Form No:HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Case No: W.P. No.24729/2009

Dr. Shamshad Hussain Syed. Versus District Consumer Court, etc.

S.No. of order/ Date of order/ Order with signature of Judge and that of
Proceedings Proceedings parties of counsel, where necessary.

4. 18.2.2010. Mr. Rizwan Mushtaq, Advocate for the petitioner.

Mr. Muhammad Arshad Baig, Advocate assisted by Mr.
Shahid Mahmood Aleem, Advocate for respondent No.2.

Brief facts are that respondent No.2 filed a complaint

against the petitioner under Section 25 of the Punjab

Consumer Protection Act, 2005 complaining that the

services rendered by the petitioner to respondent No.2 were

faulty and defective as the diagnostic centre of the

petitioner, namely, Canal View Diagnostic Centre issued a

wrong medical report dated 24.2.2009 recording that the

Anti HCV of the petitioner was Reactive.

2. Thereafter, the petitioner filed an application under

Section 35 of the Punjab Consumer Protection Act, 2005

(„Act‟) before the Consumer Court submitting that the

complaint of respondent No.2 is vexatious and frivolous.

The said application was dismissed vide order dated

26.11.2009. Thereafter, respondent No.2 filed an

application for appointment of Medical Board/Pathologist

before the Consumer Court from an impartial expert

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opinion/test on the status of his Anti HCV. The said

application was allowed vide impugned order dated

17.12.2009 which has been impugned in this petition.

3. The sole contention raised by the petitioner is that the

Consumer Court has no jurisdiction to entertain the present

matter because respondent No.2 is not a “Customer” under

section 2(c) of the Punjab Consumer Protection Act, 2005.

He argued that the petitioner‟s Canal View Diagnostic

Centre is a centre licensed by the Executive Board of the

Health Minister‟s Council for GCC States and carries out

pre-recruitment medical tests for persons desirous of

visiting/or seeking employment in GCC States and,

therefore, does not offer any independent medical service.

4. Mainstay of the argument of the petitioner was that as

he is rendering these medical services under license for a

specific purpose of recruitment to GCC States, he is not

offering any independent medical services to the public and

respondent No.2 is not a walk in customer but a candidate

who approached the petitioner as a part of his recruitment

procedure and, therefore, is not a “Consumer”.

5. On the other hand, the counsel for the respondent

submitted that irrespective of the internal arrangement

between the petitioner‟s Diagnostic Centre and the

GCC States, respondent No.2 approached the petitioner,

who conducted his medical test and issued a medical report,

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which is signed by the petitioner, dated 24.2.2009 wherein

it has been shown that the Anti HCV is Reactive (which in

ordinary terms means that the petitioner has Hepatitis C).

He further submits that respondent No.2 paid the

fee (consideration) for obtaining the said medical report

and, therefore, under the Punjab Consumer Protection Act,

2005, respondent No.2 is a customer and, therefore, the

Consumer Court has jurisdiction to entertain the complaint

in question.

6. Arguments heard. Record perused.

7. The license issued to the petitioner‟s Diagnostic

Centre to carry out exclusive pre-recruitment tests for

persons visiting or being recruited for employment to the

GCC Countries is an internal arrangement of the petitioner

and GCC States. As far as the instant matter is concerned,

respondent No.2 approached the petitioner for a medical

test. The respondent paid a fee and was issued a medical

report signed by the petitioner (the counsel points out that

the report was not directly issued to respondent No.2 but

was sent to the Secretariat of GCC Countries). As a result of

the medical report, wherein it was recorded that respondent

No.2‟s Anti HCV was Reactive, respondent No.2 was

declared unfit to travel to GCC States. It is useful to

mention that Anti HCV is an antibody to the hepatitis C

Virus. Its presence in the blood is

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indicative of an active or chronic Hepatitis C infection

(source:www.answers.com).

8. In order to decide if respondent No.1 was a customer,

it is important to understand the scope of the Punjab

Consumer Protection Act, 2005. Preamble to the Act

states:-

“Preamble. Whereas, it is expedient to provide

for protection and promotion of the rights and interest of
the consumers, speedy redress of consumer complaints
and for matters connected therewith.”

Indian Consumer Protection Act, 1986 has a similar

preamble which states:-

“An Act to provide for better protection of the

interests of consumers and for that purpose to make
provision for the establishment of consumer councils and
other authorities for the settlement of consumers‟ disputes
and for matters connected therewith.”

9. According to the Indian Supreme Court, the scope of

the law has been explained in the following words:-

“According to the preamble, which can provide

useful assistance to ascertain the legislative intention of
the Act, the Act was enacted, to provide for the protection
of the interest 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 view that a preamble
cannot control the otherwise plain meaning of a
provision. The Act meets long felt necessity of protecting
the common man from such wrongs for which the remedy
under ordinary law for various reasons has become
illusory. 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 or public bodies
which are degenerating into storehouses of inaction
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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 legislature has taken
precaution not only to define „complaint‟, „Complainant‟,
„consumer‟ but even to mention in detail what would
amount to unfair trade practice by giving an elaborate
definition in clause (r) and even to define „defect‟ and
„deficiency‟ by clauses (f) and (g) for which a consumer
can approach the Commission. The Act thus aims to
protect the economic interest of a consumer as
understood in the commercial sense, as a purchaser of
goods and in the larger sense user of services. It is a
milestone in history of socio-economic legislation and is
directed towards achieving public benefit.” (Reliance is
placed on Lucknow Development Authority v. M.K.
Gupta (AIR 1994 SC 787).

In Charan Singh v. Healing Touch Hospital (AIR

2000 SC 3138), the Supreme Court of India held:

“The Consumer Protection Act is one of the

benevolent pieces of legislation intended to protect a
large body of consumers from exploitation. The Act
provides for an alternative system of consumer justice by
summary trial.

10. It is important to reproduce Section 2(c) of the

Punjab Consumer Protection Act, 2005, which defines

“consumer”:-

(c) “Consumer” means a person or entity who—

(i) 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

(ii) hires any services for a consideration and

includes any beneficiary of such services.”
(emphasis supplied).

11. In the present case, the services of the petitioner were

hired by respondent No.2, who paid consideration for the

same. Section 2(k) of the Punjab Consumer Protection Act,

2005 defines “services” as:

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“services” includes the provision of any kind of facilities
or advice or assistance such as provision of medical, legal
or engineering services but does not include- -

(i) the rendering of any service under a contract

service;

(ii) the rendering of non-professional services like

astrology or palmistry; or

(iii) a service, the essence of which is to deliver

judgment by a Court of law or arbitrator.”
(emphasis supplied)

It is, therefore, clear that respondent No.2 is a consumer and

the petitioner rendered services to the said respondent. The

internal arrangement between the petitioner and the GCC

States does not in any way affect the jurisdiction of the

Consumer Court. The petitioner has availed medical

services after paying consideration and is, therefore, a

Consumer under the Act and the Consumer Court has the

jurisdiction to try the complaint of respondent No.2.

12. I have also reviewed the impugned order on merit

and have found the said order to be in compliance with the

provisions of the Punjab Consumer Protection Act, 2005.

13. As the sole ground agitated before this Court was

regarding jurisdiction, it is held that the Consumer Court

has jurisdiction to entertain the instant complaint. The

instant petition, therefore, has no merits and is, therefore,

dismissed.

(Syed Mansoor Ali Shah)

Judge
S. Zahid

Approved for reporting