Incharge, TCS Office, near National Bank, Karak, etc. Vs Shahid Bin Azim

Judgment Sheet v (Judicial Department)

Cr.A No.378-B 12023

Incharge, TCS Office, near National Banko Karak etc.

Vs Shahid Bin Azim

JUDGMENT

For appellants: Mr. Rehman Ullah Shah Advocate (via video link).

For respondent: Mr. Abdullah Khattak Advocate Date of hearing: 12.05.2025 - :f !8 !F rlr *

This appeal under Section 17 of the Khyber Pakhtunkhwa Consumers Protection /0 Act, 1997 calls in question the legality and validity of the judgment dated A4.07.2023, passed by the Consumer Protection Court, Karak, whereby, complaint lodged by the respondent / complainant Shahid Rin Azim was allowed against the appellants / TCS Private Limited to the extent of Rs.16,20,0001' as compensation under Clause (d) of Sub-Section (1) of Section l5 of the said Act.

2.'fhe brief, but relevant facts of the case, are that the complainant Shahid Bin Azim (hereinafter referred to as the respondent) lodged a complaint under the provisions of the Khyber Pakhtunkhwa Consumers Protection Act, 1997 against Tranzrrm Courier Service, a Pakistani courier and logistics company (hereinafter referred to as the appellants) for recovery of Rs.21,05,000/- on account of compensation, damages, mental torhrre, negligence and endangering human lives. It was

\, aveffed that the respondent's sister and niece were diagnosed with Leishmania (a parasitic disease transmitted through the bite of infected sandflies, not mosquitoes), for which effective treatment was not available in District Karak. Consequently, Dr. Amir I{ussain of Ismail Unani Dawakhana, District Sibi, Balochistan was contacted to dispatch an ointment for sandfly bites. The said doctor demanded Rs.700/- for the ointment and Rs.300/- for courier charges, via TCS. On 23.07.2020, the respondent transferred Rs.1,000/- to the doctor via EasyPaisa, who after receiving the payment sent a TCS tracking ID No.6561758992 to the respondent for tracking and receiving the parcel containing ointment. It was further averred that the patients conditions deteriorated daily, but the consignment was not delivered within 48 hours even after repeated follow-ups 4 with TCS officials. Instead, it was delivered belatedly on 05.08.2020, which prompted the respondent to lodge the complaint under the Khyber Pakhtunkhwa Consumers Protection Act, 1997.

3.The appellants were summoned, and upon appearance, they filed their Written response. After recording pro and contra evidence and hearing the arguments from counsel for the parties, the Consumer Court allowed the complaint and awarded Rs.16,20,000/- as compensation under Clause (d) of Sub-section (1) qf Section 15 of the Act vide judgment dated 04.07.2023. Hence, this aPPeal.

4.Arguments heard. Record perused.

5.The first question which falls for consideration is the objection of limitation raised by the learned counsel for the respondent before this court. A careful perusal of attested copy of the impugned order, indicates that the application for obtaining certified copies of the judgment and order dated

v 04.07.2023, was presented to the Copying Branch on 05.07.2023 and its attested copies were delivered on 08.09.2023 and the appeal was filed on 30.09.2023, which is well within time.

6.Legally, delay in filing an appeal may be condoned if the impugned judgment or order lacks jurisdiction, as courts can justiff preventing the perpetuation of jurisdictionally flawed decisions.

7.Objection that the appeal was time barred as attested copies were prepared on 02.08. 2023 and the argument that date of preparation of attested copies of the order and not the date of its delivery, determines the limitation period, is misconceived, .a if such objection seen in light of the relevant law and rules.

8.I deem it expedient to refer to the provisions of section 12 of the l,imitation Act, 1908, which reads as follows:

12.Exclusion of time in legal proceedings. (l) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.

(2)In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complaincd of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

(3)Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.

(a)In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy ol'the award shall be excluded.

(5)For the purposes of sub-sections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order,

v judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery.

9, It is imperative to mention that subsection (5) to section 12 of the Limitation was added through the Limitation (Amendment) Act, 1991, published in the Gazette of Pakistan on 06.07.1991 and bare reading of the above section would reveal that after its addition to section 12 of the Limitation Act, 1908, the applicant has a right to be intimated of the day appointed for preparation of copies of the judgment and decree and its delivery.

10.Needless to say, for regulating the preparation and supply 4 of copies of records of civil and criminal courts by the copying agencies under the control of District and Sessions Judges, Additional district Judges, the Civil/Senior Civil Judges and judges of Small Cause Courts in Khyber Pakhtunkhwa, the Peshawar I{igh Court, has made and notified its ruIes called as "the Khyber Pakhtunkhwa Civil and Criminal Courts Preparation and Supply of Copies of Records Rules, 2O2L For convenience, Rules -24 or 25, arereproduced below;

Rule-24. (l) A copy shall ordinarily be ready by the third working day of the receipt of application, but an urgent copy shall be ready before the close of the same day, if possible' provided the application is presented with the urgent fee within the first two hours of the same day. If the application is presented later, the copy shall be furnished, if possible, in the afternoon of the following working day. Any case of delay shatl be verified and certified by the Examiner, or Copying Agent, before the copy is attested and delivered.

(2)Any complaint by Copyist or applicant shall be made in writing to the Officer-in-charge who shall take such action thereon as he may deem proper.

\., Rule-25. The applicant shall be entitled to have his copy furnished to him, as far as possible, on the day appointed for delivery of the copy. If, for any reason, it is not possible to prepare the copy asked for by the appointed day, the Officer- in-charge shall send an intimation by post to the applicant fixing another day for its delivery so that he does not unnecessarily visit the Agency.

11.It is also crystal clear from the aforementioned rules that the applicant shall be entitled to receive attested copies of the documents, judgments or orders on the day and date appointed for its delivery or for any reason, the copy asked for is not prepared, the Officer-in-charge, shall sent an intimation by post to the applicant fixing another day for its delivery,

12.The preparation of attested copes after 28 days of the n impugned judgment with no evidence of a scheduled date of preparation and delivery date or notice, the objection of the appeal being time barred, is deemed absurd and frivolous and is thus dismissed.

13.Adverting to the merits, I find that the Khyber Pakhtunkhwa Consumers Protection Act, 1997, was enacted with the object of protecting and promoting the rights and interests of consumers and ensuring expeditious redressal of consumer grievances. The purpose of the Act is to provide an efficacious remedy to consumers for losses arising from defective goods or deficient services, and to promote fair commercial practices. The complaint in hand was filed under Section 13 of the said Act. Thus, the core questions requiring determination are whether the respondent was competent to file the complaint under Section 13 of the ibid Act? Whether the matter fell within the jurisdiction of the Consumer Court or was of civil nature within the purview of Section 9 of the Civil Procedure Code, 1908? And whether the Judge, Consumer Court, acted within jurisdiction in entertaining and deciding the

v complaint? To address these questions, it is pertinent to refer to Clause (a) of Sub-Section (l) of Section 13, which permits filing of a complaint only by a consumer 'to whom' such goods are sold or delivered or such service is provided.

L4. For filing a complaint under the Khyber Pakhtunkhwa Consumers Protection Act, 1997, the consumer is Dr. Amir Hussain of Ismail Unani Dawakhana, who hired TCS services for consideration, not the respondent Shahid Bin Azim, despite facilitating payment of shipment charges. Respondent's contractual relationship, if any, was with the doctor, not with TCS, therefore, any cause of action arising from delayed delivery lay between TCS and the sender Dr. Amir Hussain.

15.I am conscious of the fact that Section 2(c)(ii) of the Act of 1997 includes within the definition of 'consumer' any person a who is the beneficiary of a service. However, the right to lodge a complaint is governed not by the definition clause, but by Section 13(l)(a) of the Act of 1997, which confers such right only upon the consumer 'to whom' the goods or service are provided. In the instant matter, the respondent does not fall under this category and, therefore, lacks locus standi to initiate proceedings against the appellants under Section 13 of the Act of 1997.

16.Moreover, a plain reading of the complaint reveals that the principal relief sought was recovery of Rs.21,05,000/- for mental torture, negligence, and endangerment to lives of the respondent's sister and niece, (not par:ty to the complaint). Such a claim is essentially one for damages and falls squarely within the jurisdiction of a Civil Court under Section 9 of the Civil Procedure Code, 1908. The Consumer Court, being a forum of limited jurisdiction, cannot assume jurisdiction over matters concerning tortious liability or general civil rights unless they

arise directly under the Khyber Pakhtunkhwa consumers v Protection Act, 1997. Examination of the complaint and the respondent's statement reveals a civil dispute, involving adjudication of civil rights and obligations. Such matters are cognizable by Civil Courts alone, and not by the Consumer Court under Section l3 of the Act of 1997.

17.For the foregoing reasons, I am clear in my mind that the Consumer Court fell into legal error in entertaining and allowing the complaint. The impugned judgment, having been passed without jurisdiction, cannot be sustained in law. Consequently, the appeal is allowed and the impugned judgment dated 04.07.2023 is set aside. However, the respondent shall be at liberty to seek redressal of his grievance before the competent forum in accordance with law.

Announced 12.0s.202s (Ghafoor Zaman)

JUDGE

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(S.8.) Hon'ble Mr..Iustice Muhammad Tariq Afridi