PER SH. RAKESH KAPOOR, PRESIDENT On8.10.2012,the complainant had purchased fair and handsome cream ,Worlds no. 1 fairness cream for men (herein after called the product) from M/s K B Fair Price , C-3/7, Ground Floor, Prashant Vihar New Delhi. The said cream is manufactured ,sold and distributed by the OP. It is the case of the complainant that he had used the product as per directions for use mentioned on the labeling and packaging of the product but it had failed to show any results as claimed by the OP in respect of the product. It is the further case of the complainant that the OP has been using Mr. Shahrukh Khan , a well-known actor as its brand ambassador for promotion of the product and it makes false claims and promises that it provides fairness in just three weeks. Having used the product as per the directions of the Op , the complainant had approached the OP and had brought to its notice that the product had failed to give the promised benefits but the OP had refused to respond to the e-mail written in this regard. The complainant has claimed that the present complaint is maintainable U/s 2(f) and U/s 2 (r) of the Consumer Protection Act as the product is not of the quality and potency as claimed and the OP has adopted an unfair trade practice for the purpose of promoting the sale , use and supply of the product including the following:
(i) Falsely represents that good have characteristics, uses or benefits which such good do not have;
(ii) Makes a false and misleading representation concerning the usefulness of good;
(iii) Makes a false and misleading representation concerning the need for and the usefulness of the product.
(iv) Gives false and misleading facts about the said product.
(v) Makes a false advertisement about the product. The complainant has alleged that the OP is guilty of resorting to an unfair trade practice and has prayed for the following reliefs.
1. To order the OP to discontinue the Unfair trade practice as per section 14 of consumer Protection Act, 1986 as the benefits of product claimed by the OP are false and further to give an advertisement in newspapers, for a continuous period of one year, across the country in English and Hindi and vernacular languages stating that such products do not provide any fairness to the men.
2. Since the OP has played with the emotions of the complainant as he purchased the product of OP, in order to get the benefits, mentioned and claimed by the OP on the packaging and labeling of its product, which turned out to be false claims as per the above contentions made. Therefore, we hereby request the Honble Judge of District Consumers Dispute Redressal Forum to award compensation of Rupees Nineteen Lacs ninety thousand, as punitive damages, in favor of the complainant plus the litigation charges and other transportation expenses of Rupees ten thousand. The op has contested the complaint and has filed a written statement. It has claimed that the complaint is absolutely frivolous and is not maintainable . It has disputed that the complainant is a consumer within the meaning of Consumer protection Act 1986. It has denied that the complainant has used the cream for a period of three weeks as per directions and has claimed that the product fair and handsome cream is manufactured by it under a license from the competent authority and the same is backed by scientific research, evaluation and quality control. Paras 6 to 11 of the reply are relevant for the purpose of disposal of this complaint and are reproduced as under:- 6.It is stated that the complaint has been motivatedly made to malign the goodwill and reputation of the Op who is a renowned manufacturer of consumer goods which are highly popular in domestic and international market. It is stated that each of the product manufactured by the Op including the Fair and Handsome cream is manufactured under strict quality control and is the product of extensive scientific research.
7. Fair & Handsome has been developed by USA based Dr.Chanda Zaveri, renowned skin expert and protg of two times Nobel Prize winner, in collaboration with India Dr. Chanda Zaveri is in possession of various United States Patent for invention of Peptide complex in respect of dermatology healing, treatment of Alopecia, hair ailments and various cosmetic products relating to hair and skin care treatment and beautification and has also extensive know how and technical knowledge as regard to manufacture of various cosmetics and herbal products. This fact is also declared on the label of the product. One of the ingredients of Fair & Handsome is Lumino Peptide. Peptide is a molecule formed by joining two or more amino acids. Peptides (proteins) are present in every living cell and posses a variety of biochemical activities. They appear as enzymes,hormones,antibiotics, receptors, etc. Peptide technology with specific signals for Collagen synthesis which retard skin aging and wrinkles. A powerful Peptide sequence will take care of proper Collagen synthesis by proliferation of fibroblast which accelerates Collagen synthesis and also increase the metabolic activity of the skin , thus imparting radiance to skin and depresses melanin formation thus not only giving freedom from those depressing wrinkles but also make look fairer. The Op party had also got a study titled "Evaluation of Skin Cream Formulations to confer Fairness on Healthy Male subjects" conducted at The KET's Scientific Research Centre, Cosmetology Division, Mumbai in respect of its product. The synopsis of the findings is enclosed as Annexure "A-1"which clearly suggests that the complaint of the complainant is frivolous and without any basis. claim justification note in respect of Fair & Handsome is enclosed as Annexure A-2.
8. It is specifically stated that no remarks made regarding the product Fair and Handsome cream by the Ops in any manner whatsoever are misleading as alleged by the complainant so as to give the same a colour of unfair trade practice. The Fair and Handsome cream is basically a personal care product to keep the skin healthy, the skin being one of the largest organ of the human body and the facial and neck skin being largely exposed to the vagaries of nature, sunlight (ultra violet Rays), dust, wind etc. the cream provides protection and nourishment to the facial and neck skin.
9. The desired result from the use of a personal care product in any market anywhere in the world depends upon a host of other adjacent factors such as proper usage of the product and proper nutritious diet, exercise, healthy habits, hygienic living conditions etc. The effect of the product shall vary with these variables including age of the user. The particular product as would be evident from the packaging has been produced for the use of young men within the age group of 16-35 years for protecting their facial and neck skin from UV ray of the sun which causes darkening of the skin, soften, nourish the skin and remove the blemishes. The product is highly popular in the market since a large number of users have been benefited by its use. A few of the mail of appreciation received by the Ops in regard to the usage of the cream are annexed hereto and marked as Annexure4 collectively.
10. It is reiterated by the Ops that regular proper use skin health interalia by protecting and nourishing the skin. There is no evidence whatsoever before this Hon'ble Forum that the complainant used the cream regularly and that his skin condition did not improve at It is indeed absurd for a lay person to make such claim without appropriate medical opinion from a dermatologist. The complaint is frivolous and riddled with anomalies. There is no averment regarding the previous condition of the skin of the complainant, his life style and health habits, his general physical condition. The allegation of the complainant as made in page 5 paragraph (a) of the complaint is not supported by an iota of evidence.
11. It is reiterated that the allegation of the complainant as aforesaid do not establish any defect in goods at all nor it indicates any unfair trade practice by the Ops. The cream is manufactured specifically for use in tropical country interalia providing protection from UV Rays of the sun which causes darkening of the skin. The cream also provides nourishment which makes the skin soft and supple generally making it fairer, smoother, softer, healthier adding a healthy glow. The degree of effect will obviously vary from person to person depending upon the other variable factors. As such the advertisement is neither false nor misleading. The website information is backed by scientific research and product sampling. The OP has further claimed that there is no basis of the compensation claimed in this case. It has claimed that the complaint is a mala-fide exercise to malign the good will and / or the image of the Ops with an ulterior motive. It has prayed that the complaint be dismissed with cost. We have heard arguments advanced at the bar and have perused the record. It may be pointed that an objection was raised by the OP to the pecuniary jurisdiction of this forum to entertain and try the present complaint. It was claimed that if the cost of the product was added to the amount claimed , the aggregate value of the relief would go beyond the pecuniary jurisdiction. A perusal of the complaint , however, shows that the complainant has not sought the refund of the value of the product and had kept the value of the relief at Rs 20,00,000/-(R s twenty Lakhs only ). In (1997) 5 CTJ 131 (CP) (NCDRC) Quality foils India Pvt. Ltd. V/s Bank of Madura Ltd & Ors , the National Commission had held that the criteria for determining value of jurisdiction is to the quantum of reliefs put together i.e. the aggregate values of the goods and compensation or aggregate value of services and compensation and on the aggregate value of goods and services and compensation as the case may be by the aggrieved consumer. In the present case, the aggregate value of the reliefs sought by the complainant does not exceed the pecuniary -10- jurisdiction of this forum. Even otherwise, a statement was made on 24.9.2015 by the Authorized representative of the complainant that in order to obviate any technical objection with respect to the pecuniary jurisdiction of this forum, the relief sought be limited to Rs. 20 Lacks only. In view of the judgment cited above and in view of the statement made by the authorized Representative of the complainant, we have no hesitation to hold that the complaint is within the pecuniary jurisdiction of On behalf of OP , it has been contended that the complaint has been filed primarily on the ground that the product is defective and the OP is guilty of an unfair trade practice on the basis of false representation. It is contended that no expert report has been filed by the complainant and, therefore , the provisions of Section 13 (1) (c) have not been complied with. In the written arguments filed on record , it is claimed that the market is flooded with consumable goods and the consumer has a very wide choice among various brands. It is stated that the consumer chooses from amongst the varied products and if one brand does not satisfy him , he shifts to another brand available in the market. It is contended that if the complainant was not -11- satisfied with the product of the Op, it cannot be said that the product was defective and / or the advertisement is misleading. The op has further claimed that its product is manufactured under a drug licence with stringent quality control. The efficacy of the product is tested and documented from time to time and at least
8 such test reports have been relied upon and placed on the record of this case. The test reports are :-
i) Kelkar Education Trust Scientific Research Centre (exhibit A1). ii) Mascot spin control iii) MJ Lab Pvt. Ltd. iv) Association for assessment and accreditation (official recognition) of laboratory animal care international
v) Bio Needs vi) Conclusion N.B. Two weeks vii) IMRB International (two weeks) viii) ASCI ix) Expert evidene Prof. Bijan Kumar Gupta, J.U. It has been further contended by the OP that there is -12- no allegation that the complainant had suffered loss or injury because of the use of the product.it is claimed that no compensation can be awarded to the complainant unless the aforesaid fact is established. It is also contended that the product has all the ingriedients claimed in the advertisement and gives the desired results as promised. On behalf of the complainant, however, much emphasis has been laid on the advertisements depicting Mr. Shahrukh Khan as its brand ambassador and with a representation that its use gives a fair complexion to the user. The transcription of the said advertisements have been placed on the record of this complaint which has not been disputed to by the OP. The transcription of the advertisements read as Advertisement no. 1 Kaash mai bhi shahrukh hota Jina chahte ho meri zindagi Itna sab sahne ke baad bhi handsome , kaash mai bhi. Shahrukh:- nhi toh kya , handsome koi bhi ban sakta hai, Fair and Handsome use karo meri tarah Par ladkiyon wali cream kabhi -13- nahi Emami Fair and Handsome cream, khaas mardo ke saqt tawacha ke liye, iska unique five power fairness system de behtar gorapan. Haye handsome Haye Handsome Kaha na handsome koi bhi ban sakta hai. Fair and handsome cream, use worlds no. 1 Fairness cream for men. Advertisement no. 2 Bhaiya fir se meri saari fairness cream khatam kar Mard ho kar ladkiyon wali cream, chiiii Chup chup kar kaahey kyu ladkiyon ki cream lagaye, unki twacha hai komal komal aur tumahri rough and tough, twacha nhi unke jaisi yeh kyu samajh na aaye Emami Fair and Handsome Aam Fairness Cream mardo ki sqt -14- twacha mein nhi sama patey Sirf Fair and Handsome mein hai American Double Strength peptide aur jadi butiyan jo undar tak samayen aur gora banaye four weeks mein Haye handsome Haye Handsome Fair and handsome cream, use worlds no. 1 Fairness cream for men. We have also seen the advertisements as a CD of the same was placed on record by the complainant. The advertisements depict that by application of the product, the complexion of the user changes from dark to wheatish and from wheatish to fair. The transcription of the advertisements as reproduced above holds out that the application of the product will produce a fair complexion. It uses the word gorapan in advertisement no. 1 which means fair complexion. In advertisement no. 2 it gives out a promise that the use of the product for a period of four weeks will ensure fair complexion. The advertisements , therefore, make a representation to the general public that by the use of the product they can achieve fair complexion. This is in direct -15- contrast with the defense taken by the OP wherein it has claimed that the use of the product improves the health and quality of skin by providing protection and nourishment to the facial and neck skin which are more exposed to the vagaries of nature, sunlight, dust , wind etc. No attempt has been made on behalf of the OP to show and justify the advertisements which hold out a promise of the skin getting fairer by the use of the product. The complainant has categorically stated that even though he uses the product as required, it had made no effect on his complexion which did not improve. We are , therefore, of the considered opinion that the advertisements published by the OP as referred to above make a misrepresentation to the public at large about the effectiveness of the product to change the complexion of the skin from dark to wheatish and from wheatish to fair. It , therefore, amounts to an unfair trade practice being adopted by the OP to sell its product. The OP is also guilty of deficiency in service qua the complainant as the product sold to him was found to be defective. We, therefore, direct the OP as under:-
1. Pay to the complainant a sum of Rs. 10,000/- (Rs Ten Thousands Only)as -16- compensation which will also include the cost of litigation.
2. Deposit a sum of Rs. 15 Lacs(Rs Fifteen Lacs Only) as punitive damages with the consumer welfare fund maintained with the State Commission, Delhi.
3. Withdraw the advertisements representing that the use of the product will change the complexion from dark to wheatish or from wheatish to fair . The OP shall comply with this order within a period of 30 days from the date of this order failing which it shall be liable to pay interest on the entire awarded amount @ 10% per annum. IF the OP fails to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act. Copy of the order be made available to the parties as per rule. File be consigned to record room. Announced in open sitting of the Forum on..................... [HON'BLE MR. RAKESH KAPOOR] PRESIDENT [HON'BLE MR. VIKRAM KUMAR DABAS] MEMBER -17- [HON'BLE MRS. NIPUR CHANDNA] MEMBER -18-