Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
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.