By this order we propose to dispose above-noted revision petitions involving similar question of law and fact. For the sake of convenience we treat the file of revision petition No.1049/2013 as the lead file.

2.       Briefly stated, facts relevant for the disposal of the revision petitions are that the petitioner/opposite party No.1 of respective petitions during the year 2006 to February, 2007 advertised its promotion-cum-sale scheme for their product “Surf Excel” washing power. Under the scheme in each Surf Excel pack there was a box containing a stained cloth (Swatch) having certain hidden score between 1/10 to 10/10. The customers were assured that on washing swatch the hidden score would appear. The customers who would find the score 10/10 on the swatch would be eligible for scholarship of Rs.5 lakhs for the education of his/her child. The scheme details printed on the wrapper of surf excel under the scheme are as under: -

“(A)   A stained cloth piece (Swatch) is put in small boxes in surf excel packs pre-printed with scores ranging from 1/1- to 10/10 and the same will be revealed on putting the stained cloth in washing foam made of surf excel.

(B)     The first prize announced was scholarship of Rs.5 lakhs.

(C)     The second prize offered was Scooty-doo sports bag. To get the second prize, one has to make up the score of 10/10 by adding the score 1/10, 2/10, 3/10 etc. The company had also offered early bird prizes for the first such 10,000 entries.”

3.       It is the case of the respective respondents/complainants that they purchased surf excel packs under the scheme and on washing the cloth (swatch) found in the packet contained in the pack the hidden score 10/10 appeared on their respective “swatches.” The respondents/complainants thus submitted their claims for the promised scholarship of Rs.5 lakhs each but the petitioner/opposite party refused to honour the claims. Feeling aggrieved the respective respondents filed the consumer complaint.

4.       The petitioner/opposite party on being served with the respective notices resisted the claims by filing written statement in response to the complaints. It was alleged in the written statement that the swatches submitted by the respective complainants were found to be forged. According to the petitioner/opposite party only four genuine swatches with the score 10/10 printed were put in the boxes contained in the surf excel pack. It is alleged that the said genuine swatches had a special code i.e. seal of the petitioner company and signatures of the concerned factory Manager. The petitioner/opposite party on receipt of the swatches submitted alongwith the claim by the complainants got them checked and as the swatches did not have the unique code i.e. signatures of the factory Manager and the seal of the company, the swatches prima-facie seem to be fabricated particularly when the figure 10/10 was hand written on those swatches. Even then the opposite party company in order to be absolutely fair and sure and in order to remove all doubts sent the said swatches for analysis to a reputed lab at Mumbai i.e. M/s Intertek Laboratories. The said lab compared the swatches submitted by respective complainants against the sample ‘Gold Standard Swatch’ having 10/10 printed on it. The swatches on analysis were found to be fabricated. Therefore, the claims submitted by the respective respondents/complainants were rejected.

5.       The respective Consumer Fora on consideration of pleadings and analysis of evidence found the petitioner/opposite party guilty of unfair trade practice. The District Fora accordingly allowed the respective complaints and directed the opposite party to pay the prize amount to the respective complainants with interest besides litigation cost.

6.       The opposite party being aggrieved of the orders of the District Fora preferred separate appeals. The State Commission, Haryana on re-appreciation of evidence did not find merit in the appeals. Accordingly, the orders of the respective District Fora were confirmed and the appeals were dismissed. Being aggrieved, the opposite parties have filed above-noted revision petitions against the respective impugned orders.

7.       Learned Shri Gaurab Banerji, Senior Advocate appearing on behalf of the petitioners has contended that the impugned orders of the Fora below are erroneous.  It is contended that the Fora below have failed to appreciate that the claims of the respondents/complainants were rightly rejected because the swatches submitted by them were found to be fabricated and this fact was verified by sending the swatches for analysis and comparison with the sample swatch to Intertek Laboratories and that the report of the lab confirmed that the swatches submitted by the respondents/complainants were forged. It is further contended by learned counsel for the petitioner that the issue involved in the present revision petitions is no more res-integra and has been set at rest by the orders of the Co-ordinate Bench of this Commission in revision petition No.3542/2008 Ratan Das vs. The Chairman, Corporate Communications Department, Hindustan Lever Ltd. decided on 21.10.2008 as also by the Competition Appellate Tribunal in the matter of D.G. (I & R) vs. Hindustan Lever Ltd. in UTPE 201/2007 decided on 19.9.2011.

8.       Learned Shri D.P. Chaturvedi, Shri B.S. Sharma, Shri Bhupender Singh, Shri R.S. Tomer & Ms. Anjana Chandrashekhar, Advocates appearing on behalf of the respective respondents/complainants on the contrary have argued in support of the impugned orders. It is contended that the revisional jurisdiction of the National Commission flows from Section 21 (b) of the Consumer Protection Act, 1986 and it is limited to the extent of seeing whether the order suffers from some jurisdictional error or some material irregularity. It is argued that ordinarily while exercising revisional jurisdiction this Commission is not supposed to re-evaluate the evidence. It is further contended that the plea of the opposite party that the swatches submitted by the respondents/complainants were forged because those swatches did not have the code, is an afterthought because perusal of the scheme advertised by the opposite party would show that there is no mention of there being any code preserved by the opposite party. It is also contended that the opposite party on an afterthought has come out with the plea that there were only four swatches with the score 10/10 out of which prize has been claimed by two customers. It is argued that so far as the report of Intertek Laboratories is concerned, it is a one sided report prepared at the back of the complainants, therefore, it has been rightly rejected by the Fora below.

9.       We have considered the rival contentions and perused the record. On careful perusal of record we find that the State Commission while dismissing the appeal has observed as under: -

           “From the perusal of file it reveals the OP admitted receiving valid swatch and not invalid but only on the basis of absence of code his claim was rejected.”

10.     The aforesaid observation of the State Commission is against the record because in response to the consumer complaint filed by Sudhir Kumar respondent of revision petition No.1049/2013 the opposite party in paras g & h of the facts narrated in the heading brief facts has pleaded as under: -

          “That the Respondent Company also received cloths/ swatches allegedly containing 10/10 scores from a number of consumers. Since only 4 swatches with 10/10 printed and having the code (signature of factory manager and seal of the company) had been put into random boxes/ pouches of surf, the Respondent Company was surprised to receive more than 4 swatches that could possibly be there. All the swatches cloths were carefully examined by the Respondent Company and Alpha Data Centre. Out of those 10/10 cloths submitted by the consumers, two cloths were found to be original and genuine and duly having the code i.e. seal of the factory and signature of the Factory Manager as put by the Company. The Respondent Company has given the prize of Rs.5 lakhs scholarship to both the Consumers. The first winner was Ms. S. Pragatheeswari, of Karaikal, Tamil Nadu. The other winner of the said first prize was Mr. Sunil Kumar Dey Sarkar from Kolkata. Regards the numerous other 10/10 swatches submitted, it was found that all of them were forged/fabricated by the consumers with an intention to make unlawful gain.

          That the complainant herein viz. Indra Saxena also submitted her claim for Rs. 5 lakh scholarship on the basis of  10/10 score printed on his swatch. The said swatch did not have the unique code i.e. signature of the factory manager and seal of the company, and on the face of it seemed to be fabricated with the 10/10 being hand written on it and as such prima facie it was a fabricated swatch. Despite the fact that the swatch submitted by the complainant did not have the code, the Respondent Company in order to be absolutely fair and in order to remove all doubts, sent the said swatch for analysis to a reputed Laboratory at Mumbai viz. M/s Intertek Laboratories. The said lab compared the swatch submitted by the complainant against a gold standard swatch which was the genuine swatch having 10/10 printed on it. Each, of the 6 characters / numbers on all the 4 genuine swatches were printed in a particular standard size, shape, font and had pre-defined dimensions.

          An error margin of 10% was kept by the Lab whilst testing the said swatches and in case 3 out of the 6 characters exceeded the said margin the, claims were liable to be rejected. The swatch submitted by the complainant differs on all 6 parameters and as such proves beyond doubt that the same is fabricated.

          That even a bare comparison of the two swatches would show that the complainant has submitted a forged / fabricated the swatch and has written 10/10 by hand which is totally different from the printed 10/10 appearing on the gold standard swatch, the same is corroborated by the Lab report. The complainant was duly informed that her swatch was not genuine and as such her claim was rejected. Despite the same, the complainant has chosen to file the instant complaint with a view to make an illegal gain.”

11.     On bare reading of the above, we find that the case of the opposite party in the written statement was that so-called winning swatches submitted by the respective respondents/complainants were forged. From the record, it transpires that cloth swatches submitted by the respective complainants were got analysed by the petitioner opposite party from Intertek Laboratory, Mumbai.  The reports of the laboratory are reproduced as under:-

“Line Thickness Measurement of Surf Excel 10/10 Swatches using Microscopy and Image analysis Techniques

Protocol

1.       The 10/10 image is captured using a microscope under the objective 4x.

2.       Under the same conditions the image of the scale is captured.

3.       Using image analysis methods, the line thickness of outer circle, top1,

          Top0, middle line, bottom 0 and bottom 1 are measured.

4.       The results are tabulated.

5.       Each swatch is compared against the gold standard that is winner swatch.

Winner swatch vs. Master Nishan

    The 10/10 stamp on winner swatch and Master Nishan swatch are different.

Winner swatch vs. K.S. Vasumati

    The 10/10 stamp on winner swatch and K.S. Vasumati swatch are different.

Winner swatch vs. Maharaja Singh

      The 10/10 stamp on winner swatch and Maharaja Singh swatch are different.

Winner swatch vs. Sudhir Kumar

      The 10/10 stamp on winner swatch and Sudhir Kumar swatch are different.

Winner swatch vs. Daya Krishan Pandey

Winner swatch vs. Harpreet Singh

      The 10/10 stamp on winner swatch and Harpreet Singh swatch are different.

12.     From the above, it is clear that swatches submitted by the respective complainants alongwith their claims were not genuine.  Therefore, in our view, the rejection of claims by the respective complainants was justified.  The State Commission while deciding the appeal has totally ignored the aforesaid aspect of the case.  Therefore, we find it difficult to sustain the order.

13.     It is pertinent to note that otherwise also the factual and legal issue involved in the above-noted revision petitions is no more res-integra. The issue came up before the National Commission in revision petition No.3542/2008 Ratan Das vs. The Chairman, Corporate Communications Department, Hindustan Lever Ltd. In the said matter, the Co-ordinate Bench of this Commission dismissed the revision petition filed by the complainant of said case Ratan Das against the order of the State Commission, UT Chandigarh. The copy of the order of the State Commission dated 13.8.2008 in the aforesaid appeal filed by the Chairman, Corporate Communication Department, Hindustan Lever Ltd. versus Ratan Das and Ors. is placed  on record which clearly shows that in the said matter the State Commission admitted the appeal preferred by the opposite party and dismissed the  complaint. It may not be out of way to mention that same question came up before the Competition Appellate Tribunal in UTPE 201/2007 D.G. (I & R) vs. Hindustan Lever Ltd. and the Competition Commission vide order dated 19.9.2011 observed as under: -

“ORAL ORDER

19.09.2011

          Heard learned counsels for the parties. The controversy lies within a very narrow compass. A scheme was floated by the respondent, which assured prizes for all those who have purchased articles and a particular material is found in it. A prize of Rs.5 lacs as a scholarship and several other prizes were announced. The stand of the respondent is that in order to weed out non-genuine claimants, the particular code was kept secret so that a comparison can be made between genuine and non-genuine claimants. Ultimately, it related to the presence of a swatch with 10/10 score. In the case of the claimant, these were found not to be genuine after examination by Intertek Laboratories. It was observed by the said laboratories that the swatch containing a 10/10 score was not genuine. It is also the stand of the respondent that the genuine claimants have been given the prizes about which there is no dispute.

          In our considered opinion, it was open for the respondent to ensure weeding out of non-genuine claimants. The practice adopted by the respondent can not be stated to be in any way unfair trade practice warranting interference. These proceedings are closed.”

13.     On reading of the above, it is clear that even the Competition Appellate Tribunal did not find anything unfair in the scheme or the steps taken by the opposite party to weed out non-genuine complainants by checking the swatches submitted alongwith the claims. We do not find any reason to differ with the opinion of the Co-ordinate Bench or the Competition Appellate Tribunal. Thus, in our view, the orders of the Fora below cannot be sustained.

14.     In view of the discussion above, we allow the revision petitions, set aside the impugned orders sand dismiss the complaints.