Form No:HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT

W.P No.2863/2024
Dr. Omer Chughtai, etc. Vs Province of the Punjab, etc.
S.No. of order/ Date of order/ Order with signature of Judge, and that of parties or counsel,
proceeding Proceeding where necessary

16.05.2024 Mr. Ehsan Ullah Manj, Advocate for petitioners.

Rai Mazhar Hussain Kharal, Assistant Advocate General.
Mr. Zafar Iqbal Sheikh, Advocate for respondent No.3.

This constitutional petition is directed against order

dated 27.03.2024, whereby respondent No.2 - Presiding
Officer District Consumer Court Bahawalnagar - had
dismissed the application preferred by the petitioners
seeking rejection / return of complaint, brought by
respondent No.3. Petitioners plead that respondent No.2,
exercising powers under the provisions of Punjab
Consumer Protection Act, 2005 (‘Act 2005’), lacks
jurisdiction to hear, entertain and adjudicate the complaint
and in fact jurisdiction to inquire into allegations of
maladministration, malpractices and alleged failure on the
part of the Healthcare Service Provider – [claimed that
Chughtai Lab Jail Road Lahore is the Healthcare Service
Provider] exclusively vests in the Healthcare Commission
under the provisions of Punjab Healthcare Commission
Act, 2010 (‘Act of 2010’).

2. Facts essential for deciding instant constitutional

petition are that respondent No.3 hired services for
carrying out certain clinical tests. Respondent No.3
questioned the veracity of clinical reports by the
petitioners and put service provider to notice, whereafter
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complaint was filed for recovery of damages, claiming

liability for faulty or defective services, by invoking
jurisdiction of Consumer Court. Jurisdiction of respondent
No.2 to proceed with complaint was questioned and
objection repelled. Hence, this petition.

3. Learned counsel for the petitioners pleaded that in

terms of sub-section (2) of section 26 and section 29, read
with section 4 (e) of the Act of 2010, jurisdiction to
investigate with respect to allegations of
maladministration, malpractice and failure in provisioning
of healthcare services vests, exclusively, in the
Commission, which jurisdiction can be triggered upon
bringing grievance to the notice of Commission in terms of
section 4(7)(a) of the Act 2010. It is emphasized that issue
came up for adjudication earlier and decided vide decision
in the case of Dr. Riaz Qadeer Khan vs. Presiding Officer,
District Consumer Court, Sargodha and others (PLD 2019
Lahore 429). Adds that ratio was followed in the case of
Lady Dr. Nafesa Saleem and another vs. Justice of
Peace/Additional Sessions Judge, Multan and 2 others
(PLD 2022 Lahore 18) and also in an unreported decision
in the case of “Mariam Sajjad vs. Prof. Dr. Rasool Ahmed
Chaudhry (RFA No.70634/2023).

4. Conversely, learned counsel appearing for

respondent No.3 submits that jurisdiction of the
Commission, which is otherwise discretionary, is restricted
to imposition of penalty and Commission had no power to
adjudicate claim of damages and grant damages,
contractual or tortuous, which jurisdiction is either vested
in the Consumer Court or Civil Court, depending on the
facts of the case. He relies upon unreported decision in the
case of “Mariam Sajjad vs. Prof. Dr. Rasool Ahmed
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Chaudhry (RFA No.70634/2023), Dr. Muhammad Asif

Osawala vs. Mrs. Qamar-un-Nisa Hakro through Attorney
and another (PLD 2022 Singh 430), Dr. Shamshad
Hussain Syed vs. District Consumer Court, Lahore and
another (PLD 2010 Lahore 214) and Shifa International
Hospitals Ltd. and others vs. Mst. Hajira Bibi and others
(PLD 2018 Islamabad 372).

5. Heard.

6. Arguments advanced by the petitioners, if

appreciated would result in rendering various provisions of
Act 2005 redundant, which was neither intended through
legislative endeavour in shape of Act 2010 nor could such
an intent be implied. No inconsistency is found in the
enactments, which clearly define the path and the
destination. Upon perusal of both statutes no case for
express or implied repeal is made out. Principles of
harmonious construction are attracted and applicable.

7. A bird’s eye view is imperative to understand the

scope of the authority and powers available to the
Commission and the Consumer Court, conspicuous
distinctiveness in the functions to be performed and
jurisdictional context, respectively enjoyed and exercised
under each enactment. Section 2(k) of Act 2005 defines
services, which inter alia included ‘medical services’;
section 13 of Act 2005 defines liability in the context of
faulty or defective services. Section 25 of Act 2005
describes the nature of the claim, that is „A claim of
damages arising out of the contravention of any provision
of this Act shall be filed before a Consumer Court set up
under this Act‟.
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8. Conversely, the scope of authority / control

conferred unto the Commission under the Act 2010 is akin
to a regulatory control – needed to be appreciated in the
context that Commission is the regulator of the Healthcare
Services establishment or service provided, being the
licensee. There is no cavil that Commission is empowered
to enquire and investigate into maladministration,
malpractice and failure in provisioning of Healthcare
services – section 4(e) of Act 2010 but in the capacity of
regulator, ensuring improvement of quality of healthcare
services. Commission may exercise powers on the
application of the aggrieved person, which assumption and
exercise of authority is evidently discretionary –
distinction has been drawn vis-à-vis the application of the
aggrieved person and a reference by the Government or
direction by Constitutional Court(s), sub-section (7) of
section 4 of Act, 2010. Fundamental difference in
assumption and exercise of jurisdiction is with respect to
orders Commission could pass, in the context of the
grievance raised, if it acted upon the application of the
aggrieved person. In terms of section 28 of the Act 2010,
Commission is empowered to impose fine / penalty, in
wake of contravention of any provision of Act 2010, which
cannot exceed of Rs.500,000/-, depending upon the gravity
of the offence. Use of expression ‘offence’ is section 28 of
Act 2010 is meaningful.

For the purposes of this case, complaint filed by

respondent No.3 is not seeking imposition of penalty for
any alleged offence committed by the Healthcare Services
provider but damages for faulty and defective services.
Services rendered being the licensee and services rendered
towards the hirer or consumer are different and this
distinction sheds light on the distinctiveness of the
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enactments and scope of powers defined therein. A

consumer can file a claim of damages before the Consumer
Court and simultaneously seek indulgence of the regulator
/ licensor for action against licensee. Section 29 of Act
2010 has to be construed in the context of the authority of
the Commission, which provision of law cannot be
employed to restrict or discourage claim of damages.
Choices of the hirer of services cannot be limited for
seeking penalty only but evidently the option of subjecting
service provider to contractual or tortuous damages is
otherwise available before the Consumer Court or the Civil
Court, depending upon the facts of the case. These two
streams of remedies manifest true intent of the legislature
and address the purpose/objective of each of the
enactment.

9. Learned counsel for petitioners failed to convince

that how damages could be granted by the Commission
under the Act 2010. Argument that no claim of damages
could be filed unless allegation of maladministration or
malpractice is adjudicated upon and endorsed by the
Commission is misconceived. Role of the Commission to
act as gatekeeper for determining the existence and pursuit
of damages is mere figment of imagination, and not
conceived by the provisions of Act 2010. Learned counsel
for the petitioner failed to give any explanation when
confronted with the mandate of sub-section (11) of section
4 of Act, 2010, which reads as,

“The Commission shall not investigate or inquire

into any matter subjudice before a Court of
competent jurisdiction on the date of the receipt of a
complaint. Reference or motions.”
10. Reliance of the petitioner on sub-clause (2) of
section 26 of Act, 2010 is also misconceived, when
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considered in the context of the narrative in paragraphs

supra. Learned counsel for the petitioners concedes that
complaint of respondent No.3 does not fall within the
context of medical negligence, as contemplated and
defined in the Act of 2010.

11. Learned counsel emphasized on the ratio settled in

the case of Dr. Riaz Qadeer Khan vs. Presiding Officer,
District Consumer Court, Sargodha and others (PLD 2019
Lahore 429), without appreciating that therein claim
pleaded before the Consumer Court was regarding medical
negligence. Penultimate paragraph of decision in the case
of Dr. Riaz Qadeer Khan‟s (supra) is relevant and calls for
reproduction, which reads as,
“For what has been discussed above, we are
persuaded to hold that Healthcare Commission is
the only competent forum to investigate into the
allegations of maladministration or malpractice by
a health service provider and the Consumer Court
has no jurisdiction to adjudicate upon such matters.
Resultantly, all these writ petitions are allowed and
the complaints pending before the learned
Consumer Court are directed to be returned for its
presentation before the appropriate forum.”
[Emphasis supplied]

It is evident that in wake of allegations of

maladministration or malpractice by the Health service
provider, the Commission and not the Consumer Court has
the jurisdiction, to impose penalty or pass other
consequential orders, which per se excludes claim of
damages from the jurisdictional domain of the
Commission. It is interesting that one of the Judges-in-
Chambers being co-signatory of the decision in the case of
Dr. Riaz Qadeer Khan‟s, has authored the decision dated
19.12.2023 while deciding RFA No.70634/2023 (supra),
wherein pertinent observations are made by learned
Division Bench, which are reproduced hereunder:-
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“The Punjab Healthcare Commission can

investigate into the allegations of malpractice of
failure on the part of healthcare service provider
and can announced order in this regard but it has
no jurisdiction to grant damages to a person
affected by such service whereas said relief can only
be granted by the Civil Court if an aggrieved person
proves his case. Furthermore, under the Act ibid
even no bar has been imposed upon an aggrieved
person to approach Civil Court for claim of
damages against any healthcare service provider.
As such the argument of learned counsel for the
respondent have no force and same is repelled.”

12. It is evident that learned author Judge-in-Chambers

provided requisite explanation, observing that claim of
damages is distinguishable from the power to impose
penalty, jurisdiction otherwise extended to the
Commission under the law. Yes, as far as the question of
imposition of penalty by the regulator, Commissions may
claim exclusivity to the extent thereof. The ratio settled in
the case of Dr. Muhammad Asif Osawala (supra) also
provides an insight into distinctive jurisdictional
domain(s), respectively available to the Commission and
Consumer Court, and scope thereof.

13. In view of the aforesaid, this petition is devoid of

merits and same is hereby dismissed. It is pertinent to
observe that any observation herein made is solely for the
purposes of deciding the case, which shall neither
prejudice determination of the claim before Consumer
Court nor affect the case of any party.

(ASIM HAFEEZ)
Judge
*M.S.Aleem*
Approved for reporting

Judge