1
BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION, NEW DELHI
APPEAL NO._________ OF 2010
IN THE MATTER OF:
JAHANVI WORAH,
Q-19B, JUNGPURA EXTN.,
NEW DELHI - 110014
…
APPELLANT
…
RESPONDENT
VERSUS
ITC LTD.
37, J.L. NEHRU ROAD,
KOLKATA 700071,
WEST BENGAL.
APPEAL UNDER SECTION 21(a)(ii) OF THE
CONSUMER PROTECTION ACT, 1986.
MOST RESPECTFULLY SHEWETH:
1. The Appellant is seeking to file the present appeal being aggrieved by
an order dated May 14, 2010 passed by Delhi State Consumer
Disputes Redressal Commission (“State Commission”) in Case No.
C-10/39 (“impugned order”), certified by the Registry of the State
Commission on June 21, 2010 and communicated to the Appellant on
June 24, 2010, dismissing in limine the Appellant’s complaint by
refusing to exercise its jurisdiction inspite of the fact that the complaint
duly disclosed commission of unfair trade practices, by holding, interalia, that the Appellant should approach MRTP Commission for the
said grievance, despite the fact the MRTP Commission has since been
wound up and the MRTP Act repealed with effect from September 01,
2009. Certified copy of the impugned order is being filed herewith.
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2. The State Commission has further held in the impugned order that
there is no provision in the Consumer Protection Act, 1986 (“the
Act”) that is in pari materia with Section 36-A of the MRTP Act, for
conducting any enquiry into unfair trade practices under the Act. This
finding is clearly contrary to the admitted legal position that Section
36-A of the MRTP Act had contained definition of “Unfair trade
practice” that was borrowed and incorporated by amendment of
Section 2 (1) (r) of the Consumer Protection Act by Act 50 of 1993
with effect from 18-06-1993.
3. In fact the findings rendered by the State Commission run contrary to
not only the statutory provisions but the legislative intent in enacting
the Consumer Protection Act and amendments thereto so as to
empower the Fora under the Act to look into the complaints of unfair
trade practices. It is respectfully submitted that the scope and purview
of jurisdiction of the Fora under the Act is not confined to complaints
for defects in goods and deficiency in service as was originally
contemplated when the Act was enacted, but has since been expanded
by several amendments thereto so as to include, inter-alia, complaints
for restrictive trade practices and unfair trade practices.
The
amendments in the years 1993 and 2002 to the definition of
“complaint” in section 2 (1) (c) of the Act bear testimony to the above.
Clearly, the State Commission has failed to exercise jurisdiction vested
in it by law.
4. It is further submitted that the impugned order has been made inspite
of the order of this Hon’ble Commission dated November 13, 2009 in
3
Complaint No. 176 of 2009 granting liberty to approach appropriate
forum and on a total misinterpretation and misreading of the said
order.
5. The said earlier complaint No. 176 of 2009 filed before this Hon’ble
Commission was allowed to be withdrawn at the stage of admission
on November 13, 2009 with liberty to file the same before an
appropriate forum as this Hon’ble Commission was of the view during
the course of hearing that the amount of compensation should be
reduced. True copy of the said order dated November 13, 2009 of this
Hon’ble Commission is annexed hereto and marked Annexure A.
6. In fact, the Appellant had filed another complaint before this Hon’ble
Commission with additional material being Complaint No. 17 of 2010,
which was not entertained by this Hon’ble Commission on January
27, 2010 and the liberty granted vide order dated November 13, 2009
was maintained. True copy of the said order dated January 27, 2010 is
annexed hereto and marked Annexure B.
7. It was thereafter that pursuant to the liberty granted by this Hon’ble
Court that the Appellant had filed the said complaint before the State
Commission.
8. The impugned order is also based on the following principal findings,
all of which, in the respectful submission of the Appellant, are contrary
to the indubitable facts and settled law, which make the same
unsustainable and untenable. The impugned order is also contrary to
the substantive provisions of law and is based on fundamentally
4
erroneous legal propositions, which go to the root of the matter. The
Hon’ble State Commission has therefore acted in the exercise of its
jurisdiction illegally and with material irregularity.
i.
The Hon’ble State Commission has held that the Respondent
had not published any advertisement claiming their product or
brand name to be the same as that of other manufacturers. That
being the case, the Hon’ble State Commission has held that the
advertisement published by the Respondent is not misleading.
The aforesaid finding, however, clearly ignores the indubitable
facts pleaded by the Appellant in its Complaint. Pertinently, the
Appellant at no point in time pleaded that the brand name of the
product sold by the Respondent was similar to the ones sold by
the other manufacturers as named in the Complaint. On the
contrary, it was the Appellant’s case that since the product sold
by the Respondent was the same as that of other manufacturers,
the claim made by the Respondent on the packets of its product
regarding “50% extra” was clearly misleading; when in fact, it
did not have “50% extra” as compared to similar products of
other manufacturers. It was therefore the Appellant’s case that
by making such false representations, the Respondent had
attempted to deceive consumers across the country by printing
false information on the packets of the Product by way of its
promotional methods. The aforesaid indubitable facts have
been clearly ignored by the Hon’ble State Commission and
therefore the impugned order deserves to be set aside by this
Hon’ble Commission.
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ii.
The Hon’ble State Commission has further held that even the
claim of ‘50% extra’ made by the Respondent on its packets is
not false or misleading since it has not been alleged that the
same product being sold earlier was not of the same weight or
not less than 50% as claimed by the Respondent. In this regard,
the Appellant submits that before filing the Complaint, it
attempted to find out from the market the weight of the packets
of Bingo Tedhe Medhe Masala Tadka of the Respondent priced
at an MRP of Rs. 10/- prior to the introduction of the packs of
the Product that contained an inscription on the wrapper that it
had 50% extra. However, the Appellant could not find any
trace in the market of the packs of the Product prior to the
introduction of packs with 50% extra and being sold at an MRP
of Rs. 10/-. It was thus apparent that the claim of 50% extra on
the wrapper of the Product was false, baseless and misleading.
Clearly the Respondent had made a false statement on the
wrappers of the packets of the Product to mislead the innocent
consumers. The Appellant submits that the aforesaid was
categorically pleaded by it in its Complaint before the Hon’ble
State Commission and therefore, the finding arrived at by the
Hon’ble State Commission in clear disregard of the same is
incorrect and erroneous.
iii.
The conclusion of the Hon’ble State Commission that the
advertisements published by the Respondent are not misleading
is untenable also because it goes contrary to the decision of the
Hon’ble Supreme Court in the case of Lakhanpal National Ltd.
v. M.R.T.P. Commission, [1989] 2 SCR 979. In the aforesaid
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decision, while explaining the scope of the term ‘unfair trade
practice’, the Hon’ble Supreme Court held that when a problem
arises as to whether a particular act can be condemned as an
unfair trade practice or not, the key to the solution would be to
examine whether it contains a false statement and is
misleading; and further, what is the effect of such a
representation made by the manufacturer on the common man.
The Hon’ble Supreme Court also stated that there could be
another question posed as to whether an act leads a reasonable
person in the position of a buyer to a wrong conclusion. In the
instant case, the Product as advertised by the Respondent does
not have “50% extra” as compared to similar products of other
manufacturers. The same is therefore clearly misleading and
constitutes an ‘unfair trade practice’. Further, as is evident from
the decision of the Hon’ble Supreme Court in the aforesaid
case, to constitute an unfair trade practice, it is not necessary
that the brand name of the product sold by the Respondent
should
be
comparable
to
the
brand
name
of
other
manufacturers. That being the settled legal position, the
conclusions arrived at by the Hon’ble State Commission, based
on extraneous considerations, are wrong and ought to be set
aside by this Hon’ble Commission.
iv.
The Hon’ble State Commission has observed that the acts of
the Respondent do not amount to making a false statement
since the Respondent is only giving an ‘incentive” to the
consumers to promote sale of its products. The aforesaid
finding however clearly ignores the fact that the Respondent is
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not giving any such alleged incentive. On the other hand, the
Respondent is deliberately making a false and misleading
representation that it is offering “50% extra” of the product in
question when, in fact, it is not.
v.
The Hon’ble State Commission has observed that the
allegations contained in the Complaint filed by the Appellant
do not constitute a ‘consumer complaint’. However, the said
finding clearly falls foul of the various provisions of the
Consumer Protection Act, 1986 (“Act”).
Pertinently, a
‘complaint’, as defined in the Act under Section 2(c)(i), inter
alia, means an unfair trade practice adopted by any trader or
service provider. Noticeably, the acts complained of by the
Appellant clearly fall within the scope and ambit of the
definition of unfair trade practice as provided in Section 2 (1) (r)
(1) (i), Section 2 (1) (r) (1) (ix) and Section 2 (1) (r) (2) of the
Act. There is also no doubt that the Appellant is a consumer as
defined in Section 2(1)(d)(i) of the Act. That being the case, the
conclusion arrived at by the Hon’ble State Commission that the
Complaint filed by the Appellant is not a consumer complaint
goes contrary to the substantive provisions of law and therefore
wholly untenable and unsustainable.
vi.
The Hon’ble State Commission has observed that admitting
complaints such as the one filed by the Appellant tantamount
to abuse of the process of law; and that the Complaint is
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frivolous and vexatious. However, while arriving at this
conclusion, the Hon’ble State Commission completely failed to
notice that the Appellant is an advocate by profession who had
filed the Complaint in public interest to prevent publishing of
false and misleading advertisements which dupe innocent
consumers. Further, the compensation that was claimed by the
Appellant was also prayed to be deposited in the Consumer
Welfare Fund or any other such fund. The observations
therefore made by the Hon’ble State Commission regarding the
bonafides of the Appellant were wholly unnecessary and
incorrect. These observations also ignore the very object of the
Act, which is to provide for better protection of the interests of
consumers. The impugned observations are therefore liable to
be expunged by this Hon’ble Commission.
9. The facts leading to the filing of the present revision petition are briefly
stated in the following paragraphs.
i.
The Appellant abovenamed is an Advocate by profession
practicing in New Delhi.
ii.
The Respondent is a large corporation engaged in, inter-alia,
selling edible consumer products including, biscuits, namkeens
etc. Products of the Respondent have visibility and availability
across the country. The Respondent also spends huge amounts
of money on advertising its products in electronic and print
media. By its own admission, the Respondent’s total
advertising budget for the financial year 2008-09 was Rs. 502.30
crores.
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iii.
Sometime in November 2009, based on the advertisements by
the Respondent and various representations made by the
Respondent on the packets of its products, the Appellant
purchased “Bingo Tedhe Medhe Masala Tadka” (hereinafter
referred to as “the Product”) of the Respondent in Delhi. The
Appellant bought a packet of 67.5 g of the Product at an MRP
of Rs.10/-. The original Bill dated November 19, 2009 and the
empty pack of the Product has been filed by the Appellant
before this Hon’ble Commission as detailed in paragraphs (xiv)
to (xix) below. The Appellant, to establish her bonafides as a
purchaser of the impugned Product and as a consumer, had
filed a fresh Bill as also a fresh packet of the Product, also
purchased in Delhi before the Hon’ble State Commission.
A
copy of the said bill dated February 3, 2010, in proof of
purchase of the Product is annexed hereto and marked as
Annexure C. An empty pack of the Product is annexed hereto
and marked as Annexure D.
iv.
The wrapper of each packet of the Product also contained an
inscription that it contained “50% extra”. Such representation
on the wrapper clearly implied that either the contents were
50% extra when compared to the competing products available
in the market or that the contents were 50% extra over the
quantity being sold earlier prior to introduction of such packs of
the Product.
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v.
The Appellant soon realized that the Product as advertised by
the Respondent did not have “50% extra” as compared to
similar products of other manufacturers. To confirm her
suspicions the Appellant went to the market once again and
purchased the competing products manufactured by other
companies.
vi.
Upon comparison of the Respondent’s said Product with
similar products manufactured and sold by other companies,
the Appellant was shocked to find that the claims made by the
Respondent on the packets of the Product were completely
false, misleading and untrue. It also became apparent that the
Respondent had materially misled the public concerning the
price at which the Product was being sold inasmuch as that it
did not have the advertised quantity, i.e. 50% extra, as
compared to other products as was advertised; and that the
Respondent had published the advertisements for sale of the
Product at a bargain price when, in fact, it was not intended to
be offered for sale at the bargain price. Obviously such false
and misleading claims and representations were made by the
Respondent with a view to promote the sale of the Product and
to cheat innocent consumers.
vii.
The comparison of the price and quantity of the competing
products available in the market with the Product as mentioned
in the chart below clearly establishes the unfair and deceptive
trade practices, means and methods adopted by the Respondent
for promoting the sale of the Product.
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GRAMMAGE AND PRICE OF SIMILAR PRODUCTS IN THE
MARKET
BRAND Bingo
PRICE
Rs. 10
viii.
67.5g
Kurkure
Masala
Munch
Yellow
Diamond
Haldiram
55g
80g
45g
The aforesaid comparison makes it absolutely clear that the
Respondent has attempted to deceive consumers across the
country by printing false information on the packets of the
Product. The claims made by the Respondent, by way of its
promotional methods, are clearly unfounded and it is obvious
that the packets of the Product do not contain ‘50% extra’ as
has been sought to be projected.
ix.
It is thus apparent and established that the packets of the
Product being sold by the Respondent at an MRP of Rs.10/- do
not have 50% extra quantity as compared to similar competing
products available in the market. Clearly, the Respondent had
made a false statement on the wrappers of the packets of the
Product to mislead the innocent consumers.
x.
As stated above, the Appellant also attempted to find out from
the market the weight of the packets of Bingo Tedhe Medhe
Masala Tadka of the Respondent priced at an MRP of Rs. 10/prior to the introduction of the packs of the Product that
contained an inscription on the wrapper that it had 50% extra.
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The Appellant could not find any trace in the market of the
packs of the Product prior to the introduction of packs with
50% extra and being sold at an MRP of Rs. 10/-. It was thus
apparent that the claim of 50% extra on the wrapper of the
Product was false, baseless and misleading. Clearly the
Respondent had made a false statement on the wrappers of the
packets of the Product to mislead the innocent consumers.
xi.
The acts of the Respondent clearly constitute, inter-alia, unfair
trade practice as defined in Section 2 (1) (r) (1) (i), Section 2 (1)
(r) (1) (ix) and Section 2 (1) (r) (2) of the Act.
xii.
It is further submitted that the acts of the Respondent clearly
fall within the scope of the term ‘unfair trade practice’ as
defined by the Hon’ble Supreme Court in the case of Lakhanpal
National Ltd. v. M.R.T.P. Commission, [1989] 2 SCR 979.
xiii.
It is submitted that the impugned unfair trade practices of the
Respondent have caused loss and injury to a large number of
consumers including the Appellant. Most of the consumers are
not identifiable in view of the countrywide presence of the
Product as well as the extensive coverage of the said false and
misleading advertisements by the Respondent.
xiv.
On the basis of the cause of action set out hereinabove, the
Appellant had earlier filed a Complaint before this Hon’ble
Commission, New Delhi being Consumer Complaint No.176
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of 2009, in respect of the advertisement for the Product
impugned in the Complaint before the Hon’ble State
Commission. In the said complaint, the Appellant had, inter
alia, prayed for an order directing the Respondent to pay a sum
of Rupees One Crore to the credit of the Consumer Welfare
Fund or such other fund or authority as this Hon’ble
Commission deemed fit. However, on November 13, 2009, the
Appellant had withdrawn the said Complaint with liberty to file
a fresh complaint before the appropriate forum in accordance
with law, which was granted.
(A copy of the Order dated
November 13, 2009 is annexed as Annexure A).
xv.
It is respectfully submitted that it was the Appellant’s earnest
and bona fide belief that if she was able to justify her claim of
Rs. One Crore on the basis of additional material and
consequently establish the jurisdiction of this Commission to
entertain the Complaint, the fresh Complaint could also lie
before this Commission; more so since the Appellant believed
that the expression ‘appropriate forum’ would not exclude this
Hon’ble Commission.
xvi.
It is submitted that as per the public financial records of the
Respondent, which are available on the website of the Ministry
of Company Affairs, the Respondent’s total advertising budget
for the financial year 2008-09 was Rs. 502.30 crores. A copy of
the Profit and Loss Account of the Respondent is annexed
herewith as Annexure E.
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xvii.
Accordingly, in January 2010, the Appellant filed a fresh
Complaint before this Hon’ble Commission, being Consumer
Complaint No. 17 of 2010, alongwith additional material
information, in particular the financial records of the
Respondent for the financial year 2008-09, which provided for
its advertising budget as Rs. 502.30 crores and which justified
the Appellant’s claim of Rupees Once Crore pursuant to the
provisions of Section 14(1)(hb) of the Act.
xviii.
The fresh Complaint came up for admission before a bench
comprising Hon’ble Mr. Justice K.S. Gupta and Hon’ble Mrs.
Rajyalakshmi Rao on January 22, 2010. However, when the
matter was taken up for hearing, the Hon’ble Members
observed that since the order dated November 13, 2009 was
passed by a bench presided over by Hon’ble Mr. Justice R.K.
Batta, the Complaint should be listed before a bench
comprising Hon’ble Mr. Justice R.K. Batta. The matter was
accordingly adjourned to January 27, 2010. True typed copy of
the Order dated January 22, 2010 of the Hon’ble NCDRC is
annexed hereto and marked as Annexure F.
xix.
The Complaint accordingly came up for admission on January
27, 2010. When the matter was taken up for hearing on the said
date, this Hon’ble Commission had dismissed the Complaint
on the ground that the order dated November 13, 2009 gave the
Appellant the liberty to file a fresh complaint before an
appropriate forum, other than the National Commission and
that the Complaint was therefore not maintainable before the
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National Commission. The Hon’ble Members however
observed that this order of dismissal will not come in the way of
the Appellant in filing a Complaint pursuant to the earlier order
dated November 13, 2009. (A copy of the Order dated January 27,
2010 is annexed as Annexure B).
xx.
The Appellant, therefore, filed the Complaint before the
Hon’ble State Commission pursuant to the liberty granted to
her vide order dated November 13, 2010.
xxi.
In her Complaint before the Hon’ble State Commission, the
Appellant, inter alia, claimed that by virtue of the provisions of
Section 14(1)(hb) of the Act, the Respondent was liable to pay a
sum of Rs. 99,94,000/- (Rupees Ninety Nine Lacs Ninety Four
Thousand only) or such sum as may be determined by the
Hon’ble State Commission for loss and injury suffered by a
large number of consumers who were not identifiable
conveniently. The Appellant further prayed that the said sum
was liable to be paid to the Consumer Welfare Fund pursuant
to Rule 10 A of the Consumer Protection Rules, 1987 or to be
credited in such other manner as may be determined by the
Hon’ble State Commission. The Appellant also prayed that by
virtue of provisions of Section 14 (1) (hc) of the Act, the
Respondent was also liable to be directed to issue corrective
advertisement
to
neutralize
the
effect
of
misleading
advertisements issued by it. In addition to the aforesaid, the
Appellant prayed that the Respondent was also liable to pay her
a further sum of Rs.5,000/- as compensation. Further, by virtue
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of the provisions of Section 14(1)(f) of the Act, read with
Sections 17 & 18 of the Act, the Appellant prayed that the
Respondent was liable to be directed to cease and desist from
continuing with the unfair trade practice of publishing and
making false and misleading advertisements for the Product
and to withdraw from the market all the stocks of the Product
which contain the statement on the label “50% extra”.
xxii.
Vide the impugned order, the Hon’ble State Commission has,
however dismissed the Complaint filed by Appellant and
directed her to deposit a sum of Rs. 10,000/- as costs on the
ground that the Complaint is frivolous and vexatious. It is
pertinent to mention that though the matter was heard by the
State Commission on May 14, 2010, at that stage orders were
reserved. Thereafter, the order was subsequently pronounced as
dated May 14, 2010, was certified by the Registry of the State
Commission on June 21, 2010 and communicated to the
Appellant on June 24, 2010.
10. The impugned order passed by the Hon’ble State Commission is liable
to be set aside inter alia on the following grounds which are taken
without prejudice to each other:
GROUNDS
A. Because the State Commission gravely erred in holding, inter-alia,
that the Appellant should approach MRTP Commission for the
said grievance, despite the fact the MRTP Commission has since
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been wound up and the MRTP Act repealed with effect from
September 01, 2009.
B. Because the State Commission further erred in holding that there is
no provision in the Consumer Protection Act, 1986 (“the Act”)
that is in pari materia with Section 36-A of the MRTP Act, for
conducting any enquiry into unfair trade practices under the Act.
This finding is clearly contrary to the admitted legal position that
Section 36-A of the MRTP Act had contained definition of “Unfair
trade practice” that was borrowed and incorporated by amendment
of Section 2 (1) (r) of the Consumer Protection Act by Act 50 of
1993 with effect from 18-06-1993.
C. Because the findings rendered by the State Commission run
contrary to not only the statutory provisions but the legislative
intent in enacting the Consumer Protection Act and amendments
thereto so as to empower the Fora under the Act to look into the
complaints of unfair trade practices. It is respectfully submitted
that the scope and purview of jurisdiction of the Fora under the Act
is not confined to complaints for defects in goods and deficiency in
service as was originally contemplated when the Act was enacted,
but has since been expanded by several amendments thereto so as
to include, inter-alia, complaints for restrictive trade practices and
unfair trade practices. The amendments in the years 1993 and
2002 to the definition of “complaint” in section 2 (1) (c) of the Act
bear testimony to the above. Clearly, the State Commission has
failed to exercise jurisdiction vested in it by law.
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D. Because the impugned order has been made inspite of the order of
this Hon’ble Commission dated November 13, 2009 in Complaint
No. 176 of 2009 granting liberty to approach appropriate forum
and on a total misinterpretation and misreading of the said order.
The State Commission failed to appreciate that it was not the intent
of this Hon’ble Commission that the jurisdiction of the fora under
the Act cannot be invoked at all in the given facts of the case.
E. Because the State Commission gravely erred in imposing costs of
Rs.10,000/- that were not warranted in the facts and circumstances
of the case;
F. Because the Hon’ble State Commission failed to appreciate that the
actions of the Respondent constitute an unfair trade practice and
fall foul, inter alia, of the provisions of Section 2(r) of the Act. The
impugned order is therefore liable to set aside by this Hon’ble
Commission.
G. Because the impugned order goes contrary to the decision of the
Hon’ble Supreme Court in the case of Charan Singh v. Healing
Touch Hospital & Ors. Reported as (2007) 7 SCC 668. In the
aforesaid decision, the Hon’ble Supreme Court has held that
whether the claim of a Appellant is realistic, exaggerated or
excessive can only be determined after the Appellant is given an
opportunity to prove the case set up by him under various heads.
Pertinently, by not giving the Appellant an opportunity to justify its
claim for a sum of Rs. 99,94,000/- (Rupees Ninety Nine Lacs
Ninety Four Thousand only) for the loss and injury suffered by a
19
large number of consumers, the Hon’ble State Commission has
failed to follow the law as laid down by the Hon’ble Supreme
Court and therefore acted with material irregularity. The impugned
order therefore is liable to be set aside on this ground alone.
H. Because the Hon’ble State Commission failed to appreciate that the
Product as advertised by the Respondent did not have “50% extra”
as compared to similar products of other manufacturers and
therefore, the claims made by the Respondent on the packets of the
Product were completely false, misleading and untrue. In the face
of the aforesaid indubitable fact, the impugned conclusion that the
advertisement of the Respondent is not misleading is therefore
liable to be set aside by this Hon’ble Commission.
I. Because the Hon’ble State Commission failed to appreciate that by
publishing false and misleading advertisements, the Respondent
had materially misled the public concerning the price at which the
Product was being sold inasmuch as that it did not have the
advertised quantity, i.e. 50% extra, as compared to other products
as was advertised; and that the Respondent had published the
advertisements for sale of the Product at a bargain price when, in
fact, it was not intended to be offered for sale at the bargain price.
Obviously such false and misleading claims and representations
were made by the Respondent with a view to promote the sale of
the Product and to cheat innocent consumers. The impugned order
upholding the actions of the Respondent is therefore liable to be set
aside by this Hon’ble Commission.
20
J. Because the Hon’ble State Commission completely overlooked the
comparative chart furnished by the Appellant and which clearly
established the unfair and deceptive trade practices, means and
methods adopted by the Respondent for promoting the sale of the
Product. The impugned order which has put a seal of approval on
the unfair trade practices adopted by the Respondent is therefore
liable to be set aside by this Hon’ble Commission.
K. Because the Hon’ble State Commission failed to appreciate that
despite strenuous attempts made by the Appellant, it could not find
any trace in the market of the packs of the Respondent’s Product
prior to the introduction of packs with 50% extra and being sold at
an MRP of Rs. 10/-. It was thus apparent that the claim of 50%
extra on the wrapper of the Product was false, baseless and
misleading. Clearly the Respondent had made a false statement on
the wrappers of the packets of the Product to mislead the innocent
consumers. The aforesaid fact, having been completely ignored by
the Hon’ble State Commission, the impugned order is liable to be
set aside by this Hon’ble Commission.
L. Because the Hon’ble State Commission failed to appreciate that the
acts of the Respondent clearly constituted, inter-alia, unfair trade
practice as defined in Section 2 (1) (r) (1) (i), Section 2 (1) (r) (1)
(ix) and Section 2 (1) (r) (2) of the Act. That being the case, the
impugned conclusion that the acts of the Respondent do not
constitute an unfair trade practice is therefore clearly erroneous and
liable to be set aside by this Hon’ble Commission.
21
M. Because the Hon’ble State Commission failed to appreciate that the
acts of the Respondent clearly fall within the scope of the term
‘unfair trade practice’ as defined by the Hon’ble Supreme Court in
the case of Lakhanpal National Ltd. v. M.R.T.P. Commission,
[1989] 2 SCR 979 wherein it was held that when a problem arises
as to whether a particular act can be condemned as an unfair trade
practice or not, the key to the solution would be to examine
whether it contains a false statement and is misleading; and further,
what is the effect of such a representation made by the
manufacturer on the common man. The Hon’ble Court also stated
that there could be another question posed as to whether an act
leads a reasonable person in the position of a buyer to a wrong
conclusion. The impugned order, in as much as it goes contrary to
the aforesaid decision of the Hon’ble Supreme Court is therefore
liable to be set aside by this Hon’ble Commission.
N. Because the Hon’ble State Commission failed to appreciate that the
impugned unfair trade practices of the Respondent have caused
loss and injury to a large number of consumers including the
Appellant. Most of the consumers are not identifiable in view of
the countrywide presence of the Product as well as the extensive
coverage of the said false and misleading advertisements by the
Respondent. Therefore, by virtue of the provisions of Section
14(1)(f) of the Act, read with Sections 17 & 18 of the Act, the
Respondent should have been directed to cease and desist from
continuing with the unfair trade practice of publishing and making
false and misleading claims on the wrappers of the packets of the
Product and to withdraw from the market all the stocks of the
22
Product which contain the statement “50% extra”. The impugned
order, in as much as it completely ignores the aforesaid is therefore
liable to be set aside by this Hon’ble Commission.
O. Because the Hon’ble State Commission failed to appreciate that
vide orders dated November 13, 2009 and January 21, 2010, this
Hon’ble Commission had granted liberty to the Appellant to file a
fresh complaint before a forum other than the National
Commission since the Appellant was not able to satisfy this
Hon’ble Commission on the aspect of pecuniary jurisdiction.
Pursuant to the aforesaid liberty granted by this Hon’ble
Commission, the Appellant had approached the Hon’ble State
Commission by reducing its claim below Rs. One Crore. However,
the Hon’ble State Commission dismissed the Complaint filed by
the Appellant on the untenable ground that such complaints can be
entertained only by authorities constituted under the MRTP Act or
by the Courts of law, when no such observations were made by this
Hon’ble Commission in the aforesaid orders. The impugned order,
in as much as it is based on an incorrect reading of the liberty
granted by this Hon’ble Commission is therefore liable to be set
aside.
P. Because the Hon’ble State Commission has incorrectly held that
since the Respondent is only giving an incentive to the consumers,
its advertisements cannot amount to making of a false statement.
The aforesaid finding however clearly ignores the fact that the
Respondent is not giving any such alleged incentive. On the other
hand, the Respondent is deliberately making a false and misleading
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representation that it is offering “50% extra” when in fact it is not.
The impugned order, in as much as it clearly ignores the aforesaid
fact is therefore wholly untenable and liable to be set aside by this
Hon’ble Commission.
Q. Because the Hon’ble State Commission failed to appreciate that the
Complaint filed by the Appellant was a ‘consumer complaint’ as
defined in the Act. Pertinently, a ‘complaint’, as defined in the Act
under Section 2(c)(i), inter alia, means an unfair trade practice
adopted by any trader or service provider. Noticeably, the acts
complained of by the Appellant clearly fall within the scope and
ambit of the definition of unfair trade practice as provided in
Section 2 (1) (r) (1) (i), Section 2 (1) (r) (1) (ix) and Section 2 (1) (r)
(2) of the Act. There is also no doubt that the Appellant is a
consumer as defined in Section 2(1)(d)(i) of the Act. That being the
case, the conclusion arrived at by the Hon’ble State Commission to
the contrary goes against the substantive provisions of law and is
therefore wholly untenable and unsustainable.
R. Because the Hon’ble State Commission failed to appreciate that
after coming into force of the Competition Act, 2002, all cases
pertaining to unfair trade practices other than those referred to in
Clause (x) of Sub-Section 1 of Section 36A of the Monopolies and
Restrictive Trade Practices Act, 1969 are being adjudicated upon
by the Hon’ble National Commission. That being the case, the
impugned conclusion that the expression ‘appropriate forum’ in the
orders dated November 13, 2009 and January 22, 2010 did not
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include Consumer Fora at all is wholly untenable and liable to be
set aside by this Hon’ble State Commission.
S. Because, respectfully, the impugned order passed by the Hon’ble
State Commission is tantamount to an abdication of jurisdiction.
T. Because the Hon’ble State Commission failed to appreciate that the
Appellant is an advocate by profession who had filed the
Complaint in public interest to prevent publishing of false and
misleading advertisements which dupe innocent consumers.
Further, the compensation that was claimed by the Appellant was
also prayed to be deposited in the Consumer Welfare Fund or any
other such fund. The impugned observations made by the Hon’ble
State Commission regarding the bonafides of the Appellant were
therefore wholly unnecessary and incorrect. These observations
also ignore the very object of the Act, which is to provide for better
protection of the
interests of consumers. The impugned
observations are therefore liable to be expunged by this Hon’ble
Commission.
PRAYER
In the circumstances, it is respectfully prayed that this Hon’ble
Commission may be pleased to pass an order:-
a) To call for the records of the complaint being C-10/39 titled as
Jahanvi Worah vs. ITC Ltd. before the Delhi State Consumer
Disputes Redressal Commission and upon perusal of the
records be pleased to quash the impugned order dated 14-05-
25
2010 and be pleased to allow the complaint filed by the
Appellant;
b) To award costs of the Appeal in favour of the Appellant;
c) To pass such further orders as this Hon’ble Commission may
deem fit in the facts and circumstances of the case;
COMPLAINANT
THROUGH
COUNSEL FOR THE COMPLAINANT