SURJIT SINGH, ADVOCATE vs UJALA TRADERS

COMPLAI- nant Surjit Singh, Advocate has come up in appeal against the order of the District Forum, Jalandhar passed on 9.6.1998, whereby his complaint against Ujala Traders and M/s. Baron International Limited, Mumbai and M/s. Baron International Limited, Chandigarh has been dismissed.

THE complainant had approached the District Forum with the grievance of a general nature of public interest. To promote sale of a particular product, companies give allurement through advertisements and when the innocent public gets caught in their web, they do not fulfil specific conditions as advertised by them. THE complainant purchased one Akai 29" coloured T.V. from the respondent No. 1 on 14.3.1997. As per the advertisement, on the puchase of the said T.V., there were two benefits which purchaser was to get (1) Rs. 4,000/- off and one Hi Fi System Akai T-X-605K having high power amplifier with 700 watt output (P.M.P.C). Condition No. 1 was fulfilled at the time of the sale but the Hi Fi System which was provided to the purchaser was of 600 watts and not of 700 watts output. THE complainant represented his claim of ''700 watts output'' of Hi Fi System but his representation was not at all reciprocated so he preferred to seek relief from the District Forum but his complaint was dismissed that the Hi Fi System was given as a ''gift'' with the Akai Colour T.V. and the complainant had not paid price for the same so he is not a consumer since he had purchased the T.V. not the Akai System having high power amplifier. THE questions which arise for consideration are : 1. Whether the schemes for promoting sales are covered under the Consumer Protection Act or not ? 2. Whether the respondent (traders) are guilty of adopting any unfair trade practice or not ? Relief to be granted, if any. Question Nos. 1 and 2 3. In order to understand the point number 1, it would be relevant to refer to the following provisions of the Consumer Protection Act, 1986 :

Under Section 2(1)(c)(i) ''complaint'' means any allegation in writing made by a complainant that an unfair trade practice or a restrictive trade practice has been adopted by any trader. Under Section 2(1)(r)(1) and (3) it has been provided that unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for provision of any service, adopts any unfair method or unfair or deceptive practice namely : "[(r) "unfair trade practice" 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 or deceptive practice including any of the following practices, namely- (1) the practice of making any statement whether orally or in writing or by visible representation which- (i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model; (ii) falsely represents that the services are of a particular standard, quality or grade; (iii) falsely represents any re-built, secondhand, renovated, reconditioned or old goods as new goods; (iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have; (v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have; (vi) makes a false or misleading representation concerning the need for, or the usefulness of any goods or services; (vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods or services : Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence; (viii) makes to the public a representation in a form that purports to be, (i) a warranty or guarantee of a product or of any goods or services; or (ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out; (ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made; (x) give false or misleading facts disparaging the goods, services or trade of another person.

Explanation : For the purposes of Clause (1) a statement that is- xxx xxx xxx (b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or xxx xxx xxx (3) permits- (a) the offering of gifts, prizes or other items with the 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 on the transaction as a whole; (b) the conduct of any contest, lottery, game of chance or skill, for the purposes of promoting, directly or indirectly, the sale, use or supply of any product or any business interest."

The cumulative reading of the aforementioned provisions would reveal that the traders while floating a scheme for the purpose of promoting the sale adopt any unfair method or unfair or deceptive practice which amounts to unfair trade practice as defined in the Act, the complaint can be filed by a complainant under the Act.

IN this context, we may again notice that the respondents with a view to promote sale of Akai Colour 29" T.V. floated a scheme to the effect that on purchase of one T.V. set from the distributor, Hi Fi System Akai T-X-605K having high power amplifier with 700 watt output (P.M.P.C.) would be provided. The complainant was not provided 700 watt output system which has been admitted by the respondents. The respondents now want to wriggle out of the commitment arising out of the said scheme with a view to defeat the legitimate right of the complainant by saying that though there is difference in the output, the model provided is the same. These facts clearly demonstrate that the scheme was floated with a specific purpose of collecting money from the public from the very inception and was not intended to honour the commitments and obligations that arose out of said scheme. This clearly amounts to unfair trade practice. Lastly, the Forum has the power under Clause (f) of Sub-section (1) of Section 14 of the Act to direct the opposite parties to discontinue the unfair trade practice and not to repeat the same. It has also the power to order the opposite parties under Clause (d) of Sub-section (1) of Section 14 of the Act to pay such amount as may be awarded by the Forum as compensation to the consumer for any loss or injury suffered by the consumer due to ''unfair trade practice'' which would constitute negligence on the part of the opposite parties, besides costs as provided under Clause (i) of Sub-section (1) of Section 14 of the Consumer Protection Act. Section 14 of the Act clearly provides that the Consumer Forum can order to the opposite party directing them to do one or more of the things required therein.

IN view of the above discussion, we are of the considered view that the complainant is a consumer. The opposite parties have been found guilty of practising ''unfair trade practice''. Hence, the consumer has to be compensated accordingly We set aside the order of the District Forum and order to replace the Hi Fi System Akai T-X-605K of 600 watt with 700 watt output. The compensation of Rs. 1,000/- is ordered alongwith costs of Rs. 500/-. IN case the opposite parties are unable to replace the Hi Fi System with the advertised specification, they should refund the price of the same alongwith compensation and costs. Hence, the appeal is allowed with the directions to the opposite parties to replace/ refund the Hi Fi System alongwith compensation and costs as above. Appeal allowed.