D.o.F: 06/09/07 D.o.O:16/10/09IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC. CC.52/07 Dated this, the 16th day of October 2009. PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER Bappidi MohammadS/o Ahamad, : Complainant R/at Fort Road,Kasaragod (Adv.B.Ramakrishna Bhat,Kasaragod) 1.The Manager, Indian Home Appliances, Near C.T.M Petrol Bunk,M.G.Road, Kasaragod (Adv.Sukumaran,Kasaragod) 2. The Manager, : Opposite parties Samsung India ElectronicsPvt.Ltd, 7&8th floor, IFCI Tower, 61, Nehru Place, New Delhi. (Exparte) ORDER SRI.K.T.SIDHIQ: PRESIDENT The grievance of the complainant Bappidi Mohammed is that he purchased one Samsung refrigerator manufactured by M/s Samsung India Electronics Pvt.Ltd for Rs.6978/- and one L.G.T.V set of 20” for Rs. 4978/- from the Ist opposite party Indian Home Appliances, Kasaragod as per bill dtd.10/8/07. The bill does not disclose the particulars of the capacity of the refrigerator. The bill showed collection of VAT @12.5%. The said articles were purchased during Onam festival season and at that time there was a gift offer available for the items purchased. As soon as the items were supplied to the complainant he opened the box and found that the T.V and its remote control which were not new and it was a used T.V and had scratches. The serial number of the T.V exhibited on the T.V and the number shown in the catalogue were entirely different. The refrigerator purchased during Onam festival had a gift by way of gold coin kept in a coconut model. But this gift was suppressed by the Ist opposite party and not given to the complainant. It was also told that there is discount offer for the articles purchased. But those benefits were also not given to the complainant. On the other hand an exorbitant rate of tax @ 12.5% was collected other than the price of the article. The opposite parties thereby committed unfair trade practice and hence the complainant seeking an order against opposite parties to take back the articles and to repay Rs.13450/- with interest and a compensation of Rs.10,000/- towards the damage sustained to the complainant. 2. Notices were issued to both opposite parties by registered post. Though opposite party No.1 appeared and filed version, 2nd opposite party did not care to appear before the Forum to contest the matter . Hence 2nd opposite party is set exparte. According to 1st opposite party only the refrigerator manufactured by 2nd opposite party was having Onam festival offer and there was no offer for T.V. The T.V supplied was a new one and not a used one as alleged by the complainant. The basic rate of the refrigerator was Rs.7644/- and VAT was Rs.955/- therefore the total amount was Rs.8600/-. The dealer is entitled to collect VAT @ 12.5% as per the Act. The dealer is entitled to reduce the amount equivalent to the rate of gift if the purchaser is giving up the gift offer. The complainant gave up the gift offer and hence the Ist opposite party reduced the basic rate of the refrigerator from RS.7644/- to 6978/-. Hence the refrigerator was sold for the rate shown in Ext.A1. The VAT collected will goes to the government and not to Ist opposite party. 3. Complainant filed affidavit in support of his claim as PW1 and faced cross examination by the counsel for Ist opposite party. Exts.A1 to A4 marked. Ext.A1 is the bill issued by Ist opposite party towards the purchase of Samsung refrigerator and L.G.C.TV. Ext.A2 is the copy of the lawyer notice issued to both opposite parties and Ext.A3 is the acknowledgment card relating to Ext.A3 notice. Ext.A4 is a copy of a vernacular local daily by name Karavel. On the side of Ist opposite party, the sales man filed affidavit as DW1 and faced cross examination by the counsel for complainant. Exts.B1 to B3 were marked through DW1. Though an affidavit was filed by the Manager of the opposite party on an earlier occasion prior to the examination of DW1, he did not turn up for cross examination and withhold from the proceedings. Ext.B1 is the copy of the Samsung India Electronics Ltd. Refrigerator DC models Onam Price circular 2007. As per Ext.B1 the basic price of the RA 18RVWR 180 ltr with stabilizer free Wine Red colour refrigerator that was sold to the complainant was Rs.7644.44 and VAT Rs.955.56. Thus the total distributors price was Rs.8600/- and the margin amount was Rs.533.33 with VAT on margin Rs.66.67. So the total MRP fixed was Rs.9200/-. Ext.B2 is the copy of the price list of LG colour T.V during Onam Festival Season 2007. As per which the distributors’ price during Onam festival season was Rs.5586/- and the MRP was 5950/-. Ext.B3 is a multi colour brochure by name ‘ Samsung AV Times’ Audio visual collection depicting an advertisement in vernacular language. That says SAMSUNG what is inside? ’ know on breaking’ purchase Samsung products, break the coconut. get gold upto 9 kg and a lot of other gifts. 4. The same advertisement is also put in Ext.A4, a local vernacular daily named ‘caravel’. That is put by another local dealer of 2nd opposite party namely ‘ Star systems and Services’. On a plain reading of the said advertisement it would appear that Samsung company is offering gifts of 9kg gold and a lot of other items as free gifts. The pictures on Ext.A4 shows that the gift of gold coin are offered to every one out of five customers apart from other prizes such as 26”LCD TVs. Home Theatre, Digital cameras, DVD player, Snack sets, Non stic sets and lunch boxes. 5. But according to DW1, the gift are not free and the price of each Samsung items sold during the Onam festival season includes the cost of gift also. According to DW1, the complainant told them that he did not want the offer of breaking of coconut and therefore as per Ext.A1, he had given discount for giving up the offer. According to DW1, the gold coins offered as prizes were weighing in 0.05 gm which would worth only Rs.500/-. 6. But as per the version, Ist opposite party had given reduction of Rs. 666/-(7644-6978 ) in the purchase price of the refrigerator to the complainant for abandoning the gift. Therefore according to Ist opposite party the cost of the gift would fetch Rs.666/- and whereas according to DW1 the value of the gold coin giving as gift worth only Rs.500/-. 7. If the contention of the Ist opposite party is accepted, then this complaint depicts one of the grossest unfair trade practice adopted by Samsung Electronics India Pvt.Ltd over their consumers of Kerala State during Onam festival season 2007. 8. To substantiate the contention the counsel for Ist opposite party had shown us an enlarged copy of the conditions printed on Ext.B3 since the said terms are printed in the advertisement in very fine micro prints as nobody can perceive them with normal eye. According to the counsel for Ist opposite party in the said advertisement it is shown that the Samsung products are available without their festival offers also. According to the counsel the said condition means that one can give up their gift offer and thereby get a discount of the price of the gift. 9. We find some force in the argument of the counsel for Ist opposite party and there are absolutely no evidence forthcoming from M/s Samsung India Electronics Pvt.Ltd to controvert or rebut the contentions of Ist opposite party. The acts of the M/s Samsung India Electronics Pvt Ltd amounts to unfair trade practice as envisaged u/s 2(1) ( r) (3) of the Consumer Protection Act. Sec.2(1)( r)(3) of the Act says that permitting the offering of gifts, prizes or other items with intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole is an unfair trade practice. 10. Actually, the 2nd opposite party was not offering any gifts but was doing supplementary sales of items those are given as gifts by collecting the price of the gifts when a consumer was purchasing a product with the gift offer. As per the luring advertisements during Onam Festival season 2007 in the name and style ‘Samsung what is inside, know on breaking the coconut,’ the general impression given was that the gifts offered were free by 2nd opposite party and the participation in the breaking the coconut gift offer was free where as more than the price of the gifts were collected from the customer who purchased the product with offer and the whole motive was to generate profits and promoting the business through attractive advertisements and supplemental sales of the alleged gift items in an unfair manner indulging in unfair trade practice involving unfair deceptive method. 11. If the gift offer was for the general benefit of the customers, the gift scheme should have been extended to all customers without bifurcating the sale to with offers and without offers and no additional price would have been collected from customers since nobody would like to miss a chance to try their luck by participating in the scheme ‘breaking the coconut’. A highly misleading and false impression was given in the advertisement that the gifts of 9kg gold and other items are absolutely free. Where as more than the price of the consolation gifts such as lunch box, non-stic sets, snack sets etc were collected from each consumer. 12. What else is it, if it is not unfair trade practice or deceptive method of such a gift offer for promoting the business interests? 13. Now coming to the merits of the case, there are absolutely no evidence adduced by the complainant to show that the L.G.T.V supplied to him was used one containing scratches both on T.V and on its remote control. Hence the claim for the replacement of T.V with a new one or refund of its price is rejected. But the opposite parties are certainly liable to compensate the complainant for denying him his chance to try his luck by participating in the breaking coconut gift offer. 14. We are in dismay to note that the 2nd opposite party Samsung India Electronics Pvt.Ltd is introducing attractive prize scheme on every onam festival season in Kerala and lured with their attractive advertisements, thousands of consumers were fall in to their trap of deceptive trade practice. For unfair trade practice on such a high scale affecting thousands of consumers we propose to impose punitive damages as provided by Sub section 1(d) of Sec.14 of Consumer Protection Act. We also direct the opposite parties to discontinue the unfair trade practice or the deceptive trade practice and NOT TO REPEAT THEM in future under Sec.14 (1)(f) of the C.P.Act. The Hon’ble Apex Court in the case of Ghaziabad Development Authority vs. Balbirsingh reported in (2004) 5 SCC 65 held that the Forum is entitled to award not only the value of goods or services but also to compensate the consumer for the injustice suffered by him. It was further held that the word compensation may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult , injury or loss. Again in the case of Charansingh vs. Healing Touch Hospital reported in III 2000 CPR 1(SC), (2000) 7 SCC 668, the Hon’ble Supreme Court has held that the compensation has to be awarded in an established case which not only serves the purpose of recompensing the individual but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. In view of the facts and circumstances of the case we direct the opposite parties 1&2 jointly and severally to pay compensation of Rs.10,000/- to the complainant for the loss , hardships and mental agony suffered by him due to missing his chance to try his luck in the gift offer provided by 2nd opposite party along with a cost of Rs.3000/-. 2nd opposite party, Samsung India Electronics Pvt.Ltd is further directed to deposit a sum of Rs.2,00,000/-(Rupees two lakhs only) in the Legal Aid Account attached to this Forum for providing legal service to those consumers who have no means to fight their cases against the multi national companies, powerful business houses, service providers, traders and manufacturers. The 2nd opposite party is restrained from selling their products during festival seasons that contains gift offers, which include the price of the gifts. Time for compliance is 30 days from the date of receipt of copy of order, failing which the compensation of Rs.10,000/- payable to the complainant will carry interest @ 12% from the date of complaint till payment in addition to the deposit of punitive compensation and payment of costs. MEMBER PRESIDENT Exts: A1- 10/8/07 bill issued by Ist OP A2-16-08-07- Copy of lawyer notice A3-Postal acknowledgment card A4- copy of local daily Karavel B1-2nd OP’s Onam price circular B2-Price list of LG colour .T.V B3- Onam offer advertisement of 2nd OP. PW1-Bappidi Mohammed- complainant DW1- Praveen Rai- witness of OP MEMBER PRESIDENT eva/
......................K.T.Sidhiq
......................P.Ramadevi | | 
