P L D 2023 Lahore 516 (PLP)

MUHAMMAD SAJID MEHMOOD SETHI, J.

Through instant appeal, vires of order dated 17.10.2017, passed by learned Presiding Officer, District Consumer Court, Bahawalpur, have been assailed, whereby respondent No.1's claim under Section 25 of the Punjab Consumer Protection Act, 2005 ("the Act of 2005"), was partly accepted.

2. Brief facts of the case are that respondent No.1 filed claim against appellant and respondent No.2, with the contention that appellant sold a motor vehicle Model 2012 Code Hilux D/C U/S AT White Colour, Engine No.2KDU018295, Chassis No.KUN25R09600977 against receipt of full consideration amount Rs.33,18,000/- subject to warranty cover of 24 months or 50,000 k.m., whichever is earlier to replace any defective part. However, before the expiry of warranty period, when the vehicle had yet run only 47,351 k.m. as confirmed by the respondents themselves vide check sheet dated 11.02.2014 during the routine check-up, the level of the engine oil was noted less than the required level. The matter was reported to respondent No.2 and as per report of its technical engineers, a defect of "Blow by Gases" occurred in the engine caused by improper maintenance and usage of non-genuine parts especially oil filter and air element. Learned District Consumer Court, after recording evidence and hearing arguments from both sides, proceeded to partly allow the claim vide order dated 17.10.2017 with the direction to appellant to replace the defective engine and pay damages of Rs.2,00,000/-.

3. Learned counsel for appellant submits that learned Consumer Court failed to recognize the terms and conditions of warranty. He adds that respondent No.1 was bound to maintain his vehicle from appellant's recognized dealer, however, he has been visiting a third party for this purpose and using non-genuine parts thereby making the warranty for engine to be null and void. He adds that the matter was technical in nature and in order to appreciate the defect in the engine, expert evidence should have been invited, but this aspect of the matter has been ignored by learned Consumer Court. He further submits that respondent No.1's claim is time barred keeping in view the provisions of Section 28(4) of the Act of 2005, according to which, such claim ought to have been filed within a period of 30-days from the date of arising of cause of action, however, in this case, as per respondent No.1's own version, cause of action accrued on 11.03.2014, whereas the claim was filed on 26.04.2014 without furnishing any sufficient cause for the delay involved and even no application for condonation of delay was filed. In the end, he submits that impugned order is unsustainable in the eye of law. In support of his submissions, he has relied upon Administrator Municipal Corporation, Peshawar v. Taimoor Hussain Amin and others (PLD 2020 Supreme Court 249), Messrs Dawlance United Refrigeration Industries Pvt. Ltd. through Branch Coordinator v. Muhammad Jameel (2012 CLD 1461), Muhammad Aslam v. General Manager Pioneer Pakistan Seed Limited, Lahore and 4 others (2014 CLC 154), COCA-COLA Beverages Pakistan Limited v. Ashiq Ali (PLD 2014 Lahore 196), Askari Bank Ltd. and others v. Irfan Ahmed Niazi and others (2016 CLD 383), Al-Ghazi Tractor Limited through Manager and 2 others v. Peer Muhammad Ali (2019 CLC 580) and Muhammad Ameen v. Muhammad Sarwar (2019 CLC Note 1).

4. Conversely, learned counsel for respondent No.1 defends the impugned order by submitting that learned counsel for appellant has failed to point out any illegality or legal infirmity in the impugned order, thus, same is liable to be upheld. In support, he has referred to Ch. Iftikhar Ahmed, I.-G., Islamabad and others v. The State (2018 SCMR 1385).

5. Arguments heard. Available record perused.

6. The prime contention of appellant-company is that the quality of engine had been compromised on account of improper periodic maintenance and use of non-branded and sub-standard lubricants/filters. In rebuttal, respondent No.1 tendered certain receipts Exh.P6 to Exh.P10, which show that engine oil and filters of Total Company were used after regular intervals. It is also the stance of appellant that necessary maintenance of the vehicle was not carried out by its authorized dealer. This Court has gone through the contents of the Warranty Booklet, which did not impose such burden upon respondent No.1 rather talks about free maintenance service and customer has been advised to follow the instructions regarding maintenance contained in Toyota Owner's Manual for efficient working of the vehicle.

7. Furthermore, "Engine" falls within the items which are covered by the warranty and while explaining basic coverage period, it is mentioned in the Warranty Booklet that the company would either repair or replace any part which is defective in material or workmanship under normal use for a period of 24 months or 50,000 k.m., whichever comes first. In the instant case, the vehicle in question had run 47,351 k.m., which is also evident from the check sheet dated 11.03.2014, issued by respondent No.2 and this fact has not been disputed by the appellant. Undeniably, the vehicle was also within warranty period when the defect was communicated to appellant. So far as appellant's objection that learned Consumer Court was obliged to invite expert evidence to establish the condition of engine, suffice it to say that appellant had not denied malfunctioning of the engine and only stance is that the defect occurred due to negligence of respondent No.1. In this scenario, there was no justification with learned Consumer Court to call for any expert evidence. Thus, this objection is not tenable. Learned Court below has rightly appreciated the facts/record and available evidence and rightly came to the conclusion that appellant was bound to replace the defective engine of the vehicle with new one without any charges.

8. As regards the claim of damages, respondent No.1 was under heavy duty to substantiate financial loss, mental torture / agony at the hands of appellant-company through independent and reliable evidence, which he has failed to produce. Admittedly, respondent No.1 has not suffered any damage from the vehicle, rather the defect was observed during a routine check-up. Therefore, learned Consumer Court was not justified to award damages without referring specific evidence in this regard and in view of restriction contained in Section 10 of the Act of 2005, which states that 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.

9. As far as objection regarding the complaint being time-barred is concerned, it is the stance of appellant that cause of action accrued on 11.03.2014, when the matter was reported to respondent No.2 for the first time, however, complaint was filed on 26.04.2014 after 16 days beyond the expiry of mandatory period of 30 days provided in Section 28(4) of the Act of 2005. The issue regarding accrual of cause of action with reference to Section 28 ibid has already been dilated upon by this Court in M/s. Deltex Courier Service v. Sajid Imran Gill and others (2019 CLC 1041), relevant part whereof is as under:- "

7. According to my understanding of law, the accrual of cause of action cannot be restricted to the date when some wrong is done with the complainant/consumer or it comes in his knowledge. As a matter of fact cause of action only arises when the grievance of the consumer is put before seller/service provider or the manufacturer (as the case may be) and there is a refusal from their side to redress the grievance of the consumer. . Bare reading of the above provision of law makes it abundantly clear that no time is fixed by the legislature to serve a notice, in writing, upon the manufacturer/service provider and when a notice is served upon him, the service provider/manufacturer may redress the grievance of the consumer. If the grievance is redressed, no cause of action arises but if not so then written reply of the notices is to be given within 15-days of the receipt of notice. If the contention of the appellant that cause of action arose when the consignment sent by the respondent did not reach the destination and the respondent received the said information, then the Subsections (2) and (3) of Section 28 of the Act, referred hereinabove, will become redundant for all practical purposes. It depicts that the respondent issued notice on 22.11.2007 which was to be replied within fifteen days from its receipt. Therefore, the terminus a quo for counting the time limitation was the date when the time of fifteen days expired after receiving legal notice. The appellant in his cross-examination admitted that he received the notice but he did not reply. If the date of receiving the notice is considered as 22.11.2007 which in fact was the date of sending of the notice, then the period of 15-days expired on 07.12.2007 which will be the date for arising of the cause of action. Therefore, the complaint filed on 15.12.2007 was within the time limitation of 30 days provided by Subsection (4) of Section 28 of the Act." In the instant case, notices in terms of Section 28(1) of the Act of 2005 were issued to the appellant as well as respondent No.2 on 28.03.2014, which fact is evident from Exh.P4 and Exh.P5 as well as Exh.P

11. Reply to the above notice was filed by appellant on 12.04.2014 thereby denying the claim of respondent No.1. Therefore, cause of action in this case in the light of Sajid Imran Gill's case supra accrued on 12.04.2014, thus, complaint having been filed on 26.04.2014 was well within time prescribed in Section 28(4) of the Act of 2005.

10. In view of the above discussion, instant appeal is partly allowed in the manner that appellant shall replace the defective engine of the vehicle in question with new one without any charges, within a period of thirty days. However, claim of respondent No.1 to the extent of damages is declined. The impugned order stands modified accordingly. MQ/I-12/L Appeal partly allowed.