ORDER BELOW EXHIBIT-1 (COMPLAINT)

Per Shri S.R. Khanzode – Hon’ble Judicial Member:

(1)                This consumer complaint is filed on 02.12.2009 in his individual capacity by the Complainant – Deepak Kumar (hereinafter referred to as the ‘Complainant’), putting forthwith the grievance that he started smoking cigarettes at the age of 16 years and could quit it in the month of April, 2006.  His later suffering from larynx cancer which was detected in the month of August/September, 2008, is correlated by him to his earlier smoking habit.   It is further alleged on his behalf that if he had been sufficiently warned about the specific health hazards of smoking such as major causes of lung and oral cancer apart from so many other fatal diseases, he would not have taken to smoking and its addiction.  It is also his grievance that the cigarettes manufactured by the Opponents; namely, Wills Navy Cut, Wills King Size and State Express -555 which are per se hazardous goods, were marketed/sold without indicating/disclosing appropriate warning that those cigarettes were unsafe for consumption and, thus, such negligence on the part of the manufacturer i.e. Opponent resulted into his throat cancer and loss of his natural voice.  He claimed that the cause of action for this consumer complaint arose in the year 2008 when his throat cancer was detected.  He further claimed that since he had purchased the cigarettes from the roadside vendors, there are no receipts of those purchases.  He claimed following reliefs:

“(a) The Complainant therefore, prays that he should be awarded compensation in an amount of `1 crore for all the acts of omissions and commissions perpetrated by M/s.ITC Ltd., the Opponent.

(b) M/s.I.T.C. Ltd. be ordered to carry a detailed warning about health hazards on its cigarette packets or insert product information inside the packets.  Alternatively, the company should sensitise its vendors about it containing known Group ‘I’ carcinogen.  The vendors should be asked to explain to the customers the grave health hazards, by way of printed instructions on receipt to be issued for every cigarette sold by them.”

(2)                In the written version filed as well as by moving a separate application dated 6^th July, 2010; Opponent – I.T.C. Ltd. (hereinafter referred to as the ‘Opponent’ for the sake of brevity) raised preliminary objections covering maintainability, jurisdiction and the limitation to entertain the complaint.  The Complainant by way of reply Affidavit dated 9^th August, 2010 opposed this application.  Since these preliminary objections goes to the root of the consumer complaint and can be settled on the basis of undisputed/admitted facts or as per the averments made by the Complainant in his complaint on the point of law; we prefer to hear both the sides covering these preliminary objections.  Considering the rival contentions, following points arise for our consideration and we record our findings against each one of them for the  reasons mentioned hereinafter:

R  E  A  S  O  N  S:

(3)                According to the Complainant he started smoking when he was 16 years old and continued to smoke for about 40 years till he gave up the same in the month of April, 2006.  He used to purchase his cigarettes from the roadside vendors and therefore,  he did not possess any receipts.  This is disputed by the Opponents.   It is also brought to the notice on behalf of the Opponent that manufacturing of Wills King Size cigarettes was stopped by it in the month of November, 1995 and manufacturing of  the brand ‘State Express-555’ was started only in June, 1998.  Therefore, it is submitted that for this gap between November, 1995 to June, 1998; the Complainant is blissfully silent about the brand of cigarettes he was smoking and whether during the said gap, he was at all smoking the cigarettes manufactured by the Opponent or not.  Leaving apart the controversy related to these disputed facts, one thing is certain, namely, that once the Complainant on his own stopped smoking in the month of April, 2006; there arose no question of purchasing any cigarettes for his own consumption and therefore, when this consumer complaint was filed there was no subsisting relationship as a consumer and service provider in between the parties to this dispute. 

(4)                Complainant tried to link his throat cancer and removal of larynx and loss of natural voice to his earlier habit of smoking.  Again this fact is disputed by the Opponent trying to point out that addiction to nicotine vis-à-vis cigarette is not necessarily to be related to the smoking of cigarette.  Again leaving this controversy as it is, while considering the preliminary points, supra, we prefer to proceed further.  As discussed further, infra, the detection of  throat cancer cannot be a cause of action for this consumer complaint, but cause of action, if any, arises much earlier, firstly, when the Complainant started smoking cigarette at the age of 16 years and secondly, in any case not after the Complainant stopped smoking in the month of April, 2006.

(5)                The Bill pertaining to introduction of an  enactment, ‘the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and supply and Distribution) Act 2003’ (hereinafter referred to as “COPTA” in short), in its statement of objects and reasons, did mention that tobacco is universally regarded as one of the major public health hazards and is responsible, directly or indirectly, for an estimated eight lakh deaths annually in the country.  Therefore, they came with COPTA, the preamble of which further reads as under:

“An Act to prohibit the advertisement of and to provide for the regulation of trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products and for matters connected therewith or incidental thereto.

WHEREAS, the Resolution passed by the 39^th World Health Assembly (WHO), in its Fourteenth Plenary meeting held on the 15^th May, 1986 urged the member States of WHO which have not yet done so to implement the measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacco smoke and to protect children and young people from being addicted to the use of tobacco;

AND WHEREAS, the 43^rd World Health assembly in its Fourteenth Plenary meeting held on the 17^th May, 1990, reiterated the concerns expressed in the Resolution passed in the 39^th World Health Assembly and urged Member States to consider in their tobacco control strategies plans for legislation and other effective measures for protecting their citizens with special attention to risk groups such as pregnant women and children from involuntary exposure to tobacco smoke, discourage the use of tobacco and impose progressive restrictions and take concerted action to eventually eliminate all direct and indirect and advertising, promotion and sponsorship concerning tobacco;

AND WHEREAS, it is expedient to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to achieving improvement of public health in general as enjoined by article 47 of the Constitution;

AND WHEREAS it is expedient to prohibit the advertisement of, and to provide for regulation of trade and commerce, production, supply and distribution of cigarettes and other tobacco products and for matters connected therewith or incidental thereto:

(Underlining provided)

(6)                Therefore, for the sake of argument, we assume accepting the statement of the Complainant that tobacco is hazardous to the life and safety as aptly mentioned in Section 2(1)(c)(v) of the consumer Protection Act, 1986 (hereinafter referred to as the ‘Consumer Act’ for the sake of brevity).  Said provision reads as under:

“(c) That ‘complaint’ means any allegation in writing made by a complainant that –

------------------------------

(v)  goods which will be hazardous to life and safety when used are being offered for sale to the public,-

(A) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;

(B)  if the trader could have known with due diligence that the goods so offered are unsafe to the public;”

(7)                It is submitted on behalf of the Opponent that Sub Clause (c)(v), (A) & (B) cannot be read in isolation and they are to be read together.  These two clauses though are separated by a semi-colon, to carry out effectively the aims and object of the statute, namely, COPTA, as reflected from its preamble, supra, they are to be read not in isolation but together.  Moreover, in case of a manufacturer i.e. Opponents, more appropriately sub-clause (A) would be attracted.   The Golden Rule of Interpretation guides us to make construction of the statute to make it effective and operative.  On the ‘mischief rule’ (heydon’s principle), Maxwell instructs us in these words:

“There is no doubt that the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief.  To carry out effectively the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner, that which it has prohibited or enjoined: quando aliquid prohibetur, prohibetur at omne per quod  devenitur ad Mud.”

Thus, we find that the sub-clauses (v)(A) & (B) cannot be read in isolation.  This is particularly so in view of the fact that COPTA, supra, and earlier Act, i.e. THE CIGARETTES (REGULATION OF PRODUCTION, SUPPLY AND DISTRIBUTION) ACT 1975 (hereinafter referred to as the ‘1975 Act’ for the brevity) not only permit the use of tobacco and  cigarettes, but have only placed certain restrictions, particularly in form of ‘specified warning’ to be exhibited, quality and standard of the products.  Admittedly, there is no defect in the cigarettes alleged to have been manufactured by the Opponent and which were said to have been smoked by the Complainant.  In his reply Affidavit to the preliminary issues/points application, supra, the Complainant in its paragraph 18, internal page 22, stated as under:

“With reference to paragraph 11 of the Application under reply I hereby reiterate that the manufacturer, M/s. ITC Ltd. (the Opposite Party) sold highly hazardous goods without indicating/disclosing appropriate warning about the goods being unsafe for consumption.  I further say that the other issues raised in the said paragraph 11 are the mere repetition of the untenable propositions set out by the Opposite Party in the preceding paragraphs the same has been dealt with by me appropriately and therefore for the same of brevity the same are not being specifically dealt with again.”

This relates to selling the goods, ‘without indicating/disclosing appropriate warning about goods being unsafe for consumption and there is nothing to allege that the goods were ‘Defective’.

(8)                There is no rebuttal or denial of the fact stated in his affidavit on behalf of the Opponent by its Executive Vice President – Marketing, Mr. Syed Mahmood Ahmad that they strictly follow to the Provisions of COPTA  and the 1975 Act and their cigarettes were and are manufactured adhering to the standards of BIS, i.e. Bureau of Standards Act of India.  Therefore, this statement, considering totality of this case, is to be accepted and it shows that the products i.e. the cigarettes manufactured by the Opponent, particularly, the brands to which the Complainant made a reference, cannot be held as defective goods within the meaning of Section 2(1)(f) of the Consumer Act, nay, it is not a case of the Complainant that the goods are defective. 

(9)                The case as presented by the Complainant and to which much stress is given in his complaint and the other documents produced, refer to the fact that the cigarettes brands which were manufactured by the opponent and sold to him or offered for sale to the public, even though were hazardous to life and safety, without any ‘sufficient warning’.  Thus, trying to bring his case within the meaning of “Complaint” as per the provisions of Section 2(1)(c)(v) of Consumer Act, supra.  As earlier pointed out, it cannot be disputed at this stage that the tobacco which is main constituent of the cigarettes is hazardous to health and safety.  However, its sale being permitted under the regulating statute i.e. COPTA and earlier to it under the Act of 1975, and the fact that, prima-facie, as a manufacturer, the Opponent did adhere to all the norms under those Acts, either in advertisement or displaying necessary specified warning; they will not fall within the mischief of either sub-clause (A) or Sub-clause (B) of Section 2(1)(c)(v), supra. 

(10)            About the requirement of additional precautionary warnings by way of safety measures as tried to be indicated by the Complainant, since being not part of the statute, supra, they cannot be taken as the one casting obligation on the Opponent as a manufacturer to observe or otherwise and mere non-observance thereof would not give any rise to an actionable claim against the Opponent.  Under these circumstances and for the reason that the Complainant also cannot be held as a consumer, the present dispute cannot be termed as the consumer dispute within the meaning of Section 2(1)(c) of the Consumer Act.

(11)            Thus, for the reasons stated, supra, the present consumer complaint is not maintainable or could be entertained since it is not a consumer dispute.

Point Nos.1(a) and (b) are answered accordingly.

(12)            Coming to the point of limitation, the Complainant claimed that cause of action arose when his throat cancer was detected in the month of August/September, 2008.  The Complainant started smoking at an early age of 16 and when this complaint was filed he had already completed 59 years of his age.  The specified warnings, as per the regulating statutes, i.e. COPTA and the Act of 1975, warns us that ‘smoking is injurious to health’ and later on after the COPTA came in the year 2003, as mentioned in Rule 4(2) of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules 2004 (hereinafter referred to as the ‘Rules’ for the sake of brevity); gives further warning, viz. “(i) Tobacco causes cancer, or (ii) tobacco kills”.  Thus, these warnings sufficiently warn any smoker including the Complainant or intending smoker about his own safety including possibility of suffering from a cancer in case he is taken to smoking or continue with the smoking.  In the matter of V.N. Shrikhande (Dr.) V/s. Anita Sena Fernandes, (2011) 1 Supreme Court Cases 53, the Apex Court while explaining the content of Sec.24-A of the Consumer Act observed that,

“If the effect of negligence on the doctor’s part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done.  If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative Complainant discovers the harm/injury caused due to such act or the data when the patient or his representative Complainant by exercise or reasonable diligence discovered the act constituting negligence”.

The Complainant tried to develop an argument that for lack of ‘sufficient warning’ from the manufacturer of the cigarettes, he was unaware of the danger of contacting throat cancer till it was discovered (in his case) in the month of August/September, 2008 and therefore, the cause of action arose at that time.  We are unable to accept such submission.  It is submitted on behalf of the Complainant that the cause of action deemed to have been arisen when he contacted throat cancer and since the Opponent manufacturer had not given sufficient warning or failure on part of the Opponent to educate the people against smoking hazards.  In any case when specified warning, nay, safety warning under the COPTA viz. ‘tobacco causes cancer’ or ‘tobacco kills’ started appearing in the year 2004, the Complainant with due diligence, ought to have noticed the same and in fact as per the complaint he was aware of these warnings.  Therefore, since these specified warnings even warned about ‘cancer’, the possible result of suffering from cancer as a result of continuous smoking is no more latent but patent.  Hence, the consumer complaint filed almost after 5 years thereafter is barred by limitation.  

(13)            Again, once the smoking is stopped in the month of April, 2006 by the Complainant, he ceases to be a consumer and complaint cannot be filed by him quite belatedly much after two years of the period of limitation expired under section 24-A of the consumer protection Act, that too without filing application for condonation of delay.  A useful reference can be made to the decision of Apex Court in the matters of State Bank of India V/s.B.S. Agricultural, reported in (2009) 5 Supreme Court Cases 121 and Kandimalla Raghavaiah and Company V/s. National Insurance Company and Another, reported in  (2009) 7 Supreme Court Cases 768.

For these reasons, point no.(2) for consideration is also answered  in the negative.

(13)            For the reasons stated above and the findings recorded on point nos.1(a) & (b), and point no.(2), supra, we hold accordingly and pass the following order:

O  R  D  E  R

                     (i)          Application of the Opponent dated 6^th July, 2010 raising preliminary issues is allowed.  In view thereof, consumer complaint stands dismissed.

                   (ii)          In the given circumstances parties to bear their own costs.

Pronounced on 30^th March, 2011.