2015 PLP 1538 (CLC)

MIRZA VIQAS RAUF, J.

The appellant through instant appeal has assailed the order dated 25-4-2009 passed by the learned Presiding Officer/District and Sessions Judge, District Consumer Court, Faisalabad whereby the claim filed by respondent No.1 was accepted in the following manner:

"

13. For what have been discussed above, I hereby accept the claim and make the following order:

1. The contesting defendant No.1 shall now return the total amount deposited to him by the claimant through the National Bank of Pakistan Faisalabad;

2. The claimant shall return the defective product to the contesting defendant through the National Bank of Pakistan Faisalabad on receipt of the cheque of the amount above referred from him;

3. The contesting defendant shall also pay an amount of Rs.20000 as damages due to loss of utility of the product during the period it was kept by him;

4. The contesting defendant shall also pay an amount Rs.10000 to the claimant as legal expenses as incurred by him during litigation.

14. The order shall be complied within a period of 30 days otherwise the matter shall be dealt under section 32(2) of the Punjab Consumer Protection Act, 2005."

2. Precisely, the facts necessary for adjudication of instant appeal are that respondent No.1 filed a claim in terms of section 25 of The Punjab Consumer Protection Act, 2005 before the learned District Consumer Court, Faisalabad wherein the appellant and respondent No.2 were arrayed as respondents. In his complaint, the respondent No.1 claimed replacement of rickshaw and refund of sale price of Rs.1,90,

398. In addition to the same compensation amounting to Rs.50,000 and Rs.8665 as expenses incurred on the repair of rickshaw were also claimed.

3. The appellant as well as respondent No.2 resisted the complaint filed by respondent No.1. They submitted separate replies to the same wherein the assertions contained in the complaint were controverted and certain preliminary objections were also raised with regard to the maintainability of the complaint.

4. On receipt of pleadings from both the sides, the learned Consumer Court directed the parties to adduce their evidence. In this regard, respondent No.1 got recorded his statement as PW.2 while tendering his affidavit as Exhibit-PW2/1. Muhammad Saleem Motor Vehicle Examiner was produced as PW.1. On the other hand, the appellant examined Liaqat Ali, Proprietor, Liaqat Qingqi Centre, Faisalabad as DW.1, Muhammad Munir Qasim as DW.2 and Abdul Moeed Incharge Service Department Plum Qungqi as DW.3. All these witnesses also tendered their affidavits as Exhibit-DW1/1, Exhibit-DW2/1 and Exhibit-DW3/1, respectively. In addition to the oral evidence the appellant also produced certain documents as Exhibit-R1 to Exhibit-R11 and Mark-A to Mark-D as documentary evidence. After completion of evidence from both the sides, the learned District Consumer Court, Faisalabad accepted the claim of respondent No.1 vide order dated 25-4-2009 on the terms as already described in the preceding paragraph No.1 of the instant judgment.

5. Learned counsel for the appellant at the very outset submitted that the claim filed by respondent No.1 was badly barred by time. He maintained that the question of limitation has not been properly dealt with by the learned Consumer Court. He added that the matter in issue could not be resolved without involvement of an expert. Learned counsel contended that the impugned order is mainly influenced by the recommendations of District Nazim which were not a legal evidence. Learned counsel argued that respondent No.1 has failed to lead any cogent evidence in support of his claim whereas on the contrary, overwhelming evidence was led by the appellants which has been completely misread by the learned Consumer Court. Learned counsel contended that oral assertions cannot negate the documentary evidence. In support of his contentions learned counsel has relied upon the cases of "Muhammad Aslam v. General Manager Pioneer Pakistan Seed Limited, Lahore and 4 others" (2014 CLC 154), Messrs Dawlance United Refrigeration Industries (Pvt.) Ltd. through Branch Coordinator v. Muhammad Jameel" (2012 CLD 1461), Coca-Cola Beverages Pakistan Limited v. Ashiq Ali" (PLD 2014 Lahore 196), "Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs" (PLD 1994 Karachi 106), "Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin" (1998 SCMR 753) and "Munawar Hussain and 2 others v. Amanat Ali and 6 others" (PLD 2007 Lahore 83).

6. Conversely, learned counsel for respondent No.1 submitted that the claim was filed well within time and the learned Consumer Court has rightly held the same within the prescribed period of limitation. He added that on the complaint of rickshaw owners, the District Nazim constituted a committee who after thorough inquiry and probe submitted a report. Learned counsel contended that claim of respondent No.1 was justified in all respects as the appellant's product was defective right from its inception. Learned counsel argued that the claim of respondent No.1 has rightly been acceded to by the learned Consumer Court and there is no misreading or non-reading of evidence. Learned counsel for respondent No.2-Bank submitted that the Bank is a pro forma party in the appeal and there is no serious contest on their behalf.

7. I have heard the arguments of the learned counsel for the parties and perused the record with their assistance.

8. It is an admitted fact that respondent No.1 obtained rickshaw on 27-10-2006 through National Bank of Pakistan for Rs.1,90,398 under the scheme launched as "President Self Rozgar Scheme". As per terms and conditions of lease, respondent No.1 was to pay the amount in installments to the Bank. He however paid only seven installments in this regard. It is also admitted fact that warranty period was fixed as six months or six thousand kilometer whichever is earlier. The said period was to expire on 27-4-2007. Respondent No.1 filed his claim before the learned Consumer Court on 11-2-2008. Section 28(4) of The Punjab Consumer Protection Act, 2005 provides the limitation for filing a claim under the said Act. The same is reproduced below:

"28 Settlement of Claims.

(1) . (2) . (3) . (4) A claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action: Provided that the Consumer Court, having jurisdiction to hear the claim, may allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period: Provided further that such extension shall not be allowed beyond a period of sixty days from the expiry of the warranty or guarantee period specific by the manufacturer or service provider and if no period is specified one year from the date of purchase of the products or providing of services." It is manifestly clear from above quoted provision that as a general rule, 30-days are provided for filing a claim before the learned Consumer Court from the date of cause of action. However by virtue of proviso, the learned Consumer Court is vested with the authority to adjudicate the claim by relaxing the time period of 30-days, if sufficient cause is shown for filing the claim beyond the specified period but second proviso to the section places an embargo that in case of presence of warranty or guarantee the said period shall not exceed 60-days from the expiry of the warranty and guarantee period specified by the manufacturer or service provider and in case no period is specified then the claim can be brought within one year from the date of purchase of the product or providing of services. In this case the warranty period was specified which was six months and the same expired on 27-4-2007 so at the most the period of limitation can be extended upto 60-days as envisaged in proviso to section 28(4) of Act ibid. The complaint was filed on 11-2-2008 which was clearly beyond the prescribed period of limitation. Respondent No.1 did not show any sufficient cause for such delay and even no application was filed for seeking condonation of the same thus the claim of respondent No.1 was clearly barred by time and the learned Consumer Court has illegally held otherwise. Reliance in this respect can be placed on the cases of "Muhammad Aslam v. General Manager Pioneer Pakistan Seed Limited, Lahore and 4 others" (2014 CLC 154), "Messrs Dawlance United Refrigeration Industries (Pvt.) Ltd. through Branch Coordinator v. Muhammad Jameel" (2012 CLD 1461) and Coca-Cola Beverages Pakistan Limited v. Ashiq Ali" (PLD 2014 Lahore 196).

9. While adverting to the merits of the case, it is observed that respondent No.1 examined Muhammad Saleem Motor Vehicle Examiner as PW.1. Though he was produced as an expert but his evidence is in generalized form which is not of much help to the case of respondent No.1. The respondent No.1 himself appeared as PW.2. In his statement, respondent No.1 admitted that he had paid only about eight installments to the Bank. Though he stated that he visited Liaqat Autos for changing of oil after 400/500-kilometer running of the rickshaw but when Liaqat Ali appeared as DW.1, he negated this fact and stated that the respondent No.1 for the first time visited his center on 28-11-2006 and at that time the meter was showing 4420-kilometer running. Even in his cross-examination this aspect was affirmed and a suggestion to the following effect was also given to him which is contrary to respondent No.1's own stance:

10. As per Warranty Claim Report which was tendered as Exhibit-R7, respondent No.1 brought the rickshaw to the service center on 4-12-2006 and at that time the meter was showing reading as 4581-kilometer. Respondent No.1 in order to bring his claim within the four-corners of provisions of The Punjab Consumer Protection Act, 2005 has to establish liability of the manufacture in terms of section 4 of the Act by establishing the form of defect, enumerated in sections 5, 6, 7 and 8 of The Punjab Consumer Protection Act, 2005. No evidence was led in this regard. Liability of manufacture can only be determined if once the defect is established in terms of sections 5, 6, 7 and 8 of the Act ibid. The appellant was granted license for the product "Three Wheeler Auto Vehicle, 150CC, 4-Stroke 'Qingqi Auto Cab' Brand" for a period starting from 1-8-2006 to 31-7-2008 by the Pakistan Standards and Quality Control Authority, Standards Development Centre on 22-10-2007 which is evident from Exhibit-R

4. The said permission was further extended on 16-1-2007 upto 31-10-2008 and Provisional Certificate was also issued by the Engineering Development Board (EDB) verifying In-House Assembling/Manufacturing Facilities of the appellant on 6-11-2007. The defects complained by respondent No.1 could not be said to have been caused due to the defective design or due to default from the specification provided for the said purpose. The defects alleged by respondent No.1 are of the nature which can occur due to negligence and rough use. The complainant/respondent No.1 could not lead any cogent and reliable evidence from which it could be inferred that auto rickshaw contained the manufacturing defects which resulted into damage to him. Apparently, the claim seems to be motivated to avoid the remaining installments which are to be paid by respondent No.1 in terms of agreement. This Court while dealing with a similar proposition in the case of "Muhammad Azam v. National Bank of Pakistan and others" (2013 CLD 228) held as under:

"Grievance of the present appellant does not attract any of the afore said provisions of law making the manufacturer liable for damages. Non-availability of air filter cannot be termed as manufacturing defect. An air filter is a replaceable part in an engine and has a specified life span. It has to be replaced after exhausting its life expectancy. Similarly, a "solenoid" which is used for producing a magnetic field when an electric current is passed through it, and is generally used to operate a switch, relay, circuit breaker etc., is also a part which may become defective through rough or improper use has a definite life span and can be replaced to use the equipment or machine, being auto rickshaw here, to its full utility, as such, these are not such defects to be said to cause any effect to the basic design or material deviation from the manufacturer's own specification and this fact has also been admitted, by C.W.1 during his cross-examination on which the learned consumer court has relied.

8. Another aspect on the basis of which learned Consumer Court dismissed the complaint is that the appellant did not get the disputed auto rickshaw inspected by the Motor Vehicle Examiner or some other expert of similar qualification to support, his allegation regarding inherent mechanical defect rather he adopted irresponsible attitude by leaving the auto rickshaw at the show room of respondent No.4 without obtaining any receipt or acknowledgement thereof. Moreover, there is no evidence of motor mechanic or an independent person supporting the allegation of mal-functioning of the auto rickshaw. This aspect of the matter shows to this Court that the appellant after having apparently made an ill-informed choice of the auto rickshaw wanted to get rid of it and has tried to use the Consumer Protection Act, 2005 as a tool to obtain back the money invested by him and wriggle out of his contractual relationship with respondent No.1 for the loan that has been extended on his behalf to respondent No.3 manufacturer of the auto rickshaw. It is to be noted that the Consumer Protection Act, 2005 is not to be invoked where a consumer makes a wrong or an ill-advised choice of purchasing of a product or service which he may not like later or may not meet his aesthetic requirement and which is otherwise non-defective, is properly designed and has no inherent mechanical defect in it. Unfortunately, the provision for award of damages of frivolous or vexatious complaints is quite minimal (section 35) in the law, therefore, in order to check the increase of frivolous litigation abusing the provisions of the Consumer Protection Act, 2005 the Government of Punjab is well advised to amend section 35 appropriately."

11. The respondent No.1 was bound to lead overwhelming evidence in order to prove his claim, as in terms of Article 117 of The Qanun-e-Shahadat Order, 1984, the onus of proof was upon him but no cogent evidence was led and respondent No.1 merely based his claim on oral assertions. It is well settled principle of law by now that oral assertions cannot negate the documentary evidence. Reliance in this respect can be placed on the cases of "Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin"(1988 SCMR 753), "Mirza Muhammad Qasim Baig and another v. Government of Sindh through Secretary, Ministry of Local Self-Government and 2 others" (2000 YLR 1669) and "Munawar Hussain and 2 others v. Amanat Ali and 6 others" (PLD 2007 Lahore 83).

12. On the contrary, the appellant not only produced material oral evidence but the same was substantiated with the documentary evidence. After going through the material available on the record in the form of oral as well as documentary evidence of both the sides, it is held that respondent No.1 has failed to bring his claim within the four-corners of section 4 of The Punjab Consumer Protection Act, 2005. The learned Consumer Court, while allowing the claim of respondent No.1 seems to be influenced with the recommendations of the District Nazim which were never made part of the record as is evident from the impugned order thus relying on said recommendations is an illegality. 13 For what has been discussed above, the instant appeal is allowed and the order dated 25-4-2009 is set aside with no order as to costs. SL/P-31/L Appeal allowed.