National Consumer Disputes Redressal
Mridul Jain vs Home Shop 18 & Anr. on 4 April, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 785 OF 2018 (Against the Order dated 20/11/2017 in Appeal No. 553/2017 of the State Commission Delhi) 1. MRIDUL JAIN S/O. SH. RAVINDER KUAMR JAIN, R/O. 125, RISHABH VIHAR, DELHI-110092 ...........Petitioner(s) Versus 1. HOME SHOP 18 & ANR. 7TH FLOOR, FC-24, SECTOR 16A, FILMCITY, NOIDA-201301 GAUTAM BUDH NAGAR. UTTAR PRADESH 2. NORTH INDIA TOP COMPANY PVT. LTD. TCI SUPPLY CHIAN SOLUTIONS, C/O. ACORN WAREHOUSES & LOGISTICS PARK 68, VIII-KAPRIWAS & MALPURA TALUQ, HARYANA DHARUHERA-123106 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : MRIDUL JAIN For the Respondent : Mr. Shadman Ali, Advocate Dated : 04 Apr 2019 ORDER MRS. M. SHREESHA, MEMBER Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 20.11.2017 passed by the Delhi State Consumer Disputes Redressal Commission (in short "the State Commission") in First Appeal No. 553 of 2017. By the impugned order, the State Commission has concurred with the finding of the District Consumer Disputes Redressal Forum, (East) Delhi (in short "the District Forum"), and dismissed the Complaint holding that the Complainant is not a Consumer as defined under Section 2 (1)(d) of the Act.
2. The facts in brief are that the Complainant saw an attractive offer of Gift Voucher of ₹1,000/- on the website of the first Opposite Party and purchased one Micromax 5.2" Android Dual Core Phablet A 075 from the website of the first Opposite Party. Two Gift Vouchers of ₹500/- each was delivered, at the Complainant's office and ₹6,499/- was also paid. It is averred that the Complainant on receipt of the Gift Vouchers saw some terms and conditions on the reverse, which were arbitrary, unreasonable. At the time of booking of the Phablet, no such terms and conditions were informed to the Complainant. It is pleaded that this promised Gift Voucher was only to induce the Complainant to purchase the said Phablet. It is stated that an email was addressed on 19.05.2014 to the first Opposite Party but there was no response. It is averred that this conduct of the Opposite Parties amounts to cheating and unfair trade practice and also deficiency of service which caused mental harassment to the Complainant and therefore the Complainant seeks a direction to the Opposite Parties to pay a sum of ₹50,000/- towards compensation, ₹1,000/- towards loss of Gift Coupons, with interest @ 24% p.a. and other expenses.
3. The first Opposite Party filed their Written Statement, admitting that a complementary freebie Gift Voucher of ₹1,000/- (500 X 2) along with the product was offered and the terms and conditions of the Gift Voucher was duly uploaded on the website and also provided on the Gift Coupons. It is an admitted fact that the Complainant placed an order on 01.05.2014 to purchase the said Micromax 5.2" Phablet worth ₹6,499/-, for which the first Opposite Party gave two Gift Vouchers of ₹500/- each and did not charge any amount of consideration for the same.
4. It is pleaded that the first Opposite Party namely, Home Shop 18 provides online shopping platform/ avenue to its users to buy and sell products on Home Shop 18 platform. The vendor/ seller/ affiliates means the person or any legal entity, who offer for sale, or sells the products on the Home Shop 18 platform. It is only an intermediary which provides an avenue to both the buyers and sellers to buy and sell their products. It is pleaded that the first Opposite Party does not specifically sell any products, it only receives orders on behalf of the sellers for the products displayed on its platform and therefore neither manufactures, sells, markets any product through the platforms. It is owned and operated by TV 18 Home Shopping Network Ltd. The terms of use has been specified in the Written Version. It is further pleaded that the first Opposite Party has voluntarily provided Gift Vouchers along with the products and their terms and condition are uploaded on the website and therefore there is no deficiency of service on their behalf.
5. The District Forum based on the evidence adduced dismissed the Complaint observing that the Gift Coupon was a complementary; that the Complainant did not produced any evidence that the Opposite parties were bound to pay cash for the Gift Coupons contrary to terms and conditions.
6. Aggrieved by the said order, the Complainant preferred an Appeal before the State Commission, which concurred with the finding of the District Forum that the Complainant is not a Consumer and observed as follows:
"The allegation of the appellant is that the respondents have indulged into unfair trade practice. For this purpose, the provisions contained in the Consumer Protection Act 1986 defining unfair trade practice, to the extent it is relevant, reads as under:-
"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:-
(b) the conduct of any contest, lottery, game of chance or still, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
The use of the word "including" clearly shows that the unfair methods and unfair or deceptive practices enumerated in the Act are inclusive and not exhaustive. Thus, there can be unfair trade practices other than those specifically enumerated in the Act. Under the Act one has to be a consumer. In the given case, agreeing with the findings of the ld. Distt. Fora, the complainant is not a consumer and thus not entitled to raise a consumer dispute.
Having regard to the facts and circumstances of the case we are of the considered view that there is no infirmity in the orders passed by the District Forum and we uphold it."
7. The Petitioner vehemently argued that the promise of the Gift Vouchers has induced the Complainant to purchase the said Phablet; that the terms and conditions were never informed to the Complainant at the time of booking and it was only on the reverse side of the Gift Coupon that the terms were mentioned, which are arbitrary and unreasonable; that consideration was paid for the goods as well as for the Gift Coupons and the customers who are purchasing goods for consideration is a Consumer though the Gift Voucher is a freebie. The Complainant submitted that both the Fora below have erred in observing that the Complainant had demanded cash against the Gift Coupon and that the Complainant could not understand the terms. The Complainant strenuously contended that the terms and conditions provided on the Gift Coupons were never revealed to him and that the District Forum has committed a serious error by dismissing the Complaint with cost of ₹1,000/-. Learned counsel for the Respondents submitted that the terms and conditions were uploaded on the website, the Complainant ought to have gone to the website and read the terms and conditions before purchasing the Phablet as it is a Gift Coupon and as no consideration was paid towards Gift Coupon, the Complainant is not a Consumer.
8. The first issue which needs to be addressed to is whether the Complainant is a Consumer.
9. It is the Complainant's case after seeing an attractive offer of the Gift Voucher of ₹1,000/-, on the website of the first Opposite Party that he was induced to buy Micromax 5.2" Phablet A 075 after paying an amount of ₹6,499/-. It is only because of the attractive offer of Gift Vouchers of ₹500 each that the Complainant decided to purchase the Phablet in that particular website. After receipt of the Gift voucher the Complainant observed the following terms and conditions on the reverse side of the Vouchers:
"Terms and Conditions The gift coupon (GC) can be redeemedon orders placed at Home Shop 18 (HS18) Sales centre (phone 0120-4444918) or at our web site www.homeshop18.com.
This GC is applicable for a single minimum purchase of Rs.5000.
This GC is not applicable on the following categories: (1) Mobile handsets & mobile accessories (2) Electronics (3) Cameras & Camcorders (4) Computers & peripherals (5) Gift Vouchers.
Only one order per GC no. can be placed. NO. can be placed. No two GCs can be clubbed together for an order.
Thus GC is valid upto 31st July 2014.
HS 18 reserves the right to change these terms and conditions at its discretion and without any intimation to the customer of any sort.
GC is not redeemable/ refundable for cash and cannot be returned for a cash refund under any circumstances.
If this GC No.is non-functional on account of any technical reason, your sole remedy, and the sole liability of HS 18, shall be refuse/ replacement of the particular GC No..
HS 18 is not responsible for any lost or stolen GC and no representation in this regard will be accepted in any form or nature. Any dispute with regard to this promotion is subject to jurisdiction in the court of Delhi/ New Delhi."
10. A brief perusal of what was mentioned on the reverse side gives us a clearer picture of whether a freebie of the Gift Coupon worth ₹1,000/- was offered to induce the Complainant without mentioning the terms and conditions:
"Micromax 5.2 Inch (13.20 c) Android Dual Core Phablet - A075 Key Features 8 MP With Video Recording Front 0.3 MP Digital Camera 5.2 Inch (13.20 c) Screen Size Android 4.0.3 ICS Operating System 1.0 GHz Dual Core Processor Battery Type 200 mAh Freebie: Snap Cover Rs. 1499/-
GC worth Rs.1000."
As can be seen from what was displayed on the website there is nothing specific mentioned against the Gift Coupon either in brackets or in some note that the Complainant be informed about any terms and conditions.
11. Section 2(r) of the Act, which defines unfair trade practice, to the extent it is relevant, reads as under:-
"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:-
(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
The use of the word "including" clearly shows that the unfair methods and unfair or deceptive practices enumerated in the Act are inclusive and not exhaustive. Thus, there can be unfair trade practices other than those specifically enumerated in the Act.
12. In the instant case, both the Fora below have erred in coming to a conclusion that the Gift Coupon was not paid for. It is an admitted fact that the Gift Coupon has been offered to make the offer of the Micromax Phablet much more attractive. The Complainant exercised his choice of purchasing that particular Phablet form that particular website because of the offer of the Gif Coupon, therefore the consideration paid towards Phablet should be viewed in its totality and merely because the Gift Coupon came free of charge it cannot be considered that the Complainant is not a Consumer. The aforenoted advertisement on the website does not anywhere specifically mention about the 'Conditions to follow' along with the Gift Coupon therefore we are of the considered view that the present case squarely falls within the ambit of Section 2 (r)(3) of the Act, which specifies the offering of gifts, price of other items with the notification 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. In the instant case the terms and conditions which are provided overleaf the Gift Coupon, which the Complainant had actually received along with Phablet, were never actually highlighted or even specified in the advertisement. Inducing the Consumer to purchase a particular article on the website without specifically mentioning the terms and conditions of the Gift Coupon in the main advertisement can be construed as "not providing them as offered" which, amounts to unfair trade practice as it squarely falls within the ambit of Section 2 (r)(3) of the Act. The method adopted by the first Opposite Party in taking the promotion scheme without revealing all the terms and conditions of the Gift Voucher in the main advertisement amounts to unfair trade practice and we hold that both the Fora below have gone on the wrong premises that the Gift Coupon was not paid for and therefore the Complainant is not a Consumer.
13. In a similar case in Britannia Industries Ltd. Vs. State of West Bengal decided on 09.09.2015, while discussing unfair trade practice, this Commission observed as follows:
"The case of the petitioner company is that since they had printed the words "conditions apply" on the wrapper of the product, the consumer could ask the dealer to show to him the conditions which were applicable to the offer and therefore, there was no concealment as such from the consumer. We however, are not impressed with the contention. The words "conditions apply" are written in such tiny letters that no one is likely to even notice them unless he is expressly told that the wrapper contains the aforesaid words. The practice of writing the words "conditions apply" in such tiny letters was not approved by this Commission in revision petition no. 831 of 2001, M.R. Ramesh Vs. Prakash Moped House & Ors., decided on 02.05.2003. Moreover, there was nothing on the wrapper to indicate that the conditions applicable to the Scheme were available with the dealer of the product. Therefore, even if one was to notice the words "conditions apply" he would not be in a position to know what precisely those conditions were and where they could be perused."
(Emphasis supplied)
14. Section 14 of the Consumer Protection Act envisages grant of compensation for loss or injury which may not necessarily be monetary in nature. The compensation by a Consumer Forum can also be awarded for the physical, mental or emotional suffering. The provision of Consumer Protection Act enables a Consumer to complain and empower a Consumer Forum to redress any injustice to the Consumer, irrespective of whether his suffering be monetary or otherwise.
15. Hence we are of the considered view that the conduct of the first Opposite Party amounts not only to deficiency of service but also unfair trade practice, for which the Complainant is entitled to refund of the cash amount of ₹1,000/- and also compensation of ₹10,000/- and costs of ₹5,000/-.
16. In the result, this Revision Petition is allowed with the aforenoted directions. Time for compliance is four weeks from the date of receipt of a copy of this order failing which the compensation amount shall attract interest @ 9% p.a. from the date of the order till the date of realisation.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER