Miss Rabia v. M/S Suneri Bank) (The Secretary v. M. Lalitha)..4, 5, ......................................106, 107 47 (Mst. Mumtaz v. Dr. Mehboob).63, (Union of India & Ors. v. A.K)...101 81, 106, 113 (Mst. Naseem v. Amjad)...........104 (Mst. Sabiha v. OCS).........83, 118 (Mujahid v. Waves).........104, 106 (Nisar v. Col.)...........................107 (R. Tahir v. Ghulam)...................88 (Raja v. Rao)............................108 (Riaz v. M. Amjad)....................139 (Safdar v. G.M).........................106 (Safia v. Dr. Ihsan).............86, 134 (Saleem v. M.D).........50, 104, 106 NATIONAL CONSUMER (Sayyed v. Taufeeq).................119 DISPUTES REDRESSAL (Shah v. Proprietor)....81, 84, 114, COMMISSION 119 (Canara v. Shri Binay)..................2 (Shahid v. Executive 2008)......46, (D.H Kumari v. The Director)......75 106, 124, 128 (Deep v. Manmeet).....................71 (Shiraz v M/S Haier).................105 (Deepak v. The Oriengal ). .passim (Zahid v. M/s Cakes )...............118 (Deputy v. Ruchika)....................40 (Mr. Sanjay v. Miss Sonal)...72, 73 (Mrs. Shantaben v. Breach).......80 (Nand v. Kamal).........................72 (Pravat v. Ruby)...........................2 SUPREME COURT OF (Shri Anupan v. Sibsankar)......114 INDIA (Shri Mehrnosh v. Venkatrama). 72 (CCI v. Development )..................7 (Smt. Narangiben v. Gujrat).......69

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ADIL ON CONSUMER LAWS (The Joint v. TMT.).......................2 (Vidya v. Dr. R.)..........................69

UNITED NATIONS GUIDELINES Article 1.........................................9 Article 10.......................................9 Article 12.......................................9 Article 13.......................................9 Article 14.......................................9 Article 16.......................................9 Article 17.......................................9 Article 18.......................................9 Article 19.....................................10 Article 2.........................................9 Article 20.....................................10 Article 21.....................................10 Article 25.....................................10 Article 26.....................................10 Article 27.....................................10 Article 28.....................................10 Article 29.....................................10 Article 3.........................................9 Article 30.....................................10 Article 31.....................................10 Article 34.....................................10 Article 38.....................................10 Article 4.........................................9 Article 9.........................................9

EXAMPLES

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Introduction The Punjab Consumer Protection Act, 2005 is one of the latest Consumer Protection Acts. The Consumer Protection Acts are the results of worldwide ‘Industrial Revolution and vast development and expansion in the field of international trade and commerce’ [], however, the jurisprudence of consumer laws was already available in our Islamic jurisprudence [15]. In the beginning of the consumer protection laws there was the concept of ‘product liability’ [Error: Reference source not found] with regard to the ‘physical safety’, however, with the passage of time the need to protect the other necessary interests of the consumer [] was felt. The Consumer Protection Act not only protects the rights and interest of the Consumer but also protects the rights and interest of the true professional manufacturers and services providers []. The General Assembly of the United Nations vide Resolution No. 39.248 dated 16th April, 1985 issued ‘Guidelines for Consumer Protection’ [ & ]. It is pertinent to mention here that the Guidelines was issued ‘taking into account the interests and needs of consumes in all countries, particularly those in developing countries’ [Article 1, Error: Reference source not found]. Thereafter, the signatories of the resolution began to enact the Consumer Protection Act ‘in accordance with the economic and social circumstances of the country, needs of its population’ [Article 2, Error: Reference source not found]. The countries, inter alia, enacted the Consumer Protection Act in different years viz., India in 1986; United Kingdom in 1986; Jammu and Kashmir in 1987; Malaysia in 1999; Indonesia in 1999; South Africa in 2008. In Pakistan no legislation has been made on federal level for the entire country; ‘Islamabad Consumer Protection Act, 1995’ enforced only in Islamabad and FATA; ‘The KPK Consumer Protection Act, 1997’ enforced in K.PK province; ‘The Baluchistan Consumers Protection Act, 2003 enforced in Balochistan province; ‘The Punjab Consumer Protection Act, 2005’ enforced in the Punjab; ‘The Sindh Consumers Protection Ordinance, 2007’ was passed, perhaps, not enforced in the Sindh. It is the legal presumption that ‘while enacting a law, legislature is presumed to know the existing state of law’.3 It is evident from the reading of the whole PCPA, 2005 that the legislature has enacted the same after considering the existing laws on the subject. The Punjab Consumer Protection Act, 2005 has resemblance with the [Indian] Consumer Protection Act, 1986 [Error: Reference source not found], therefore, the sections of the Punjab Consumer Protection Act, 2005 have been compared with sections of the [Indian] Consumer Act, 1986. It is said about the law of precedents that 3

PLD 2005 Lah. 190

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ADIL ON CONSUMER LAWS ‘defacto jus oritur; from fact springs law; law arises from fact’ 4. In the province of Punjab the precedents of the High Court on the Punjab Consumer Acts, 2005 are a few because ‘it is settled practice of the Courts that legal proceedings are not undertaken merely for academic purposes unless there are admitted or proven facts to resolve the controversy. 5 Therefore, the precedents of the Apex Supreme Court of India and the Hon’able National Dispute Redressal Commission of India, which have been developed in 26 years, have been given in this book. The preamble is said the key to open the statute []. While reading the different provision of the Act ambiguities arise in mind which may create confusion and frustrate the whole purpose of the Act. Therefore, the purposes of the Act must keep in mind while reading this Act [-]. It is the settled principle of law that if the language of the statute is not clear then the principle of interpretation and construction of the statute should apply in order to understand the purpose of the statute. Therefore, I have given some rule of interpretation and construction which can be helpful for understanding this Act [-Error: Reference source not found]. The jurisdiction of the Consumer Court always comes into question and it is decided that the same is in ‘addition and not in derogation of the provision of any other law for the time being in force’ [Sec. 3,-]. Sections 4 and 13 provide that manufacturer or service provider shall be liable for damages proximately caused by ‘defective product’ or ‘service’ [Error: Reference source not found]. The product liability is said strict liability [Error: Reference source not found-], however, in this Act the manufacturer liability is criminal liability —the violation of the Act by the manufacturer is crime as well as civil wrong [Sec.32 andError: Reference source not found]. The Act prohibits to exclude or limit the liability of manufacturer or service providers [Sec. 12 and 17]. Even both the parties enter into an agreement the claim/complaint shall be decided on merit [Error: Reference source not found]. Complaint is filed before the Authority and the Claim is filed before the Court []. The Act empowers the Consumer Court to entertain the claims against all the service providers [Sec.14 and Error: Reference source not found]. The procedure for the settlement of claims has been given [Sec. 28, Error: Reference source not found]. The Sections 11 and 16 in very brief language fortify the rights and interests of the consumers. These Sections impose a duty to disclose the defect of product or of service which envisage the concept of implied warranty. [Error: Reference source not found-Error: Reference source not found]

4 5

Black’s Law Dictionary Ninth Edition. (Dr. Mobashar v. FOP) at 689

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THE PUNJAB CONSUMER PROTECTION ACT, 2005 The question of limitation has been much debating subject in various judgments. The liabilities by virtue Part-II [Sec. 12] and Part-III [Sec.17] neither can be excluded nor be extinguished nor can be subjected to any limitation period [Error: Reference source not found]. The reason is that the Consumer Court can pass both protective and compensatory orders.[Error: Reference source not found-Error: Reference source not found] At pre-trail stage parties are given chances to settle their claims [Sec. 29 and Error: Reference source not found]. The Act gives two chances to the parties to settle their claims i.e. through formal procedure [Error: Reference source not found] and at pre-trail stage the purposes of these opportunities are to promote easy and speedy way for the settlement of the claims of the parties. A defaulting party who miss this opportunity is burden with legal expenses including lawyer’s fee; compensation; damages; and also burden with fine for wasting precious time of the Consumer Court. Procedure on receipt of complaint or claim is given [Sec. 30, and Error: Reference source not found-]. The Act directs that ‘all the agencies of the Government shall act in aid of the Consumer Court’ [Sec.36] The Act enables ‘the consumer to participate directly in the market economy’ and in the ‘welfare of the society’ []. The Act provides special incentives to the consumer who has suffered damage and the Consumer Court may allow the benefits of the Act by passing compensatory order [Error: Reference source not found]. Consumer Laws and Injunctions of Islam Islamic sources of law.—Justice Cornelius∗ once said “we bear in mind that every principle of jurisprudence, which is requisite for the resolution of matters coming before us is already available to us from our own sources.”6 In this book our own sources i.e., “Injunctions of Islam” have been given as per “the requirement of our Constitution that the laws of our country should be made in accordance with the Holy Quran and the Sunnah. The Constitution requires that Islamic ideas of social justice shall be enforced.” 7

The consumer rights were first introduced by the Holy Prophet ‫ ﷺ‬as evident from the Injunctions of Islam. Which are as under. Quran, Sunnah and trade. — These scriptures pay a great deal of attention to Jihad and Commerce. The Quran Says: We had made the day a means of earning livelihood (78:11Q)....Spread over the globe and seek the 

Chief Justice of Pakistan (1968-1960). “BRING LAW AND JUSTICE CLOSER TO UNDER-STANDING OF PEOPLES” PLD 1967 Journal 21 at 25. 7 FUNCTION OF LAW AS LINK BETWWEN NATIONS, PLD 1964 Journal at 101. See. Article 227 and 2-A of the Constitution 6

ADIL ON CONSUMER LAWS abundance of Allah (62:10Q). Allah made trade lawful (2:275Q)....Search for lawful earning is a bounden duty—4:129w.”8

“The Holy Prophet ‫ ﷺ‬said: Take to trade, because there are nine portions in trade out of ten portions of provisions (Gazzali’s Ihya).”9 Merchants.—The tradesmen should be strict and impartial with regard to weights and measures.∗ The Quran says ‘Give a full measure, and be not of those who diminish, and weigh things with a right balance— 26:181 Q. The Holy Prophet ‫ ﷺ‬classed an honest merchant with a Prophet on account of the merchants following Shariat-rules in trade, classed him with the truthful on account of his being steadfast to truth and classed him with martyrs on account of his fighting with heavy odds in treading the path of virtue and honesty in his profession. Owing to the absence of these elements in trade, the trade has decline and men are hard-pressed with dire economic problems.10 A trustworthy and truthful merchant shall be with the prophets and the truthful and the martyrs and the righteous.— Abu Sa’id,, Tirmidhiy.11 Verily, merchants shall be raised up sinners on the day of resurrection, except he who fears God, and is good, and speaks the truth.— Rafia’ah b. Rafi, Tirmidhiy.12 Measurement and weight.— Great importance has been attached to weight and measurement in commercial transactions. Every honest tradesman should observe the same weight and measurement both for purchasing and selling commodities. The Holy Quran lays special stress : “Fulfil your weight and measure with equity—6:751Q. 13 Weigh in full when you measure, measure with just balance: this is good and better in interpretation—17:35Q....Ibn Omar reported that the Messenger of Allah said : Measurement is the measurement of the inhabitants of Medina and weight is the weight of the inhabitants of Mecca.—Abu Daud, Nisai14 Ibn Abbas reported that the Messenger of Allah said to the owners of measurement and weight : You have been certainly entrusted with two affairs about which the former nations before you were destroyed.—Tirmizi.

8

(b) 903, §—1, Ch.XVIII, Trade and Commerce of Mishkat-ul-Masabih Ibid.  See. Article 23 of the United Nations Guidelines for Consumer Protection—“Governments should regularly review legislation pertaining to weights and measures and assess the adequacy of the machinery for its enforcement.” 10 (d) 903, §—1, Ch. XVIII, Trade and Commerce of Mishkat-ul-Masabih 11 n. 495 pg. 110 of Selection from Mishkat-ul-Masabih 12 n. 496 pg. 110 of Selection from Mishkat-ul-Masabih 13 932, §—5, Ch. XVIII, Measurement and Weight of Mishkat-ul-Masabih 14 63: 932, §—5, Ch. XVIII, Measurement and Weight of Mishkat-ul-Masabih. 9

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THE PUNJAB CONSUMER PROTECTION ACT, 2005 Monopoly.∗—Me’mar reported that the Messenger of Allah said: Whoever monopolises is a sinner.—Muslim15 Omar-b’al-Khattab reported : I heard the Messenger of Allah say : Whoever monopolises over the Muslims their food-grains, Allah will inflict them with epidemics and bankruptcy.—Ibn Majah16 Ibn Omar reported that the Messenger of Allah said : Whoever stores up food-grains for 40 days, intending thereby a dear price, becomes free from Allah and Allah is free from him.—Razin17 Mu’az reported : I heard the Messenger of Allah say : Bad is he who monopolises. If Allah makes commodities cheap, he become aggrieved, and if He makes them dear, he becomes pleased.—Razin, Baihaqi.18 Abu Omamah reported that the Messenger of Allah said Whoso stores up food grain for 40 days, and then gives it in charity, it will not be an expiation for his sins.—Razin.19

Wages and Hires.— Abu Hurairah reported from the Holy Prophet ‫ﷺ‬ who said : Allah did not raise up any Prophet who did not graze goats. His companions asked : You too? ‘Yes’ said he, ‘I used to tend goats for the inhabitants for Mecca for some Qirat.’—Bukhari.20 Abdullah-b-Omar reported that the Messenger of Allah Said : Pay the labourer his wages before his sweat dries up.—Ibn Majah21 Defective thing22.— Waselah-b-Asq’a reported : I heard the Messenger of Allah say : Whoso sells a defective thing without disclosing it continues to be in the wrath of Allah or angels continue to curse him. —Ibn Majah23 Ibn Omar reported that a man said to the Holy Prophet ‫ ﷺ‬: Verily I am cheated in sale. He said: When sale is held, say—there’s no cheating. The man used to utter it. — Agreed.24 Holy Prophet ‫ ﷺ‬as “law giver”25.—Justice Shaikh Abdul Hameed said “He ‫ ﷺ‬legislated for the situations which arose in his days. In his legal 

See. Article 13 of the Guidelines for Consumer Protection—“production and performance standards, adequate distribution methods, fair business practices, informative marketing and effective protection against practices which could adversely affect the economic interests of consumers and the exercise of choice in the market-place.” Also See. Article 17 “encourage fair and effective competition in order to provide consumers with the greatest range of choice among products and services at the lowest cost.” See. Competition Act, 2010 [Pakistan]. 15 67: 934, §—7, Ch. XVIII, Monopoly of Mishkat-ul-Masabih. 16 70: 934, §—7, Ch. XVIII, Monopoly of Mishkat-ul-Masabih. 17 314w: 934, §—7, Ch. XVIII, Monopoly of Mishkat-ul-Masabih 18 315w: 934, §—7, Ch. XVIII, Monopoly of Mishkat-ul-Masabih 19 316w: 934, §—7, Ch. XVIII, Monopoly of Mishkat-ul-Masabih 20 1: 945, Ch. XX, Wages and Hires of Mishkat-ul-Masabih 21 2: 945, Ch. XX, Wages and Hires of Mishkat-ul-Masabih 22 See. Article 12 of United Nations Guidelines for Consumer Protection—Governments should, where appropriate, adopt policies under which, if a product is found to be seriously defective and/or to constitute a substantial and severe hazard.....” 23 55: 910, §—4, Ch. XVII, Trade and Commerce of Mishkat-ul-Masabih. See. Sec. 11 and 16— “Duty of disclosure”. 24 10: 970, §—2, Ch. XVIII, Unlawful Things in Trade of Mishkat-ul-Masabih

ADIL ON CONSUMER LAWS dictums we have another divine source of law, to which all Islamic legislation has to conform. There are commands from Allah enjoining obedience to His ordinances as well. He Says: Hold fast to what the Prophet ‫ ﷺ‬gives to you And abstain from what he forbids.”26 From the above injunctions of Islam it is proved that the basic concepts for the protection of the rights and interest of the consumers were already available in Islam. Therefore, these concepts have been given in the commentary of this Act.

“The Prophet ‫ ﷺ‬was a great teacher. He was a great law-giver”. Quaid-e-Azam address to Bar Assocation, Karachi, on the occasion of the Holy Prophet’s ‫ ﷺ‬birthday: January 25, 1948 “Islam Teaches Equality, Justice and Fairplay” 26 Justice Shaikh Abdul Hameed, “PROPHET MUHAMMAD ‫ ﷺ‬AS A JURISTS” PLD 1970 Journal 81 25

pg. xviii

27

THE PUNJAB CONSUMER PROTECTION ACT 2005 (Pb. Act II of 2005) [25 January 2005]

An Act to provide for protection and promotion of the rights and interests of the consumers.

Preamble.—Whereas, it is expedient to provide for protection and promotion of the rights and interests of the consumers, speedy redress of consumer complaints and for matters connected therewith; It is hereby enacted as follows:Comments

Maqasid-e-Shariah. — The purpose of the PCPA, 2005 can be understood with the help of the Maqasid-e-Shariah which is defined as under "Islamic teachings the Divine revelation is purpose-oriented. Muslim Jurists have recognized a few Objectives of Shariah, known as Maqaside-Shariah. These objectives are in fact guarantees for the betterment of humanity. The five basic principles or the five values/five Maqasid-eShariah are as follows; (i) Preservation of Deen (Religion)∗, (ii) Preservation of Intellect, (iii) Preservation of Life, (iv) Preservation of Property and (v) Preservation of Progeny.28 Hence the purpose of the PCPA, 2005 is the “betterment of humanity” [] which can be achieved by preservation of Deen, Intellect, Life, Property and Progeny. Whoever infringes the right of consumers, is actually infringes 27

This Act was passed by the Punjab Assembly on 13 January 2005; assented to by the Governor of the Punjab on 19 January 2005; and, was published in the Punjab Gazette (Extraordinary), dated 25 January 2005, pages 2565 to 2573. See. [PLD Vol. LVII-2005] or [ PLJ Punjab Statutes-2004 pg. 26].  Article 8(1)(h) Business agents shall be prohibited to produce and/or trade goods and/or services which:..do not comply with the provision an production in a manner permitted by the religion as stated by the word “halal”(permitted by the law) set forth on the label. Indonesia Consumers’ Protection Law 1999. ‫یای ھا الناس کلوا مما فی الضرض حلل طیبا‬O mankind! Eat of that which is lawful and good on the earth [Ayat 168 Surah 2]. ‫ یای ھاالذین امنوا کلوا من طیبت ما ضرزقنکم‬O you who believe! Eat of the lawful things that We have provided with. [Ayat 172 Surah 2]. ‫وکلوا مماضرزقکم الل ہ حلل طیبا‬ And eat of the things which Allah has provided for you, lawful and good [ Ayat 88 Surah 5] 28 PLJ 2011 FSC 1(2010)

1

§.13 ADIL ON CONSUMER LAWS [Preamble] the rights of the population, therefore, such infringement of this Act is crime which is punishable under section 32 of this Act.[See.-]

Preamble of the Indian Consumer Protection Act, 1986.— It is important to understand the scope of the Punjab Consumer Protection act, 2005. Preamble to the Act.... [can be compared with the] Indian Consumer Protection Act, 1986, has a similar preamble which states:-“An Act to provide for the better protection of the interest of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumer’ disputes and for matters connected therewith.”29 The Honourable Supreme Court of India has defined the scope of the Indian Consumer Protection Act, 1986 in various judgments.[See.-]

Welfare of the society.— The Hon’ble Supreme Court of India in Lucknow Development Authority Vs. M.K.Gupta (1994) 1 SCC 243 case observed the purpose of the Act in the following words:— The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to ‘rob the rest’ and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.”30[]

Widespread consumer protection movement. — It is to be remembered that proceedings before the Consumer Fora are inquisitorial and not adversary. The orders are required to be passed in accordance with justice and equity on the basis of the evidence available on record. The Act is for the protection of the consumers and matters are required to be decided by having rationale approach and not technical one. This is made clear in Indian Photographic Co. Ltd. Vs. HD. Shourie.)(1999) 6 SCC 428 wherein the Apex Court observed: “4. The Consumer Protection Act, 1986 has been enacted to provide for better protection of the interests of the consumers by making provisions for the establishment of consumer councils, other authorities for the settlement 29 30

2

(Dr. Shamshad v. DCC) (Pravat v. Ruby)=(The Joint v. TMT.)=(Canara v. Shri Binay)

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 of consumer disputes and for matters connected therewith. The Act was enacted as a result of widespread consumer protection movement. On the basis of the report of the Secretary General on Consumer Protection dated 27-5-1983, the United Nations Economic and Social Council recommended that the world Governments should develop, strengthen and implement a coherent consumer protection policy taking into consideration the guidelines set out therein. Each Government was obliged to set its own priorities for the protection of consumers in accordance with the economic and social conditions of the country keeping in view the needs of its people and bearing in mind the costs and benefit of the proposed legislation. The Governments were to further provide adequate infrastructure including the bodies as well as financial facilities to develop, implement and monitor consumer protection policies. The introduction of new products in the developing countries was to be assessed in relation to the local conditions having regard to the existing production, distribution and consumption patterns of the country or region concerned. The various enactments such as the Contract Act, the Standards of Weights and Measures Act, the Motor Vehicles Act, the Monopolies and Restrictive Trade Practices Act, the Food Adulteration Act etc. were found to be inadequate in providing the relief to the consumers. In discharge of the international obligations and to protect the interest of the consumer in the country, the Consumer Protection Act, 1986 was enacted (hereinafter called “the 1986 Act”). With reference to the consumer movement and the international obligations for protection of the rights of the consumer, provision has been made herein with the object of interpreting the relevant law in a rational manner and for achieving the objective set forth in the Act. A rational approach and not a technical approach is the mandate of law”.31

Liberal interpretation of the Consumer Act. — Again in Spring Meadows Hospital and another V. Harjol Ahluwalia trhough K.S. Ahluwalia and another[(1998) 4 SCC 39)] this Court, having taken note of the background in which the 1986 Act came to be placed on the statute book, observed that 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 being a beneficial Legislation should receive a liberal construction. 32 With reference to the consumer movement and the international obligations for protection of the rights of the consumer, provision has been made herein with the object of interpreting the relevant law in a rational manner and for achieving the objective set forth in the Act. A rational approach and not a technical approach is the mandate of law”.33 The provisions of the said Act are 31

(Deepak v. The Oriengal) NCDRC (The Secretary v. M. Lalitha) SCI 33 (Deepak v. The Oriengal) NCDRC 32

Part I

3

§.13 ADIL ON CONSUMER LAWS [Preamble] 34 required to be interpreted as broadly as possible. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully...35[See.Error: Reference source not found]

The object of the legislation. —The scope and object of the said legislation came up for consideration before this Court in Common Cause. A Registered Society v. Union of India reported in (1997) 10 SCC 729. ) “The object of the legislation, as the Preamble of the Act proclaims, is “for better protection of the interests of consumers”. During the last few years preceding the enactment there was in this country a marked awareness among the consumers of goods that they were not getting their money’s worth and were being exploited by both traders and manufacturers of consumer goods. The need for consumer redressal for was therefore, increasingly felt. Understandably, therefore, legislation was introduced and enacted with considerable enthusiasm and fanfare as a path-breaking benevolent legislation intended to protect the consumer from exploitation by unscrupulous manufacturers and traders of consumer goods...” 36

Background of the Consumer Acts. —Before proceeding further, it is useful to know the background, the objects and reasons and purpose for which the 1986 Act is enacted. Consequent upon Industrial Revolution and vast development and expansion in the field of international trade and commerce, variety of consumer goods entered the market to meet the needs of the consumers and most of services like insurance, transport, electricity, housing, entertainment, finance and banking have been made available to the consumers. Well-organized sectors of manufacturers and traders with better energy and markets have emerged affecting relationship between the traders and consumers. With the help and aid of media both electronic and print, the advertisements of goods and services in television, newspapers and magazines have created great impact and influence on the demand for the same by the consumers though there may be manufacturing defects or deficiencies or short-comings in the quality, quantity and the purity of the goods or there may be deficiency in the services rendered. In the interest of the public and to protect the consumers, it became necessary to check adulterated and substandard articles in the market. Despite various other statutes such as Indian Contract Act, 1972, Sale of Goods Act, 1930, the Indian Penal Code, 1960, The Standard of Weights and Measures Act, 1976 and the Motor 34

(State v. Vishwabarathi) SCI (The Secretary v. M. Lalitha) SCI 36 (State v. Vishwabarathi) SCI 35

4

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 Vehicles Act, 1988 etc. being in operation, very little could be achieved in the field of consumer protection. Though the MRTP Act 1969 and the Prevention of Adulteration Act, 1954 provide relief to the consumers yet it became necessary to protect the consumers from the exploitation and to save them from adulterated and substandard goods and deficiency in services and to safeguard their interest.37

Summary trial. — The consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers form exploitation. The Act provides for an alternative system of consumer justice by summary trial.38 The legislative intent, for enacting the legislation, of a speedy summary trial, to settle the claim of the complainant (consumers) has been respected in its breach. The spirit of the benevolent legislation has been overlooked and its object frustrated by non-suiting the appellant in the manner in which it has been done by the National Consumer Forum. The consumer forums must take expeditious steps to deal with the complaints fited before them and not keep them pending for years. It would defeat the object of the Act if summary trials are not disposed of expeditiously by the forums....Steps in this direction are required to be taken in the right earnest. 39

In the Indian Medical Association case (supra) [Indian Medical Association v. V.P. Shantha and Ors., I [1995] 6 SCC 651]this Court noticed the powers conferred on the several fora under the Act, the procedure applicable (including the exercise of some powers of the Civil Court under the Code of Civil Procedure having been made available to the fora under the Act) and held that the nature of averments made in the complaint is not by itself enough to arrive at a conclusion that the complaint raises such complicated questions as cannot be determined by the NCDRC. It is only when the dispute arising for adjudication is such as would require recording of lengthy evidence not permissible within the scope of a summary enquiry that a forum under the Act may ask the complainant to approach the Civil Court. The fora made available under the Act are in addition to, and not in derogation of the provisions of any other law for the time being in force and the jurisdiction of the conventional courts over such matters as are now cognizable under the Act has not been taken away. A three-Judge Bench of this Court recently in Dr. J.J.Merchant & Ors. ’s case (supra) [Dr. J.J Merchant & Ors. v. Shrinath Chaturvedi, [2002] 6 SCC 635] specifically dealt with the issue as to the guidelines which would determine the matter being appropriately dealt with by a forum under the Act or being left to be heard 37

(The Secretary v. M. Lalitha) SCI (Charan v. Healing) SCI 39 (Charan v. Healing) SCI 38

Part I

5

§.13 ADIL ON CONSUMER LAWS [Preamble] and decided by Civil Court. This Court noticed that the fora under the Act are specifically empowered to follow such procedure which may not require more time or delay the proceedings. A forum under the Act is entitled, and would be justified, in evolving a procedure of its own and also by effectively controlling the proceedings so as to do away with the need of a detailed and complicated trial and arrive at a just decision of the case by resorting to the principles of natural justice and following the procedure consistent with the principles thereof, also making use of such of the powers of Civil Courts as are conferred on it. The decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a forum under the Act is to be determined is whether the questions, though complicated they may be, are capable being determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It has to be remember that the fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of the High Court. Each District Forum is headed by person who is, or has been, or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a forum under the Act. In Synco Industries case (supra) [Amar Jwala Paper Mills (India) and Am. v. State Bank of India, [1998] 8 SCC 387] this Court upheld that order of NCDRC holding the complaint before it not a fit case to be tried under the Act and allowing liberty to the complainant to approach the Civil Court because this Court agreed with the opinion formed by the Commission that "very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses". The Court concluded that in any event it was "not appropriate case to be heard and disposed of in a summary fashion." In Amar Jwala Paper Mills (India) and Anr. ’s case (supra) [Amar Jwala Paper Mills (India) and Am. v. State Bank of India, [1998] 8 SCC 387] this Court set aside the order of NCDRC relegating a complainant to a Civil Court in spite of the complexity of the matter because the hearing had almost concluded before the Commission. In Dr. J.J. Merchant & Ors. ’s case (supra) this Court dealing with the contention that complicated questions of facts cannot be decided in summary proceedings held - "this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the civil court. For the trial to be just and reasonable, a long drawn 6

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided an alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtained on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of fact are required to be dealt with or decided. The Act provides sufficient safeguards."40[See.]

Inquisitorial Court. —The Consumer courts “are inquisitorial and not adversary”41. The consumer courts have to dig out the facts regarding the quality of the product or standard of the services etc. A consumer, who has suffered damage, comes to the court with some primary evidence which can affect the interest of the consumers. In such like situation the court has to consider the elements which can harm the consumers. The court has to perform the duty of a prosecutor and of a judge at the same time in order to promote the interest of the consumers. It is pertinent to mention here the court is not like dispute redressal authority as in India. The court can pass any order necessary for adequate and proper compliance of this Act [Sec. 30 (d)]. Moreover, all the agencies of the Government are bound to act in aid of the court in the performance of its function [Sec. 30]. That even the settlement between the parties is made, the court shall decide the same on merits [Rule 14(2)]. Where the products are found against the rights and interest of the consumers the responsible shall be penalized. [See.Error: Reference source not found] The Honorable Supreme Court of Pakistan referred meaning of adversarial and inquisitorial proceedings in “Watan party, case (PLD 2011 SC 997):-“The adversarial system (or adversary system) is a legal system where two advocates represent their parties, postions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case, whereas, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case. 43. The adversarial system is a two-sided structure under which criminal courts operate that pits the prosecution against the defence. Justice is done when the most effective and rightful adversary is able to convince the judge or jury that his or her perspective on the case is the correct one. 42 46. An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to 40

(CCI v. Development ) SCI (Deepak v. The Oriengal) NCDRC 42 (Watan v. Federation) SCP 41

Part I

7

§.13 ADIL ON CONSUMER LAWS [Preamble] an adversarial system where the role of the court is primarily that an impartial referee between the prosecution and the defence. Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems. Also countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider the term “inquisitorial” misleading, and prefer the word “non-adversarial”.43

United Nations Objectives for Consumer Protection. —In order to better understand the Act the United Nations Objectives for Consumer Protection should be considered which as following “Taking into account the interest and needs of the consumers...particularly those in developing countries...bearing in mind that consumers should have the right of access to non-hazardous product,..right to promote just, equitable and sustainable economic and social development...guidelines for consumer protection have following objective: (a) protection for population as consumers; (b) facilitate production and distribution...;(c) encourage high level ethical conduct...for goods and services to consumers; (d) in curbing abusive business practices...(g) encourage the development of market conditions” [Article 1 Error: Reference source not found] United Nations General Principles. —The General Principles of the United Nations Guidelines for Consumer Protection are “protection of consumers in accordance with the economic and social circumstances of the country,...needs of its population....[Article 2 Error: Reference source not found] The legitimate needs which the guidelines are intended to meet are the following: (a) The protection of consumers from hazards to their health and safety; (b)...of the economic interests of consumers (c) access to information...;(d) Consumer education;(d) Availability of effective consumer redress;[Article 3 Error: Reference source not found] Special care for the benefit of all sectors of the population, particularly the rural population. [Article 4 Error: Reference source not found] Guidelines for Consumer Protection. — The brief of the Guidelines for Consumer Protection are as under — A. Physical Safety.— encourage the adoption of appropriate measures...national or international standards voluntary standards...[Article 9 Error: Reference source not found]. ensure that goods produced... are safe distributors should ensure that while in their care these goods are not rendered unsafe through improper handling...do not become hazardous.... 43

8

(Watan v. Federation) SCP

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 [Article 10 Error: Reference source not found]. Where appropriate...if a product found to be seriously defective...substantial and severe hazard even when used properly used...recall it and replace or modify it...if not possible...the consumer should be adequately compensated. [Article 12 Error: Reference source not found] B. Promotion and Protection of consumer economic interests.—enable consumers to obtain optimum benefit from their economic resources...the exercise of choice in the market-place. [Article 13 Error: Reference source not found] should intensify their efforts to prevent practices which are damaging to the economic interests of consumers...such as the adulteration of foods, false or misleading claims in marketing and service frauds.[Article 14 Error: Reference source not found] ensure that goods meet reasonable demands of durability, utility and reliability....Similar policies should apply to the provision of services.[Article 16 Error: Reference source not found] encourage fair and effective competition....in order to provide consumers with the greatest range of choice...at lost cost.[Article 17 Error: Reference source not found] manufacturers...ensure adequate availability of reliable after-sales service and spare parts.[Article 18 Error: Reference source not found] Consumers should be protected one-sided standard contracts, exclusion of essential rights in contracts...[Article 19 Error: Reference source not found] Promotional marketing should...meet legal requirements [Article 20 Error: Reference source not found] free flow of accurate information of consumer products. [Article 21 Error: Reference source not found] C. Standards for the safety and quality of consumer goods and services.— promote the elaboration and implementation of standards, voluntary...[Article 24 Error: Reference source not found] to raise that standard...[Article 25 Error: Reference source not found] encourage and ensure facilities to test...goods and services.[Article 26 Error: Reference source not found] D. Distribution facilities for essential consumer goods and services.— ensure efficient distribution of...essential goods and services are provided in rural areas.[Article 27(a) 125] E. Measures enabling consumers to obtain redress.— establish or maintain legal and/ or administrative measures to enable consumers...to obtain redress through...expeditious, fair, inexpensive and accessible....procedures that should take particular account of the needs of low-income consumers.[Article 28 125] encourage all enterprises to resolve consumer disputes in a fair, expeditious and informal manner...[Article 29 Error: Reference source not found] Information on available redress and other dispute-resolving procedures[Article 30 Error: Reference source not found] encourage...consumer education....in both rural and urban areas, Part I

9

§.13 ADIL ON CONSUMER LAWS [Preamble] including low-income consumers and those with low or non-existent literacy levels. [Article 31 Error: Reference source not found] Consumer education...such important aspects...(a) Health, nutrition...(b) Product hazards (c) Product labeling (d) Relevant legislation (e) Information on weights (f) pollution and environment. [Article 33 Error: Reference source not found] encourage...interested groups...for the benefits of loc-income groups in rural and urban areas.[Article 34 Error: Reference source not found] G. Measures relating to specific areas.-- In advancing consumer interest, particularly in developing countries...give priority to areas of essential concern for the health of the consumer, such as food, water and pharmaceuticals.[ Article 38 Error: Reference source not found].

Consumer is a harbinger. — A Consumer is one who consumes a product or being served with services. To consume or to be beneficiary of product or service is the necessary condition to fall within the definition of the consumer. The consumer, who has suffered damage and comes before the Court or Authority, is a harbinger of the defective or substandard product or services which may cause damage to the prospective consumers. It is the damage which he has suffered which gives him right to claim in the court and not otherwise. Since such claimant is the primary evidence against the product or service, therefore, the PCPA, 2005 law provides incentives, for such harbinger or primary evidence, in shape of cost, compensation, litigation charges etc. It is said that the law is not made for the past; it is made for the future. Similarly, the violators of consumer law are burden with the damages, fine, cost, compensation etc. in order to deter the violation of consumer laws in future. In order to save the prospective consumers from the same defective and sub-standard faulty products or services the Consumer Court is given powers under the Act.[See. Sec.Error: Reference source not found and Error: Reference source not found-Error: Reference source not found].

Interest of the consumer. —Under the Principle, the interest of the consumer is comprises of, inter alia, health and physical safety, economic interest, consumer education and in effective consumer redress. In this Act the interest of the consumers are fully protected; the Act prohibits from excluding or limiting the liability which arises due to defective or faulty services even with or without consent of the parties. Privatorum convention juri public non derogate; A private agreement does not derogate from the public right. The reason of such prohibition is the fortification of the rights and the interest of the consumers so that they can be saved from that defect in future. The purpose of the Act is to improve and eliminate the defective products and faulty services. By redressing the claims of a consumer the Consumer Courts protects the rights and 10

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 interest of the prospective consumers. [See.Error: Reference source not found-Error: Reference source not found] Cf.[]

Interest of the manufacturer and service provider. —It is said that the Act intends to protect the rights and interest of the consumers but the rights and interest of the manufacturer are not protected under this Act. It is pertinent to mention here that the Act fully protects the rights and interests of the manufacturers and service providers. The Act penalizes only those manufacturers and service providers who show negligence in taking care of the rights and interest of the consumers and deliberately provide defective products and services. This Act aims to create fair competitive environment which is also in the interest of the honest, trustworthy and professionals manufacturers or service providers.[]

Part I PRELIMINARY 1 Short title, extent and commencement.– (1) This Act may be called the Punjab Consumer Protection Act 2005. (2) It shall extend to the whole of the Province of the Punjab. (3) It shall come into force at once. Comments

Consumer Court in the Punjab. —The Act was intended, to come into force in the whole Province of Punjab, at once. The Government was directed to establish Consumer Courts in each district, however, due to unknown reasons Courts could not be established [Sec. 26]. Thereafter, amendment44 was inserted in the said section whereby the Government got the option to establish a Consumer Court for an area, comprising one or more districts. In the whole Province of the Punjab eleven Consumer Courts were established for 36 Districts. At Lahore one Consumer Court exercising jurisdiction and powers under the Act, and the areas of jurisdiction of this Court are Lahore, Sheikhupura, Nankana Sahib and Kasur. The problems of the consumers for the redressal of their complaints can be imagined. It is pertinent to mention here that under the Guidelines the procedure to redress the consumer complaints should be simple, informal, and inexpensive. The needs of the low-income consumers were emphasized. [Article 28]. The Government should establish Consumer Courts in each District in order to serve the purpose of this Act. [See. Sec. 26,] 44

Punjab Consumer Protection (Amendment) act, 2006 (XI of 2006)

Part I

11

§.13

ADIL ON CONSUMER LAWS

[Preamble]

2 Definitions.– In this Act, unless there is anything repugnant in the subject or context,– Comments

Definition of words. —It is now settled rather taken as golden principle of interpretation of statute that firstly if any word occurring in a statute is to be interpreted, its meaning should be searched and if it is defined in the definition clause or any other part of that statute with reference to that statute and with reference to that subject. If no such definition is provided in that statute/enactment, then its literal/dictionary meanings are to be taken into consideration.45 INTERPRETATION OF STATUTE

Preamble . —In many judicial authorities preamble has been referred to with advantage as legitimate aid to construction of the main provisions of the statute. It is a key to a statute or treated as book of interpretation and affords clue to its scope particularly where the words construed by themselves are fairly capable of more than one construction. But an Act is not controlled by its Preamble. And a statement in the Preamble is not a binding authority.46

Thus, a piece of socio-economic legislation, the object of which is to secure social welfare, should not be construed narrowly so as to defeat its very purpose.... The canon of construing a social legislation is very different from the cannon of construing ordinary law. The Court cannot countenance any tactics to circumvent or defeat the provisions of legislation of this kind. Court will be justified in even straining the language of the Act, if found necessary to achieve the purpose of the Legislature in enacting. Not only Courts should disapprove all subterfuges to defeat social legislation, but must actively try to prevent such subterfuges succeeding in their object....47

In “Social Welfare legislation literal construction is not commended, but the Court must look to the object and purpose of legislation”. Said the 45 46

(Sayyed v. District Judge) LHC S.M.Zafar page 52 See. Brooms page 384 note. x & y

47

12

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 Supreme Court in Chairman, Board of Mining Examination v. Ramjee. 48 [See.]

Headings. —The heading of a portion of a statute may be regarded as preamble to that portion and so in the same way be referred to determine the sense of any doubtful expression in a section ranged under it...; and a recital of an Act of Parliament, stating its object, it has been held to limit general words in the enacting part to the object as declared in the recital 49 Where the statute is ambiguous, the chapter, article and section headings may also be referred to by the court in ascertaining the intention of the legislature,...although there is authority to the contrary.... 50

If, however, there are circumstances in the Act showing that the phraseology is used in a larger sense than its ordinary meaning, that sense may be given to it...; and where the object of a statute is the public safety, its wording may be interpreted widely to effect that object... 51 “The Commanding principle,” says Lord Shaw in Butler v. Fife Coal Company, “ in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty’s subjects is that consistently with actual language employed, the Act shall be interpreted in the sense favourbale to making the remedy effective and protection secure.”52 Inconvenience. —Argumentum ab inconvenient plurimum valet in lege; An argument drawn from inconvenience is forcible in law.... It has been stated, under a preceding maxim..., that where the law is clearly defined, its strict letter will not be departed from because inconvenience or hardship may result from its strict observance. Yet, in cases where the law is not clear, or where the circumstances give rise to doubt, the Court 48 49 50 51 52

Part I

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§.13 ADIL ON CONSUMER LAWS [Preamble] frequently allow their decision to be determined by such considerations....53 This argument ab inconvenient, moreover, is, under many circumstances, valid to this extent, that the law will sooner suffer a private mischief than a public inconvenience, — a principle which we have already considered. It is better to suffer a mischief which is peculiar to one, than an inconvenience which may prejudice many.... 54 “ I do not doubt that, if the language of an enactment is ambiguous and susceptible of two meanings, one of which is consonant with justice and good sense while the other would lead to extravagant results, a court of law will incline to adopt the former and reject the latter, even although the latter may correspond more closely with the literal meaning of the words employed ”....55

If the language employed is plain and unambiguous, the same must be given effect to irrespective of the consequences that may arise. But if the language employed is reasonably capable of more meanings than one then the Court will have to call into aid various well settled rule of construction and, in particular, the history of the legislation, to find out the evil that was sought to e remedied and also in some cases underlying purpose of the legislation—the legislative scheme, and the consequences that may possibly flow from accepting on or the other of the interpretations because no legislative body is presumed to confer a power which is capable of misuse....56 Moreover, a statute should be construed as a whole because it is not to be presumed that the legislature has used any useless words,... and because it is a dangerous practice to based the construction upon only a part of it, since one portion may be qualified by other portions....In addition to being subject to qualification, words are not always used accurately by the legislature. The thought conveyed by the statute in its entirety may reveal the inaccurate use.57 In Hammersmith and City Rly. Co. v. Brand... the heading was held by Lord Chelmsford and Lord Colonsay to be part of the Act and to be referred to determine the sense of any doubtful expression in any 53 54 55 56 57

14

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 particular section ranged under a particular heading, but only for aid in interpreting any doubtful word or expression. As Lord Goddard said : “...the law is quite clear that you cannot use such headings to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning”.58

Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency.... But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature.... On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible.... Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention.... It may be that two provisions are irreconcilable;... if so, the one which expresses the intent of the lawmakers should control....59

As result, the court should strive to avoid, construction which will tend to make the statute unjust,... oppresseive,... unreasonable,...absurd,... mischievous,... or contrary to the public interest.... That Construction should be accepted which will made the statute effective and productive of the most good, as it is presumed that these results were intended by the legislature.... In order to carry out the legislative intent, it is therefore apparent that the statute should be given a rational, logical and sensible interpretation.... Any construction should be avoided, if possible, as contrary to the intent of the law-makers, that produces any effect at variance with the commonly recognized concepts of what is right, just and ethical. 60

Rule of construction ex visceribus actus. —This rule is applicable to all statutes, meaning that the meaning of statutory provisions has to be collected from within the four corners of the Act. Coke said: “It is the most natural and genuine exposition of a statute to construe one part of a statute by another part of the same statute, for that best expresseth the 58 59 60

Part I

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§.13 ADIL ON CONSUMER LAWS [Preamble] meaning of the makers...and this exposition is ex visceribus actus.” The usual caution is to be adopted, however, that this rule of construction is never allowed to alter what is of itself clear and explicit. In Brett v. Brett, Sir John Nicoll, M.R., put it rather picturesquely : “The key to the opening of every law is the reason and spirit of the law ; it is the animus imponentis, the intention of the lawmaker expressed in the law itself, taken as a whole. Hence to arrive at the true meaning of any particular phrase in a statute, the particular phrase is not to be viewed detached from its context in the statute; it is to be viewed in connection with the whole context, meaning by this as well the title an preamble as the purview or enacting part of the statute.”61

According to Lord Blackburn in Rein v. Lane : “You are not only to look at the words but you are to look at the context, the collection and the object of such words relating to such matter, and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the words under the circumstances.”62 Legislature presumed not to enact contrary to international law.—According to recognized rules of construction of statutes, the Legislature is presumed not to enact anything contrary to international law or the common law of the realm. Unless, therefore, the intention to do so is clearly expressed in the enactment the Court would incline to favour an interpretation which would being the enactment intoconsonance with those principles rather than accept a grammatical interpretation, the result of which would be startling or unusual....63

“Act” means the Punjab Consumer Protection Act 2005; “consumer” means a person or entity who–

61 62 63

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Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005

§.13

The Explanation to the definition of 'consumer' has been added by way of an amendment in 1993 which reads as under:

Student is not consumer. —The appellant is an educational institution and cannot be described to be undertaking any commercial activity. The definition of the term "consumer" particularly its clause 2 (c) visualizes hiring the services for a consideration which concept is not attracted in the matter in which a student submits an application for appearing in any examination to be conducted by an educational institution.64 Consumer. —The expression “Consumer” has been defined in section 2(c) of the Act. Keeping in view the definition, following persons are included in the said definition:-

Firm is consumer. —A firm does not fall within the above referred definition of “entity” as the members of a firm do not form a collective 64

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§.13 ADIL ON CONSUMER LAWS [Preamble] whole distinct from the individuals composing it. The word “person” has not been defined in the Punjab Consumer Protection Act, 2005. In such a situation we can invoke Section 2 of the Punjab General Clauses Act, 1956 which clearly says, that; “In this Act, and in all the Punjab Acts unless there is anything repugnant in the subject or context, definition given in the General Clauses Act” would apply. Section 2(47) of the Punjab General Clauses Act, 1956 defines a “person” as follows:-

Consideration. —No doubt any person engaging the services of other person shall be “consumer” but according to the definition “such engagement of services must be for consideration”. The expression “consideration” has not been defined in section 2 of the Act. However, while speaking in ordinary and widest sense, it is the reason, motive or inducement by which a man is moved to bind himself by an agreement. 65

Proximate damages. —Proximate damages have been defined in Black’s Law Dictionary as “Damages directly, immediately, and naturally flowing from the act complained of.” Sections 4 and 13 provides that manufacturer or service provider shall be liable for damages proximately caused by defective product or service. Proximate cause is defined to be “that cause which immediately proceeds and directly produces and effect as distinguished from a remote, mediate, or predisposing cause.” The damages under this category is defined general damages also termed as direct damages, in Black’s Law Dictionary. It will be useful to re-produce some kinds of damages which can be relevant to the facts of any case; Discretionary damages. —Damages (such as mental anguish or pain and suffering) that are not precisely measurable but are determined by the subjective judgment of a jury.—Also termed indeterminate damages.

65

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Mental and physical torture. —The claim of damages on the score of mental and physical torture do not fall within the ambit of this court. It is a subject matter of civil court, so these are not to be granted to the claimant. Claimant should knock at the door of civil court to obtain these damages. 66 Damages. —Damages means all damage caused by a product or service including to the product itself and economic loss arising from a deficiency in or loss of use of the product or service. 67 Special and general damages. —At this stage, it is to be noted that there are two types of damages namely; `special damages' and `general damages'. The term `general damages' refers to the special character, condition or circumstances which accrue from the immediate, direct and approximate result of the wrong complained of. Similarly, the term `special damages' is defined as the actual but not necessarily the result of injury complained of. It follows as a natural and approximate consequence in a particular case, by reason of special circumstances or condition. It is settled that in an action for personal injuries, the general damages are governed by the rule of thumb whereas the special damages are required to be specifically pleaded and provedy. In the case of British Transport Commission v. Gourley [(1956) AC 185] it has been held that special damages have to be specially pleaded and proved. This consists of outof-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. The general damages are those which the law implies even if not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same financial position, so 66 67

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§.13 ADIL ON CONSUMER LAWS [Preamble] far as can be done by an award of money, as he would have been had the accident not happened. The same principle has been referred to in the case of Qazi Dost Muhammad v. Malik Dost Muhammad (1997 CLC 546), in the following terms:-

"It is a settled principle of law that in respect of special damages it is the duty of an aggrieved person to prove each item of the loss, on the basis of evidence and as far as general damages are concerned, relating to mental torture, defamation etc. those are to be measured, following the `Rule of Thumb', according to which, discretion rests with the Court to calculate such compensation keeping in view the attending circumstances of the case. ....... As far as inconvenience is concerned, this item can be considered while assessing the general damages."68

Principle of ascertaining special and general damages. —In the case of Islamic Republic of Pakistan v. Sh. Nawab Din (PLJ 2002 Lah. 1998) the principles for ascertaining the quantum of general and special damages has been discussed in the following words:—

68

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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 nonpecuniary 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 assessment 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 assess 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 be 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.

While qualifying damages, Consumer Forums are requires to make an attempt to serve the ends of justice so that compensation is awarded, in Part I

21

§.13 ADIL ON CONSUMER LAWS [Preamble] an established case, which not only serves the purpose of recompensing the individual but which also at the same times, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application.... 69

“entity” means an organization that has a legal identity apart from its members;

“manufacturing a product” means producing, fabricating, constructing, designing, remanufacturing, reconditioning or refurbishing a product;

“Birds” includes in “animal”. —Now reverting back to the definition as provided under Section 2(j) of Punjab Consumer Protection Act, 2005, the word "animals" has been used in its generic/general sense, the word "plants" or natural fruits and other raw products are also used with same reference. This definition has not specifically been confined nor it is further elaborated whether it applies only to quadruped or birds having two legs and feathers. As the word "animal" is used in general sense, therefore, as discussed above, birds includes the same... 70

69 70

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The word ‘means’ is used to restrict the scope of the word to the four corners what is stated in the clause and deprives it of any other meaning that it may have in the English language. The word ‘included’ on the other hand, is used with a view to enlarging the meaning of the word, by also clothing it with connotation given to it in the interpretation clause in addition to the sense which it conveys in common parlance... 71 Word ‘any. —’The word ‘any’ has diversity of meaning and may be employed to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one’. Meaning of the word ‘any’, in a given statute, depends on the context and subject matter of the statute.72 §.1. The facilities of any kind . —The word ‘services’ has been defined in very brief manner which includes ‘the provision of any kind of facilities’. The facilities are defined “the means by which the accomplishment of anything is rendered more easy: in this sense usually in the pl.” It is pertinent to mention here that under Section 2(o) of Indian Consumer Protection Act, 1986, the word ‘services’ has been defined with detail, however, in this Act the word facilities includes every sort of facility which is given professionally.[ §.60 & Error: Reference source not found] University is not service provider. —Nor the university was service provider as envisaged in the provision of section 2(k) of PCPA 2005.73 Giving admission to the students by charging fees. —However, other part of education is namely running/ managing of schools/colleges/ institutions by recovering fees is, at present, undoubtedly for commercial purpose. On occasions lakhs of Rupees are recovered from the students before granting admission to a particular course, even though, the Course 71 72 73

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§.13 ADIL ON CONSUMER LAWS [Preamble] is not recognized by the University or by the authority giving such recognition.

Profession vs. Business. —Profession” has to be distinguished from “business” or mare “occupation”. While in business, and to a certain extent in occupation, there is a profit motive, profession is primarily a service to society wherein earning is secondary or incidental. A student who gets a professional degree by payment of capitation fee, once qualified as professional, is likely to aim more at earning rather than serving and that becomes a bane to society.74

On the basis of the above discussion we arrive at the following conclusions:

74

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“reasonably anticipated alteration or modification” means a change in a product that a product manufacturer should reasonably expect to be made by an ordinary person in the same or similar circumstances and a change arising from ordinary wear or tear, but does not include–

Comments Supplemental jurisdiction. —While enacting a law, legislature is presumed to know the existing state of law. 75 The language of Section 3 is proclamation which proclaims that “this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.” It is evident from the language used in the Section 3 that the legislature had knowledge of the provisions of other laws which might conflict with the provision of this Act, therefore, Section 3 was enacted. The beauty of this Act is that it not only protects the rights and interest of the consumers created by it but also protects the rights created under other laws for the time being in force. Therefore, for the determination of standard of service [Sec. 14(1)] or of product [Sec. 30(c)] Act requires that the standard should be so as it is required by the relevant law.

Additional and extended jurisdiction. —In addition to what has already been stated in the aforesaid case, we may observe that the Consumer Protection Act, 1986 is a special Act having additional/extended jurisdiction, particularly, when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar, as has been held by the Supreme Court in a number of judgments including Fair Air Engineers Pvt. Ltd. And Anr. v. N.K. Modi reported in (1996) 6 SCC 385, State of Karnataka v. Vishwabharthi House Building Coop. Society and Others reported in (2003) 2 SCC 412, CCI Chambers Coop. Hsg. Society Ltd. v. Development Credit Bank Ltd. reported in (2003) 7 SCC 233 and Indochem Electronic and Another v. Additional Collector of Customs, A.P. reported in (2006) 3 SCC 721. It has been observed by the Supreme 75

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§.13 ADIL ON CONSUMER LAWS [Preamble] Court in all these cases that the Courts have to consider that the Consumer Protection Act, 1986 confers additional jurisdiction upon Consumer Forums and not their exclusion.76 The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to and not in derogation of the provisions of the any other law for the time being in force.77

As per section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case give meaning to additional/ extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar. 78 By reason of the provision of Section 3 of the Act it is evident that remedies provided there under are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the civil Court or other statutory authorities.

Disconnection of Gas Meter. —No doubt no objection was raised at the instance of present appellants questioning the jurisdiction of consumer Court but since the consumer Court is not a Court of general jurisdiction, therefore, it was its duty to examine the allegations contained in the complaint in order to determine its jurisdiction. 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. 79 Perusal of claim and written reply indicates that defendants had withdrawn services 76 77 78 79

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[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 provided to claimant on 05.11.2012. It means that on that specific day relation between parties as of consumer and services provider had ceased to exist therefore, to my mind case does not fall under the ambit of the Act. Even otherwise there is no allegation of defective services provided by defendants and only allegation is about disconnection of gas supply for which defendants had raised a specific plea. What I am able to find out is that through this claim claimant desires restoration of gas meter. In Messrs Sui Northern Gas Pipeline Limited Vs. Abdul Hameed 2012-CLD-1428 it was held by Honourable Lahore High Court in almost similar circumstances that a Consumer Court has no jurisdiction for cancellation of gas bill or change of gas meter as these remedies can be availed only from the Court of general jurisdiction. 80.

Television fee by FESCO. —Petitioner seeks to restrain FESCO Faisalabad from receiving monthly television fee of Rs.60/- as petitioner does not use any television set in his book shop….plea already been accepted by the FESCO Authorities, therefore, petitioner’s claim is accepted ex-parte and respondent’s claim about television fee from petitioner is hereby found without any justification. The respondent shall also refund payment of television fee wrongly received from the petitioner. In addition, respondent shall also pay compensation of Rs.10,000/- for causing physical and mental discomfort to the petitioner. 81 Determination of Jurisdiction. —The only concern for the determination of jurisdiction to decide the matter for this Court is as to whether there is complaint about manufacturing or performance of the product purchased either under the hire purchase agreement or obtained on lease? As to whether any complaint regarding service providing by the respondent as defined in section 2(4) of the Punjab consumer Protection Act, 2005 exists?82 Mandatory injunction. —There is another aspect of the case that complaint has prayed that possession of the motorcycle be restored to him from the respondent....I am afraid that this Court cannot pass any such type of mandatory injunction which is exclusive domain of the Civil Court. The relief prayed for as described above in any case cannot be

80 81 82

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§.13 ADIL ON CONSUMER LAWS [Preamble] granted by the Consumer court under the enactment creating its jurisdiction.83

High rates of interest. —Whereby it was held that all dealers of Motor Bikes while selling their Motor-Bikes to the customers/consumers on installment basis charge high rate of profit/interest by mean of exploitation which practice was disapproved and Punjab Govt. as well as Local Govt. were asked to keep close vigilance, upon this kind of business in order to fix the rate of interest nor more than 16 % in order to avoid exploitation of the consumers/ customers, accordingly, while borrowing and relying upon the same view this Court holds that any excessive amount of the interest received by the respondents more than 16% must be returned to the complainant.84 Insurance claim. —Learned counsel for the respondents has pleaded that article 121 and 122(3) of the insurance ordinance bars the jurisdiction of this court as for the purpose of resolving controversy as proposition in the instant complaint Special Tribunals have been constituted. I do agree with the contention of the learned counsel for the respondents to this extent that special tribunals have been constituted to resolve such like controversies but at the same time Sec. 3 of PCP, Act, 2005 provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. So the contention of the learned counsel for the respondents regarding lack of jurisdiction of this court is misconceived and is not sustainable in the eyes of law.85 Cf. it is true that u/s 3 ibid, jurisdiction of this court is prima facie not barred after all the Punjab Consumer Protection Act 2005 is a Provincial statute while the Insurance Ordinance 2000 is Federal law, therefore, the provisions of former law should yield to the provisions of latter law. There also seems force in respondents’s contention that when provisions of any provincial law like Punjab Consumer Protection Act 2005 are to conflict with those of Federal law as the Insurance Ordinance 2000, Federal law should prevail over the former law i.e. Provincial statute. It is also principle of interpretation of statutes that if any law is amenable to more than one interpretation, one consistent with the smooth working of statute of statute and elimination of uncertainly, confusion and contradiction should be adopted. For what has been discussed above, 83 84 85

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[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 petition is returned for presentation to a court of competent jurisdiction as this court lacks necessary jurisdiction to decide on parties’ controversy. 86

Installment and lease cases. —During the arguments, it also came into notice of this Court that numerous lease holders are running identical business of motor-bikes/Motor-cars/Electronics, in Sialkot district and other cities of Province, Like mushrooms, with the object to amass money and to deprive consumers from huge amount but no authority is attending or addressing this dreadful propensity/practice, accordingly, these circumstances have not only emerged an alarming situation but has also grown a perception in the mind of the Court to lay down some necessary guidelines for curbing down this painful tendency, whereby motor-bike dealers and retail shops offer motor-bikes/ electronic articles to consumers/ customers and in turn earn sizable profit through undefined and hidden terms i.e. various burdensome ghostlike and hidden charges and on default of payments/ instalments by capturing the motor-bikes and sell them to other customers, which has necessitated a well defined and standardized procedure governed by rules under the cover of necessary legislation or some rules and regulations parallel to settled by State Bank of Pakistan; prevailing in consumer Banking, while keeping in view following factors;

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(

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§.13

ADIL ON CONSUMER LAWS Section 4 provides that a product shall be defective if;

(i) Section 5;

[Preamble]

it is defective in construction or composition as provided in

“The law of products liability is that body of common and statutory law permitting money reparation for substandard conduct of others resulting in product-related injury to the injured party’s person or property. Resistance to the description to products liability as a doctrine having receded, there is today a guiding tenet in the law of product –related injury that is the distillate of seventy years of decisional law. The birth of the doctrine can be dated at 1916, the publication of the immensely influential decision in MacPherson v. Buick Motor Co. [217 N.Y. 382, 111 N.E. 1050 (1916), in which the New York Court of Appeal held that the manufacturer of any product capable of serious harm if incautiously made owed a duty of care in the design, inspection, and fabrication of the product, a duty owed not only to the immediate purchaser but to all persons who might foreseeably come into contact with the product. Following MacPherson, the doctrine as formed by decisions of the ensuing decades is that a buyer, user, consumer or bystander in proximity to an unreasonably dangerous product, and who is injured in person or in property by its dangerous propensities, may recover in damages from the manufacturer or intermediate seller.” M. Staurt Madden, Product Liability §1.1, at (2d ed. 1988)87 History of strict products liability. —Rather than focus on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself. Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.

87

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In Greenman, Traynor cited to his own earlier concurrence in Escola v. Coca-Cola Bottling Co., 24 Cal. 2d 453, 462, (1944) (Traynor, J., concurring). In Escola, now widely recognized as a landmark case in American law, Justice Traynor laid the foundation for Greenman with these words:

Since then, many jurisdictions have been swayed by Justice Traynor's arguments on behalf of the strict liability rule in Escola, Greenman, and subsequent cases. In the 40 years after Greenman, the highest courts of nearly all U.S. states and territories followed California's example in imposing strict liability on manufacturers, distributors, and retailers for defective products. In a landmark 1986 decision, the U.S. Supreme Court embraced strict liability for defective products by adopting it as part of federal admiralty law.88 Meanwhile, although the Greenman rule was transmitted to most other states via Section 402A of the Restatement of Torts, Second (published in 1964 after Greenman), the Supreme Court of California refused to adopt Section 402A's "unreasonably dangerous" limitation upon strict liability in 1972. 89 Thus, strict liability in California is truly strict, in that the plaintiff need not show that the defect was unreasonable or dangerous. On the other hand, in California, the defendant is allowed to introduce evidence in a strict products liability action that the plaintiff contributed to his or her own injuries. 90 Consumer protection and product liability. —In addition to the above common law claims, many states have enacted consumer protection statutes providing for specific remedies for a variety of product defects. Statutory remedies are often provided for defects which merely render the product unusable (and hence cause economic injury) but do not cause physical injury or damage to other property; the "economic loss rule" means that strict liability is generally unavailable for products that damage only themselves. The best known examples of consumer 88 89 90

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§.13 ADIL ON CONSUMER LAWS [Preamble] protection laws for product defects are lemon laws, which became widespread because automobiles are often an American citizen's second-largest investment after buying a home.

Product liability outside of the United States. —In the rest of the world, legislatures took the lead in imposing strict liability for defective products. The judiciaries of several countries rejected attempts by creative lawyers to persuade them to adopt the Greenman holding, including Canada and South Africa.

made Enterprise liability. —1. Liability imposed on each member of an industry responsible for manufacturing a harmful or defective product, allotted by each manufacturer’s market share of the industry. 2. Criminal liability imposed on a business (such as a corporation or partnership) for certain offenses for which the legislature specifically intended to impose criminal sanctions.91

Defective in construction or composition .– A product shall be defective in construction or composition if, at the time the product was manufactured, a material deviation was made from the manufacturers’ own specifications, whether known to the consumer or not.

Proof of manufacturer’s knowledge.– (1) Notwithstanding anything contained in section 6, a manufacturer of a product shall not be liable for damage proximately caused by a characteristic of product’s design if the manufacturer proves that at the time the product left his control– 91

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[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 (a) he did not know and, in the light of the then existing and reasonably available scientific and technological knowledge, could not have known the design characteristic that caused the damage or the danger of such characteristic; or

(b) he did not know and, in the light of the then existing and reasonably available scientific and technological knowledge, could not have known of the alternative design identified by the consumer under section 6 (1); or (c) the alternative design identified by the consumer under section 6 (1) was not feasible in the light of the then existing and reasonably available scientific and technological knowledge or then existing economic practicality. (2) Notwithstanding anything contained in section 7(1) or 7(2), a manufacturer of a product shall not be liable for damage if the manufacturer proves that, at the time the product left his control, he did not know and, in the light of the then existing and reasonably available scientific and technological knowledge, could not have known of the characteristic that caused the damage or the danger of such characteristic.

Restriction on grant of damages.– Where the consumer has not suffered any damage from the product except the loss of utility, the manufacturer shall not be liable for any damages except a return of the consideration or a part thereof and the costs.

Duty of disclosure.– (1) Where the nature of the product is such that the disclosure of its component parts, ingredients, quality 92, or date of manufacture and expiry is material to the decision of the consumer to enter into a contract for sale, the manufacturer shall disclose the same. (2) Notwithstanding anything contained in sub-section (1), the Government may, by general or special order, require such disclosure in any particular case. 92

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§.13

ADIL ON CONSUMER LAWS

[Preamble]

Life of a product. —It is universal principle that no one can be a judge of his cause. In the same way a manufacturer cannot decide, how long a product remains good for consumption or how long is the life of a product; therefore, the manufacturer should get the life of a product determined from the Authority concerned. As time passes so the quality of a good or product decreases. Although there are some products which do not expire or become injurious or hazardous, even the manufacturing date is expired yet the quality and effects of that products decrease. It is better for safety of the consumers that every product should be approved by the concerned Authority. In this regard the services of Pakistan Standards and Quality Control Authority should be acquired.[See.Error: Reference source not found] Date of manufacturing Although the dates are stamped…but the words of manufacturing and expiry are not mentioned thereon. Therefore, the respondents are directed to mention these words on the large packets… on the small packets. 93 The Authority is directed to check the market and submit his report about the available stock in market whether the respondents are complying the section 11 ibid. 94 Duty of disclosure This Court is constrained to express that after the promulgation of public welfare Act in the name of Consumer Protection Act, 2005 every trader, businessman, manufacturer, shopkeeper and service provider is bound to disclose every fault defect or low quality, low grade, composition, style as well as model of the product/service, purchased/ hired by the consumer for its use, at the time of transaction. 95

Prohibition on exclusions from liability .– The liability of a person by virtue of this part to a consumer who has suffered damage shall not be limited or excluded by the terms of any contract or by any notice. Comments

93 94 95

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Services provded by Federation. —According to which the services rendered and regulated by Federal Government also lie within the orbit and jurisdiction of this court.96 Comments

Disconnection of telephone due to non delivery of bill. —In this case telephone service to complainant although one way was disconnected for non payment of the bill and it has been established that the bill was not dispatched to the complainant, due to fault in itw own system, it amount to deficiency in service.97 Defeciency in medical service. —Deficiency in service” by a medical professional implies failure of a reasonable degree of skill, knowledge and care on the part of medical expert while treating the patient. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose 98... Charge of professional negligence. —A charge of professional negligence against a medical man is serious. It stands on a different footing to a charge of negligence against the driver of motor car. The consequences are far more serious. It affects his professional status and reputation. The burden of proof correspondingly greater 99... Stages of treatment. —There are four stages in the treatment of a patient where a doctor acts with a reasonable degree of skill, care and knowledge. These are (a) ascertaining the history of the case;( b) investigations of the case both clinically and laboratory and other tests; (c) giving treatment; and finally (d) the follow up of the case. The skill of medical practitioner differs from doctor to doctor…. 100

96 97 98 99 100

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§.13

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[Preamble]

Res ipsa loquitur. —The Hon’ble Supreme Court has said on the subject of medical negligence in the often cited judgment in the case of Jacob Mathew v. State of Punjab And Anr. (2005) 6 SCC 1. In para-26, it has been stated as under:-

In Jacob Mathew v. State of Punjab (2005) 6 SCC 1, a three-Judge Bench, considered the question whether charges could be framed against the appellant under Section 304A read with Section 34 of the Indian Penal Code on the allegation of negligence. The three-Judge Bench highlighted the jurisprudential distinction between civil and criminal liability in cases of medical negligence, considered various facets of negligence by professionals and laid down several propositions including the following:

In Martin F. D'Souza v. Mohd. Ishfaq (2009) 3 SCC 1, a two-Judge Bench referred to the judgment in Jacob Mathew's case and proceeded to equate criminal complaint against doctor or hospital with a complaint filed under the Act. This is evident from para 106 of the judgment, which is extracted below: In V. Kishan Rao v. Nikhil Super Specialty Hospital and another (2010) 5 SCC 513, the Court noted that the proposition laid down in Martin D'Souza's case is contrary to the three-Judge Bench judgment in Jacob Mathew's case and observed:

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[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 Bolam test for determination of medical negligence. —The above findings of fact have to be seen with reference to the law on the subject. The Complainant himself refers to the Bolam test for determination of medical negligence. It came in a decision by McNair J. in Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 258, in the following wordsDoctor’s and nursing homes/hospitals need not be unduly worried.

Loss of limbs or life can hardly be weighed in golden scales. — While we may not agree with the quantum of compensation as claimed by the Complainants, the need would still remain to arrive at an amount, which is just and reasonable in the facts and circumstances of the present case. While considering such a situation in State of Haryana Vs. JasbirKaur, (2003) 7 SCC 484, Hon’ble Supreme Court has observed that:Determination of negligence by a medical practitioner. — In V. Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr. (2010) 5 SCC 513, the question of expert evidence came up for consideration. Hon’ble Supreme Court held that:Consent for the surgery. —As regards the third issue of consent for the surgery, the law on the subject has been laid down by the Apex Court in its judgment dated 16.01.2008 in the case of Samira Kohli vs Dr. Prabha Manchanda [(2008) 2 SCC 1]:

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§.13

ADIL ON CONSUMER LAWS [Preamble] Some relevant decisions on the issue of medical negligence. — It is to be accepted that every surgical operation involves risk. When a person who is ill and is going to be treated in a hospital no matter what care is taken, there always exists some risk. Simply because a mishap had occurred, neither the hospital nor the doctors cannot be made liable. A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.

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§.13

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.

Duty of disclosure.– (1) Where the nature of the service is such that the disclosure of the capabilities or qualifications of the provider of the service or the quality of the products that he intends to use for provision of the service is material to the decision of the consumer to enter into a contract for provision of services, the provider of services shall disclose the same. (2) Notwithstanding anything contained in sub-section (1), the Government may, by general or special order, require such disclosure in any case. Comments The saying of Holy Prophet ‫ ﷺ‬about service. — Whoso gives a medicine, being not known in medicine, shall be held responsible (for the result).—‘Amru b. Shu’ayb, Abu Daud.101 In the lights of this injunction and context of this Act, it is cleared that non-professional persons shall be responsible for the results— only the professionals are supposed to know the result of a thing, unless proved contrary. Our society is full with quacks and they are making money; and the professional are starving. The Act also protects and promotes the interests of the professionals [] and creates conducive environment for healthy competition in the market. Over-night courier delivery. —What had persuaded claimant to engage defendant, it was over-night delivery….Admittedly, defendant had declared and still says with regard to quality for provision of services as over-night hence said quality was material for claimant to its 101

Part I

39

§.13 ADIL ON CONSUMER LAWS [Preamble] decision for hiring the services. What had to be end of these services?....If there was a failure on part of defendant to provide this standard, then question of defective or faulty services shall definitely arise irrespective of the fact that what was inside the parcel. However, there can be instances where services provider can claim that circumstances were such that those were beyond human control and for that examples can be like that a courier met serious accident or there was fire in the office of services provider which resulted into destruction of every material or there was a crash of plane through which bags of parcels were being sent to their respective destinations. These events can be good defenses. In this case, as disclosed earlier, there is a specific version of defendant which if is accepted then claimant shall have no case otherwise position shall remain that defendant could not provide services of standard and quality which it had announced.102

Prohibition on exclusions from liability .–The liability of a person by virtue of this Part to a person who has suffered damage shall not be limited or excluded by the terms of any contract or by any notice. Comments Part IV

Comments

Return and refund policy.– Return and refund policy of a seller shall be disclosed to the buyer clearly before the transaction is completed by means of a sign at the point of purchase. Sayings of Holy Prophet ‫ﷺ‬. — Abu Hurairah reported from the messenger of Allah ‫ﷺ‬who said: The two (seller and buyer) must not part away except by mutual consent.—Abu Daud.103 Hakim-b-Hizam reported that the Messenger of Allah ‫ﷺ‬said: The buyer and seller have got option so long as they do not part away. If they speak the truth and disclose (defect), they are blessed in their sale transaction, and if they conceal and speak falsely, the blessing of their sale is decreased.— Agreed.104 Part V

102 103 104

40

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 Comments

§.13

Prohibition on bait advertisement.– (1) No person shall, in trade, advertise or supply at a specified price products or services which that person– (a) does not intend to offer for supply; or (b) does not have reasonable grounds for believing that they can be supplied at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement. (2) Any person who has advertised products or services for supply at a specified price shall offer such products or services for supply at that price for a period that is, and in quantities that are reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement. Part VI THE POWERS OF THE AUTHORITY Comments Reference from Authority. —DCO/Authority through DDO(Health) Sahiwal sent a reference/ claim U/s 23 (4) of the PCP Act with allegation that the respondent being quack was involved in illegal medical practice and some allopathic medicines were recovered during inspection of his clinic.105 Direction to functionaries.— Food Inspect Health Department Gujranwala is directed to submit his monthly inspection report regarding quality and standard of food served by the respondent and also about the hygiene of kitchen of the respondent’s restaurant to this Court. 106 107 [23-A. Powers of Government.– (1) The Government may, by general or special order and subject to such conditions as may be prescribed, exercise all or any of the powers conferred upon the Authority under this Act except the power of imposition of fine under section 23(1). (2) The Government may, from time to time, issue directions to the Authority with regard to the performance of the functions of the Authority under this Act.

105 106 107

Part I

41

§.13

ADIL ON CONSUMER LAWS [Preamble] (3) The Government may, at any stage, modify or set aside any order or action of the Authority subject to such condition or conditions as it may deem fit.]

Part VIII DISPOSAL OF CLAIMS AND ESTABLISHMENT OF CONSUMER COURTS Filing of Claims.– A claim for damages arising out of contravention of any provisions of this Act shall be filed before a Consumer Court set up under this Act.108 Comments Claims and complaint. —That a consumer who suffers from damage has two option under the Act i.e. (i) U/s 23 to file complaint before the Authority that will conduct an inquiry and if satisfies, may file claims under rule 11 of the PCPR, 2009 read with Sec. 28 of the Act; (ii) to file claims for damages U/s 25 of the Act. Unlike other Consumer Acts this Act does not confer right upon any person to file a complaint against a manufacturer or service provider in the Consumer Court unless that person has suffered damage.

Establishment of Consumer Courts.– (1) The Government shall, by notification, establish one or more separate Consumer Courts 109[for an area, comprising one or more districts] to exercise jurisdiction and powers under this Act. (2) A Consumer Court shall consist of a District Judge 110[or an Additional District Judge] to be appointed by the Government in consultation with the Lahore High Court. (3) The terms and conditions of service of 111[the District Judge or the Additional District Judge] appointed under sub-section (2) shall be such as may be prescribed. Comments Establishment of Consumer Court in each District. —At first it was intended by the legislature that in each district the Consumer Court shall be established. Later on an amendment 2006 Act was introduced whereby the Consumer Court could be established for ‘an area comprising one or more districts’. 108 109 110 111

42

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 Now the amended Section 26 has some similarity with the Section 9 of the Indian Consumer Protection Act, 1986. It will be useful to reproduce the section before any further discussion which is as under; 9. Establishment of Consumer Disputes Redressal Agencies. There shall be established for the purposes of this Act, the following agencies, namely:— (a) a Consumer Disputes Redressal Forum to be known as the "District Forum" established by the State Government in each district of the State by notification: Provided that the State Government may, if it deems fit, establish more than one District Forum in a district. Like in Punjab, Pakistan; in India consumer courts were not established in each District of the State. In that situation the Supreme Court of India passed the order in Common Cause, A Registered Society v. Union of India and Ors., which is as under; Direction by Supreme Court of India for establishment of Consumer Court in every District. —A copy of this order will be sent to the Chief Secretary of each State Government/ U.T. administration to take steps to meet with its statutory obligations under the Act within the above time-frame [one year] with a view to ensuring that the interest of the consumers is fully protected. Needless to point out that more than sufficient time has been allowed to the State Governments/ U.Ts. to fulfill their statutory obligation of setting up a District Forum in every district as envisaged by section 9 of the Act and the concerned Government will now be alive to its responsibility to do so within the time extended hereby.112

3

Primary duty of the court. —Since the court in which claim was lodged was constituted under special statute and, therefore, question of jurisdiction was required to be examined by learned trial court while remaining in the four corners of the statute which aspect was totally ignored. The grievance undeniably was to be decided by court of ultimate jurisdiction.113 Court being Court of law is bound to look into the legality and genuineness of the claim viz-a- viz rising of a cause of action or jurisdiction of this court. No doubt the disputed device is purchased from 112 113

Part I

43

§.13 ADIL ON CONSUMER LAWS [Preamble] the area of Rawalpindi but as revealed from the averment of the complaint and deposition of consumer-complaint…the disputed device became ineffective within the area of Sialkot and thus, cause of action in favour of consumer-complainant arose within the jurisdiction of this Court, hence, this court is competent to exercise its jurisdiction in this matter. 114

28. Settlement of Claims.– (1) A consumer who has suffered damage, or Authority115 in other cases, shall, by written notice, call upon a manufacturer or provider of services that a product or service is defective or faulty, or the conduct of the manufacturer or service provider is in contravention of the provisions of this Act and he should remedy the defects or give damages where the consumer has suffered damage, or cease to contravene the provisions of this Act. (2) The manufacturer or service provider shall, within fifteen days of the receipt of the notice, reply thereto. (3) No claim shall be entertained by a Consumer Court unless the consumer or the Authority has given notice under sub-section (1) and provides proof that the notice was duly delivered but the manufacturer or service provider has not responded thereto. (4) A claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action: Provided that the Consumer Court, having jurisdiction to hear the claim, may allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period: Provided further that such extension shall not beyond a period of sixty days from the expiry of the guarantee period specified by the manufacturer provider and if no period is specified one year from purchase of the products or providing of services.

be allowed warranty or or service the date of

Comments

Scope of Section 28. — The Section 28 has been much debating Section in various judgments. The language of the Section 28 is ambiguous and unclear with regard to the question of limitation. 114 115

44

See. Rule 11—Authority can file claim on behalf of the public...

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 Therefore, it is the requirement of this section that it should be read with the help of the celebrated principles of the interpretation of statutes [Error: Reference source not found]. It is also the settled principle of interpretation of statute that public welfare statutes should be interpreted liberally [ and Error: Reference source not found]. On the basis of the celebrated principles of the interpretation of statutes the Section. 28 can be seen from different angles.

(i) Absolute liability. —It is the settled principle of the interpretation of statutes that the statute should be considered as whole [Error: Reference source not found]. Since Section 28 is unclear and ambiguous, therefore, whole statute should be considered. Therefore, while reading Section 12 and Section 17 one view can be that the liabilities by virtue of Part-II [Sec. 12] and Part-III [Sec.17], neither can be excluded nor can be extinguished nor can be subjected to any limitation period —the liabilities are absolute and it cannot extinct by virtue of limitation period. (ii) Collective interests. —The second view may be that Section 28 shall not apply in those cases where collective interests are involved [Error: Reference source not found]. The reason is that the Consumer Court can pass both compensatory and protective order [Error: Reference source not found-Error: Reference source not found]. While reading the Section 12 with Section 17 with Section 29(iii) and with Section Sec.30(d),(h),(i) and (j) it seems that the claim in which collective rights are involved cannot be settled, but shall be decided on merit, therefore, section 28 is not applicable where the other prospective consumers are likely to suffer irreparable loss of any kind. (iii) Settlement of claims. —Heading of section is regarded as preamble of the section []. The third view may be that Section 28 provides procedure for settlement of claims, however, claims wherein physical interest of the prospective consumers are likely to suffer and they are likely to suffer irreparable loss then Section 28 shall not apply [See. Examples, Error: Reference source not found]. The Consumer can approach to the Consumer Court directly without giving any notice to the respondent etc. and request to pass appropriate protective orders [Error: Reference source not found]. (iv) Conditional right. — The forth view may be that the Consumer always has conditional right to file claims and get absolute right to file the claims in the Consumer Court when the respondent did not reply to the legal notice of the Consumer. The Act requires the settlement of the claims through informal procedure [Error: Reference source not Part I 45

§.13

ADIL ON CONSUMER LAWS [Preamble] found], therefore, the fifteen days legal notice is necessary requirement. Fifteen days legal notice is necessary to qualify for filing the claims in the Consumer Court. If the respondent does not reply to the notice of the respondent then the claimant acquires the absolute right/ cause of action to file claim in the Consumer Court. [Error: Reference source not found]

(v) Section 28(4) and (3). — The fifth view may be that Section 28(3) is mandatory [Error: Reference source not found] for settlement of claims, however, Section 28(4) is not mandatory but directory [Error: Reference source not found]. The reason of Section 28(3) is to settle the claims out of the Court []. (vi) Defence of the respondent. — The sixth view may be that manufacturer or service provider has only one reasonable defence i.e. that the product or service is not defective or faulty and the same is not in violation of the Act [Error: Reference source not found]. The Consumer Court can exercise its power even in time barred claims and can pass protective orders [Error: Reference source not found]. (vii) Penal and remedial liabilities. — The seventh view is that Section 28 can be applicable with regard to the remedial liabilities [] in case of individual claims, however, Section 28 cannot be applicable with regard to the penal liabilities [Error: Reference source not found]. (viii) Technical interpretation. — The eighth view may be that the Section 28 should be interpreted liberally instead of technically []. A dismissal of claim on ground of non filing the application for condonation of delay at the time of filing of the claim may be technical one. Party may be given opportunity to express the reason for condonation of delay. Technical interpretation would discourage a common person to follow the case in the Consumer Court. Lex succurrit ignorant; the law assists the ignorant. It is not possible for “low income” consumer116 [See. Article Error: Reference source not found Error: Reference source not found ] to hire the services of a lawyer. The technical interpretation further demote instead of ‘to promote and protect the right and interest of the consumer’ [See. Preamble]. 116

Governments should establish or maintain legal and/or administrative measures to enable consumers or, as appropriate, relevant organizations to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Such procedures should take particular account of the needs of low-income consumers. Article 28 of the UN Guidelines, 1985.

46

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 Cause of action. —It will not be wrong to say that PCPA, 2005 hinges upon the word “cause of action”. This is the section which is ambiguous and unambiguous at the same time. Therefore, while reading this Section established rules of interpretation [-Error: Reference source not found] must be considered. Moreover, it is necessary to look at the meanings of cause of action which are as following:—

Claim. —The word “claim” may be used as synonymous with “cause of action”, but ordinarily it is a broad, comprehensive word, embracing every specie of legal demand.117 A “cause of action” embraces the facts which it is necessary to establish in order to sustain a claim for judicial relief. 118 Under federal rules, term “action” does not mean “cause of action” which substituted by the word “claim”. 119 A “cause of action” is the matter for which an action may be brought and embraces the fact which it is necessary to establish in order to sustain a claim for judicial relief. 120 Duty and breach. —To constitute a “cause of action” there must be a duty to be performed, a right to be enforced, and a failure or refusal to perform, or an infringement of the right. 121 A “cause of action”, as defined with reference to its elements, consists of a primary right of plaintiff, a corresponding duty of defendant, and a wrong by defendant in breach of such right and duty.122 Facts giving right of action. —A “cause of action” comprises every fact necessary to the right of relief prayed for. 123 A “cause of action” is the existence of those facts which give a party a right to judicial interference of his behalf.124 The “right of action” is merely the right to pursue a remedy, and the “cause of action” is the concurrence of the facts giving rise to an enforceable claim.125 A “cause of action” does not consist of facts, but of the unlawful violation of a right shown by the facts. The same facts may manifest the violation of separate and distinct legal rights each giving rise to a separate cause of action. 126 A cause of action, as that term is used in the venue statute, consists both of the right of the plaintiff and the injury to such right. It embraces the entire state of facts that give

117

Word and Phrases. pg. 596. Ibid. pg. 595. 119 Ibid 120 Ibid 121 Ibid 122 Ibid 123 Word and Phrases. pg. 601 124 Ibid. pg. 601 125 Ibid. pg. 603 126 Ibid 118

Part I

47

§.13 ADIL ON CONSUMER LAWS [Preamble] rise to an enforceable claim and necessarily comprises every fact which a plaintiff must prove in order to obtain judgment. 127 Procedure for Settlement

Figure 1

Usual procedure for settlement. —Jus constitui oportet in his quae ut plurimum accident, non que ex inopinato. Law ought to be made with a view to the cases that happen most frequently, and not to those that are unexpected. The common practice is that in case of any faulty service or defective product the consumer goes to the service provider/ manufacturer and demand redress/ settlement of his grievance/ claim and in response three situations arise; (i) service provider/ manufacturer concedes the claim of the consumer and promise to resolve/ settle the same or requires time for the same; (ii) service provider/ manufacturer straight away denies the claim of the consumer and gives cold shoulder to him; (iii) delays in resolving the grievance /claim of the consumer or denies.[See. Error: Reference source not found]

127

48

Ibid. pg. 604

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 The reason of Section 28(3). —The reason of the Sec. 28(3) can be understood with the help of Article 28 of the Guidelines [Error: Reference source not found] which requires “to enable consumers, as appropriate, relevant organization to obtain redress through formal and informal procedures that are expeditious, fair, inexpensive and accessible. Such procedure should take particular account of the needs of low-income consumers.” The purpose of the Sec. 28 is first to enable the consumers to obtain redress through informal procedure [Error: Reference source not found] and if they fail then to obtain redress through formal procedure [Error: Reference source not found]. The ‘informal procedure’ is one of the main purposes of this Act i.e. expeditious, fair, inexpensive and accessible procedure to obtain the redress. Similarly Article 37(d) of The Constitution of the Islamic Republic of Pakistan 1973 also requires the “inexpensive and expeditious justice” for promotion of social justice and eradication of social evils.

It is settled principle of interpretation of statutes that the law should be considered as whole [Error: Reference source not found and ] and harmonious construction should be given preference in order to avoid conflict of provision of statute—every provision of statute should be given effect [Error: Reference source not found]. Section 28(4) should be read with section 12 and 17 which prohibits on exclusions of liability where a consumer has suffered damage. Therefore, while reading Section 12 and 17 with Section 28(4) it appears that the Section 28(4) is directory. The consequence [Error: Reference source not found] of the dismissal of claims due to non compliance of section 28(4) makes the sections 12 and 17 ineffective and frustrates the basic purpose of the Act i.e., “promotion and protection” of the rights and interest of the consumers [,Error: Reference source not found,Error: Reference source not found and Preamble]. In other words to dismiss the claim under section 28(4) may equal to appreciate the respondent, so that he can further infringe the rights of the prospective consumers. The philosophy of the law of limitation is that with the passage of time valuable rights are accrued to some other persons. However, in the Act no such valuable right accrues to such person who plays with the health, life, safety and economic interest of the consumers/ population.

The Act protects the rights of the consumers which was termed as population in the Guidelines [See. Article 1 Error: Reference source not Part I

49

§.13 ADIL ON CONSUMER LAWS [Preamble] found]. Therefore, the Act prohibits from exclusion of liability [See. Section. 12 & 17]. Moreover, the infringement of the liabilities is punishable with fine and imprisonment [Sec. 32], hence the violation of this Act is crime [Error: Reference source not found].

Justice is the attribute of Almighty Allah 128 and Ayat 57 Sura 3 proclaims that Allah does not like the transgressor (Zalemeen)129 ‫واللہ ل‬ ‫یحب الظلمین‬. Ayat 279 Sura 2 lays down the principle La Tazleimoona wa la tazlamoon i.e. NEITHER DO A WRONG (ZULM) NOR BE WRONGED ‫ل‬130 ‫تظلمون ول تظلمون‬. Therefore, a person who is a transgressor who acts against the laws and Maqasid-e-Shariah must be condemned and such person should not be set free on ground of technicalities or limitation. The Act is the welfare and beneficent legislation, therefore, liberal rule of interpretation; [ &Error: Reference source not found] nonavailability of the District Court in each District; [] and thereby inconvenience which is faced by the consumers [Error: Reference source not found] should be kept in mind while interpreting the Act. Besides the ignorance of the consumers from this welfare piece of legislation should also be considered in order to “promote and protect” the rights and interest of the consumers.

15 days notice.— I am in agreement with learned counsels for defendants that sub-section 2 and 3 are to be read together and not in isolation. Sub-section 1 of section 28 imposes a condition on consumer to call upon other side by written notice to remedy the defects etc. Subsection 2 than gives right to a defendant which is for responding to a notice within fifteen days. Sub-section 3 however relates to Court as well as claimant simultaneously. This provision in fact restrains consumer Court to entertain a claim unless claimant qualifies at least three conditions and those are: (i) Giving a notice under subsection-1 to manufacturer or services provider (ii) services

Provision of proof about delivery of notice to manufacturer or

128 129 130

50

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005

§.13

Cause of action. —I am of the view that if case of the complainant is considered falling under subsection 4 where the maximum period for filing the claim has been mentioned as 30 days from arising of the cause of action, even then, the case is not out of time. The term “cause of action” has not been defined in the Punjab Consumer Protection act, 2005. So much so this term even has not been defined in the Code of Civil Procedure. However, according to one authoritative judgment, cause of action means bundle of facts necessitating the institution of case. After all, cause of action is not something irreversible fixed or immutable or static. It has often been held by the law Courts that some cause of action are reoccurring causes of action i.e. which accrues on the accrual of resistance from the other side. In the context of cause of action concerning immovable property it has been repeatedly held that every fresh denial of right from the side of defendant furnishes the plaintiff with a fresh cause of action….In this case cause of action firstly accrued in the 6 th week of the date of purchase of refrigerator when sister of the complainant received an electric shock while using the refrigerator. It continued and during this continuation the unfortunate lady met with fatal accident and even after her burial cause of action remained continue and so much so during pendency of case it is continued when the refrigerator was examined by the expert on the direction of the Court and detected the leakage of electricity current in the same, therefore, objection of the learned counsel for the respondents is not tenable as such the complaint held within time.131 Extention of time denied. — No doubt the limitation can be extended by the Court if satisfied that there was sufficient cause for not filing the complaint within prescribed period but no such sufficient has been shown in the complaint or in the evidence produced by the complainant, as such question of extension of limitation period does not arise in the circumstances of this case.132 When section 28 (ibid) is read as a whole there remains no ambiguity to hold that a claim must be filed within period of thirty days because last proviso in fact qualifies earlier proviso where discretion has been given to a Court for extension of time after thirty days. If a party desires extension on any reason for that there must be a written application before Court with grounds showing sufficient cause for delay.

131 132

Part I

51

§.13 ADIL ON CONSUMER LAWS [Preamble] No petition whatsoever seeking extension has been submitted so question also does not arise for this relief. 133

Extention of time granted.— After sending of legal notice the complainant had to wait for 15 days till 20-08-2010 to file the complaint before Consumer Court. It is in the evidence of complainant on that... 2909-2010 after performance of Umrah by the complainant….Hence the case of complainant falls under 2nd proviso of Section 28(4) of Act ibid and the case of the complainant is well within time. 134 Application for condonation of delay. —No doubt in view of the proviso of section 28 (4) of The Act, Consumer Court may allow a claim to file after thirty days, if it is satisfied that there was sufficient cause for not filing the complaint within specified period but no such application was made for condonation of delay and as such the complaint before the learned trial Court was barred by time. 135 Filing of complaint with this delay has not been explained by the complainant in the complaint, no sufficient cause has been advanced for the same. Even an application for condonation of delay has not been annexed with the complaint. Irrespective of the other legal objections the complaint on this score alone is not entertainable.136 It was significant to mention that in the claim, no reasonable cause was shown for approaching the court with delay of about 02 months. No application for condonation of delay was ever filed by the claimant. Therefore, period of limitation cannot be extended. Consequently, the claim is held to be barred by time. 137 The claimant has failed to give any reasonable cause persuading this court to extent the period of limitation. The claim is therefore held to be barred by time. The application for condonation of delay and the main claim both are hereby dismissed.138 It was another fact to be taken into account that neither the claimant provided any reasonable cause in filing the claim with delay in the claim nor any separate application for condonation of delay was annexed therewith nor the learned counsel for the claimant could satisfy the court during arguments regarding any cause preventing him to approach this court well within time. Therefore, there is no justification to exercise discretion of the court as laid down in proviso clause of section 28.139

133 134 135 136 137 138 139

52

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 Non-impleading the responsible. — According to section 28 (1) of the Act, a consumer is required to serve the manufacturer or provider of services with a notice regarding defectiveness of product or faulty of service. Subsection 3 of the said section suggests that no claim shall be entertained by the Consumer Court unless the consumer or authority has given notice under subsection (1) to the manufacturer or provider as the case may be. Perusal of record of learned trial Court though suggests that notice was issued under the said provision of law to…(dealer) but nevertheless there is nothing on record to suggest issuance of notice to the present appellant and as such the claim against the appellant was not entertainable by the learned trial Court. It is to be noted that initially the appellant was not arrayed as respondent in the complaint, who was arrayed on the application of respondent vide order dated 17.03.2009). 140 Secondly, the claimants did not impleaded Muhammad Sharif as party in the case from whom in fact they purchased the seeds. It could not be denied that due to non impleading correct parties, claim cannot be dismissed and proper/ necessary party may be arrayed on later stage but that would be futile exercise because if Muhammad Sharif and Sons is impleaded as party now, the claim against them would patently/ definitely be barred by limitation.141

Right to relinquish desired claim. —Learned counsel for defendant also contends that on 18.12.2012 except medicine in packet all other articles were received by CMH and if claimant says that there was defective and faulty services then why he did not make claim to the extent of those articles which were received by CMH…This argument has no force because claimant has a right to relinquish its claim to the extent which he desires and such relinquishment shall not be fatal for his remaining claim.142 Mixed question of fact and law. —Needless to mention that whenever any mixed question of fact and law is involved in any case, that can be settled after recording evidence. However, where the question of limitation can be decided from visible and admitted facts apparent from the pleadings of the parties, then it can be decided after hearing the parties and taking into account the contents of the pleadings. 143

Settlement at pretrial stage.– Any party to the dispute may, at the pretrial stage, make a firm written offer of settlement stating the amount 140 141 142 143

Part I

53

§.13 ADIL ON CONSUMER LAWS [Preamble] offered for settlement and if the offer is accepted by the opposing party, the Consumer Court shall pass an order in terms of the settlement: 144

Provided that notwithstanding anything contained in any other law for the time being in force, the party refusing the offer of settlement shall pay actual costs of litigation, including lawyer’s fees, in case the final order of the Consumer Court is passed against that party: Provided further that the court’s approval regarding settlement shall be required in the following matters– (i) claims of a minor; (ii) claims of a legally incapacitated person; and (iii) claims involving collective rights.

(2) The Consumer Court shall, if the claim relates to any services,– (a) forward a copy of such claim to the defendant directing him to file his written statement within a period of fifteen days or such extended period not exceeding fifteen days as may be granted by the Consumer Court; and (b) on receipt of the written statement of the defendant, if any, under clause (a), proceed to settle the dispute on the basis of evidence produced by both the parties: Provided that if the defendant does not deny or dispute the allegations made in the complaint or fails to present his case within the specified period, the dispute shall be settled on the basis of the evidence brought by the claimant. (3) For the purposes of this section, the Consumer Court shall have the same powers as are vested in civil court under the Code of Civil Procedure, 1908 (Act XX of 1908), while trying a suit, in respect of the following matters, namely:(a) the summoning and enforcing attendance of any defendant or witness and examining him on oath145; 144 145

54

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 (b) the discovery and production of any document or other material object which may be produced as evidence;

(c) the receiving of evidence on affidavits; (d) issuing of any commission for the examination of any witness; and (e) any other matter which may be prescribed. (4) Every proceeding before the Consumer Court shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code 1860 (Act XLV of 1860), and section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (Act V of 1898): Provided that the personal presence of the claimant before the Consumer Court shall not be required till the defendant has put up appearance before it. (5) The Consumer Court shall decide the claim within six months after the service of summons on the respondent. Comments Application of the Code of Civil Procedure. —The matters incorporated in Clauses (a) to (e) of Sub section (3) of S.30 of PCP Act, 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. 146 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 (d) is not exhaustive and any other matter may be prescribed in any provision of the same law on which the powers under the code can be exercised by the consumer court. My humble interpretation of the said clause is to the effect that other principles and powers contained in the said Code can also be used beneficially under 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 procedure in the consumer law and 146

Part I

55

§.13 ADIL ON CONSUMER LAWS [Preamble] consumer rules but the technicalities should not be allowed to hinder the path of justice in the said process.147

Judicial proceedings. —Section 30(4) says every proceedings before the court is judicial proceedings. Under section 193 of the Pakistan Penal Code, 1860 the court can punish, a person for giving false evidence, with imprisonment of either description for a term which may be extend to seven years, and shall also be liable to fine etc. Under section 228 of the Pakistan Penal Code, 1860 the Court can punish for intentional insult or interruption to public servant for sitting in judicial proceedings, with imprisonment which may extend to six months, or with fine which may extend to three thousands rupees, or with both. The Court has power to prosecute the said offence under section 195 and Chapter XXXV of the Criminal Procedure Code, 1898. Adjudication within six months. —This is mindful to express that as per terms of Sec. 30 (5) PCP Act 2005, this court is bound to adjudicate such matter within six months but as revealed from the order sheet, the proceedings of this case were protracted on account of frequent adjournments due to strikes observed by the advocates. 148 Dismissal of case in default. — Firstly, we would state that the State Commission erroneously dismissed the appeal on the ground of absence of the appellant. Normally, in such cases, even in the absence of appellant, the State Commission ought to have decided the appeal on merits. It is to be remembered that proceedings before the Consumer Fora are inquisitorial and not adversary. The orders are required to be passed in accordance with justice and equity on the basis of the evidence available on record.149

Comments

147 148 149

56

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005

§.13

Active negligence. —Negligence in which the actor is aware of the unreasonable risk that he or she is creating; Recklessness.—Also termed willful negligence; spine negligence.150 Concurrent negligence. —The negligence of two or more parties acting independently but causing the same damage. 151 Hazardous negligence. —1. Careless or reckless conduct that exposes someone to extreme danger of injury or to imminent peril. 2. See gross negligence.152 Gross negligence. —1. A lack of slight diligence or care. 2. A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party, who may typically recover exemplary damages.153 Conduct of respondent. —It is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue—it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence.154 Slackness on the part of the defendant is good answer against him that he did not behave in a manner which can be accepted from a service provider to a consumer. Therefore, I have no hesitation to say that defendant did not act with due care and caution and his conduct after faulty services was also not up to mark. His slackness is also evident when it is found that defendant even did not bother to reply to the legal notice sent by the claimant to it.155

150 151 152 153 154 155

Part I

57

§.13 ADIL ON CONSUMER LAWS [Preamble] Payment within period. —The respondent is directed to pay…said amount within thirty days.156 Admittedly, claimant is customer of defendant for about 23 years. It is not denied that there was life saving drug in parcel. CMH cannot be stated to be an ordinary customer. Therefore, when due to faulty and defective services of defendant CMH refused to receive expired medicine, it was shocking and damaging for claimant business thus it is entitled to damages of Rs. 1,30,000/- which it has prayed….Therefore, in terms of section 31 of the Act, I issue an order to defendant and direct it to pay Rs. 1,30,000/- (one lac and thirty thousands) as damages to claimant within a period of 30 days from today. File shall be consigned to record room after its due completion. 157

Legitimate direction. —Of course, plot is not a product, so I cannot direct the defendants to hand over an alternative plot. However a legitimate direction can be issued to defendants for leveling the plot and to make it construction worthy.158 Lawyer’s fee. —As for as the mode of proof of the counsel fee is concerned, it is observed that the recovery of the lawyer’s fee is legalized…the same is not necessary to be proved and no evidence is required from the counsel about the receiving of the same when the same is specifically pleaded in the complaint itself…while appearance of the learned counsel to conduct the case is the acknowledgement of the receipt of…legal fee, therefore the claimant is entitled to recover the counsel fee from the defendant. 159 Cf. The complainant has also demanded legal fee Rs. 25000/- but has not produced any receipt showing that he has paid any such fee to an advocate engaged by him to conduct this case especially when the he himself claims to be practicing lawyer.160 Financial adjustment in place of restitutionary relief. —Where restitutio in integrum is not possible in strict terms then compensatory financial adjustments may be made. If deterioration in value of defective goods has taken place through use by a customer who has paid the price of such goods, then the vendor may be compensated for the consequent diminution in the value of the goods. Equally when restitution is granted as relief in a case where a defective product is not used by a customer, and the vendor does not provide its replacement, then the customer is

156 157 158 159 160

58

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 entitled to rental cost of a like product for the period until a replacement is provided. Such adjustments address the object of restitutionary relief. 161

Execution of order. — It is well settled that the cardinal principle of interpretation of statute is that courts or tribunals must be held to possess power to execute their own order.

The basic purpose of the Act as said in the first part of the preamble is the promotion and protection of the rights and interest of the consumers. In the Guidelines the consumers is termed as population, therefore, to infringe the liabilities in any way as provided in Act is equal to infringe the rights of the consumers, which is punishable. As said above that the liability with regard to a product is always strict liability and the manufacturer shall be liable irrespective of this fact the consumers Alternative liability. —Liability arising from the tortuous acts of two or more parties—when the plaintiff proves that one of the defendants has caused harm but cannot prove which one caused it—resulting in a shifting of the burden of proof to each defendants.162

161 162

Part I

59

§.13 ADIL ON CONSUMER LAWS [Preamble] Remedial liability.—Liability arising from a proceeding whose object contains no penal element.163

Statutory liability. —Liability that is created by a statute (or regulation) as opposed to common law.164 Offense against the public health, safety, comfort and morals.— A crime traditionally viewed as endangering the whole society.

Appeal.– Any person aggrieved by any final order of the Consumer Court may file an appeal in the Lahore High Court within 30 days of such order.165

Comments

Vexatious. —Vexatious means to ‘(1) to harass, disquiet, or annoy. 2. To cause physical or emotional distress.’ 166 ‘making you feel upset or annoyed. 163 164 165

166

60

Part I

[Preamble] THE PUNJAB CONSUMER PROTECTION ACT, 2005 §.13 Appropriate compensation from realized fine. —What I feel is that claimant wants bring the college administration under some pressure and also he wants to humiliate it in order to achieve some ulterior motives….the claim of the claimant is…is hereby dismissed with fine of Rs. 5000/-…out of which Rs. 3,000/- shall be paid to the defendants within 30 days from this order and remaining 2,000/- will be deposited under relevant government head.167 Cf. It appears that instant complaint has been launched just to avoid to make the payment of outstanding amount recoverable from him. Thus, the complaint being false and frivolous is, hereby dismissed with cost.168

Part IX MISCELLANEOUS

King can do no wrong is not applicable in Pakistan. —The term `Tort' is the French equivalent to English word `wrong'. It means breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. The maxim that "The King Can Do No Wrong" resulting that the Crown was not answerable for the torts committed by its servant, was never applied in our country, like in case where due to negligence of a driver of a car owned by the Government, damages have been awarded under tort against the Government.169 Total negligence in discharge of duty. —Secondly, even S.P.Goel’s case, it has been made clear that if there is deficiency in service by an act which is not bona fide or which is malicious, the Officer will not be protected. This view is taken on the basis of the decision rendered in Lucknow Development Authority (Supra). If there is total negligence in discharge of duties it would amount to malice in law or in any case it cannot be termed as bona fide act…. In view of the aforesaid discussion, we hold that in case of deficiency in service in issuing erroneous and defective encumbrance certificate, the concerned officer including the Joint Sub-Registrar would be liable for deficiency in service and could be proceeded under the Consumer Protection, 1986. Hence, 167 168 169

Part I

61

§.13 ADIL ON CONSUMER LAWS [Preamble] we confirm the order passed by the State Commission, Tamil Nadu and dismiss the Revision Petition. There shall be no order as to costs.170

170

62

Part I

THE PUNJAB CONSUMER PROTECTION RULES, 2009

Part I 11__________________________________________viii PRELIMINARY 11__________________________________viii

63

INDUSTRIES DEPARTMENT Dated Lahore the 22nd May, 2009

64

THE PUNJAB CONSUMER PROTECTION RULES, 2009

Rule.26

(a) is the provision of services subject to statutory or professional standards;

65

Rule.23

ADIL ON CONSUMER LAWS

(6) The Court may exercise the powers of a civil court under the Code of Civil Procedure 1908 (XX of 1908) for setting aside an ex-parte order or restoration of a claim dismissed in default.171 ANALYSIS OF THE PRODUCT. – (1) The Court may direct the claimant to provide more than one sample of the product.

171

66

THE PUNJAB CONSUMER PROTECTION RULES, 2009

Rule.26

67

Rule.23 ADIL ON CONSUMER LAWS (6) The Secretary of the Council may, with the approval of the Chairperson or Vice Chairperson, call a meeting of the Council.

68

THE PUNJAB CONSUMER PROTECTION RULES, 2009

Rule.26

69

Rule.23 ADIL ON CONSUMER LAWS APPOINTMENT OF INSPECTORS. – (1) The Government may authorize an officer to act as inspector for an area or District.

70

71

ADIL ON CONSUMER LAWS Sec. 1

An Act to provide for promotion and protection of the interest of Consumers.

72

THE ISLAMABAD CONSUMERS PROTECTION ACT, 1995

73

ADIL ON CONSUMER LAWS Sec. 1

Provided that sub-section (2) of section 265 shall not apply.

74

THE ISLAMABAD CONSUMERS PROTECTION ACT, 1995

75

76

[VI OF 1997]

Definitions.—In this Act, unless there is anything repugnant in the subject or context,--(a)

172

[xxx]

(c) “Consumer” means any person who: — (i) buys goods for a consideration which has been paid or to promised or partly paid and partly promised to be paid or under any system of deferred payment including hire purchase and leasing and includes any user of such goods but does not include a person who obtains such goods for re-sale or for any commercial purpose; or

172

77

ADIL ON CONSUMER LAWS

Sec. 17

(e) “Defect” means any fault, imperfection or shortcoming in the quality, quantity, potency purity or standard which, in relation to the goods, is required to be maintained by or under any law for the time being in force;

(k)

173

[xxx]

(o) “Unfair trade practice” means a trade practice which a person for the purpose of sale, use or supply of any goods or provision of any service or for their promotion, adopts one or more of the following practices, causes loss or injury through hoarding, black-marketing, adulteration, selling of expired drugs, food items and commodities unfit for human consumption, or charging for the goods and services in excess of the price fixed by an authority authorized to do so under any law for the time being in force or in furtherance of such sale, use or supply makes any statement, whether orally or in writing or by chalking on walls or through sign-boards or neon-signs or by distributing pamphlets or by publication in any manner including electronic media, by---

173

(xi) giving false or misleading facts disparaging the goods, services or trade of another person, firm, company or business concern;

PART-II

Sec. 17

ADIL ON CONSUMER LAWS

(2) The Council shall consist of a Chairman and such other 174[official and non-official] members as Government may, by notification in the official Gazette, specify.

(c) the right of access to a variety of goods at competitive prices;

(5) The Police Department, Municipal Corporation/ Committees and other agencies of government shall act in aid of the 175[Court] for performance of its functions under this Act.

Part-III

174 175

(a) the opposite party or each of the opposite parties, where there are more than one at the time of institution of the complaint, actually and voluntarily resides or carries on business or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily-resides, or carries on business, or personally works for gain provided that in such case either the permission of the 176[Court] is given, or the opposite party who do not reside, or carry on business, or personally work for gain, as the case may be, acquiesce in such institution; and

(a) the consumer to whom such goods are sold or delivered or such service is provided;

(d) an officer of Government authorized in this behalf.

Provided further that such extension shall not be allowed beyond a period of sixty days from the expiry of the warranty or guarantee period specified by the manufacturer of the goods or seller of the services and if no such period is specified, one year of the date of purchase of the goods or providing services. (a) refer a copy of the complaint to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days; (c) where the 177[complainant] alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the 178 [Court] shall obtain sample of the goods from complainant, seal it and 176 177 178

Sec. 17

ADIL ON CONSUMER LAWS

authenticate it in the manner prescribed and refer the sample so sealed to a laboratory along with a direction to make an analysis or test, whichever may be necessary with a view to finding out whether such goods suffer from any defect and to report its findings thereon to the 179 [Court] within a period of thirty days of the receipt of the reference or within such period as may be extended by the 180 [Court]; (e) on receipt of the report from the laboratory, the 181[Court] shall forward a copy of the report, alongwith such remarks as may be deemed appropriate, to the opposite party and the whole process shall be completed within two months; (f) if any of the parties disputes the correctness of the findings of the laboratory, or methods of analysis or test adopted by the laboratory, the 182 [Court] shall require the opposite party or the complainant to submit in writing his objections in regard to the report of the laboratory; (2) The 183[Court] shall, if the complaint received relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any service,--(b) on receipt of the defence of the opposite party, if any, under clause (b), proceed to settle the dispute on the basis of evidence produced by both the parties. (3) For the purpose of this section, the 184[Court] shall have the same powers as are vested in Civil Court under the Code of Civil Procedure, 1908 (V of 1908), while trying a suit, in respect of the following matters, namely:---

179 180 181 182 183 184

Findings of the 185[Court]. (1) If after the proceedings conducted under section 14 the 186[Court] is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any or all of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to take one or more of the following actions namely:

Penalties.—(1) Where any right of consumer required to be protected under section 10 is in any way infringed, the person responsible for such infringement shall be punished with imprisonment which may extend to two years or with fine which may extend to fifty (50) thousand rupees, or with both and shall also be liable to provide such compensation / relief as may be determined by the 187[Court].

(4) The 188[Court] may, where it is deemed necessary for protection of the rights of other consumers, order for confiscation of any goods or material or direct for their destruction.

185 186 187 188

Sec. 17

ADIL ON CONSUMER LAWS

Appeal.—Any person aggrieved by an order made by the 189[Court] may prefer an appeal against such order to the 190[High Court] within period of thirty days from the date of the order, and the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), in respect of appeal to the High Court shall mutatis mutandis, apply. Dismissal of frivolous, or vexatious complaints.—Where a complaint is found to be frivolous or vexatious the 191[Court] as the case may be, shall dismiss the complaint and may also impose a fine on the complainant not exceeding 192[ten] thousand rupees. Appropriate compensation may also be awarded to the respondent form the amount of fine so realized.

189 190 191 192

An Ant to provide for promotion and protection of the interest of consumers

85

Sec.16

ADIL ON CONSUMER LAWS

THE BALOCHISTAN CONSUMERS PROTECTION ACT, 2003

Sec.19

Sec.16

ADIL ON CONSUMER LAWS

THE BALOCHISTAN CONSUMERS PROTECTION ACT, 2003

Sec.19

Sec.16

ADIL ON CONSUMER LAWS

91

[IV OF 2007]

92

THE SINDH CONSUMERS PROTECTION ORDINANCE, 2007

Sec.24

Sec.20

ADIL ON CONSUMER LAWS

THE SINDH CONSUMERS PROTECTION ORDINANCE, 2007

Sec.24

Sec.20

ADIL ON CONSUMER LAWS

THE SINDH CONSUMERS PROTECTION ORDINANCE, 2007

Sec.24

Sec.20

ADIL ON CONSUMER LAWS

99

An Act to provide for the establishment of Pakistan Standards and Quality Control Authority

100

Sec.38

[INDIAN] THE CONSUMER PROTECTION ACT, 1986

1. 2.

3.

a. b. c. d.

101

Sec.35

(i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv)

ADIL ON CONSUMER LAWS

[INDIAN] THE CONSUMER PROTECTION ACT, 1986

Sec.38

(xv) (xvi) (xvii) (xviii) (xix) (xx) (xxi) (xxii) (xxiii) (xxiv)

(a) (b)

103

Sec.35

(a) (b) (c) (i) (ii) (iii) (iv) (v)

ADIL ON CONSUMER LAWS

[INDIAN] THE CONSUMER PROTECTION ACT, 1986

Sec.38

105

106

(4) Save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all goods and services. (i) (ii) (iii)

recognised by the Central Government;

(i) (ii)

any establishment described as a branch by the opposite party; or

(i) (ii) (iii) 193

(ii) 195

193 194 195

107

[(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint; 194

[the goods bought by him or agreed to be bought by him] suffer from one or more defects;

[(iv) a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price in excess of the price –

Sec.19

ADIL ON CONSUMER LAWS

(i) (ii)

For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;] (e) "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint. (f) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force 197[under any contract, express or implied or] as is claimed by the trader in any manner whatsoever in relation to any goods; 196

(i) (ii) (iii)

[Explanation.—

makes or manufactures any goods or part thereof; or

(k) "National Commission" means the National Consumer Disputes Redressal Commission established under clause (c) of section 9; (i) (ii) (iii) (iv)

(nnn)“restrictive trade practice” means a trade practice which tends to bring about manipulation of price or conditions of delivery or to affect flow of

196 197

[U.K] THE CONSUMER PROTECTION ACT, 1987 Sec.21 supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include—

198

[(oo)“spurious goods and services” mean such goods and services which are claimed to be genuine but they are actually not so;] (p) "State Commission" means a Consumer Disputes Redressal Commission established in a State under clause (b) of section 9; (1) the practice of making any statement, whether orally or in writing or by visible representation which,— (i) (ii) (iii) (iv) (v) (vi) (vii) (viii)

Explanation. — For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time, published, prominently in the same newspapers in which the scheme was originally advertised;] 198

109

Sec.19

ADIL ON CONSUMER LAWS

(2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.

(2) The Central Council shall consist of the following members, namely: — (b) such number of other official or non-official members representing such interests as may be prescribed. (2) The Central Council shall meet at such time and place as the Chairman may think fit and shall observe such procedure in regard to the transaction of its business as may be prescribed.

(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods 199[or services, as the case may be] so as to protect the consumer against unfair trade practices; (d) the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate forums; (f)

the right to consumer education.

200

[(2) The State Council shall consist of the following members, namely:—

(3) The State Council shall meet as and when necessary but not less than two meetings shall be held every year.

199 200

[U.K] THE CONSUMER PROTECTION ACT, 1987 Sec.21 (2) The District Consumer Protection Council (hereinafter referred to as the District Council) shall consist of the following members, namely:—

CHAPTER III

201

[Provided that the State Government may, if it deems fit, establish more than one District Forum in a district.] (c) a National Consumer Disputes Redressal Commission established by the Central Government by notification. (a) a person who is, or has been, or is qualified to be a District Judge, who shall be its President; (i) be (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xv) (xviii) (xxii) (xxiii)

not less than thirty-five years of age,

the President of the State Commission……..

(xiii)

(xiv)

(xvi) (xix)

(xvii) (xx) (xxi)

202

[(2) Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years, whichever is earlier:

(xxiv) (xxv) 201 202

111

Sec.19

ADIL ON CONSUMER LAWS

(xxvi) (xxvii) (xxviii) (xxix)

Jurisdiction of the District Forum.—(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 203[does not exceed rupees twenty lakhs].

(xxx) (xxxi) (xxxii)

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 204[carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 205[carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or

(xxxiii) (xxxiv) (xxxv)

(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;

(xxxvi) (xxxvii) (xxxviii) (xxxix) (xl) (xli) (xlii) (xliii) (xliv) (xlv) (xlvi) (xlvii) 206[(a)

refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;]

203 204 205 206

[U.K] THE CONSUMER PROTECTION ACT, 1987 Sec.21 (xlviii) (b) where the opposite party on receipt of a complaint referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute in the manner specified in clauses (c) to (g); (xlix) (l) (li) (lii) (liii) (liv) (lv) (a)

refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

(lvi) (lvii) (lviii) (lix) 207[(c)

where the complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits.]

(lx) (lxi) (lxii)

Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum:

(lxiii) (lxiv) (lxv) (lxvi) (lxvii) (lxviii) (lxix) (lxx) (lxxi) (lxxii) (lxxiii) (lxxiv) (lxxv)

208

[(7) In the event of death of a complainant who is a consumer or of the opposite party against whom the complaint has

207 208

113

Sec.19

ADIL ON CONSUMER LAWS been filed, the provisions of Order XXII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to the plaintiff and the defendant shall be construed as reference to a complainant or the opposite party, as the case may be.]

(lxxvi) (lxxvii) (lxxviii) (lxxix) (lxxx) (lxxxi) (lxxxii) (lxxxiii)

(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it; (lxxxiv) (g) not to offer the hazardous goods for sale; (lxxxv) (lxxxvi) (lxxxvii) (hb)to

pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently:

(lxxxviii) (lxxxix) (xc) (xci) (xcii) (xciii) 209[Provided

that where a member, for any reason, is unable to conduct a proceeding till it is completed, the President and the other member shall continue the proceeding from the stage at which it was last heard by the previous member.]

(xciv) (xcv) (xcvi) (xcvii) (xcviii) (xcix) (c) Composition

of the State Commission. — (1) Each State Commission shall consist of—

(ci) (cii)

209

[U.K] THE CONSUMER PROTECTION ACT, 1987 Sec.21 210 (ciii) [(b) not less than two, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:— (civ) (cv) (cvi) (cvii) (cviii) (cix) (cx) (cxi) (cxii) (cxiii) (cxiv) (cxv) (cxvi) (cxvii)

(cxviii)

(i) (cxxi) (cxxii) (cxxiv) (cxxv) (cxxvii) (cxxviii) (cxxix) (cxxx) (cxxxi) (cxxxii) (cxxxiii) 211[Provided

(cxix) (cxx) (cxxiii) (cxxvi)

that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the State Commission.]

(cxxxiv) (cxxxv) Provided

that a member shall be eligible for re-appointment for another term of five years or up to the age of sixty-seven years, whichever is earlier, subject to the condition that he fulfills the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is made on the basis of the recommendation of the Selection Committee:

(cxxxvi) (cxxxvii) (cxxxviii) (cxxxix) 210 211

115

Sec.19 (cxl) (cxli) (cxlii)

ADIL ON CONSUMER LAWS (a) to entertain—

appeals against the orders of any District Forum within the State; and

(cxliii) (cxliv) (cxlv)

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(cxlvi) (cxlvii) (cxlviii) (cxlix)

212

[17B. Circuit Benches.-The State Commission shall ordinarily function in the State Capital but may perform its functions at such other place as the State Government may, in consultation with the State Commission, notify in the Official Gazette, from time to time.]

(cl) (cli) 213[ 18A. *****] (clii) (cliii) (cliv) (clv) (clvi) (clvii) 214[19A.

Hearing of Appeal - An appeal filed before the State Commission or the National Commission shall be heard as expeditiously as possible and an endeavour shall be made to finally dispose of the appeal within a period of ninety days from the date of its admission:

(clviii) (clix) (clx) (clxi) (clxii) (clxiii) (clxiv)

215

[(b) not less than four, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:—

(clxv) 212 213 214 215

[U.K] THE CONSUMER PROTECTION ACT, 1987

Sec.21

(clxvi) (clxvii) (clxviii) (clxix) (clxx) (clxxi) (clxxii) (clxxiii) (clxxiv) (clxxv) (clxxvi) (clxxvii) (clxxviii) (clxxxi)

(clxxix) (clxxxii)

(clxxx) (clxxxiii)

(clxxxiv)

(clxxxv)

(clxxxvi)

(clxxxvii) (clxxxviii) (clxxxix)

(ii) A Bench may be constituted by the President with one or more members as the President may deem fit.

(cxc) (cxci) (cxcii)

216

[(3) Every member of the National Commission shall hold office for a term of five years or up to the age of seventy years, whichever is earlier:

(cxciii) (cxciv) (cxcv) (cxcvi) (cxcvii) (cxcviii) (cxcix) (cc) (cci) appeals against the orders of any State Commission; and (ccii) (cciii) (cciv) (2) Without prejudice to the provisions contained in sub-

section (1), the National Commission shall have the power to review any order made by it, when there is an error apparent on the face of record. (ccv) (ccvi) 216

117

Sec.19

ADIL ON CONSUMER LAWS (ccvii) [22B. Transfer of cases - On the application of the complainant or of its own motion, the National Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the District Forum of one State to a District Forum of another State or before one State Commission to another State Commission. 217

(ccviii) (ccix)

218

[22D. Vacancy in the Office of the President - When the office of President of a District Forum, State Commission, or of the National Commission, as the case may be, is vacant or a person occupying such office is, by reason of absence or otherwise, unable to perform the duties of his office, these shall be performed by the senior-most member of the District Forum, the State Commission or of the National Commission, as the case may be:

(ccx) (ccxi) (ccxii) (ccxiii) (ccxiv)

Finality of orders. — Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final.

(ccxv) (ccxvi)

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in subsection (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

(ccxvii) (ccxviii) (ccxix) (ccxx) (ccxxi) (ccxxii) (ccxxiii) (ccxxiv) (2)

No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the noncompliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State

217 218

[U.K] THE CONSUMER PROTECTION ACT, 1987 Sec.21 Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto. (ccxxv) (ccxxvi) (ccxxvii)

[Penalties. — 219[(1)] Where a trader or a person against whom a complaint is made 220[or the complainant] fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person 221[or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both:

(ccxxviii) (ccxxix) 222[(2)

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).

(ccxxx) (ccxxxi) (ccxxxii)

(a) the order made by the District Forum to the State Commission ;

(ccxxxiii) (ccxxxiv) (ccxxxv) (ccxxxvi) (ccxxxvii) (ccxxxviii) (ccxxxix) (ccxl) (ccxli) (ccxlii) (2)

The service of notices may be made by delivering or transmitting a copy thereof by registered post acknowledgment

219 220 221 222

119

Sec.19

ADIL ON CONSUMER LAWS due addressed to opposite party against whom complaint is made or to the complainant by speed post or by such courier service as are approved by the District Forum, the State Commission or the National Commission, as the case may be, or by any other means of transmission of documents (including FAX message).

(ccxliii) (ccxliv) (ccxlv) (ccxlvi) (ccxlvii) (ccxlviii) (ccxlix) (ccl) Provided

that no such order shall be made after the expiry of a period of two years from the commencement of the Consumer Protection (Amendment) Act, 2002.

(ccli) (cclii) (ccliii)

223

[Power to make rules. - (1) The Central Government may, by notification, make rules for carrying out the provisions contained in clause (a) of sub-section (1) of section 2, clause (b) of subsection (2) of section 4, sub-section (2) of section 5, sub-section (2) of section 12, clause (vi) of sub-section (4) of section 13, clause (hb) of sub-section (1) of section 14, section 19, clause (b) of sub-section (1) and sub-section (2) of section 20, section 22 and section 23 of this Act.

(ccliv) (cclv) (cclvi)

(2) In particular and without prejudice to the generality of the foregoing power, such regulations may make provisions for the cost of adjournment of any proceeding before the District Forum, the State Commission or the National Commission, as the case may be, which a party may be ordered to pay.]

(cclvii) (cclviii)

(2) Every rule made by a State Government under this Act shall be laid as soon as may be after it is made, before the State Legislature.

223

(cclix) (cclx)

121

(cclxi) (cclxii) 1987 (cclxiii) (cclxiv) (cclxv) (cclxvi) (cclxvii) (cclxviii) (cclxix) (cclxx) (cclxxi) (cclxxii) (cclxxiii) (cclxxiv) (cclxxv) (cclxxvi) (cclxxvii) (cclxxviii) (cclxxix) (cclxxx) (cclxxxi) (cclxxxii) (cclxxxiii) (cclxxxiv) (cclxxxv) (cclxxxvi) (cclxxxvii) (cclxxxviii) (cclxxxix) (ccxc) (ccxci) (ccxcii) (ccxciii) (ccxciv) (ccxcv) (ccxcvi) (ccxcvii) (ccxcviii) (ccxcix) (ccc) (ccci) (cccii) (ccciii) (ccciv)

Chapter 43

122

[U.K] THE CONSUMER PROTECTION ACT, 1987

Sec.11

(cccv) (cccvi) (cccvii) (cccviii) (cccix) (cccx) (cccxi) (cccxii) (cccxiii) (cccxiv) (cccxv) (cccxvi) (cccxvii) (cccxviii) (cccxix) (cccxx) (cccxxi) (cccxxii) (cccxxiii) (cccxxiv) (cccxxv) (cccxxvi) (cccxxvii) (cccxxviii) (cccxxix) (cccxxx) (cccxxxi) (cccxxxii) (cccxxxiii) (cccxxxiv)

123

(cccxxxv) (cccxxxvi) (cccxxxvii) (cccxxxviii) (cccxxxix) (cccxl) (cccxli) (cccxlii) (cccxliii) (cccxliv) (cccxlv) (cccxlvi) (cccxlvii) (cccxlviii) (cccxlix) (cccl) (cccli) (ccclii) (cccliii) (cccliv) (ccclv) (ccclvi) (ccclvii) (ccclviii) (ccclix) (ccclx) (ccclxi) (ccclxii) (ccclxiii) (ccclxiv) (ccclxv) (ccclxvi) (ccclxvii) (ccclxviii) (ccclxix) (ccclxx) (ccclxxi) (ccclxxii) (ccclxxiii) (ccclxxiv) (ccclxxv) (ccclxxvi) (ccclxxvii) (ccclxxviii)

THE GENERAL ASSEMBLY,

124

United Nations Guidelines for Consumer Protection (ccclxxix) (ccclxxx) (ccclxxxi) (ccclxxxii) (ccclxxxiii) (ccclxxxiv) (ccclxxxv) (ccclxxxvi) (ccclxxxvii) (ccclxxxviii) (ccclxxxix) (cccxc) (cccxci) (cccxcii) (cccxciii) (cccxciv) (cccxcv) (cccxcvi) (cccxcvii) (cccxcviii) (cccxcix) (cd) (cdi) (cdii) (cdiii) (cdiv) (cdv) (cdvi) (cdvii) (cdviii) (cdix) (cdx) (cdxi) (cdxii) (cdxiii) (cdxiv) (cdxv) (cdxvi) (cdxvii) (cdxviii) (cdxix) (cdxx) (cdxxi)

Article.37

Article.42 (cdxxii) (cdxxiii) (cdxxiv) (cdxxv) (cdxxvi) (cdxxvii) (cdxxviii)

ADIL ON CONSUMER LAWS

Directory DISTRICT CONSUMER COURTS IN PUNJAB Sr. No

District Court Bahawalpur

1.

Contact Tel. 064-2466282 Fax. 064-2470496

2.

D.G. Khan

Tel. 064-2466282

Adress House No.42/A Younas Road Model Town Block – A Bahawalpur Judicial Complax,D.G. Khan

Fax. 064-2470496

3.

Faisalabad

Tel. 041-9201455

P-61 Jinnah Colony Faisalabad

Fax. 041-9201456

4.

Gujrat

Tel. 053-3537948-9 Fax. 053-353794

5.

Gujranwala

Tel. 055-3732254

House No.116-A Shadman Colony Near Shell Petrol Station Gujrat

Near DCO Office, Gujranwala

Fax. 055-3732004

6.

Lahore

Tel. 042-99213684-5

360 Riwaz Garden Lahore

Fax. 042-9213696

7.

Multan

Tel. 061-4784516-8 Fax. 061-4784516

8.

9.

Rawalpindi

Sahiwal

Tel. 051-9281334

House No.430/17-B/XII Near Chungi No.01 Waqas Town Pul Wasil Multan

Fax. 051-9281339

House No.222/5 Khadim Hussain Road Opposite D.I.G Office Cantt. Rawalpindi

Tel. 040-9200128

36-C, Farid Town Sahiwal

Fax. 040-9200127

10.

Sargodha

Tel. 048-9230884 Fax. 048-9230621

11.

Sialkot

Tel. 052-9250580 Fax. 052-9250581

Banglow No.10 House No.11Opposite Circuit House Civil Lines Sargodha Cant View Colony TopKhana Stop Sialkot

Near

Poli

127

ADIL ON CONSUMER LAWS CONSUMER PROTECTION COUNCILS IN PUNJAB

Sr. No 1.

District Council Bahawalpur

Contact Tel. 062-2880780 Fax. 062-2880770

2.

D.G. Khan

Tel. 064-2473342 Fax. 064-2466283

3.

Faisalabad

Tel. 041-9239085 Fax. 041-8503034

4.

Gujrat

Tel. 053-3537811 Fax. 053-3523722

5.

Gujranwala

Tel. 055-9201284 Fax. 055-3732210

6.

Lahore

Tel. 042-99213695 Fax. 042-9213696

7.

Multan

Tel. 061-4574703, 061-9239130 Fax. 061-4570955

8.

Rawalpindi

Tel. 051-9242896 Fax. 051-9290677

9.

Sahiwal

Tel. 040-9239076 Fax. 040-9200199

10.

Sargodha

Tel. 048-9230911 Fax. 048-9230911

11.

Sialkot

Tel. 052-3256422 Fax. 052-3256421

128

Adress House No.20/A, Muhammadia Colony Noor Mahal Road Bahawalpur 288/F, Block No.17 Near Meezan Bank, D.G. Khan 4/W-A Near Police Station Madina Town Faisalabad Noor Street Shadman Opposite Totel Petrol Station Link Rehman Road, Gujrat. Near DCO Office, Gujranwala Directorate of Industries Poonch House Multan Road Lahore 02-C, Multan

Shams

Abad

Colony

1st Floor, F-301, FBlock Satellite Town, Near Katarian Chungi, Rawalpindi 248/A Fateh Sher Main Market Sahiwal

Colony

54/12-A, Satellite Town Sargodha House No. 300 Shah Faisal Road Model Town Sialkot

Bibliography A.P. Chatterjee 'Interpretation of Statutes' [Book] / auth. Chatterjee A.P.. CALCUTTA : EASTERN LAW HOUSE, 1983. - Second. Abdul Islam v. G.M. SNGPL Faisalabad etc. [Case] = Abdul v. G.M SNGPL : 1595/10 / auth. Ejaz Ahmad Buttar D&SJ / counsl. N.A. - [s.l.] : DCC Faislabad, January 14, 2011. - Suit gas connection. Abdul Majeed Khan v. Tawseen Abdul Haleem & others [Case] = PLJ = Abdul v. Tawseen : Civil Petition No. 463 of 2011, heard on 15.07.2011 : PLJ 2012 SC 104 / auth. Iftikhar Muhammad Chaudhry, CJ., Khilji Arif Hussain & Amir Hani Muslim, JJ. / counsl. Petitioner in person. Mr. Hashmat Ali Habib ASC and Mr. M.S. Khatta AOR for Resp. 1 & 3. - [s.l.] : Supreme Court, Junly 15, 2011. - Damages defined . Abdul Majid Arif v. Rizwan Javed [Case] = Abdul v. Rizwan : 128/09 / auth. Sohaib Ahmed Rumi D&SJ / counsl. person In. - [s.l.] : DCC Gujranwala, September 18, 2009. - Sepcific performance and jurisdiciton of the court. . Abdush Shakoor v. EFU Life Insurance Co. etc. [Case] = Abdush v. EFU : 243/11 / auth. D&SJ Ejaz Ahmed Butter / counsl. N.A. - [s.l.] : DCC Faislabad, January 25, 2012. - Insurance claim. Al Haj Azhar Iqbal Satti [Case] = AlHaj v. SNGPL : 135 of 13.12.2012 / auth. D&SJ SOHAIL NASIR / counsl. (Def.) Claimant in person. Mr. Jamal Mahmood Butt adv.. - [s.l.] : DCC Rawalpindi, December 20, 2012 . Jurisdiciton. Amjad Javed v. Dr. Asma Batool Awan [Case] = Amjad v. Dr. Asma : 366/08 / auth. Sohaib Ahmed Rumi D&SJ / counsl. N.A. - [s.l.] : DCC, Gujranwala, April 27, 2010. - Medical negligence. Authority v. English Laboratories etc. [Case] = Authority v. English : 2298/11 / auth. D&SJ Ch. Mehmood Ahmed Shakir Jajja / counsl. N.A. [s.l.] : DCC Bahawalpur, March 28, 2012. - Manufacturing and expiry date. Authority v. King's Food Pvt. Ltd. [Case] = Authority v. King : 2336/11 / auth. D&SJ Mahmood Ahmed Shakir Jajja / counsl. N.A. - [s.l.] : DCC Bahawalpur, January 19, 2012. - Date of manufacturing and expiry date.. Authority v. M Sarfraz [Case] = Authority v. Sarfraz : Reference / auth. D&SJ. - [s.l.] : DCC Sahiwal. B.R.S. Heart Institute & Research Centre v. Kulji Kaur [Case] : 460/03 / auth. Member R.C Jain Presiding. - [s.l.] : NCDRC, New Delhi, April 25, 2011. Canara Bank v. Shri Binayh Kumar Jha [Case] : R.P.No. 3210/05 / auth. President. B.K. Taimni. - [s.l.] : NDRC, New Dehli, October 14, 2008. CCI Chambers Co-Op. HSG. Society Ltd. v. Development Credit Bank Ltd. [Case] = CCI v. Development : Civil Appeal 7228/2001 / auth. JJ. R.C Lahoti & Ashok Bhan. - [s.l.] : SCI, August 29, 2003. - Summary porceedings. 129

ADIL ON CONSUMER LAWS Ch. Jawad Ghani v. Proprietor Hadi Electronics [Case] = Ch. Jawad v. Proprietor : 46/09 / auth. Sohaib Ahmed Rumi D&SJ / counsl. N.A. - [s.l.] : DCC Gujranwala, September 09, 2009. - False and deceptive practice . Ch. Muhammad Rafique Advocate v. Soldier CNG Station [Case] = Ch. Rafique v. Soldier : 321/08 / auth. Sohaib Ahmed Rumi D&SJ / counsl. person in. - [s.l.] : DDC Gujranwala, August 29, 2009. - 10000 due to non observance of section 19 PCPA, 2005. Chairman Indus Motors Co v. Muhammad Arshad and Ors. [Case] = Chairman Indus v. M. Arshad : F.A.O. No.118 of 2009 : PLD 2012 Lahore 264 / auth. Umar Ata Bandial J / counsl. No.1. Imran Aziz Khan for (Appellant). Ch. Fasih-uz-Zam along with Respondent. - [s.l.] : L.H.C, Lahore, October 25, 2010. Charan Singh v.Healing Touch Hospital [Case] / auth. K.G.Balakrishnan M.B.Shah JJ.. - [s.l.] : SCI, September 20, 2000. Common Cause, A Registered Society v. Union of Indian and Ors. [Case] / auth. Ahmedi A.M Reddy, K. Jayachandra. JJ.. - [s.l.] : SCI, January 07, 1993. D.C.O/ Authority through DDO (Health) Sahiwal Sahiwal v. Allah Wasaya [Case] = DCO v. Allah Wasaya : 889 / auth. D&SJ Tahir Pervez / counsl. N.A. - [s.l.] : CC Sahiwal, 02 15, 2012. - reference against quack Dr.. D.C.O/Authority through DO(Health) v. Khalid Mehmood [Case] = DCO v. Khalid : 804 / auth. D&SJ Tahir Pervez / counsl. N.A. - [s.l.] : DCC Sahiwal, September 12, 2011. - Baseless claim by Authority. Deep Nursing Home v. Manmeet Singh Mattewal [Case] = Deep Nursing Home v. Manmee Singh Mattewal : F.A No. 158 of 2007 / auth. R.C.Jain J.. - [s.l.] : NDRC, New Dehli, May 9, 2012. - Medical Negligence.. Deepak Jaiswal v. Oriengal Insurance Co. [Case] : Revision Petition No. 1922/04 / auth. M.B.Shah J.,President.. - [s.l.] : NCDRC, New Dehli, December 12, 2005. Deputy District Officer Health v. Mr. Shoukat [Case] = DDO v. Shoukat : Reference / auth. D&SJ Malik Peer Muhammad / counsl. N.A. - [s.l.] : DCC Sahiwal, April 4, 2011. - Determination of reference. Deputy Registrar (Colleges) & Anr. [Case] : 1121/2005 / auth. President. M.B Shah. - [s.l.] : NCDRC, July 7, 2006. - Educational InstitutionConsumer is/not Student.. Muhammad Ahmad Maqbool v. Hakeem Dr. Professor Ashraf Israr [Case] = M. Ahmad v. Hakeem / auth. D&SJ Malik Peer Muhammad / counsl. N.A. - [s.l.] : CC Sahiwal, June 29, 2011. - Educational institution could nto be described to have undertaken commercial activity. . Muhammad Ali v. Regional Officer Nia Sweera [Case] = M. Ali v. Regional Officer : 879/DCC/SWL / auth. D&SJ / counsl. N.A. - [s.l.] : DCC Sahiwal, 01 26, 2012. - Maize drawn from plant. Time barred claim.

130

Index Muhammad Aslam v. Chief Executive Pak Feeds Mills [Case] = M. Aslam v. Chief : 125/09 / auth. Sohaib Ahmed Rumi D&SJ / counsl. N.A. - [s.l.] : DCC Gujranwala, July 18, 2009. - Application for condonation of delay. Muhammad Khalid Pervez Adv. v. Raza Electronics [Case] = M. Khalid v. Raza : 925/12 / auth. D&SJ Tahir Pervez / counsl. complainant In person. [s.l.] : DCC Sahiwal, May 18, 2012. - Detail of damage.. Muhammad Tariq v. Qazi Trading [Case] = M. Tariq v. Qazi : 84/09 / auth. Sohaib Ahmed Rumi D&SJ / counsl. N.A. - [s.l.] : DCC Gujranwal, October 17, 09. - Prayer for possession.. Muhammd Arshad v. The Manager Wateen etc. [Case] = M. Arshad v. The Manager : 50/2008 / auth. D&SJ Mr. Tariq Mehmood Iqbal Khan / counsl. N.A. - [s.l.] : DCC Sialkot/Narowal, January 27, 2009. - Jurisdiciton of Consumer Court.. Mujahid v. Waves [Case] = Mujahid v. Waves : 75/2009 / auth. Maqsood Ahmed Sulheri D&SJ / counsl. N.a. - [s.l.] : DCC, Multan, September 09, 2009. - Limitation. Time barred claim.. Zahid Nazeer v. Massers Cakes & Bakes [Case] = Zahid v. M/s Cakes : 754 / auth. Thair Pervez D&SJ / counsl. N.A. - [s.l.] : CC Sahiwal, May 24, 2012. - Defective and substandard sweets..

ADIL ON CONSUMER LAWS

132

Index

Webliography Following are the web links whereon almost all the judgments are available on the:--

Courts’ Judgments

Website

District Consumer Court, Punjab, Pakistan.

http//pcpc.punjab.gov.pk/

District Consumer Court, Rawalpindi, Punjab Pakistan.

http//www.consumercourtwp.com

Lahore High Court, Lahore. National Consumer Redressal Commission.

http//www.lhc.gov.pk/ Dispute

Supreme Court of India.

http//ncdrc.nic.in/ http//judis.nic.in/

Following are the web links whereon some of the statutes mentioned in this book are available:--

Statutes

Website

Malysian Consumer Protection Act, 1999. Indian Consumer Act, 1986.

http//www.kkmmm.gov.my/akta_kpkk/Consumer%20Protection.pdf

Protection http//ncdrc.nic.in/

Pakistan Standards and Quality Control Act, 1996.

http://www.na.gov.pk/uploads/documents/1329726893 317 .pdf

Punjab Consumer Protection http//pcpc.punjab.gov.pk/ Act, 2005. Punjab Consumer Protection http//pcpc.punjab.gov.pk/ Rules, 2009. South African Consumer Protection Act, 2008.

http//www.info.gov.za/viewDownloadfileAction/id=99961

U.K Consumer Protection Act, http//www.legislaiton.gov.uk/ukpga/19/8 1986 7/43

134

List of abbrivations.

135

ADIL ON CONSUMER LAWS

136

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

BCPA, 2003

Index Balochistan Consumer Protection Act, 2003.

CPA, 1986

[Indian]Consumer Protection Act, 1986

CPA, 1987

[United Kingdom] Consumer Protection Act, 1987

DDC

District Consumer Court, Punjab, Pakistan

ICPA, 1995

Islamabad Consumers Protection Act, 1995

K.Pk.CPA, 1997.

Khyber Pakhtunkhwa Consumers Protection Act, 1997.

LHC

Lahore High Court, Lahore, Punjab

PCPA, 2005

Punjab Consumer Protection Act, 2005

PCPR, 2009

Punjab Consumer Protection Rule, 2009

NCDRC

National Consumer Dispute Redressal Commission, Dehli, India.

PS&QCA, 1996.

Pakistan Standards and Quality Control Authority Act, 1996

SCI

Supreme Court of India.

SCP

Supreme Court of Pakistan.

U.N. 1985

United Nations Guidelines for Consumer Protection, 1985

§

Paragraph Section.

Cf.

Is used to refer to related but contrastable stuff.

Index Act................................................... Punjab Consumer Protection Act, 2005................................1 Alternative liability.......................59 Authority.......................................... King can do no wrong is not applicable in Pakistan..........61 Cases.............................................. Courier delivery.......................39 Sui Gas Connection................27 Cause of action...........................47 Duty and breach......................47 Facts giving right of action......47 Claim...........................................47 Commercial purpose...................23 Consumer....................................10 Consumer Interest.......................... Physical Safety..........................8 Consumer Protection Act................ benevolent pieces of legislation 5 enabling the consumer to participate directly..................2 object of the legislation..............4 Damages......................................... Escalation of price...................22 Special and General Damages. .............................................19 Date of manufacturing................34 Defence of the respondent.........46 Duty of disclosure.......................34 Economic interests.......................... Consumer interest.....................9 Ex visceribus actus......................... Statutory provisions has to be collected from within frou corners of the Act................15 false evidence.............................56 Guidelines....................................... United Nations Guidlines for Consumer Protection.............8 Guidelines for Consumer Protection.................................... 138

Physical safety; Economic interst; Standards for safety and quality; Distribution facilities; measures enabling consumers to obtain redress; Measures relating to specific areas......................................8 Harbinger....................................10 Inconvenience................................. An argument drawn from inconvenience is forcible in law.......................................13 informal procedures........................ expeditious, fair, inexpensive and accessible.....................46 intentional insult or interruption to public servant for sitting in judicial proceedings.................56 Interest............................................ Interest of the consumers........10 Judicial proceedings...................56 Jurisdiction...................................... mental and physical torture do not fall within the ambit of this court.....................................19 Service provided by Federation .............................................35 Supplemental jurisdiction........25 Legal notice..................................... 15 days notice.........................50 Liabilties......................................46 Liberal interpretation.....................3 Maqasid-e-Shariah........................1 means.........................................23 Medical negligence......................... Bolam test for determination of medical negligence..............37 Charge of professional negligence...........................35 Consent for the surgery...........37 Deficiency in medical service..35

Index Determination of negligence by a medical practitioner..........37 Doctor’s and nursing homes/hospitals need not be unduly worried.....................37 Loss of limbs or life can hardly be weighed in golden scales .............................................37 Res ipsa Loquitur....................36 Stages of treatment.................35 Negligence..................................56 Objectives....................................... for Guidelines...........................8 Offense............................................ Offense against the public health, safety, comfort and morals..................................60 Payment within period................58 Presumption against Intending what is Inconvenient or Unreasonable..........................13 Principles......................................... Guidlines...................................8 Procedure........................................ formal procedure.....................49

Informal...................................49 informal, expeditious, fair, inexpensive and accessible...of the needs of low-income consumers........46 Punishment..................................... Seven years imprisonment with fine.......................................56 Six month imprisonment with fine.......................................56 Quality............................................. conformity to a given requirement.........................33 Reference from Authority............41 Remedial liability.........................60 Right................................................ absolute right...........................45 Conditional right......................45 settlement........................................ at pretrial stage.......................53 common practice for settlement .............................................48 Statutory liability..........................60 Strict products liability.................30 transgressor................................50

139