A.B.P. PVT. LTD. vs V. Sundaram

THIS appeal is directed against the judgment and order dated 16.7.2003 passed by the Calcutta Unit-I District Consumer Forum in C.D.F. Case No. 380/2001. By this judgment the Forum allowed the complaint on contest and directed the O.P. (the present appellant) to pay a sum of Rs. 5,000/- as compensation to the complainants (the present respondents) within 10 days from the date of order and a further sum of Rs. 500/- as litigation cost. The Forum also directed the O.P. to discontinue forthwith the unfair trade practice which it had been adopting in the matter of publication and circulation of the newspaper in question namely ''The Telegraph'' outside West Bengal. It was also directed by the Forum that the O.P. should pay interest @ 10% per annum on the total sum awarded namely Rs. 5,500/- for the period from the date of order till the date of actual payment, if it was not paid within the specified time.

THE case of the complainants was in short as follows. THE complainants were potential users and readers of the newspaper ''THE Telegraph'' published by the O.P. namely the Anandabazar Patrika Ltd. On 7.6.2001 the complainants purchased a Kolkata edition of the said newspaper from a local vendor at Kolkata (vide Annexure A). On the next date, that is, 8.6.2001 when the complainants were at Khurdah Road Railway Station while making a journey in train purchased that newspaper that is "THE Telegraph" of that date, that is, 8.6.2001 from a vendor at that railway station on payment of Rs. 1.50 as the price of that newspaper which contained 28 pages (vide Annexure B). THE complainants being anxious to know the result of the test cricket match which was then going on at Eden Gardens amongst other important news events opened the relevant page and found to their surprise that the news was actually of the previous date that is 7th June, which they had already gone through on the last day in THE Telegraph dated 7th June, except one alteration made in the second page thereof with cut and paste method containing the flight schedules and train timings to and from various places. Thus this newspaper was practically an old newspaper of the previous day redated on the front page as "Friday 8th June, 2001" and this was deliberately designed to dishonestly induce readers to purchase the newspaper which in reality was newspaper of the previous day. Such deception is further evident from page 20 of that newspaper where the date "7th June, 2001. Thursday" was conspicuously printed. Moreover this edition of the newspaper did not contain a good number of features which were used to be displayed along with news items generally. Thus the opposite party knowingly and intentionally cheated the public at large by inducing the members of such public who were interested in reading newspaper to purchase such editions of the newspapers which were practically back-dated and did not contain the news of the day. Hence the complainants filed this complaint for an order awarding compensation to the tune of Rs. 5,000/- and litigation cost to the extent of Rs. 500/-, if not more, and also for an order directing the O.Ps. to discontinue such unfair trade practice.

The O.P., A.B.P. Ltd., entered its appearance and contested the case by filing a written objection denying therein all the material allegations of the complaint. The case of the O.P. was that there were two classes of publication of the newspaper in question-one for the city being termed as "Calcutta City Edition" being described by the letter ''L'' and ''C'' on the top right hand corner of the news-paper and another class of newspaper meant for the outside limits of West Bengal described as "Dak Edition" and the letter ''D'' is quoted on the right hand top corner of the concerned newspaper as the abbreviated form of the word ''Dak''. According to the O.P. such a practice is known to all the consumers and the newspaper dated 7.6.2001 mentioned by the complainant was a late city edition for being circulated at Calcutta and the metropolis and the newspaper dated 8.6.2001 in question was the Dak Edition of the same edition dated 7.6.2001 and in this way the O.Ps. had been continuing the circulation of its newspapers by dividing them into two classes and there was nothing wrong or prejudicial or dishonest in such a practice. The O.Ps. had never any mala fide intention or any intention to deceive the people who used to read its newspaper. The complaint was liable to be dismissed with cost.

THE Forum after considering the materials on record and the legal position that govern such a dispute came to the conclusion that there had been clear proof of the fact that the publication of the daily Telegraph on 8th June, 2001 at a Khurdah Railway Station in the State of Orissa was deceitful and misleading since it was practically the same as was published on the previous day that is 7th June, 2001 in Kolkata. According to the Forum it was virtually a publication dated 7th June, 2001 being republished after being redated on 8th June, 2001 and clearly this was designed to push up sales of the stale newspaper remaining unsold and for all practical purposes it was an act of fraud and cheating with the members of the reading public and on this reasoning the Forum held that it was an instance of indulging in unfair trade practice on the part of the O.P. and, therefore, the Forum allowed the complaint and passed the abovementioned order. Being aggrieved by this order the O.Ps. have preferred this appeal challenging the order as illegal and unjust and liable to be set aside. Mr. Banerjee, the learned Advocate for the appellant has strenuously argued to bring home his point that there was no question of deficiency in service on the part of his client, since the contents of newspaper are not commodities or goods or even the publication of a news does not constitute a service and from that point of view the provisions of the Consumer Protection Act cannot be attracted. In support of his contention he cites two decisions of the National Commission namely (1) 1991 (4) Consumer Protection Reporter page 526 (NC) and (2) 1996 (1) CPR. 161 (NC). In the former it has been held by the Hon''ble National Commission that the defects in a newspaper in order to constitute it as a defective goods must pertain to its quality of printing and it cannot relate to the contents of the newspaper namely its news and views or the manner of their display which are the exclusive preserve of the editor. It was further held that the content of the newspaper and the truthfulness of the news and views are the most fundamental questions concerning the freedom of the press and they fall foul of other laws like law of defamation or libel, Press Objectionable Matter Act, etc. and thus publication of a wrong news in respect of a buyer of the newspaper does not constitute deficiency in service in respect of that buyer. This ruling obviously is not applicable to our present case where the facts are totally otherwise. Here the allegation is not to the effect that any particular news has been wrongly published in the newspaper in dispute but it is the case of the complainant that the newspaper purporting to be of a particular date namely 8th June, 2001 was actually the newspaper of the previous date that is, 7th June, 2001 reprinted and by publishing a back-dated newspaper incorporating current date in place of the previous date the appellant-O.P. gave it false look that it was of the subsequent date and thereby the O.P. was guilty of unfair trade practice. Therefore, it is not the case of the complainant that the O.P. has by publishing any incorrect or factually wrong news caused any harm to the complainants.

SIMILARLY the other decisions relied upon by the appellant is found to be without any avail. In that ruling the National Commission has held that publication of a book containing mistake in the subject matter cannot be held to be a defect in goods in the absence of any law or contract and, therefore, to hold publisher liable for it under the Consumer Protection Act is not legal. Here also for exactly similar reasons this judgment will not be attracted. The question that falls for determination is whether the act of the O.P. in question can be said to be tantamount to unfair trade practice within the meaning and definition of the word as given under Section 2(1)(r) of the C.P. Act 1986. It has been the contention of Mr. Banerjee for the appellant that none of the ingredients given in the definition of the phrase ''unfair trade practice'' under the above section will apply to the disputed act of the O.Ps. as alleged. He contends that such a publication is meant for the people who reside at distant places outside West Bengal and in order to keep such consumers happy such Dak Editions have been arranged by the appellant Company and this has been a common practice which has been accepted by the people and this cannot be the subject matter of challenge under the provisions of the C.P. Act. But we are unable to accept such a contention as legally correct. Under the provisions of the said section namely Section 2(1)(r) of the C.P. Act the expression ''unfair trade practice'' has been defined. It provides that the expression means a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any service adopts any unfair method or unfair and deceptive practice including any of the following practices as enumerated in the following paragraph. Of the practices enumerated under these paragraph Sub-rule (1)(iii) provides that any practice by which one falsely represents any rebuilt, second hand renovated, reconditioned or old goods as new goods will be termed as unfair trade practice. In the present case it is practically undisputed that the news item that was published in the newspaper of the previous date that is 7th June, 2001 in the Calcutta Edition of the concerned newspaper has very much been in existence as being republished and reprinted in the same form and language in the newspaper of the subsequent date that is 8th June, 2001 that was purchased by the complainant at Khurdah Railway Station in the State of Orissa. This fact itself clearly shows that the appellant had deliberately published the old edition of the newspaper after changing the date on the front page thereof, although the news items inside remained the same as they were in the old newspaper of the previous day. This changing of the date to give it a look as if it is published on and it contains all the fresh news items of the subsequent day, although in reality it was not so, is a pointer to the fact that in order to attract the buyers and push up the sales of the newspapers of the previous day remaining unsold such a palpably deceitful and dishonest means was resorted to by the appellant. Such an act, therefore, clearly falls within the mischief of the abovementioned provisions of the C.P. Act. It has been contended on behalf of the appellant that the letter "D" occurring on the top right corner of the disputed newspaper being an abbreviated form of the word "Dak Edition" is an index of the fact that it is meant for the people living outside West Bengal and not for the Calcuttans or people who live even in the Mafussils of this State and this is done for keeping the consumers living at distant places happy. But this contention does not impress us. In the first place, there is nothing on the paper itself to make the readers of such a newspaper understand the meaning or implication of the letter "D", which it is a self-styled coinage of terminology of the appellant. Even if this so-called Dak Edition is meant for outside of West Bengal, even then the date cannot be changed, or it cannot be redated to the next day to give the false impression that it belongs to the current date, although it is of the previous date. Secondly, and more importantly, the appellant has failed to show that there is any legal sanction behind such a practice which it has been following. Thus such a practice is not only deceitful on the face of it, but also it is illegal and invalid.

THEREFORE, by indulging in deceitful and unfair trade practice as discussed above the appellant has definitely rendered itself liable under the provisions of Section 14(1) 1st proviso and Clause (f) of the C.P. Act. Under Clause (f) the Forum is entitled to direct the O.P. to discontinue the unfair trade practice in question and under the first proviso the Forum has been clothed with the power of granting punitive damages. Under the impugned judgment the Forum below has practically passed order in accordance with these provisions. It has rightly directed the O.P.-appellant to discontinue such deceitful practice forthwith and also to pay a sum of Rs. 5,000/- to the complainant as compensation. The argument advanced by Mr. Banerjee for the appellant that such an award is unjustified as the sufferings or mental agony of the complaint as alleged have not been quantified at all is not accepted by us. There is no fixed yardstick for assessing the quantum of mental injury. The sense of being befooled or cheated may vary from case to case and it may not always bear any direct proportion with the actual monetary loss suffered. But, what is more, here it is not merely a question of quantifying the mental loss suffered by the complainant. In the contrary here the sum awarded has been by way of inflicting a punitive damage. Although the word "punitive" has not been used by the Forum expressly, it is to be presumed that such an object impliedly prompted it to award a sum like this as damages taking into account the circumstances that called for some sort of punitive action. Because we consider it a fit case for applying the provisions of Section 14(1) First Proviso of the C.P. Act. The way in which the appellant is found to follow the deceitful practice, viz., by erasing the date of the previous day and tampering with the relevant writings on the newspaper daily in question in order to give impression before the readers of a particular area that it is of the current date causes serious concern for the right thinking people. The result of such a misdeed will be baffling and misleading. For example, as the respondent has filed a columner analysis of the T.V. Channel Programme as published in the said daily, the programme and events of the 7th June, of Calcutta Edition appears on the 8th June Newspaper of Calcutta Edition purchased in Orissa. In other words the Newspaper purchased at Calcutta and at any place in Orissa will consist of different programmes on the same date at the same time on the same channel (vide Annexure A to the written reply filed by the respondent to the memo of appeal). We cannot brush aside the fear of the respondent when he exemplifies such an inconsistency by arguing that after hearing the news of death of any prominent personality, if one wishes to see the deceased by travelling by the fastest mode of transport, he will end up reaching there after the body is already cremated.

CONSIDERING the above reasons we are to hold that by awarding a sum of Rs. 5,000/- as compensation and giving other directions in its order the Forum has not committed any wrong. The appeal is, therefore, dismissed on contest without however any cost. The impugned judgment is affirmed. Appeal dismissed.