F.A.O. No. 168 of 2013, heard on 8th June 2020.
Punjab Consumers Protection Act (II of 2005)—
—-Ss. 27, 25 & 33— Jurisdiction of Consumer Court— Filing of claims—Appellant Company impugned order of Consumer Court whereby complainant’s complaint against the appellant, a (Telecom Company), for not conducting “lucky prize draw” for various prizes as advertised by the appellant, was allowed—Contention of the appellant, inter alia, was that Consumer Court had no jurisdiction in the matter—Validity—Complainant had applied for a telephone connection pursuant to advertisement made by the appellant, which was duly installed and practically no loss was caused to complainant—Grievance that offer of awarding certain prizes announced in the said advertisement was not fulfilled was incompetent and did not attract the jurisdiction of Consumer Court—Impugned order was set aside—Appeal was allowed, in circumstances.
Muhammad Akram v. Ehsan Raqib and another Criminal Petitions Nos. 408, 409, and 429 of 2016 rel.
Muhammad Ashraf Mirza, Atif Mohtashim Khan, and Rana Muhammad Ashraf Khan for Appellant.
Nemo for Respondent.
Date of hearing: 8th June 2020.
JUDGMENT
CH. MUHAMMAD MASOOD JAHANGIR, J.—This appeal is directed against the order dated 19.02.2013 passed by the learned Consumer Court, Lahore whereby the appellant-Company was directed to fix a date for the Lucky Prize Draw of Rs.10,00,000/- as well as 1000 Cordless phone sets duly advertised in National Newspapers for providing opportunity to all the concerned including the respondent to participate in the said Draw proceedings to be conducted within two months, otherwise the appellant would be liable to pay fine of Rs.5,000/- for every successive day till holding of draw in a transparent way.
2. It is emphasized by learned counsel for the appellant that no loss or damage was caused to the respondent, who had simply applied for a telephone connection, which was duly installed without any extra charges and there is no complaint of any faulty or defective services, the jurisdiction of the learned Consumer Court was barred, whereas the respondent at the most could move the PTA, which has the exclusive jurisdiction to deal with the matters/disputes arising out between the appellant-company with its clients, but the learned Consumer Court while omitting to consider the said aspect passed the impugned order in a slipshod manner, which is illegal, against the facts and without jurisdiction is liable to be set aside.
3. None has turned up on behalf of the respondent-complainant despite repeated calls, whereas his name being counsel as well as other detail of the case is duly reflected in the cause list, hence he is proceeding against ex parte.
4. I have heard the learned counsel for the appellant and perused the record with his able assistance.
5. The pivotal question to be firstly resolved by this court is whether the Consumer Court possessed jurisdiction to take cognizance in the matter at hand. As per its preamble, the Punjab Consumer Protection Act, 2005 has been promulgated to provide for the protection and promotion of the rights and interests of the consumers, and the complaint before the learned Consumer Court is filed under section 25 thereof, which reads as follows:-
“25. 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.”
However, the procedure to be followed by the Consumer Court has been provided in section 30 of Act ibid, whereas powers vested to said Court are defined in given below next provision to the following effect:-
“31. Order of Consumer Court.—If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely:-
(a) to remove defects from the products in question;
(b) to replace the products with new products of similar description which shall be free from any defect;
(c) to return to the claimant the price or, as the case may be, the charges paid by the claimant;
(d) to do such other things as may be necessary for adequate and proper compliance with the requirements of this Act;
(e) to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant;
(f) to award damages where appropriate;
(g) to award actual costs including lawyers’ fees incurred on the legal proceedings;
(h) to recall the product from trade or commerce;
(i) to confiscate or destroy the defective product;
(j) to remedy the defect in such period as may be deemed fit; or
(k) to cease to provide the defective or faulty service until it achieves the required standard.”
A perusal of the above provisions shows that in order to invoke the jurisdiction by the Consumer Court, it must have satisfied that the products complained against suffered from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, then it could issue direction in an above-said manner. However, from the bare reading of the complaint filed by the respondent before the said Court, it is found that pursuant to some advertisement made by the appellant company in the newspaper, the respondent had applied for a telephone connection, which was duly installed and practically no loss was caused to him, whose simple grievance is that the offer of awarding certain prizes announced in the said advertisement was not fulfilled. This Court concurs with learned counsel for the appellant that the complaint made by the respondent to the Consumer Court was incompetent, which wrongly assumed the jurisdiction in the matter in hand, and at the most, the respondent could lodge/set up his claim before the PTA. The identical question stood already clinched by the apex Court in Crl. P. 408/2016, Crl. P. No. 409 of 2016 and Crl. P. 429 of 2016 titled Muhammad Akram v. Ehsan Raqib and another to the following effect:-
“During the course of hearing of this petition a consensus developed between the parties that the complaint filed before the Regular Consumer Court is without jurisdiction because under the Pakistan Telecommunication (Re-Organization) Act, 1996, particularly section 58, the consumer is required to file such a complaint before PTA because of the non-obstante clause, which has been given overriding effect over all other laws, therefore, the petitioner shall file a complaint under the provisions of Telecom Consumers Protection Regulations, 2009 before the PTA against the respondent in the manner prescribed therein, while the regular forum under the Protection of Consumer Act has no jurisdiction and this legal aspect conveniently escaped the notice of the High Court and in the impugned judgment unnecessarily academic discussions were made which were not required in the circumstances of the case, hence the impugned judgment is set aside. The counsel of the parties and the petitioner may file a complaint as stated above under the Special Law if so wished. Petition disposed of. The complaint pending before the trial court is also disposed of but that will not preclude the petitioner to file a fresh complaint under the special law as stated above before the PTA and also followed by this Court in an order dated 11.07.2018 passed in W.P. No.219920 of 2018, which is squarely applicable to the facts and circumstances involved herein.”
6. For the foregoing discussion, this appeal is allowed, the impugned order passed by the learned District Consumer Court, Lahore is set aside and the complaint filed by the respondent will be returned to him for its presentation before the competent forum.
KMZ/P-10/L Appeal allowed.