LUCKY MOTOR CORPORATION LIMITED Versus MUHAMMAD AKMAL HUSSAIN

ABID HUSSAIN CHATTHA, J.--- This Appeal is preferred under Section 33 of the Punjab Consumer Protection Act, 2005 (the Act ) against the impugned Order dated 28.11.2024 passed by the Presiding Officer, District Consumer Court, Faisalabad (the Consumer Court ), whereby, complaint of the Respondent against the Appellant and its distributor was accepted in the manner that the Appellant was directed to deliver vehicle Kia Sportage 1999 CC-AWD-CW (the Vehicle ) to the Respondent subject to payment of Rs. 360,000/- remaining amount by the Respondent along with payment of Rs. 1,000,000/- as compensation and Rs. 100,000/- as litigation charges within one month from the date of the Order.

2.Precisely, the Respondent averred in his complaint that he booked the Vehicle from the distributor of the Appellant on 22.10.2021 for Rs. 5,403,000/-. The Respondent on 21.10.2021 paid an advance amount of Rs. 1,000,000/- to the Appellant through bank draft and upon receipt of the same, a Provisional Booking Order (the PBO ) was issued which required the Appellant to deliver the Vehicle in April 2022. On 02.04.2022, the representative of the Appellant claimed revised price of the Vehicle of Rs. 4,640,000/- which was paid by the Respondent on 07.04.2022 through bank draft. The Appellant, thus, promised to deliver the Vehicle in last week of April 2022 or May 2022. However, the Vehicle was not delivered on agreed terms and conditions despite repeated requests by the Respondent. Hence, on account of non-delivery of the Vehicle within the stipulated timeframe, the Respondent suffered losses on several counts listed in paragraph No. 4 of the complaint under separate heads and thus, an amount of Rs. 9,250,000/- was claimed by way of damages on account of faulty services and irresponsible attitude, causing mental agony and actual losses to the Respondent. Legal notice dated 20.04.2023 was also served which was not replied by the Appellant. The cause of action accrued when the Appellant did not deliver the Vehicle according to the terms and conditions of sale, continued when refusals were conveyed in this behalf and finally, when legal notice of the Respondent was not replied by the Appellant. Hence, the Respondent claimed compensation or damages to the tune of Rs. 9,250,000/- in addition to delivery of the Vehicle without any further delay.

3.The Appellant resisted the complaint on legal and factual plane. It was explained that the Vehicle was booked pursuant to the terms and conditions of the PBO agreed and signed by the Respondent. The Vehicle could not be delivered without full payment which was not made by the Respondent who insisted that he should be delivered the Vehicle on the price prevailing at the time of booking. Nevertheless, the terms and conditions of the PBO clearly state that any escalation in the price of the Vehicle due to any factor shall be payable by the customer at the time of delivery and the invoice is made in accordance to the price prevailing at the time of delivery. Hence, the Respondent has filed the complaint to extort money and harass the Appellant. The claimed damages are beyond the scope of the Act. The complaint has been filed in violation of the procedure laid down in Section 28(1) of the Act and the claim itself is barred by limitation under Section 28(4) of the Act. Importantly, the Respondent is not a consumer in terms of the scope and mandate of the Act inasmuch as no product was ever delivered to the Respondent and the dispute raised in the complaint relates to the terms and conditions of a contract which could not be brought for adjudication before the Consumer Court under the provisions of the Act, rather, falls within the competence of the Civil Court. Alternatively, Auto Industry Development and Export Policy 2021-26 formulated by the Federal Government is regulated by Ministry of Industries and Production at Islamabad in which complaint cell has been formed to resolve the issues regarding late deliveries and the said forum may also be effectively availed by the Respondent to resolve his grievance. The complaint is not maintainable as the PBO also contains arbitration clause to resolve disputes inter se the parties.

4.As settlement proceedings failed at pre-trial stage, the Consumer Court recorded respective evidence of the parties and accepted complaint of the Respondent by discarding defense of the Appellant that the terms and conditions of the PBO governed the charging of final price on the date of delivery. The Consumer Court held that the Respondent was never informed in writing about enhancement in price of the Vehicle, deferment of delivery date or cancellation of his booking order. Thus, the Consumer Court concluded that although the Respondent had signed one sided terms and conditions contained in the PBO yet express consent to variations relied upon by the Appellant were not specifically obtained from the Respondent.

5.The foremost question relates to the jurisdiction of the Consumer Court which goes to the root of the matter. The Act was promulgated with the objective to provide for protection and promotion of the rights and interests of the consumers and for effective and speedy redressal of consumer complaints. Importantly, Section 3 of the Act ordains that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Hence, the promulgation of the Act was always conceived as an additional remedy for the consumers. The term 'consumer' is defined in Section 2(c) of the Act as a person or entity who buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or hires any services for a consideration and includes any beneficiary of such services. The term 'product' in turn, is defined in Section 2(j) of the Act to the effect that it has the same meaning as assigned to the word 'goods' in the Sale of Goods Act, 1930 (the Goods Act ) and includes products which have been subsequently incorporated into another product or an immovable but does not include animals or plants or natural fruits and other raw products in their natural state, that are derived from animals or plants. The term 'services' is defined in Section 2(k) of the Act so as to include the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services but does not include the rendering of any service under a contract of personal service, the rendering of non-professional services like astrology or palmistry or a service, the essence of which is to deliver judgment by a court of law or arbitrator. Importantly, Section 4 of the Act creates liability for defective products and stipulates that the manufacturer of a product shall be liable to a consumer for damages proximately caused by a characteristic of the product that renders the product defective when such damage arose from a reasonably anticipated use of the product by a consumer. The entire scheme of law that follows the liability for defective products under various provisions of the Act leaves no doubt that obligations and liability with respect to defective products would only arise once a product is delivered to the consumer and is in use of the consumer. Conspicuously, Sections 2(5) and (6) of the Goods Act makes a distinction between 'future goods' and 'goods'. 'Future goods' is defined as goods to be manufactured or produced or acquired by the seller after the making of the contract of sale, whereas, 'goods' is defined as every kind of movable property other than actionable claims and money and includes electricity, water, gas stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

6.The conjunctive reading of the above provisions of law with reference to the facts of the case cited above makes it manifestly evident that the Respondent while booking the Vehicle was not hiring services of the Appellant but under the terms and conditions of the PBO which was in the nature of an agreement to sell was buying the Vehicle as a product. All payments were made to the Appellant for the purchase of Vehicle as a product through the distributor who did not charge anything for any service but acted as intermediary taking commissions from the Appellant for sale of vehicles. There was no actual sale. The purported purchase of Vehicle was a future good which was to be manufactured and produced by the Appellant and acquired by the Respondent pursuant to the terms and conditions of the PBO. Dispute between the Appellant and the Respondent arose with reference to the terms and conditions of the PBO regarding price variations qua the Vehicle which led to its non-delivery. As such, the essence of dispute between the parties is regarding violations and enforcement of the terms and conditions of the PBO which falls within the jurisdiction of the Court of plenary jurisdiction subject to other contractual or legal remedies, if any, and conversely does not fall within the scope and ambit of the Act. The Act is a special law providing special remedies in exercise of special jurisdiction conferred by law when the rights conferred by the statute itself have been violated. The Consumer Court has not been established to accept claims based on law of contracts or torts. This conclusion is also evident from the stated cause of action enumerated in the complaint by the Respondent himself, wherein, he stated that the primary grievance arose when the Respondent was not delivered the Vehicle on time in accordance with the agreed terms and conditions of sale. Therefore, it is established that the Consumer Court fell in error by adjudicating upon the complaint of the Respondent under the provisions of the Act. Hence, the impugned Order is without jurisdiction and void ab initio . Reliance is placed on cases titled, Prof. Dr. Kheo Ram v. Messrs Changan Mehran Motors Ltd. through CEO and another (2025 CLC 393); Yasir Chaudhry v. Faisalabad Development Authority through Director General and another (PLD 2021 Lahore 713); and Chief Executive, FESCO, Faisalabad and 2 others v. Nayab Hussain (PLD 2010 Lahore 95) . Having held that the Consumer Court had no jurisdiction to entertain and decide the complaint, it is futile to answer other legal or factual questions arising from the divergent pleadings of the parties.

7.In view of the above, this Appeal is allowed ; and the impugned Order dated 28.11.2024 is set aside. However, the Respondent may seek redressal of his grievance by availing alternative remedies, if so advised.

UN/L-4/L Appeal allowed.