The present revision petition no.2731 of 2016 has been filed by M/s Cannaught Plaza Restaurants Ltd., against the judgment dated15.06.2016 of the Delhi State Consumer Disputes Redressal Commission, Delhi (‘the State Commission’) in First Appeal no. 352 of 2012.
2. The brief facts of the case are that on 01.09.2005, the complainant/ respondent has participated in the opposite party/ petitioner’s widely published scheme ‘Mc Donald’s Mein Khao Har Bar Prize Le Jao’ by placing two separate orders worth Rs.81/-.
On opening the coupon the complainant found the following text:
“Congratulations LUCKY! to get luck (i) open the slot below 20 get the sure shot prize (iii) SMS the sab lucky code to win the exciting prizes! Sure shot prize *Fries – Small French Fries Limit one offer one coupon. Congratulations! Exchange this coupon for free *French Fries on your next purchase of above Rs.20/- at Mc D (before 30th September 2005). You stand to win Panasonic Mobile Phones every hour, ipods every day and a Chervolet Optra as Bumper prize. Retain this coupon to claim your prize SL 3418668. SMS the code to 8888 and you stand to win Sab Lucky Bumper Jackpot, daily and hourly prizes. 2005 Mc Donald’s Corporation. * Fries – Small Frenchh Fries Limit one offer per coupon. Terms and conditions apply. Refer to restaurant’s notice board for details”.
3. It was alleged by the complainant that he did not find any terms and conditions on the notice board of the OP, instead he found leaflet of another scheme ‘McDonald’s Ghar Bulao Sab Lucky Ban Jao!’
4. On OPs Manager’s advice, the complainant has sent two SMS on 8888 giving the coupon nos., for which Rs.3/- per SMS were charged;
5. It was alleged by the complainant that OP has indulged into unfair trade practices by not giving the assured prizes as per the scheme, rather put the participants under the obligation to make further purchase of minimum Rs.20/- in order to avail free French Fries;
6. Moreover, the details of the entire scheme with its terms and conditions and the result of the winners were also concealed from the participating customers, therefore, the complainant has filed a consumer complaint before the District Forum praying to declare the scheme as unfair trade practice and OP be directed to disclose the entire scheme, winners of the prizes. It was also prayed to refund the amount collected in lieu of premium SMS charges levied as well as refund of Rs.81/- and Rs.6/- for SMS with cost and compensation.
7. The complaint was resisted by the OPs stating the following:
1. The scheme and prizes offered are subjected to the terms and conditions which were displayed on the notice board at each outlet of the McDonalds;
2. Almost 30 customers were declared winners for iPods, bumper jackpot prize of Chervolet was won by Ms Rekha Bisht;
3. Moreover, the said result was also displayed on the notice board of the OPs;
4. Result was to be declared by the indiatimes.com on hourly and daily basis by randomly choosing the winner through a lucky draw generated by the server, OPs had no role to play in it.
8. The District Consumer Disputes Redressal Forum (North), Tis Hazari, Delhi (‘the District Forum’) vide its order dated 08.02.2012 has allowed the complaint and awarded Rs.10,000/- as compensation and Rs.2000/- as cost to the complainant.
9. Aggrieved by the order of the District Forum, the petitioner M/s Cannaught Plaza Restaurants Ltd., filed an appeal before the State Commission. The State Commission vide its impugned order dated 15.06.2016 disposed of the appeal of the OP and modified the order of the District Forum by enhancing the compensation to Rs.2.00 lakh and Rs.10.00 lakh as punitive damages to be deposited with the Consumer Welfare Fund. Order to be complied within sixty days failing which awarded amount would carry interest @ 9% p a.
10. Hence, the present revision petition.
11. Heard the learned counsel for the petitioner and the respondent who appeared in person.
12. Learned counsel for the petitioner stated that no deficiency of service has been alleged against the opposite party and the only allegation made by the complainant against the OP was charging of special rate for SMS which was more than the normal SMS charge. As the number of consumers were many, therefore, the OP earned huge profit and therefore, this is an unfair trade practice. Learned counsel argued that SMS charges were not being collected by the opposite party, rather, charges were going to the mobile company/ service provider. The complainant has not shown any proof that there was any agreement between the Telecom company/ service provider and the opposite party on sharing of the charges. Thus, it was a fair scheme for promoting sale of products of the opposite party and it cannot be called an unfair trade practice. So far as the allegation of non-disclosure of actual winners is concerned, the OP had already provided this information before the District Forum and the State Commission. It is not the duty of the opposite party to satisfy each and every consumer who seeks this information. The State Commission has not given any reason as to how the scheme was an unfair trade practice. There is no specific clause under the Consumer Protection Act, 1986 mentioned in the State Commission’s order under which it can be covered. The State Commission has imagined 4.00 lakh SMS @ Rs.3/- per SMS and accordingly ordered Rs.2.00 lakh to be paid to the complainant and Rs.10.00 lakh to be deposited with the Consumer Welfare Fund. As the SMS charges were never given to the opposite party, there should have been no question of ordering of payment of Rs.12.00 lakh in this way. Moreover, the petitioner was not aggrieved by the order of the District Forum as no appeal was filed by the complainant before the State Commission. Hence, there should not have been any question of enhancing the compensation by the State Commission as no appeal was filed by the complainant before the State Commission for enhancement of compensation. Thus, the order of the State Commission is without jurisdiction as well as totally illegal. The learned counsel requested to set aside the impugned order.
13. On the other hand, the respondent who is appearing in person states that though there is no proof that there was some sharing of profit on the SMS charges being collected by the mobile company/ service provider, it is but natural that the OP was conducting this scheme not only to promote the sale of their products but to get money from the SMS. The scheme was totally shrouded with the mystery as results were not widely published. Both the fora below have found deficiency on the part of the OP, though the amount of compensation ordered is different. The scope under the revision petition is quite limited and the facts cannot be re-assessed by this Commission against concurrent findings. The fact is that the scheme run by the OP was an unfair trade practice.
14. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as by the respondent and have carefully examined material on record. It is true that the scheme run by the OP was a scheme to promote the sale of products of the OP by giving various offers to the consumers of the OP. The facts relating to the scheme have been examined by the fora below and this Commission would not like to re-examine the facts in the light of the following observation of the Hon’ble Supreme Court in the case of “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286,”:
“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
15. The main issue in the present case is in respect of SMS charges. No proof has been filed by the complainant that the OP has collected the SMS charges or the OP have agreement with the Telecom Company/ Service provider on sharing of SMS charges. It is understood that commercial rate was being charged for SMS under this scheme. It can only be presumed that the party (OP in this case) facilitating income of the Telecom Company/ service provider by encouraging the customers of Telecom company/ service provider to make use of the services of commercial SMS, will definitely get some benefits out of the increased earnings of the Telecom company/ service provider. However, the decision in this regard is without any proof of the same. Thus, the order of the State Commission awarding Rs.2.00 lakh to the complainant and ordering to deposit Rs.10.00 lakh with the Consumer Welfare Fund cannot be sustained. On the other hand, it is also true that the scheme was unfair trade practice followed by the OP
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as established under the concurrent findings given by the fora below and the complainant and other similar customers who may not have come forward to file a complaint need the relief. 16. In this view of the matter, I deem it appropriate to allow compensation of Rs.30,000/- to be paid to the complainant and an amount of Rs.70,000/- to be deposited with the Consumer Welfare Fund maintained by the State Commission. 17. Based on the above discussion, the revision petition is partly allowed and the order of the State Commission dated 15.06.2016 is modified to the extent that the amount of compensation to be paid to the complainant will be Rs.30,000/- instead of Rs.2.00 lakh and the amount to be deposited with the Consumer Welfare Fund will be Rs.70,000/- instead of Rs.10 lakh as ordered by the State Commission. With this modification, the order of the State Commission dated 15.06.2016 is upheld. The order be complied by the opposite party within a period of 45 days from the date of receipt of this order.