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NCDRC asks Yash Raj Films to compensate for excluding song from movie ”Fan”

by admin | Apr 26, 2020 | Consumer Rights and Laws

NCDRC asks Yash Raj Films to compensate for excluding song from movie ”Fan”

National Consumer Disputes Redressal Commission or NCDRC directed Yash Raj Films (YRF) to pay Rs 10,000 as compensation to a teacher in Maharashtra”s Aurangabad, who was disappointed by exclusion of a song from Shah Rukh Khan-starrer ‘’Fan”.

The decision of the NCDRC was made after a complaint was registered by a consumer against YRF for promoting the movie ‘Fan’ starring Shahrukh Khan with the song ‘Jabra Fan’ in its promotional campaign, which then never appeared in the actual screening of the movie. The complainant felt cheated as she and her family decided to watch the movie on the basis of the song in the promos but the song did not appear in the movie.

YRF argument that the complainant was not a consumer as defined under CPA 1986 was rejected by the NCDRC. It argued that though the money paid by the teacher was not going directly to the producer, yet the producer, exhibitor and distributor all share the final revenue from ticket sales. Therefore, the NCDRC held that the complainant was in law and infactis a consumer of YRF when the teacher purchased the ticket to watch the movie.

The NCDRC alsodelved into the interpretation of “deficiency” and “unfair trade practice” under the CPA 1986. The Commission noted that the obvious purpose behind such an unfair trade practice is to draw potential viewers to cinema halls by luring them with the song and thereby making a profit at the cost of the viewer.

The presiding member V K Jain stated that he failed to understand the logic behind including the song in the promo but excluding it while exhibiting the movie. He stressed that the intention of the producer was to deceive the viewers by making them believe that the song would form part of the movie while knowing it very well that the said song would not be a part of the movie when it is screened in the cinema halls.

The NCDRC rejected the contention of the YRF that the producer and the actor of the movie had publicly declared the song which forms part of the promo would not be a part of the movie. The commission called it insufficient since it was not necessary that a person who watched the promo would have also seen the said interview.

The NCDRC observed that “When the producer of a movie shows the promos of the said movie on TV Channels, etc. and such promos include a song, any person watching the promo would be justified in believing that the movie would contain the song shown in the said promos, unless the promo itself contains a disclaimer that the song will not be a part of the movie. If a person likes the song shown in the promo and based upon such liking decides to visit a cinema hall for watching the said movie for a consideration, he is bound to feel deceived, disappointed and dejected if the song shown in the promo is not found in the film.” On this basis the NCDRC was of the opinion that the practice of using a song on TV channels to promote a movie and then not showing the song in the actual movie constitutes an unfair trade practice.

The National Consumer Disputes Redressal Commission (NCDRC) held the exclusion of song ”Jabra Fan” as “unfair trade practice” and said the person who decides to watch the movie after seeing the song in promotion is bound to feel “deceived, disappointed and dejected”.

Written by: AnkurSaha, Head- Legal, VOICE

Beneficiary of a statutory welfare scheme entitled to remedies under Consumer Protection Act

by admin | Apr 26, 2020 | Consumer Rights and Laws

Beneficiary of a statutory welfare scheme entitled to remedies under Consumer Protection Act

In a recent judgement, the Supreme Court held that that a construction worker who is registered under the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 is a ‘consumer’ within the ambit of the Consumer Protection Act 1986. This was observed in the case of The Joint Labour Commissioner and Registering Officer and Anr v. Kesar Lal.

This is a landmark judgement of the Supreme Court as more than 2.8 crore registered construction workers will fall under the category of consumers. It means that they can now move to various consumer forums if they are denied any statutory benefits as promised under various welfare schemes especially those implemented with the funds collected as ‘cess’ from builders. The issue gains immense importance as it will determine whether a beneficiary of a statutory welfare scheme is entitled to exact accountability by invoking the remedies under the Consumer Protection Act, 1986.

Parliament enacted the Act of 1996 “to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith or with incidental thereto”.

The Union Government has framed the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Rules, 1998 in pursuance of the rule-making powers conferred by Sections 40 and 62. The State of Rajasthan also framed the Rajasthan Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules in 2009.

Keeping in mind the welfare of the beneficiaries, the Welfare Board of Rajasthan formulated a scheme on 1st August 2011 for rendering financial assistance on the occasion of the marriage of a daughter of such beneficiaries, which envisages financial assistance of Rs 51,000 on the occasion of marriage.

Seeking to avail financial aid under the scheme, Kesar Lal submitted an application on 6th November 2012 in anticipation of the marriage of his daughter which was to take place on 24 November 2012. Nine months after the application was submitted, the Joint Commissioner of Labour, Jaipur issued an order of rejection covering such applications, finding technical defects as a ground for the decision. He had a valid Labour Beneficiary Identity Card where he would regularly make an annual contribution of Rs 60.

The National Consumer Disputes Redressal Commission rejected the contention that such a construction worker is not a ‘consumer’ within the meaning of the Consumer Protection Act 1986. In the appeal filed against the NCDRC, the contention raised was that the Act will not cover the services provided by the State in the discharge of its welfare which are highly subsidized or free.

The case was therefore placed before the Supreme Court against the judgement of the National Consumer Disputes Redressal Commission (NCDRC).

The question before the Supreme Court was whether a construction worker who was registered under the 1996 Act and was a beneficiary of the Scheme made under the Rules made in line with the enactment, could qualify as a ‘consumer’ within the meaning of Section 2(d) of the Consumer Protection Act 1986.

Relying on the provisions of the parent Act of 1996, the Court noted that every building worker who was registered as a beneficiary under the enactment was entitled to the benefits provided by the Board. It was also found that the welfare fund was created to meet the expenses of the Board in the discharge of its statutory functions, like towards payment of salaries, allowances and remuneration and for meeting the expenses on objects and for purposes authorised by the Act.

Hence, the Court pointed out that the Board was entrusted with specific functions which fell squarely within the definition of service within the meaning of Section 2(1)(o) of the Consumer Protection Act 1986.

Further, on a reading of various provisions, the Bench added that the services rendered by the Welfare Board to the beneficiaries are not provided free of charge so as to constitute an exclusion from the statutory definitions contained in the Consumer Protection Act 1986.

The point isn’t whether the amount which has been contributed by the beneficiary is adequate to cover the whole cost of the expenditure envisaged under the scheme. So long as the service which has been rendered isn’t rendered free of charge, any deficiency of service is aggreable for redressal constituted under the Consumer Protection Act 1986. The Act does not demand an enquiry into whether the cost of providing the service is entirely pay from the price which is paid for availing of the service. As we have seen from the definition contained in Section 2(1)(d), a ‘consumer’ includes not only a person who has hired or availed of service but even a beneficiary of a service. The registered workers are clearly beneficiaries of the service provided by the Board in a statutory capacity.

In conclusion, the Apex Court held that a construction worker registered under the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act of 1996 who is a beneficiary of the Scheme made under the Rules framed pursuant to the enactment, is a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986.

Written by: Ankur Saha, Head- Legal, VOICE

FLAT OWNERS’ ASSOCIATION THAT ARE FORMED DUE TO MANDATE OF LAW CANNOT FILE A CONSUMER COMPLAINT: SUPREME COURT

by admin | Feb 26, 2020 | Consumer Rights and Laws

Flat Owners’ Association That Are Formed Due to Mandate of Law Cannot File a Consumer Complaint: Supreme Court

The Supreme Court in its verdict held that an association which consists of members of flat owners in a building, registered compulsorily under the provisions of Karnataka Apartment Ownership Act, 1972, cannot be said to be a voluntary organisation. Therefore it cannot file a complaint under the Consumer Protection Act against any deficiency in goods or services under the welfare legislation.This order came when two judge bench was considering an appeal against the National Commission order which rejected the complaint filed by the Association on the ground that it has no locus standi to file the complaint since neither it is a ‘consumer’ nor it is a ‘recognised consumer association’ within the meaning of Section 12 of the Act.

A bench of Justices Mohan M Shantanagoudar and R Subhash Reddy passed their judgement while dismissing a civil appeal filed by Sobha Hibiscus Condominium against Managing Director of M/s Sobha Developers Ltd. They explained the term voluntary consumer association as a body formed by a group of persons coming together, of their own will and without any pressure or influence from anyone and without being mandated by any other provisions of law.

In the instant case, the complainant is a statutory body under the provisions of Karnataka Apartment Ownership Act. It consists of members, who are the owners of an apartment called “Shoba Hibiscus”. The Apex Court said that it is clear from the objects of the said Act that it was enacted with a view to provide for the ownership of an individual apartment in a building to make such apartment heritable and transferable property. Once the apartments are registered under this Act, the owners, among other rights, would also get an undivided interest in the common areas and facilities of the apartment complex.

However, the mandatory provision of the law for registration of the flat owners’ association takes away its voluntariness, precluding it to invoke the consumer law. Going through the provisions of the Consumer Protection Act, the court said the statute made it clear that any recognised consumer association could file a complaint but such a group had to be of voluntary nature, registered under the Companies Act, 1956 or any other law.

The Supreme Court said that a voluntary consumer association is a body formed by a group of persons coming together, of their own will and without any pressure or influence from anyone and without being mandated by any other provisions of law.

In the said instance therefore the association formed by the members of the “Shoba Hibiscus” cannot be recognised as a consumer association because it has come into existence pursuant to a declaration which is required to be made compulsorily under the provisions of 1972 Act. Since it is not a ‘consumer’ or a ‘recognised consumer association’ within the meaning of Section 12 of the Act, it cannot file a complaint.

Written by: Ankur Saha, Head- Legal, VOICE

Relief to Star Plus and Bharti Airtel in KBC case

by admin | Feb 10, 2020 | Consumer Rights and Laws

Relief to Star Plus and Bharti Airtel in KBC case

Supreme Court Division Bench, set aside National Commission’s order, in Star India (P) Ltd. v. Society of Catalysts & Anr, directing Star India and Bharti Airtel to collectively pay punitive damages amounting to Rs. 1 crore to the complainant organisation for unfair trade practice in their extremely popular TV game show ‘KBC’ (Kaun banega Crorepati). The Supreme Court has termed as “bad in law” the NCDRC verdict, directing Star India (P) Ltd and Bharti Airtel Ltd to pay punitive damages of Rs 1 crore for alleged “unfair trade practice” in a contest for the “Kaun Banega Crorepati” (KBC)In the instant case, Star India (P) Ltd., used to broadcast the programme ‘Kaun Banega Crorepati’. The programme was sponsored by Bharti Airtel Limited, during the telecast of this programme, a contest called ‘Har Seat Hot Seat’ was conducted, in which the viewers of KBC were invited to participate. There was no entry fee for the HSHS contest. However, it is not disputed that participants in the HSHS contest were required to pay Rs. 2.40 per SMS message to Airtel, which was higher than the normal rate for SMS. . It was alleged that the creators of the show had deceived the viewers by creating an impression that the participation in the contest conducted at the end of each episode of KBC called “Har Seat Hot Seat” was free of cost, whereas the cost of organising the contest as well as the prize money was being reimbursed from the increased SMS rates by the sponsor company Airtel which was being shared with Star India. The complainant company grounded its allegations on a survey which it conducted and it was also published in the national daily “Hindustan Times” where consumers said that they were under the impression that participation to the contest was free of cost.

Respondent which is a consumer society, filed a complaint before the National Commission against Star India and Airtel, contending that they were committing an ‘unfair trade practice’ of the Consumer Protection Act, 1986. The consumer commission in its order observed that the defendant company refused to disclose the show revenue earned by the said contest under confidentiality of proprietary information and they had created an impression that the participation in the contest was free of cost. Star in its defence said that the findings are based on inferences and speculations, and on reliance on a newspaper report without corroboration of its contents, which was impermissible and appealed before the SC.

The bench comprising Justice Mohan M. Shantanagoudar & Justice R. Subhash Reddy found that the complainant has clearly failed to discharge the burden to prove that the prize money was paid out of SMS revenue, and its averments on this aspect appear to be based on pure conjecture and surmise. The Apex Court further said that there is no basis to conclude that the prize money for the HSHS contest was paid directly out of the SMS revenue earned by Airtel, Airtel and Star India had colluded to increase the SMS rates so as to finance the prize money and share the SMS revenue, and the finding of the commission of an “unfair trade practice” rendered by the National Commission on this basis is liable to be set aside.

The court said that the National Commission had no basis to hold Star and Bharti Airtel guilty, although they had not specifically denied that the prize money was paid out of the increased SMS charges, but they had clarified in their submissions that Airtel was merely a sponsor/advertiser of the program. The commercial arrangement between the parties was that Airtel would pay sponsorship charges, whereas Star India would be independently liable for paying the prize money out of its pocket regardless of the revenue earned by Airtel. Further the court said that reliance on the newspaper report from Hindustan times is unwarranted. The court setting aside the commission’s order and relieving the companies of the punitive damages said “the complainant in the present case had not prayed for punitive damages in the complaint or proved that any actual loss was suffered by consumers.”

Written by: Ankur Saha, Head- Legal, VOICE

Airline Not Obliged To Escort Passengers To Boarding Gate: Supreme Court

by admin | Feb 10, 2020 | Consumer Rights and Laws

Airline Not Obliged To Escort Passengers To Boarding Gate: Supreme Court

Missed your flight? You can miss your flight due to various reasons, vital among them is traffic. Consequences of missing flight could be heavy, both in your pocket and time, as they are expensive to purchase and it also muddle with your schedule. However, still people tend to miss their flights so many times. Many a times your airline service provider is responsible but there are instances where passenger himself is liable for such consequence. Recently, Supreme Court has delivered a judgment on this issue. And here we will observe how a passenger is accountable for missing the flight.In the matter of Indigo Airlines, Kolkata & Anr vs. Kalpana Rani Debbarma & Ors., the Supreme Court held that airlines are not obliged to escort every passenger who has boarding passes to the boarding gate, and passengers are at their own discretion to seek assistance from ground staff. A bench comprising Justices A.M. Khanwilkar and Dinesh Maheshwari said, the Airlines cannot be blamed for the non-reporting of the passengers at the boarding gate when the boarding gate was finally closed.

In the instant case, the passengers had booked air tickets from Kolkata to Agartala on a flight operated by Indigo. It was contended by the passengers that the flight took off without any information about its departure, even though they had boarding passes. Also, that their request to be accommodated in the next available flight was given no heed. As a result of this, they had to incur additional expenditure for extended stay and were subjected to mental harassment. Therefore, they filed a complaint before the District Forum claiming Rs. 3,77,770 along with an interest at the rate of 12 % per annum.

Indigo contested the claim and stated that the passengers had failed to comply with the conditions of carriage (COC) which stipulated that the boarding gate will be closed 25 minutes prior to the departure time. It was contended that this was in fact not the fault of the airlines, but of the passengers themselves. It was also contended by Indigo that they were not obliged to accommodate the respondents on another flight in light of “Gate No Show” stipulated in the COC. The airline contested this stating ample announcements were made at regular intervals, but the passengers did not report at the boarding gate on time.

The top court observed that it would not be appropriate to cast an obligation on any airlines to delay the departure of an aircraft beyond the scheduled time of the departure and to await late arrival of any passenger, whosoever he/she may be, “howsoever highly or lowly placed”.

After boarding pass is issued, the passenger is expected to proceed towards security channel area and head towards specified boarding gate on his own. There is no contractual obligation on the airlines to escort every passenger, after the boarding pass is issued to him at the check-in counter, up to the boarding gate,” the bench said. It noted that the airlines issuing boarding passes cannot be made liable for the misdeeds, inaction or so to say misunderstanding caused to the passengers, until assistance is sought from the ground staff of the airlines at the airport well in time.

The bench declined to issue direction on the suggestion of senior advocate Rajiv Dutta, appointed amicus curiae in the case, to all airlines to adopt this practice uniformly. The court said that it will allow the competent authority (DGCA) to consider this issue and after interacting with all the stakeholders, take appropriate decision and issue instructions.

Written by: Ankur Saha, Head- Legal, VOICE

Delhi High Court Asks Railways to Create a Mediation Policy

by admin | Aug 10, 2018 | Consumer Rights and Laws

Delhi High Court Asks Railways to Create a Mediation Policy

The Delhi High Court, vide order dated 01.06.2018, has suggested the forming of a ‘litigation policy’ by the Railways to address tortuous claims of compensation filed against it. In the Court’s view, the whole purpose of granting compensation to the victim is defeated if the amount does not become available immediately. Due to lengthy court processes and transferring of a case from one court to another, justice is inevitably delayed. Here we revisit the case that put the wheels in motion.Victim Tilak Raj Singh, was travelling from Meerut to Ludhiana when an unfortunate incident occurred on the way at the Muzaffarnagar station, on 20 October 1987. The plaintiff suffered injuries but no first aid was administered. Instead he was sent to the civil hospital in Muzaffarnagar on a rickshaw. Due to loss of blood and inadequate facilities there, he developed an infection and was shifted to another hospital. The infection persisted, though, and finally his leg had to be amputated at a nursing home in Meerut. The plaintiff approached the District Court at Meerut on 3 September 1990 seeking damages/compensation. However, his suit was returned on 14 January 2002, after 12 years, for want of jurisdiction by the Meerut District Court. Thereafter he approached the Railways Claims Tribunal (RCT), but the RCT also dismissed his petition on the grounds that the incident had taken place after the enactment of the Railways Act, 1989, and therefore the case did not fall within the purview of RCT – instead, the same had to be tried by a civil court of competent jurisdiction.

The suit was then shuttled back to the District Judge, Meerut, who declined to accept the case saying that the RCT was not competent to transfer the case to it. Frustrated with the same, the victim filed a suit before the Delhi High Court on 1 October 2008. On 20 September 2010, a single judge rejected his case stating that the suit was barred by limitation. Thereafter, the victim challenged this in appeal before the Division Bench of the High Court of Delhi and they held that the period during which the suit remained pending before the Civil Judge, Meerut, and RCT should be excluded. The suit then proceeded to trial.

In 2016, due to the increase in the pecuniary jurisdiction of the Delhi High Court, the suit was transferred to the District and Sessions Judge, Patiala House Court, where the victim was finally decreed a sum of Rs 6.6 lakh. This was challenged by the Centre before the Delhi High Court.

Findings of the Court

After perusing the documents on record, the Court said that there was no doubt that the Railways were liable for breach of duty for not providing the standard of care required. The immediate first aid was not provided to the victim and it led to loss of blood and an injury that was life-threatening, as was clear from the report of the doctor who saw the victim at the Muzzafarnagar District Hospital. Concluding, the Court observed that the victim was entangled for want of jurisdiction both before the Civil Judge, Meerut, and the RCT. An organisation such as the Railways which is located across the length and breadth of the country should not delay cases of compensation in this manner. The whole purpose of granting compensation is defeated if the amount does not become available to the victim immediately.

The Court observed that as the incident took place prior to the enactment of the Railways Act, and the RCT had already rejected the petition of the victim for compensation, the determination of damages/compensation would be governed by the general law of torts and damages and not by the Railways Act.

Conclusion

While concluding, the Court observed that the victim was entangled for want of jurisdiction both before the Civil Judge, Meerut, and the RCT. An organisation such as the Railways which is located across the length and breadth of the country should not delay cases of compensation in this manner. The whole purpose of granting compensation is defeated if the amount does not become available to the victim immediately.

The Court further analysed the case and observing that the victim had been deprived of any compensation for over 30 years, it enhanced the compensation amount to Rs 9 lakh along with simple interest @ 8% for the entire period from filing of the suit before the District Judge, Meerut, till date of decree.

Consumer Voice’s advice to consumers

Train-related accidents may happen due to lack of caution and sometimes also due to negligence. Passengers should know about their rights and where to claim for compensation,etc., to avoid delays. Had the victim in the above case taken the claim to competent jurisdiction, there would not have been undue delays in seeking and getting compensation.

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