﷽
When sale is held, say—there’s no
cheating.
1(Holy Prophet
ﷺ
)
Adil
on
Consumer Laws
byZEESHAN 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.
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
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
∗ Chief Justice of Pakistan (1968-1960).
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
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.
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
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 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 CONSTITUTIONAL ARTICLES Article 227...xxi Article 2-A...xxi Article 37(d)...101 STATUTES 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
Pakistan Standards and Quality Control Authority Act, 1996.
Sec. 2(h)...63
Pakistan Standards and Quality Control Authority Act, 1996. Sec. 2(o)...63
Pakistan Standards and Quality Control Authority Act, 1996. Sec. 2(t)...111
Pakistan Standards and Quality Control Authority Act,1996. Sec. 2(i)...85
Punjab Healthcare Act, 2010 Sec. 19...67
South African Consumer Protection Act,2008. Sec. 116 (1)...91
U.K Consumer Protection Act, 1986...91 RULES 11 of the PCPR, 2009...90 18 of the PCPR,2009...124 19 and 22 of the PCPR, 2009....90 19 of the PCPR, 2009...89 21 of the PCPR, 2009...89 22 of the PCPR, 2009...89 23 of the PCPR, 2009...89 25 of the PCPR, 2009...116 3 of the PCPR, 2009...87 30 of the PCPR, 2009...110 4 , 5 and 6 of the PCPR,2009....87 SUPREME COURT OF PAKISTAN (Abdul v. Tawseen) 31, 32, 34, 35, LAHORE HIGH COURT (Allama v. Irfan)...26 (Chairman v. M. Arshad)...120 (Dr. Shamshad v. DCC)...2 (M. Javed v. Abdul)...27 (M/s Dawlance v. M. Jameel).106, 107, 108, 113 (Messrs Sui v. Abdul)...48
(Sayyed v. District Judge)...12
(Zia v. Nadeem)...27 DISTRICT CONSUMER COURT (Abdul v. G.M SNGPL)...48 (Abdul v. Rizwan)...49, 119 (Abdush v. EFU)...50 (AlHaj v. G.M SNGPL)...48 (Amjad v. Dr. Asma)...67 (Authority v. English)...65 (Authority v. King's)...65 (Authority v. Sarfraz)...88 (Ch. Jawad v. Proprietor)...86 (Ch. Rafique v. Soldier)...84
(DCO v. Allah Wasaya)...88
(DCO v. Khalid)...127
(DDO v. Shoukat)...88
(Dr. Abrar v. TMO)...118
(Dr. M. Mohsin v. MD WASA). .106 (Fakhar v. Limit College)....39, 127 (Farzana v. Ch. Adnan)...30, 84 (Ghulam v. M/S Naeem)...87 (Ghulam v. Nighahat)...108, 109 (Haji v. Chief)...51 (Haji v. Controller)...49 (Khalid v. Naseer)...127
(M. Arshad v. Ch. Saeed)...107
(M. Arshad v. The Manager)....94,
114 (M. Aslam v. Chief)...107 (M. Hussain v. M/s Mobin)...53 (M. Khalid v. Raza)...30 (M. Shahbaz v. M/S Jonny)65, 82, 95 (M. Tariq v. Qazi)...49 (M.S B.H v. M.S Leopard). .49, 82, 83, 108, 119 (Malik v. DHA)...36, 119 (Malik v. Rashid)...105 (Manzoor v. Haji)...104
(Miss Rabia v. M/S Suneri Bank) ...106, 107 (Mst. Mumtaz v. Dr. Mehboob).63, 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 (Sayyed v. Taufeeq)...119 (Shah v. Proprietor)....81, 84, 114, 119 (Shahid v. Executive 2008)...46, 106, 124, 128 (Shiraz v M/S Haier)...105 (Zahid v. M/s Cakes )...118 SUPREME COURT OF INDIA (CCI v. Development )...7
(Common Cause v. Union of India) ...93
(Fair v. N.K Modi)...47
(Indian Medical v. V.P. Shantha)5, 44, 79 (Indian Photographic v. H.D Shourie)...3
(Jacob v. State of Punjab)....67, 69 (Laxmi v. P.S.G)...24 (Lucknow v. M.K)...2, 120, 128 (Martin v. M. Ishfaq)...71, 72 (Satpal v. Surindra)...47 (Spring v. Harjol)...3 (State v. Vishwabarathi)...4, 121 (The Secretary v. M. Lalitha)..4, 5, 47 (Union of India & Ors. v. A.K)...101
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION (Canara v. Shri Binay)...2
(D.H Kumari v. The Director)...75
(Deep v. Manmeet)...71
(Deepak v. The Oriengal ). .passim (Deputy v. Ruchika)...40
(Mr. Sanjay v. Miss Sonal)...72, 73 (Mrs. Shantaben v. Breach)...80
(Nand v. Kamal)...72
(Pravat v. Ruby)...2
(Shri Anupan v. Sibsankar)...114
(Shri Mehrnosh v. Venkatrama). 72 (Smt. Narangiben v. Gujrat)...69
(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
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
‘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]
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 ﷺ as 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).
6 “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.
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 ﷺ said: 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 ﷺ classed 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 9 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.”
Whoever monopolises is a sinner.—Muslim 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 ﷺ as “law giver”25.—Justice Shaikh Abdul Hameed
said “He ﷺ legislated 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”.
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 ﷺ gives 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.
25 “The Prophet ﷺ was a great teacher. He was a great law-giver”. Quaid-e-Azam ﷺ
[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
Maqasid-e-Shariah. These objectives are in fact guarantees for the betterment of
humanity. The five basic principles or the five values/five
Maqasid-e-Shariah 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.
ا یایھ سانلا اولک امم یف ضرضلا للح
ابیط O mankind! Eat of that which is lawful and good on the earth [Ayat 168 Surah 2]. مکنقزرض امتبیطنم اولکاونما نیذلاا یایھ O you who believe! Eat of the lawful things that We have provided with. [Ayat 172 Surah 2]. ابیط للح ہللامکقزرضامم اولکو
ADIL ON CONSUMER LAWS
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
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 32 (The Secretary v. M. Lalitha) SCI
ADIL ON CONSUMER LAWS
required to be interpreted as broadly as possible.34 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
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 38 (Charan v. Healing) SCI
ADIL ON CONSUMER LAWS
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
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
ADIL ON CONSUMER LAWS
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
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,
ADIL ON CONSUMER LAWS
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 sub-standard 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
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,]
ADIL ON CONSUMER LAWS
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
[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 recital49
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
ADIL ON CONSUMER LAWS
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
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 law-makers 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
ADIL ON CONSUMER LAWS
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;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
