nikhil jain v. emami ltd. judgment delhi consumer forum

11/14/2015 Cause Title/Judgement-Entry

http://cms.nic.in/ncdrcusersWeb/GetPdfCaseStaus.do?method=GetPdfCaseStaus&cid=8/3/CC/53/2013&dtOfHearing=2015-09-24 1/15

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Complaint Case No. CC/53/2013

1. NIKHIL JAINB-9/3, VALLABH VIHAR SOCIETY, SEC.-13 ROHINIDELHI 85 ...........Complainant(s)

Versus1. EMAMI LTD687 ANANAD PUR EM BYPASS KOLKATA PINCODE700107 ............Opp.Party(s)

BEFORE: HON'BLE MR. RAKESH KAPOOR PRESIDENT HON'BLE MR. VIKRAM KUMAR DABAS MEMBER HON'BLE MRS. NIPUR CHANDNA MEMBERFor the Complainant:For the Opp. Party:

ORDERPER 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

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

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

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

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

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

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

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

[HON'BLE MRS. NIPUR CHANDNA]MEMBER

nikhil jain v. emami ltd. judgment delhi consumer forum

Documents

said product

product ofop

product includingthe

op arefalse

op todiscontinue

op andhad

false advertisementabout

false claimsand