IN THE STATE COMMISSION: DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:01.05.2017

First Appeal- 549/2015
(Arising out of the order dated 31.10.2015 passed in Complainant Case No.
53/2013 by the District Consumer Disputes Redressal Forum (Central), Kashmere
Gate, Delhi)

M/s. Emami Ltd.,
Registered Office:
Emami Tower, 687,
Anandapur, E.M. Bypass,
Kolkata-700107.
Also at 2E/26,
Jhandewalan Extension,
New Delhi-110055.

…..Appellant
Versus

Nikhil Jain,
B-9/3, Vallabh Vihar Society,
Sector-13, Rohini,
Delhi-110085.

.….Respondent

CORAM
Justice Veena Birbal, President
Salma Noor, Member

1.

2.

Whether reporters of local newspaper be allowed to see the judgment?
To be referred to the reporter or not?

Justice Veena Birbal, President
1.

This is an appeal under Section 15 of the Consumer Protection

Act (in short, „the Act‟) wherein challenge is made to order dated 31.10.2015

Page 1 of 13

 passed by the District Consumer Dispute Redressal Forum (Central),
Kashmere Gate, District New Delhi (in short, the District Forum) in CC No.
53/2013 whereby the aforesaid complaint case has been allowed.
2.

Briefly the facts relevant for the disposal of the present appeal are

that the respondent herein i.e. complainant before the District Forum had
filed a complaint under section 12 of the Act alleging therein that the
appellant/OP had adopted unfair trade practice by selling its product Fair
and Handsome Cream, World’s No.1 Fairness Cream for Men (hereinafter
referred as “the Product”). The said Product is manufactured, sold and
distributed

by

appellant/OP.

It

was

alleged

that

the

respondent/complainant was highly influenced by the advertisements
broadcasted on television whereby the appellant/OP had used famous actor
Shahrukh Khan as its Brand Ambassador for promotion of the said product
by making false claims and promises. It had been falsely claimed that the
aforesaid product was providing fairness to men in just 3 weeks.
3.

It was alleged that the said Product was purchased by

respondent/complainant from M/s KB Fair Price Shop, C-37, Ground Floor,
Prashant Vihar, New Delhi wherein following benefits were given on its
package:
“1. Fast Action Lumino Peptide- Unique Lumino Peptide
Complex effectively penetrates deep in to tough male skin,
making it fairer in just 3 Weeks.
2. UV Block- Zinc Oxide protects skin from pigmentation
caused by exposure to UVA/UVB rays, dirt and pollution.

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 3. Mark Free- Aloe Vera removes blemishes caused by shaving
cuts and bruises.
4. Protein Booster- Smoothens skin, improves texture, reduces
wrinkles and restores skin elasticity.
5. Glow Plus- Skin nourishing agents like Vitamin-E & A make
the skin glow more than ever before.”
4.

It was alleged that respondent/complainant had used the product

as per the directions mentioned on its packaging. Despite that it had failed
to show any of the desired results. The respondent/complainant brought the
matter to the notice of appellant/OP through e-mails but no response was
given. It was alleged that the complaint was maintainable under Section 2(f)
and Section 2 (r) of the Act as the Product was not of the quality and
potency as claimed by the appellant/OP.

It was alleged that the

appellant/OP had adopted unfair trade practice for the purpose of
promoting the sale, use and supply of the aforesaid product by falsely
representing that it had characteristics and benefits by making false
advertisements

etc.

misrepresentation

On

about

being
alleged

aggrieved

by

effectiveness

the
of

false
the

claims

and

product,

the

respondent/complainant had filed the aforesaid complaint before the Ld.
District Forum praying that the appellant/OP be ordered to discontinue the
unfair trade practice as per Section 14 of the Act and to give an
advertisement in newspapers, for a period of one year, across the country in
English and Hindi and vernaculer languages that such products did not
provide any fairness to the men and to pay a sum of Rs. 19, 90,000/- as

Page 3 of 13

 compensation along with Rs. 10,000/- as litigation cost as it had played
with the emotion of respondent/complainant by making false claims.
5.

The complaint was opposed by the appellant/OP by filing written

statement wherein the purchase of the said product and the alleged use of
the same by respondent/complainant as per directions given was denied.
Even

the

alleged

cash

memo

by

which

it

was

alleged

that

the

respondent/complainant had purchased the product was also disputed. It
was alleged that the respondent/complainant had filed a false claim to
malign the goodwill and reputation of the appellant/OP i.e. a renowned
manufacturer of consumer goods popular in national and international
market. It was also alleged that the product in question has been
manufactured after extensive scientific research. It was alleged that one of
the ingredients of said product i.e. Lumino Peptide has the quality of making
the skin fairer. It was alleged that the said product is basically a personal
care product to keep the skin healthy. It was alleged that 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 said product provides protection and nourishment to the
facial and neck skin.

It was alleged that the said product has been

manufactured specifically for use in tropical country for providing protection
from UV Rays of the sun and makes the skin soft, fairer and supple
generally, adding a healthy glow. The degree of effect would obviously vary

Page 4 of 13

 from person to person depending upon the other variable factors. It was
alleged that the advertisement was neither false nor misleading.
6.

It

was

alleged

that

no

evidence

had

been

led

by

the

respondent/complainant that he used the product regularly as per
directions given for use and that his skin condition did not improve at all. It
was alleged that the claim had been made without any basis and to malign
the goodwill and/or image of the appellant/OP and the same was filed with
ulterior motives and the complaint was liable to be dismissed. It was alleged
that regular and proper use of the product would definitely enhance the skin
health inter-alia by protecting and nourishing the skin. It was alleged that
there was no evidence whatsoever before the Ld. District Forum that the
complainant used the cream regularly and that his skin condition did not
improve at all. A prayer was made for the dismissal of the complaint with
exemplary cost.
7.

Rejoinder was filed by the respondent/complainant denying the

allegations made in the written statement and respondent/complainant had
reiterated the averments made in the complaint.
8.

Both the parties had filed their evidence in the form of affidavits

and also filed written arguments.
9.

Ld. District Forum heard both parties and also saw the

advertisements of the product as CD of the same was placed on record by
the respondent/complainant.

The Ld. District Forum held that the

advertisements given by the appellant/OP make a representation to the

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 general public that by use of the said product, they can achieve fair
complexion.

It was held that the same was in direct contrast with the

defence taken by the OP in written statement. It was further held that no
attempt was made on behalf of the appellant/OP to show and justify the
advertisements which hold out a promise of the skin getting fairer by the
use of product. It was held that advertisement was an unfair trade practice
adopted by appellant/OP in order to sell its product. It was further held
that

appellant/OP

was

also

guilty

of

deficiency

in

service

to

respondent/complainant as the product sold to him was found to be
defective. Accordingly the Ld. District Forum directed the appellant/OP as
under:
“1.

Pay to the complainant a sum of Rs.10,000/- (Rs
Ten Thousands Only) as 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 whitish or from whitish to fair.”

10.

Aggrieved with the aforesaid order, the present appeal is filed.

11.

Ld. Counsel for the appellant/OP has submitted that the

Ld.

District Forum has failed to appreciate that the respondent/complainant is
not a „consumer‟ within the meaning of Section 2(1) (d) of the Act.

It is

contended that the veracity of cash memo by which it is alleged that the
respondent/complainant had purchased the product was challenged by
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 appellant/OP.

It is contended that the cash memo on record does not

contain the name of the purchaser, name of the shop from where it is
alleged that the product was purchased. It is contended that the District
Forum has not considered the aforesaid aspect of the matter. It is further
contended that even assuming the respondent/complainant is a „consumer‟,
there is no evidence filed by respondent/complainant that the product was
used as per the directions printed on the said product. It is contended that
the respondent/complainant has failed to discharge the onus as a
„complainant‟. It is further contended that the product was also not placed
before the District Forum. It is contended that Ld. District Forum ought to
have sent the sample of the product for testing to a laboratory as per
mandatory requirement under Section 13(1) (c) of the Act.

It is further

contended that the appellant/OP has placed on record several expert
experiences/reports which had remained uncontroverted and unrebutted.
The said reports have been ignored by the Ld. District Forum.

It is

contended that no reasoning has been given in the order by Ld. District
Forum for discarding the aforesaid reports.

It is further contended that

there is no evidence on record that respondent/complainant had actually
used the product as per the directions given on the product. It is contended
that impugned order has serious consequences on the appellant/OP and the
District Forum ought to have considered at least the material evidence on
record before passing the impugned order. It is further contended that the
respondent/complainant never appeared before the District Forum in

Page 7 of 13

 person. Only photograph of the respondent/complainant was produced at
belated stage which was not sufficient in coming to the conclusion that the
product in question is defective or that the respondent/complainant has not
been benefitted by the said product.
12.

AR of the respondent/complainant has submitted that the

respondent/complainant had purchased the product for his personal use on
the basis

of promise made by

an actor, Shahrukh Khan

in TV

advertisements on behalf of Appellant/OP that the product provides fairness
to men in three weeks. It is submitted that the promise is also given in the
packaging of the product. It is submitted that the Ld. District Forum has
considered the promise made and words used by actor, Shahrukh Khan for
promoting the product and thereafter has passed the impugned order by
observing that the advertisement is making representation to the general
public that by use of the product, they can achieve fair complexion which is
in direct contrast with the defence taken by the appellant/OP in written
statement.

It is contended that in written statement, appellant/OP has

claimed that the use of 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.

It is

contended that there is no mention in the written statement that one can
achieve

fair

complexion

by

use

of

product.

It

is

contended

that

respondent/complainant has categorically stated in the evidence by way of
affidavit that by use of the product, his complexion did not improve. It is

Page 8 of 13

 contended that the finding of unfair trade practice adopted by appellant/OP
to sell its product as observed by the Ld. District Forum is based on material
on record. It is contended that the test reports produced by the
appellant/OP have been prepared under a private arrangement between the
appellant/OP and the concerned Experts/Labs and the same are of no help
to appellant/OP.

It is further contended that there is no compulsory

requirement of testing a product under Section 13(1)(c) of the Act as has
been contended.

The respondent/complainant has relied upon the

judgement of National Commission in Vindhya Pipes and Plastics Ltd. v.
Angrej Singh and Ors., Revision Petition No.4534/2012, decided on
17.12.2014. It is contended that the District Forum has rightly passed the
impugned order. There is no illegality in the impugned order.
13.

We have considered the submission made and perused the

material on record.
14.

Perusal of impugned order shows that Ld. District Forum has

noted different contentions of appellant/OP about the efficacy of product
and that the product has all the ingredients

as claimed in the

advertisement. The District Forum has also noted various test reports of
different labs relied upon by appellant/OP to prove that the efficacy of the
product is tested. Ld. District Forum also noted about the contention of the
appellant/OP that respondent/complainant is not a „consumer‟ within the
meaning of the Act. The contents of advertisements are also reproduced in
the impugned order.

However, while giving the finding on unfair trade

Page 9 of 13

 practice, the District Forum has taken the wordings of advertisement and
chosen few lines of written statement and has held that the advertisement is
in direct contrast with the defence taken by appellant/OP wherein it has
only claimed that the use of 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 etc. It is held
that no attempt is made by appellant/OP in the written statement to show
and justify the advertisement, which hold a promise that use of product will
make the skin fair. The relevant para of the judgement is reproduced as
under:
“--------------------------------------------------------------------------------------This is in direct 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.”
15.

We may mention that complete defence taken in the written

statement is not taken into consideration by Ld. District Forum. It is alleged
in the written statement that the product in question provides nourishment
which makes the skin soft and supple generally making it fairer, smoother,
softer, healthier adding a healthy glow. It is also the stand of appellant/OP
in the written statement that the degree of effect will obviously vary from
person to person depending upon the other variable factors.

The product

Page 10 of 13

 makes the skin fairer is also averred in the written statement.

In these

circumstances, it cannot be said that the District Forum has considered the
entire defence of appellant/OP. Further the District Forum was not right in
arriving at a conclusion that advertisement is in contrast to written
statement by picking up few lines of written statement and ignoring the
remaining relevant portion of it.
16.

Before the District Forum, the appellant/OP has relied upon

various scientific test reports/expert evidence in support of stand taken in
written statement. The same are as under:
“a)

Kelkar Education Trust’s Scientific Research Centre,
Cosmetology Division - Study conducted at Mumbai in the
year 2011;

b)

Mascot Spin Control Clinical Research Organisation
Centre, ISO 9001 : 2008 (Accredited 3rd Party Clinical
Laboratory) - Study conducted at Mumbai in the year 2013;

c)

IMRB International (India‟s leading and most respected
market research agency) - Study conducted on 600 users of
the said Product, in the year 2013;

d)

Affidavit of Professor Mr. Bijan Kumar Gupta (Former
HOD of Pharmaceutical Technology, Jadhavpur University,
Kolkata; having 52 years‟ experience in the field of academic
and research; and recipient of life-time achievement award
from the Indian Pharmaceutical Association and from
Ramanbhai
Patel
Foundation)
holding
degrees
in
Pharmaceutical Sciences, inclusive of drugs, cosmetics, food
and water;

e)

MJ Lab Pvt. Ltd., Mumbai (NABL Accredited Lab, approved
by FDA, Maharashtra; ISO 9001 : 2008 certified laboratory) Lab Report dated 17.10.2013 certifying that Niacinamide is
present in the said Product, which is the most widely used
and safe skin lightening ingredient.

Page 11 of 13

 17.

f)

Bioneeds, Karnataka (approved drug-testing laboratory,
OECD GLP certified; AAALAC accredited, pre-clinical research
organisation) - Lab Report dated 21.10.2013 certifying that
Niacinamide is present in the said Product, which is the most
widely used and safe skin lightening ingredient.

g)

Advertising Standards Council of India (ASCI), established
in 1985 and its code being duly recognized under the Cable
Television Networks (Regulation) Act, 1995 and the Rules
made thereunder, committed to the cause of self-regulation in
advertising, ensuring the protection of interest of the
consumers - Order dated 20.11.2013, whereby the claim that
the said Product gives „fair skin‟ has been substantiated.”

The aforesaid reports have been ignored while giving the finding.

The stand of the appellant/OP is that the product in question is duly
certified and the efficacy of product is based on proper and scientific tests. If
Ld. District Forum was of the view that the aforesaid reports were not
satisfactory, it also had the option of sending the sample of product for
testing as provided under the Act.
18.

The complainant has also not produced any expert evidence except

his own affidavit by stating that he had used the cream and no effect had
come on him. The burden was on the respondent/complainant to prove his
case. Only self serving affidavit is given by him in the evidence. The
respondent/complainant has also not appeared before the Ld. District
Forum.

Even the product in question is not produced before Ld. District

Forum.

No

evidence

respondent/complainant

is

filed

about

before
his

the

condition

District
of

the

Forum
skin

by

the

prior

and

Page 12 of 13

 subsequent to the use of the said product. The impugned order has serious
consequences on the appellant/OP.
19.

In view of above discussion, we find that while passing the

impugned order, the Ld. District Forum has not considered the entire
material on record. We, therefore, set aside the impugned order and remand
back the case to the District Forum for deciding afresh after considering
material on record and giving an opportunity of hearing to both the parties.
The Ld. District Forum shall make all endeavours to decide the complaint
within 4 months of receipt of the order.
20.

Parties are directed to appear before the District Forum on

29.05.2017.
21.

A copy of this order as per the statutory requirements be forwarded

to the parties free of charge. The record of the District Forum be also sent
back forthwith. Thereafter the file be consigned to record room.

(Justice Veena Birbal)
President

(Salma Noor)
Member
Tri

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