GODFREY PHILLIPS INDIA LTD.versusAJAY KUMAR

                    [2008] 5 S.C.R. 937


            GODFREY PHILLIPS INDIA LTD.                      A
                           . v.
                      AJAY KUMAR
             (Civil Appeal No. 2339 of 2008)
                      APRIL 1, 2008
                                                             B
   . [DR. ARIJIT PASAYAT ANO P. SATl-:IAS!VAM, JJ.]

      Consumer Protection Act, 1986 - s. 14, 14(1)(d) and
14(hc) - Complaint alleging unfair trade practices...: Upheld
by National Commission - Directions to discontinue unfair    c
trade practices; to issue corrective advertisements; and to pay
compensation - Challenge to - Held: A/legations were not
supported by any material or evidence and not specifically
pleaded - s.5(1) and (2) of 2003 Act prohibited issuance of
any advertisement in relation to cigarettes - Power to issue
direction regarding corrective advertisement was introduc~d D
u/s 14 of 1986 Act, later - There was no allegation that
complainant suffered loss and prayerfor compensation was
also not made - Also complainant was hot entitled to file such
complaint to represent others - Thus, directions issued not E
sustainable and order of High Court set aside - Cigarettes
and other Tobacco Products (Prohibition of Advertisement and
Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003 - s. 5(1) and (2).
     In 1999, the appellant issued advertisement in F
newspapers and. magazines for the cigarettes
manufactured and sold under brand name 'Red & White'.
Respondent filed complaint against the said
advertisement alleging unfair trade practices. Both the
District Forum as well as the State Commission held that G
complaint was not _entertainable since suit in relation to
the said advertisement was pending in the Civil Court. The
respondent withdrew the suit an~ filed Revision Petition.
The National Commission held that the slogan in the
                            937                              H
    938       SUPREME COURT REPORTS            [2008] 5 S.C.R.
                                      '


A advertisement that 'Red & White smokers are one of a           ,,
  kind', showing image of Akshay Kumar holding a cigarette
  would detract the people from the statutory warning. It
  indicated that smokers of Red & White cigarettes could
  be super actor performing all the film stunts without
B duplicates" thus, amounted to unfair trade practices. It
  directed the appellant: (i) to discontinue unfair trade
  practices and not to publish such advertisement; (ii) to
  issue corrective advertisements; and (iii) to pay
  compensation of Rs.20,-000/- to the complainant.
c Appellant filed a Review Petition that when direction (i)
  was given, the Cigarettes and other Tobacco Products
  (Prohibition of Advertisement and Regulation of Trade an~
  Commerce, Production, Supply and Distribution) Act, 2003
  had already come into force by which all advertisements
  in relation to cigarettes had already been prohibited; that
0
  direction (ii) was passed on the basis of provisions of the
  Consumer Protection Act, 1986 which was not in force at
  the time of publication of the impugned advertisement in
  the year 1999; and that direction (iii) was passed without
  any claim for compensation made in the complaint. The
E Review Petition was dismissed without considering the
  contentions. Hence the present appeal.
          Allowing the appeals, the Court
       HELD: 1.1 The direction to discontinue unfair trade
F practices and not to publish any advertisement like the
  impugned advertisement 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
G 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
H should not have given the direction on pure surmises.
         GODFREY PHILLIPS INDIA LTb.· v. AJAY KUMAR           939

      [Paras 4 and 15J [942-D, E; 945-G; 946-A, BJ                   A
          Bharat Dharma Syndicate v. Harish Chandra AIR 1937
      PC 146; The Union of India v. Pandurang Kashinath More
      AIR 1962 SC 630 - referred to.
           1.2 Section 5(1) and Section 5(2) of the Cigarettes and   B
      other Tobacco Products (Prohibition of Advertisement
                                                     .       . .
      and Regulation of Trade and Commerce, Production,
      Supply and Distribution) Act, 2003 clearly prohibited
      issuance of any advertisement in relation to cigarettes.
      Therefore, direction to issue the corrective advertise.ment    c
      by the National Commission could not have been given.
      Further, the power for giving such direction was
      introduced under Section 14 of the Consumer Protection
      Act w.e.f. 15.3.2003. Thus, such direction cannot be
      sustained. [Para 15J [946-C, DJ
                                                                     D
            1.3 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
       instant case, there was no prayer for any compensatit>n. E
      There was no allegation that the complainant suffered any
       loss on account of the advertisement issued in 1999.
      There was no allegation or material placed on record to
      ·Show negligence. The complainant himself had stated
       that he was smoking cigarettes for the last two decades. F
      Therefore, the impugned advertisement cannot be said
      to have affected the complainant and/or caused any
       loss to him to warrant grant of compensation. [Paras 16
      and 17J [946-E, F, GJ
           1.4 The National Commission itself noted that the G
      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 H
                                /
                            f
    ·940       SUPREME COURT REPORTS                [2008] 5 S.C.R.


A understandable as to how the National Commission even
  proceeded to deal with the complaint. 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
B permissible for the complainant to represent others. The
  complainant's case right through was that he was filing a
  petition in public interest and had accepted that the matter
  was pending before the Civil Court. Therefore, the District
  Forum and the State Commission dismissed the complaint
C of the appellant. After having recorded that the complaint
  in that manner was not entertainable, the National
  Commission could not have passed the impugned order.
  The orders of the National Commission are indefensible
  and are set aside. [Paras 18, 19 and 20] [947-A, B, C, D, E]
D       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2339 of2008.
         From the final Judgment and Order dated 14.7.2006 of
    the National Consumer Disputes Redressal Commission, New
    Delhi in M.P. No. 289/2006 in Revision Petition No. 40 of 2002.
E
                                 WITH
           Civil Appeal No. 2340 of 2008.
         Ashok H. Desai, Subrat Deb, Akhil P. Chhabra and Rajan
F   Narain for the Appellant.
           Ajay Kumar, Respondent-In-Person.
           The Judgment of the Court was delivered by
           DR. ARIJIT PASAYAT, J. 1. Leave granted.
G
        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 jurisd.iction against the concurrent finding of the
H District Consumer Disputes Redressal Forum, Yamuna Nagar
              GODFREY PHILLIPS INDIA LTD. v. AJAY KUMAR                  941
                       [DR. ARIJIT PASAYAT, J.)

      "    (in short 'District Forum') and State Consumer Disputes             A
           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.                                  B
 _,i
                4. Background facts in a nl!tshell 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           c
           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
                                                                                D
           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 t.he 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 E
           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 F
           Forum. Thereafter, complainant withdrew the suit, but filed
:i,
           Revision Petition before the National Commission. 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 " ...... smokers of Red & White G
           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 H
                 '                .
    942           SUPREME COURT REPORTS                 [2008] 5 S.C.R.


A   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
B         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
c         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."
D
         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
E
                  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
F                 acts as could be performed by Akshay Kumar in
                  films and thereby detracting from the specified
                  warning; and                                                 1--

          (ii)    to issue corrective advertisements of equal size in
                  all the newspapers in which advertisements in Hindu
G                 & 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
H
        GODFREY PHILLIPS INDIA LTD. v. AJAY KUMAR              943
                 [DR. ARIJIT PASAYAT, J.]

               Rs.5,000/- as cost."                                   A
           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 atthe time of publication of the impugned
     advertisement in the year 1999. Such a direction could not have B
I~   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   c
     regard to direction (i) to dis-continue unfair trade practice and
     not to publish any 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 D
     Advertisement and Regulation of Trade and Commerce,
 i   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 E
     issuing such direction.
          6. The Review Petition was dismissed without considering
     the specific contentions by merely stating that there was no
     ground for review.
                                                                      F
           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 G
          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 H
    944        SUPREME COURT REPORTS                     [2008) 5 S.C.R.


A         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
B         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
c         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;
D
          (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
E
          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 (he) was added:
F
          "(he) to issue corrective advertisement to neutralize the
          effect of misleading advertisement at the cost of the
          Opposite Party responsible for issuing such misleading
          advertisement."
G         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
H
        GODFREY PHILLIPS INDIA LTD. v. AJAYKUMAR                   945
                 [DR. ARIJIT PASAYAT, JJ

          the Complainant may kindly be accepted in the interest of A
          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      B
     corrective advertisement on the basis of provision of law which
     was not introduced at the refevant 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     c
     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."                                D
 ¥
          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      E
          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          F
-1        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~
                                                                          G
           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
     what~oever and there was not even a suggestion/pleading that         H
   946        SUPREME COURT REPORTS                   [2008] 5 S.C.R.


A 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
B 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 146) and of this Court in The Union of
  India v. Pandurang Kashinath More (AIR 1962 SC 630) are
c 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
0
  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
E 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
F 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.
G 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
H complainant had stated in his complaint that he had filed a
             GODFREY PHILUPS INDIA LTD. v. AJAY KUMAR               947
     'I               [DR. ARIJIT PASAYAT, J]

          complaint in public interest and had accepted that the matter A
          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 B
          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           c
          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 D
)<
          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 E
          Commission are indefensible and are set aside. The appeals
          are allowed with no order as to costs.
          N.J.                                        Appeals allowed.
                                                                          F