Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This appeal is directed against the order passed by District Consumer Forum, South Mumbai in consumer complaint No.22/2003 dated 30/07/2007. While allowing the complaint partly, Forum below directed the O.P. to pay a sum of `50,000/- to the complainant with interest @ 9% p.a. from the date of complaint i.e. from 29/01/2003 till realization of said amount and also directed to pay `2,000/- for mental agony and `1,000/- towards costs. As such, org. O.P. has filed this appeal taking strong exception to the award passed by the Forum below.
The facts to the extent material to dispose of this appeal may be stated as under :-
Complainant filed consumer complaint alleging deficiency in service and unfair trade practice on the part of O.P. It was the case of the complainant that somewhere in September 2002 O.P./M/s.Hindustan Lever Company (now M/s.Hindustan Unilever Ltd.) launched special offer for its branded product ‘Ponds’ with free gift on purchase of said product. Accordingly, O.P. advertised said scheme in the news media as well as on the product itself. Scheme was valid upto 31/01/2003. Complainant got knowledge of it and accordingly, he purchased two packets of ponds having special offer printed thereon. One packet was of 440 gm. for `72/- and second packet was of 150 gm. having price of `32/-. He purchased the same from the local shop in the month of November, 2002. After purchasing the same, complainant found sticker annexed on the said packets and he was found to be lucky and on both packets he won ICICI Credit Card free of costs. On 03/01/2003 complainant approached office of O.P. with winning stickers and requested O.P. for ICICI Credit Card which he won. But, O.P. did not take any interest in giving the gift and refused to register the claim of the complainant. Therefore, complainant sent notice through his Advocate on 07/01/2003 and claimed from the O.P. ICICI Credit Card having credit limit of `50,000/- and also claimed `5,000/- as compensation from the O.P.
Complaint was resisted by O.P. filing written version. According to the O.P., complaint as filed by the complainant is bad in law, mischievous, malafide and complainant has not come before the Forum below with clean hands. O.P. is the reputed Company in consumer products line and they are producer of well known brand ‘Ponds Dream Flower Talc”. The Company is a star export house earning valuable foreign exchange for the Government of India. The Company pleaded that they already offered 20 gm and 40 gm. Extra quantity of talcum powder along with its regular packages of 100 gm and 400 gm respectively. The Company pleaded that other prizes were described on specific part of the package itself and those prizes were as follows :-
“(a) `15.00 off on purchase of any one Ponds Deo.
(b) ICICI draft worth `5,000.00
(c) ICICI draft worth `1,00,000.00
(d) ICICI draft worth `5,00,000.00
(e) ICICI Bank Credit Cards to first 50,000 callers on the specified number”
The Company pleaded that terms and conditions of the scheme were published on the website and printed on the product itself. The scheme was on certain conditions. The complainant has not produced the proof of purchase of said packs of Ponds Talc. Complainant is not a consumer. He did not pay any consideration and therefore, they pleaded that claim for prize which complainant is asking for is untenable in law. He is not entitled to get said prize. The Company also took up the plea that the ICICI Bank has not been made party to the present litigation and therefore, complaint should be dismissed with costs. They also pleaded that complainant had not called special number and prizes were available only to first 50,000 callers and complainant was not amongst them and therefore, he is not entitled for any prize as advertised by them for the said product.
On seeing the affidavits and documents placed on record and after hearing both the parties, Forum below in its impugned order directed O.P. to pay a sum of `50,000/- with interest @ 9% p.a. from 29/01/2003 till realization of said amount and also directed to pay `2,000/- for mental agony and `1,000/- towards costs. As such, org. O.P./Company has filed this appeal.
We heard Mr.Vishwabhushan Kamble, Advocate i/b. Khaitan & Jayakar, Advocate for the appellant and Mr.P.G. Sawant, Advocate for the respondent.
We are finding that this was a case of unfair trade practice in promotion of sale of company’s products. When Company resorted to sale promotion drive like one involved in this dispute, Company is supposed to act upon the same and there should be complete transparency in implementation of said promotion scheme. In the instant case, what we find is that the appellant/Company is not in a position to substantiate its claim that it had distributed 1st and 2nd prize and other prizes and had given 50000 Credit Cards to the first 50000 callers as per the scheme advertised by them on website and also printed on the product in question. In the circumstances, the Forum below had rightly cast duty on the O.P. to establish that they had adhered to the terms and conditions of the scheme, they had advertised and that as per the sales promotion scheme, they had given prizes to various persons and they had also issued 50,000 Credit Cards of ICICI Bank to those persons.
It was the contention of the Counsel for the appellant that respondent herein may be beyond first 50000 callers. If this is the case of appellant/Company that he was not amongst the first 50,000 callers, then it was the duty of the appellant/Company to establish that such and such persons were first 50,000 persons who had called and were distributed Credit Cards. No such evidence has been produced by the appellant/Company either before the District Consumer Forum or before us. We had given a lot of time to the appellant/Company to produce relevant record to show that respondent was not amongst first 50,000 callers or to further show that they had distributed ICICI Credit Cards to the first 50,000 callers, but appellant/Company miserably failed to establish this fact which they vouched repeatedly in the course of arguments. In the circumstances, we are finding that here is the respondent who had purchased two packets of talcum powder, one was of 440 gm and second was of 150 gm. talcum powder on which the sale promotion scheme was printed. Accordingly, he had called the Company’s office and had registered his claim, but he was shown door simplicitor. His grievances were not heeded and ultimately, he had to file consumer complaint in the Forum below. There is nothing on record which would prove that appellant/Company had distributed those advertised prizes to the persons entitled to or that they had issued 50000 ICICI Credit Cards to those who had approached the Company and in the circumstances, we are finding that the appellant/Company is guilty of unfair trade practice in sale promotion drive and it is for this reason, we are inclined to take side of poor consumer, who had knocked the doors of the District Consumer Forum and the State Commission in his zeal for justice. We are therefore finding that there has been deficiency in service and unfair trade practice on the part of appellant, but question is for what respondent is entitled to in the complaint in question. In the complaint, he had asked that O.P. should be directed to deliver or hand over to him two ICICI Credit Cards having credit limit of `50,000/- as prize won by him. However, we have been informed that advertisement did not stipulate that they would be given ICICI Credit Card having credit limit of `50,000/-. What complainant was entitled to was, simply two credit cards of ICICI Bank and nothing else because he had purchased two talcum powder packets. But, he was not entitled to get credit for sum of `50,000/- as he had asked for in his complaint. So, the deficiency in service, if any on the part of the appellant was not issuing two credit cards of ICICI Bank to the respondent and nothing else. Now, since the scheme is over and they are not in a position to issue two credit cards of ICICI Bank, respondent is entitled to get some amount by way of compensation in lieu of those credit cards. We are of the view that for each default committed by the appellant/Company, respondent should be paid amount of `5,000/-, so totally he is entitled to get `10,000/- from the appellant/Company for unfair trade practice in the sales promotion drive. Besides, he is also entitled to get amount of `2,000/- as compensation for mental harassment and `1,000/- as cost awarded by the District Consumer Forum. Besides, he will have to be awarded cost of `5,000/- since he was required to defend this appeal before us. Thus, we hold that in place of `50,000/-, respondent/org. complainant should be paid `10,000/- with interest @ 9% p.a. from 29/01/2003 till actual realization of said amount. Respondent is also entitled to get `2,000/- as compensation for mental agony, `1,000/- as cost of original complaint and `5,000/- as cost of this appeal. All those amounts should be paid forthwith. In the circumstances, we pass the following order :-
-: ORDER :-
1. Appeal is partly allowed.
2. In place of order passed by the District Consumer Forum in consumer complaint No.22/2003, we direct that O.P./appellant herein shall pay amount of `10,000/- to the complainant with interest @ 9% p.a. from 29/01/2003 till realization of the entire amount.
3. O.P./appellant is also directed to pay `2,000/- as compensation for mental harassment, `1,000/- as cost of complaint and further cost of `5,000/- of this appeal to the respondent/org. complainant forthwith.
4. Amount deposited by the appellant in the District Consumer Forum shall be directly paid to the respondent in satisfaction of the order passed by this Commission in modification of the order passed by District Consumer Forum. Remaining amount, if any shall be directly paid by the appellant to the respondent within one month from the date of receipt of this order.
5. Copies of the order be furnished to the parties.
