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
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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
53
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
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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;“consumer”
means a person or entity who–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 definition of “entity” as the members of a firm do not form a collective
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whole distinct from the individuals composing it. The word “person” has not been defined in the Punjab Consumer Protection Act, 2005. In such a situation we can invoke Section 2 of the Punjab General Clauses Act, 1956 which clearly says, that; “In this Act, and in all the Punjab Acts unless there is anything repugnant in the subject or context, definition given in the General Clauses Act” would apply.
Section 2(47) of the Punjab General Clauses Act, 1956 defines a “person”
as
follows:-Consideration. —No doubt any person engaging the services of other person shall be “consumer” but according to the definition “such engagement of services must be for consideration”. The expression
“consideration” has not been defined in section 2 of the Act. However, while speaking in ordinary and widest sense, it is the reason, motive or inducement by which a man is moved to bind himself by an agreement.65
Proximate damages. —Proximate damages have been defined in Black’s Law Dictionary as “Damages directly, immediately, and naturally flowing from the act complained of.”
Sections 4 and 13 provides that manufacturer or service provider shall be liable for damages proximately caused by defective product or service. Proximate cause is defined to be “that cause which immediately proceeds and directly produces and effect as distinguished from a remote, mediate, or predisposing cause.” The damages under this category is defined general damages also termed as direct damages, in Black’s Law Dictionary. It will be useful to re-produce some kinds of damages which can be relevant to the facts of any case;
Discretionary damages. —Damages (such as mental anguish or pain and suffering) that are not precisely measurable but are determined by the subjective judgment of a jury.—Also termed indeterminate damages.
Mental and physical torture. —The claim of damages on the score of mental and physical torture do not fall within the ambit of this court. It is a subject matter of civil court, so these are not to be granted to the claimant.
Claimant should knock at the door of civil court to obtain these damages.66
Damages. —Damages means all damage caused by a product or service including to the product itself and economic loss arising from a deficiency in or loss of use of the product or service.67
Special and general damages. —At this stage, it is to be noted that there are two types of damages namely; `special damages' and `general damages'. The term `general damages' refers to the special character, condition or circumstances which accrue from the immediate, direct and approximate result of the wrong complained of. Similarly, the term `special damages' is defined as the actual but not necessarily the result of injury complained of. It follows as a natural and approximate consequence in a particular case, by reason of special circumstances or condition. It is settled that in an action for personal injuries, the general damages are governed by the rule of thumb whereas the special damages are required to be specifically pleaded and provedy. In the case of British Transport Commission v. Gourley [(1956) AC 185] it has been held that special damages have to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. The general damages are those which the law implies even if not specially pleaded.
This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same financial position, so
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far as can be done by an award of money, as he would have been had the accident not happened. The same principle has been referred to in the case of Qazi Dost Muhammad v. Malik Dost Muhammad (1997 CLC 546), in the following
terms:-"It is a settled principle of law that in respect of special damages it is the duty of an aggrieved person to prove each item of the loss, on the basis of evidence and as far as general damages are concerned, relating to mental torture, defamation etc. those are to be measured, following the
`Rule of Thumb', according to which, discretion rests with the Court to calculate such compensation keeping in view the attending circumstances of the case. ... As far as inconvenience is concerned, this item can be considered while assessing the general damages."68
Principle of ascertaining special and general damages. —In the case of Islamic Republic of Pakistan v. Sh. Nawab Din (PLJ 2002 Lah.
1998) the principles for ascertaining the quantum of general and special damages has been discussed in the following words:—
In case of general damages, the well-established principle is that damages must be such, which would compensate the injured. As far as money is concerned, it is true that loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses may not be accurately calculated in terms of coins, but for this reason alone, Courts do not decline to grant compensation and the Courts have formulated certain parameters and devised principles for evaluation or assessment of such general damages. Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to the victim. From the preponderance of authorities on this issue of quantification, it emerges that there is no yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation. In these circumstances, it is the discretion of Court, which may on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person, who has suffered such damage. The general damages are those, which law will imply in very violation of legal rights. They need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by judicial mind in such cases is that the conscience of Court should be satisfied that damages awarded would, if not completely, satisfactorily compensate the aggrieved party. However, adequate care should be taken in this regard while dilating on the quantum of awards and the Courts should be vigilant to see that claim is not fanciful or remote, the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony, but the Court should give the aggrieved party what it considers in all the circumstances a fair and reasonable compensation for his loss.
While qualifying damages, Consumer Forums are requires to make an attempt to serve the ends of justice so that compensation is awarded, in
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an established case, which not only serves the purpose of recompensing the individual but which also at the same times, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application....69
“entity”
means an organization that has a legal identity apart from its members;“manufacturing a product”
means producing, fabricating, constructing, designing, remanufacturing, reconditioning or refurbishing a product;“Birds” includes in “animal”. —Now reverting back to the definition as provided under Section 2(j) of Punjab Consumer Protection Act, 2005, the word "animals" has been used in its generic/general sense, the word
"plants" or natural fruits and other raw products are also used with same reference. This definition has not specifically been confined nor it is further elaborated whether it applies only to quadruped or birds having two legs and feathers. As the word "animal" is used in general sense, therefore, as discussed above, birds includes the same...70
The word ‘means’ is used to restrict the scope of the word to the four corners what is stated in the clause and deprives it of any other meaning that it may have in the English language. The word ‘included’ on the other hand, is used with a view to enlarging the meaning of the word, by also clothing it with connotation given to it in the interpretation clause in addition to the sense which it conveys in common parlance...71
Word ‘any. —’The word ‘any’ has diversity of meaning and may be employed to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one’. Meaning of
Word ‘any. —’The word ‘any’ has diversity of meaning and may be employed to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one’. Meaning of