PLR 2025 Islamabad 2

Other citations: Original Judgment = PLD 2025 Islamabad 14

[Islamabad High Court]

Before Arbab Muhammad Tahir, J

Mohsin Abbas—Appellant

versus

Suzuki Motors Company Ltd and another—Respondents

Criminal Appeal No.280 of 2022 decided on 23^rd February, 2024.

HEADNOTES

Sajjad Haider Malik, Advocate for appellant.

Shahryar Tariq, Advocate and Muhammad Taimoor Khan, Advocate for respondents.

Date of hearing: 31^st January, 2024.

ORDER

Arbab Muhammad Tahir, J:—Through this appeal preferred under Section 10 of the Islamabad Consumer Protection Act, 1995, the appellant (“Mohsin Abbas”) has impugned order dated 21-06-2022 passed by the learned Judge Consumer Court/ Additional Sessions Judge-VII, Islamabad West, (“Impugned Order”) whereby the complaint filed by the appellant under section 8 of the Islamabad Consumer Protection Act, 1995 (“Act of 1995”), was dismissed.

FACTS OF THE CASE

2.           The brief facts leading to the filing of the present case are that the Appellant booked 3 Suzuki Ravi Pickups with Azim Motors (“Respondent No.2”), which is an authorized dealership of Suzuki Motors (“Respondent No.1”) and made a full payment of Rs. 29,97,000/- to Respondent No.2 which was acknowledged vide a duly signed and stamped receipt dated 01-12-2020. Pursuant to the contents of the booking receipt, respondents were duty bound to deliver the possession of vehicles to the Appellant on or before 01-02-2021. However, the respondents failed to do so despite various requests by the appellant. Consequently, the Appellant filed a complaint (Consumer Complaint No.57 of 2021 dated 13-03-2021) which was entrusted to the court of Additional Sessions Judge- VII, Islamabad West (“Authority under Islamabad Consumer Protection Act, 1995”) on 25-10- 2021. The court of Additional Sessions Judge- VII, Islamabad West (the “Consumer Court”) dismissed the said complaint vide order dated 21- 06-2022, which is impugned herein.

ARGUMENTS ADVANCED BY LEARNED COUNSELS

3.           The learned counsel for the appellant has contended that; non-delivery of the possession of the booked vehicles amounts to the unfair trade practice under the Act of 1995; the impugned order has been passed without recording the evidence; the order is a result of misapplication of law, misreading, non-reading and based on surmises and conjectures; the appellant paid the whole price in respect of the product of respondents; the respondents failed to deliver the said product within time; the respondents by receiving full amount and refusing to deliver the produce have committed unfair trade practice punishable under the Act of 1995.

4.           On the contrary, learned counsel for the respondents defended the impugned order and contended that the consumer court had no jurisdiction to entertain the matter because the appellant is not the “consumer” within the ambit of the Act of 1995; the booked vehicles are the “future goods” under Sale of Goods Act, 1930 (“SOGA”) thus civil suit was competent, hence complaint was rightly dismissed by the consumer court.

5.           Heard. Record perused.

OPINION OF THE COURT

6.           Perusal of the divergent contentions raised by the parties reveals that significant questions that call for determination in the present lis are as follows.-

i)     Whether the appellant is a “consumer” within the meaning of the Act of 1995, whether non-delivery of the agreed goods by a trader amounts to unfair trade practice according to Section 2 of the Act of 1995 and Whether the matter falls within the ambit of the Consumer Protection Act, of 1995?

ii)    Whether the classification of goods as “future goods under SOGA” by the consumer court was well-within the remit of law?

iii)   Whether sub section (3) of section 9 of the Act of 1995 is dependent upon sub section (1) of section 9 ibid?

7.           Consumer protection laws are enacted to safeguard the rights of consumers from exploitative, unscrupulous, and unfair trade practices. The doctrine of “caveat emptor”[1] has gradually been replaced by modern-age consumer protection laws, which burden vendors with certain responsibilities to ensure fair trade practices in the market. Before delving into these questions, it is imperative to examine the stipulations outlined in the Act of 1995, aimed at safeguarding the consumer interests, as articulated in its preamble reproduced below.-

“An Act to provide for promotion and protection of the interest of consumers”.

              The three pivotal terms used in the preamble of the Act of 1995 within this context carry distinct significance.-

a)    “Promotion” in its literal sense means “the act of elevating someone or something to a superior position or status.”

b)    “Protection” refers to “a legal or formal measure intended to uphold civil liberties and rights.”

c)    “Interest” is characterized as “the inclination to acquire knowledge or understanding about something or someone.”

8.           The legislature, in deploying specific terms in the preamble, explicitly conveyed that the primary individual whose rights and interests warrant safeguarding is “consumer” within the framework of the Act of 1995. This legislative measure is the inaugural law of its kind enacted by the Parliament. At present there is no universally agreed definition of the term “consumer” for legal purposes.[2] However, its definition has been attempted and debated at length by various jurists and consumer activists.[3] The United Nations Guidelines for Consumer Protection (UNGCP),[4] a set of principles first adopted by the UN General Assembly, sets out the main characteristics of effective consumer protection legislation, enforcement institutions, and redress systems, and recognizes eight basic consumer rights and responsibilities. The most important aspect of the Act of 1995 is the expressions “consumer” and “unfair trade practice”, defined in sub section (c) and (f) of Section 2 of the Act ibid which is reproduced as under:-

“2(c) Consumer means any person who: –

(i).   Buys goods for a consideration which has been paid or partly paid and partly promised to be paid or under any system of deferred payment or any system of deferred payment or hire purchase 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

(ii).  hires any goods or services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services.”

Section 2(f).-

(f)   “unfair trade practice” means a trade practice which, for the purpose of sale, use or supply of any goods or for 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 service in excess of the prices 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 on neon-sign or by distributing pamphlets or by publication in any manner, including through electronic media, by:-

i)     falsely representing the goods or, as the case may be, services are of a particular standard, quality, quantity, grade, composition, style or mode;

9.           As per Section 2(c), reproduced above, the consumer means any person who buys goods for a consideration paid or partpaid and part-promised to be paid. In the case at hand, the appellant has alleged that he purchased 3 Suzuki Ravi Pickups from Respondent No.2 which is the authorized dealership of Respondent No.1, and made a full payment of Rs. 29,97,000/- to Respondent No.2 which was acknowledged vide a duly signed and stamped receipt dated 01-12-2020. It is noted that such a transaction ordinarily completes in two stages (i) receipt of consideration and (ii) delivery of goods. The delivery of goods is a service, integral to the main transaction, which the manufacturer / his agent provide to its customers. Consumption of the delivered goods is a subsequent stage, which would attract the disqualifications mentioned in section 2 i.e. re-sale, use for commercial purpose. The expression “consumer” is being interpreted liberally worldwide. In India the expression “consumer” has been interpreted to include the disputes of members with housing societies[5]. The complainant being consumer of services falls within the meaning of “consumer” defined in section 2 of the Act of 1995.

10.         A straightforward interpretation of section 2(f)(i), reproduced above, suggests that if a trader falsely claims a specific standard for goods or services, it qualifies as unfair trade practices. While it is generally anticipated that traders will deliver purchased goods within an agreed-upon timeframe established through mutual understanding between the consumer and the trader, failure to do so implies that the trader’s services did not meet the agreed-upon standard. In the case at hand it is alleged that Respondent No.02 being an authorized dealership of Respondent No.01 (Suzuki Motors), despite being a multinational mobility manufacturer, fell short in meeting the expected standard of providing timely delivery services for its products. An ordinary consumer would reasonably anticipate that the delivery of service/goods would align with established standards. The failure on part of a manufacturer to ‘manufacture good’ after receipt of consideration and ‘failure to deliver’ manufactured goods within time are two different types of violations of the rights of consumers covered under the Act of 1995.

11.         Section 8(1) of the Act of 1995 provides “a complainant may in respect of any goods sold or delivered or any service provided or supplied or against any unfair trade practice file a complaint with the authority”. Bare perusal of section 8(1), shows that a consumer complaint can be lodged concerning any goods sold or delivered. The timeframe for delivery has not been restricted to the period immediately after purchase. Therefore, it can be deduced that the delivery of goods may occur at any time subsequent to purchase. If goods are not delivered within the expected timeframe, consumers have the right to file a complaint. The settled principle of statutory interpretation is that while interpreting a statute, it has to be borne in mind that any interpretation of the provisions of a law should not be repugnant to its context, rather, serve the purpose sought to be achieved by such statute. A construction which would defeat or likely to defeat the purpose for which the law has been enacted has to be ignored and not accepted.[6]

12.         In the present case, the learned consumer court dismissed the complaint, primarily on the grounds that the booked vehicles constituted “future goods” within the meaning of Sale of Goods Act, 1930 (SOGA), thus, learned court deemed that a civil suit was maintainable instead of the consumer complaint. For drawing such conclusion, the learned court interpreted the expressions “goods”, “buyer” and “future goods” in light of the definitions provided in SOGA. The learned Consumer Court borrowed the meanings of the terms “goods”, “buyer” and “future goods” from SOGA and concluded that a case under the Act of 1995 is competent only in case of immediate delivery of goods and its consumption. This conclusion of the Consumer Court is not legally sustainable as, firstly it is a settled rule of interpretation that the definition clause of a particular statute should be used only for the purposes of that Act, and a definition from any other statute cannot be borrowed.[7] The rationale behind this rule is that a term or expression defined under a particular statute has its scope or limits within that particular statute. The intention of Parliament in enacting the SOGA is entirely different from that of the Act of 1995. Contrary to the provision of SOGA, the Act of 1995 provides two-way protection to the consumer i.e. (i) by way of convicting a person playing unfair trade practice with the consumer on criminal side and (ii) by granting compensation to the consumer. Consumers’ right to claim special or any other kind of damages under general law is otherwise protected notwithstanding the claim under the Act of 1995, therefore, the consumer can file a separate claim/suit in the Court of ordinary jurisdiction for his relief in addition of the remedies under the Act of 1995.

13. The Act of 1995 was enacted to promote and protect the interests of the consumers and was passed to protect society and individuals from exploitation. Therefore, such like enactments must be given purposive interpretation keeping in view the basic intent of the statute and without transgressing its objects and scope. The Act of 1995 facilitates the consumers to approach the forums by providing hybrid procedure and remedies. It is meant to encourage consumerism in the country. Any technical approach in construing the provisions against the consumer’s interest would go against the very objective behind this enactment. Reliance can also be placed on the recent decision of Indian Supreme Court in National Insurance Co. Ltd. v. Harsolia Motors[8], wherein it was held that;

“21. The Consumer Protection Act, 1986 is a social benefit-oriented legislation and, therefore, the Court has to adopt a constructive liberal approach while construing the provisions of the Act. To begin with the Preamble of the Act, 1986 which can afford useful assistance to ascertain the legislative intention, it was enacted to provide for the protection of the interests of consumers. Use of the word “protection” furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled law that a Preamble cannot control otherwise plain meaning of a provision.

22. In fact, the law meets long felt necessity of protecting the common man from such wrong for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interests of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively and inefficiently for reasons which are not necessary to be stated.

23. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. A scrutiny of various definitions such as “consumer”, “service”, “trader”, “unfair trade practice” indicates that legislature has attempted to widen the ambit and reach of the Act. Each of these definitions are in two parts, one explanatory and the other inclusive. The explanatory or the main part itself uses expressions of amplitude indicating clearly its wide sweep within its ambit to widen such things which otherwise would have been beyond its natural import.

24. The provisions of the Act, 1986 thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit-oriented legislation. The primary duty of the Court/Commission while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to attempted objective of the enactment.”

14.         The prosperity of consumers is the primary responsibility of any government.[9] A consumer is the center of economic activities and in the development of the market, his role is valued.[10] The present era is called the era of the consumer. No state can ignore the interest of consumers.[11] In a free market economy, consumers are the king but this concept is now a myth.[12] Consumers are now victims of villainous and exploitative practices and they are exploited in the form of poor quality, deficient services, hazardous products, hoarding, high prices, black marketing etc.[13] The dealers and manufacturers because of their profit motive exploit consumers through dishonest and corrupt market practices. In Pakistan, the area of consumer protection has remained neglected so far and, in this line, no significant effort has been made. Consumers in Pakistan are a depressed sect of society.[14] This is the reason, that Act of 1995 was promulgated to alleviate hardships of consumers; therefore, it should be given purposive interpretation.

15.         Two rival parties exist in a market, they are dependent on one another but their interests are conflicting. One side includes all kinds of trader and the other side is the consumer. Markets are dominated by traders. The Act of 1995 has been enacted with the aim to provide protection and promotion of the rights and interest of the consumers. This law has, therefore, to be interpreted liberally and enforced to discourage unfair trade practice and to protect rights of the consumers.

16.         Sub section (1) of section 9 provides that where any right of consumer required to be protected under section 5 of the Act of 1995 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 forty thousand rupees, or with both. Sub section (3) of section 9 provides that the Authority (the Court of Sessions) may, where it deems appropriate, order for payment of compensation to the consumer to the extent the consumer has suffered any damage or loss through any unfair trade practice. Without prejudice to sub sections (2) and (4), the function of the Authority is two-fold, (i) to determine criminal liability and (ii) determination of the value of compensation. Both the determination can be made together, but are not dependent upon one another. Unlike section 544A Cr.P.C., the award of compensation has not been made conditional to award of conviction by the legislature. Section 544A Cr.P.C. opens with the words “whenever a person is convicted of an offence”, contrary to sub section (3) of section 9 of the Act of 1995 where the Authority is empowered to award compensation keeping in view the extent to which a consumer suffers damage or loss through any unfair trade practice. The court below has confused the scheme of two distinct provisions of different statutes and the manner in which a court has to proceed while dealing with cases thereunder. For the purposes of determining the value of compensation under the Act of 1995 the Authority has to frame separate issue and accept evidence in support thereof, so as to achieve the purpose for which the Act of 1995 was enacted. Unless two or more provisions of one statute are in conflict with one another or violative of the constitutional provisions, the tool of interpretation i.e. “reading down” cannot be applied as its primary function is to bring in harmony different provisions of one statute. It is settled law that redundancy cannot be attributed to the legislature. Each provisions of the Act of 1995 carries meaning and enacted for the purpose of achieving its object. Unless a statute itself provides an exception, deviation from the provisions of a statute is unlawful. It is, therefore, held that all sub-sections of section 9 of the Act of 1995 are independent of each other and not conditional to conviction of a respondent in the consumer complaint. The findings of the Consumer Court to this extent are, therefore, not justified in law and are contrary to the provisions of the Act of 1995.

17.         The divergent claims of the parties available on record contain substantial disputed questions of facts and law, which could have been resolved after recording evidence of the parties. The Consumer Court should have refrained from knocking out the complainant on erroneous interpretations of the expressions contained in the Act of 1995. As held above, in the case in hand, prima facie, at this stage the appellant falls within the meaning of ‘consumer of service’ to the extent of delivery of vehicles. This is, however, subject to proof on the basis of evidence before trial court that goods/vehicles were booked/purchased after full and final payment of consideration.

18.         For what has been discussed above, this Court holds that the impugned order, dated 21.06.2022, is not legally sustainable. Consequently, instant appeal stands allowed. The impugned order is hereby set-aside by remanding the matter back to the consumer court to decide the same afresh in accordance with the law after recording evidence of the parties.

Appeal allowed