Phillips India Ltd Vs. Ajay Kumar  INSC 547 (1 April 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM
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.
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 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:
"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
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
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 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:-
to remove the defect pointed out by
the appropriate laboratory from the goods in question;
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
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;
to remove the defects or deficiencies
in the services in question;
to discontinue the unfair trade
practice or the restrictive trade practice or not to repeat them;
not to offer the hazardous goods for
to withdraw the hazardous goods from
being offered for sale;
to provide for adequate costs to
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 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
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
13. It is, therefore, submitted that the order of the National Commission is
14. There is no appearance on behalf of the respondent in spite of service
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 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
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
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