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CASE NO.: Appeal (civil)  2339 of 2008

PETITIONER: Godfrey Phillips India ltd

RESPONDENT: Ajay Kumar

DATE OF JUDGMENT: 01/04/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  2339 OF 2008 (Arising out of SLP (C) No.532 of 2007) (With Civil Appeal 2340 of 2008 @ SLP (C) No.5051 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in these appeals is to the order of National  Consumer Disputes Redressal Commission, New Delhi (in  short the ’National Commission’). One order was passed in  exercise of revisional jurisdiction against the concurrent  finding of the District Consumer Disputes Redressal Forum,   Yamuna Nagar (in short ’District Forum’) and State Consumer  Disputes Redressal Commission (in short ’State Commission’)  dated 11.5.2001 and 12.7.2001 respectively.  Commission has  also issued directions.  

3.      The review petition filed was also dismissed, which also  forms subject matter of challenge.

4.      Background facts in a nutshell are as follows:

       The respondent filed a complaint in respect of an  advertisement given by the appellant, alleging unfair trade  practices. The advertisement was issued in newspapers and  magazines in 1999 for the cigarettes manufactured and sold  by it under the brand name of "Red & White" in respect of  which the directions have been issued.  

       The impugned advertisement apart from showing the  packet of cigarettes with the aforesaid brand name stated "Red  &  White smokers are one of a kind". The advertisement also  shows the smiling face of actor Akshay Kumar holding a  cigarette. It also contains the statutory warning "Cigarette  smoking is injurious to health" as well as price of the pack.  The complaint was dismissed by the District Forum as the  complainant  had also filed a suit in relation to the impugned  advertisement in the Civil Court. It was therefore held by the  District Forum that parallel proceedings in the District Forum  by way of Public Interest Litigation could not be entertained.  In appeal, the State Commission affirmed the order of the  District Forum.  Thereafter, complainant withdrew the suit,  but filed Revision Petition before the National Commission.

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The National Commission held that the slogan in the  advertisement that "Red & White smokers are one of a kind"   showing the image of Akshay Kumar indicated that   "\005\005smokers of Red & White cigarettes could be super actor  performing all the film stunts without duplicates". According  to the appellant, no evidence was led in the case by the  complainant either with regard to the ability of film star  Akshay Kumar to carry out stunts without duplicate or with  regard to the alleged impression created by the impugned  advertisement upon the complainant. Interestingly, the  complainant admitted that he continues to smoke cigarette for  more than two decades. The National Commission held as  follows:

       "The case of the complainant is that smoking  of cigarette by Akshay Kumar with the slogans used  in advertisement would detract the people from the  statutory warning. Seeing comparative size of the  letters etc. the statutory warning in our view loses  its prominence which is usurped by more prominent  and attractive Akshay Kumar et al and is sufficient  to detract the attention of the viewers from the  statutory warning to the image of Akshay Kumar  with the slogan indicating smokers of Red and  White cigarette could be super actor performing all  the film stunts without duplicates."   

       This according to the National Commission was sufficient  to hold that the impugned advertisement amounted the unfair  trade practices.  On the basis of the aforesaid finding, the  National Commission gave the following directions:

"(i)  to discontinue forthwith the unfair trade  practice of detracting from the statutorily  specified warning and not publish any  advertisements like Ext. ’R-1’ in any language  giving any impression that a person who  smokes Red and White Cigarette could perform  such acts as could be performed by Akshay  Kumar in films and thereby detracting from  the specified warning; and

(ii)    to issue corrective advertisements of equal size  in all the newspapers in which advertisements  in Hindu & English like Ext. R-1 were  published to neutralize the effect of the said  impugned misleading advertisements.

(iii)   Shri Ajay Kumar, the petitioner, shall be paid  a sum of Rs.20,000/- by way of compensation  and Rs.5,000/- as cost."

5.      According to the appellant the direction (ii) as quoted  above was passed on the basis of provisions of the Consumer  Protection Act, 1986 (in short the ’Act’) which was not  applicable  and was not in force at the time of publication of  the impugned advertisement in the year 1999. Such a  direction could not have been issued in dis-regard of the  applicable provision of law. Therefore, a Review Petition was  filed. In the Review Petition the appellant had contended that  direction (iii) to award compensation of Rs.20,000/- to the  complainant was passed without any claim for compensation  made in the complaint.  With regard to direction (i) to dis- continue unfair trade practice and not to publish any

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advertisement like the impugned advertisement, the appellant  took the stand that when direction was given by order dated  20.2.2006  an enactment being the Cigarettes and other  Tobacco Products (Prohibition of Advertisement and  Regulation of Trade and Commerce, Production, Supply and  Distribution) Act, 2003 (in short ’Advertisement Act’) had  already come into force w.e.f. 18.5.2003 by which all  advertisements in relation to cigarettes had already been  prohibited. As such there was no need for issuing such  direction.  

6.      The Review Petition was dismissed without considering  the specific contentions by merely stating that there was no  ground for review.  

7.      Learned counsel for the appellant has submitted that  issuing a corrective advertisement was relatable to Section 14  of the Act (as it stood in 1999) which reads as follows:

"14. Finding of the District Forum -- (1) If, after the proceeding conducted under section 13, the District  Forum is satisfied that the goods complained  against suffer from any of the defects specified in  the complaint or that any of the allegations  contained in the complaint about the services are  proved, it shall issue an order to the opposite party  directing him to do one or more of the following  things, namely:-

(a) to remove the defect pointed out by the  appropriate laboratory from the goods in  question;

(b) to replace the goods with new goods of  similar description which shall be free from  any defect,,

(c) to return to the complainant the price, or,  as the case may be, the charges paid by the  complainant; (d)      to pay such amount as may be awarded  by it as compensation to the consumer for any  loss or injury suffered by the consumer due to  the negligence of the opposite party; (e)  to remove the defects or deficiencies in the  services in question; (f) to discontinue the unfair trade practice or  the restrictive trade practice or not to repeat  them;  

(g) not to offer the hazardous goods for sale;

(h) to withdraw the hazardous goods from  being offered for sale;

(i) to provide for adequate costs to parties."

8.      The aforesaid Section 14 of the Act has been amended  w.e.f. 15.3.2003 and following clause (hc) was added:

       "(hc) to issue corrective advertisement to  neutralize the effect of misleading  advertisement at the cost of the Opposite Party  responsible for issuing such misleading

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advertisement."

9.      Therefore, the direction No.(ii) as given could not have  been given when no such clause existed at the time of  issuance of the advertisement, and as such it could not have  been invoked. The complaint was filed on 10.1.2000. The  prayer was as follows:

"It is, therefore respectfully prayed that the  complaint of the Complainant may kindly be  accepted in the interest of the justice, equity  and fair play. And the Opposite Party may  kindly be directed to discontinue the said  unfair trade practice and not to repeat the  same and help mitigating its effects in  teenagers."  

10.     Therefore, it is submitted that the direction to issue  corrective advertisement on the basis of provision of law which  was not introduced at the relevant time could not have been  given and, therefore, review should have been allowed.  

11.     It is pointed out that Section 5(2)(a) of the Cigarettes  Advertisement Act reads as follows:

       "5(2)- No person, for any direct or indirect  pecuniary benefit, shall (a) display, cause to display,  or permit or authorize to display any advertisement  of cigarettes or any other tobacco product."  

12.     Section 5(1) also has relevance, and reads as follows:

       "5-Prohibition of advertisement of cigarettes  and other tobacco  products- (1) No person engaged  in, or purported to be engaged in the production,  supply or distribution of cigarettes or any other  tobacco products shall advertise and no person  having control over a medium shall cause to be  advertised cigarettes or any other tobacco products  through that medium and no person shall take part  in any advertisement which directly or indirectly  suggests or promotes the use of consumption of  cigarettes or any other tobacco products."            

13.     It is, therefore, submitted that the order of the National  Commission is unsustainable.  

14.     There is no appearance on behalf of the respondent in  spite of service of notice.

15.     As rightly contended by learned counsel for the appellant  direction (i) was given without any material or evidence  whatsoever and there was not even a suggestion/pleading that  the advertisement was of Akshay Kumar or that he could  perform certain stunts without duplicates. There was not even  an allegation that the statutory warning was detracted from.   When such serious allegation which was required to be  established was not even specifically pleaded and when  nothing specific was indicated in the complaint, the  Commission should not have given the direction on pure  surmises. In this context, decision of the Privy Council in  Bharat Dharma Syndicate v. Harish Chandra (AIR 1937 PC

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146) and of this Court in The Union of India v. Pandurang  Kashinath More (AIR 1962 SC 630) are relevant. So far as  direction No.(ii) is concerned it is to be noted that Section 5(1)  and Section 5(2) of the Advertisement Act clearly prohibited   issuance of any advertisement in relation to cigarettes.  Therefore, the corrective advertisement as directed by the  National Commission could not have been given.  Further, the  power for giving such direction was introduced under Section  14 of the Act w.e.f. 15.3.2003. In view of the aforesaid,  direction No.(ii) cannot be sustained.  

16.     So far as direction No.(iii) is concerned, it is to be noted  that there was no prayer for any compensation. There was no  allegation that the complainant had suffered any loss.  Compensation can be granted only in terms of Section 14(1)(d)  of the Act. Clause (d) contemplates award of compensation to  the consumer for any loss or  injury suffered due to negligence  of the opposite party. In the present case there was no  allegation or material placed on record to show negligence.  

17.     Interestingly, there was no allegation or finding of loss or  injury caused to the respondent on account of the  advertisement issued in 1999. The complainant himself had  stated that he was smoking cigarettes for the last two decades.  Therefore, the impugned advertisement cannot be said to have  affected the complainant and/or caused any loss to him to  warrant grant of compensation.  

18.     Another aspect which needs to be noted is that the  complainant had stated in his complaint that he had filed a  complaint in public interest and had accepted that the matter  was pending before the Civil Court.     The District Forum and  the State Commission had, therefore, dismissed the complaint  of the appellant.  

19.     It is to be noted that the National Commission itself  noted that the respondent was not representing a "Voluntary  Consumer Association" registered under the Companies Act,  1956 or under any other law for the time being in force and  was not entitled to file a complaint about unfair trade practice  to represent other consumers. Having said so, it is not  understandable as to how the National Commission even  proceeded to deal with the complaint. It also noted that the  complainant had not moved any application or obtained any  permission under Section 13(6) of the Act and/or no such  permission was granted. In the circumstances, it was not  permissible for the complainant to represent others. The  complainant’s case right through was that he was filing a  petition in public interest. After having recorded  that the  complaint in that manner was not entertainable, the National  Commission could not have passed the impugned order.  

20.     Looked at from any angle, the orders of the National  Commission are indefensible and are set aside. The appeals  are allowed with no order as to costs.