IMPORTANT POINT
Before 1993 Amendment to Section 36A(3)(b) of MRTP Act, 1996 "loss or injury to the consumer" was a pre-requisite for attracting provisions of Section 36(3)(b) of the MRTP Act, 1969.

Headnote:M.R.T.P. Act, 1969-Section 2(u) r/w 36A-Unfair Trade Practice-Meaning- Word loss or injury to the consumer" omitted in 1993-Effect-Mischief rule of interpretation to be applied-Actual loss or injury was an essential ingredient of the Trade Practice-In September 1984 conduct of contest by appellant to promote sale-No actual loss caused-Still enquiry by MRTP-Whether sustainable? (No).
       Held : A bare persual of the aforementioned provision would clearly indicate that the following five ingredients are necessary to constitute an unfair trade practice :
        1. There must be a trade practice (within the meaning of section 2(u) of the Monopolies and Restrictive Trade Practices Act),
        2. The trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or the provision of any services;
        3. The trade practice should fall within the ambit of one or more of the categories enumerated in clauses (1) to (5) of Section 36A;
        4. The trade practice should cause loss or injury to the consumers of goods or services;
        5. The trade practice under clause (1) should involve making a "statement" whether orally or in writing or by visible representation.
       Causation of loss or injury thus is a sine qua non for invoking the principles of Section 36A of the M.R.T.P. Act. The Commission, in our considered opinion, committed a manifest error in holding that the actual loss or injury is not an essential ingredient of the unfair trade practice. It is now a well settled principle of law that a literal meaning should be assigned to a statute unless the same leads to anomaly or absurdity. The terminology used in the provisions is absolutely clear and unambiguous. As noticed hereinbefore, in terms of the aforementioned provisions not only a trade practice is resorted to for the purpose of promoting sale or use or supply of any goods or services as specified therein but thereby loss or injury to the consumers of such goods or services must be caused. The word thereby must be assigned its plain meaning for interpretation of the aforementioned provision. In H.M.M. Ltd. s case (supra), this Court has clearly held that for holding a trade practice to be an unfair trade practice, it must be found that it had caused loss or injury to the consumer. We may notice that on or about 1993 an amendment has been made whereby the words "causing loss or injury to the consumer" were omitted which also goes to show the law as it stood thence, `loss or injury to the consumer was a pre-requisite for attracting the provisions of Section 36A(3)(b) of the Act. In interpreting the said provision, the "Mischief Rule" should be resorted to. For the view, we have taken, the impugned judgments cannot be sustained, which are set aside accordingly. The appeals are allowed but in the facts and circumstances of the case, there will be no order as to costs. (Paras 16 to 22)

JUDGMENT

S.B. Sinha, J.-Interpretation of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 ( the M.R.T.P. Act ) is in question in this batch of appeals which arise out of the judgments and orders passed by the Monopolies and Restrictive Trade Practices Commission ( the Commission ), New Delhi whereby and where under advertisements issued by the appellant herein announcing a contest was held to be an unfair trade practice within the meaning thereof.

2. The fact of the matter is being noted from Civil Appeal No. 891 of 1993 - Colgate Palmolive (India) Ltd. vs. Monopolies & Restrictive Trade Practices Commission & Ors.

3. The appellant had inserted an advertisement in several newspapers in September, 1984 announcing a contest known as "Colgate Trigard Family Good Habits Contest". `Trigard is the name of tooth brush manufactured by the appellant. By reason of the said advertisement, a contest apparently for the purpose of educating the families for inculating good habit of taking care of dental health was announced.

4. The brief particulars of the contest are as under :-

As a condition precedent to participating in the contest each prospective participant was required to send two upper portion of the cartons in which the Trigard Tooth-brushes were sold. These two upper portions of the carton were to be sent along with each entry form which was required to bear the dealers name and address duly rubber-stamped on the form. Obviously this necessitated the purchase of two Trigard Colgate brushes by a prospective participant in the contest. The entry form contained four questions, each with two alternative answers which were also printed. The contestant was required to tick mark the correct answer.

5. By way of illustration the appellant had already ticked the correct alternative in the case of first question which was as follows :-

"Brush in the morning;

(a) only in the morning;

(b) in the morning and after every meal"

In the form alternative (b) had been ticked.

6. There were similar three questions with alternative answers. Anyone with an ordinary knowledge of dental health could tick mark the correct answer to those questions. But this was not enough. In addition to answering the questions as mentioned above, each contestant had to write a sentence not exceeding ten words describing as to why the contestant s family used Colgate Trigard Tooth-brush. The best entry in this regard would win the first prize. There were several other prizes for second, third and fourth winners. In all there were fifty prizes.

7. Appellant further offered 825 consolation prizes of Rs. 100/- each and 1200 early bird prizes of Rs. 50/- each to be awarded to those 100 entries which were received first every week. The last mentioned prizes were irrespective of whether the answers to the questions were correct or not and irrespective of the merit of the slogan which was to be provided by the contestant.

8. A complaint was made to the Commission alleging that the said contest which was organised by the appellant for the purpose of promotion or sale of its product was in its own interest and prejudicial to the interest of the consumer generally as a result whereof serious injury or loss to the consumer concerned was caused. The complainant alleged that such contests fell within clause (b) of paragraph 3 of Section 36A of the M.R.T.P. Act.

9. On receipt of the said complaint, an investigation was directed to be made, pursuant whereto and in furtherance whereof, upon an enquiry, a preliminary investigation report was submitted by the Director General, who also came to the conclusion that the said contest was covered by Section 36A(3)(b) of the M.R.T.P. Act.

10. In terms of the recommendations made by the Director General a notice of enquiry dated 3rd December, 1984 was issued, the relevant portion whereof reads thus:-

"AND WHEREAS on perusal of the above-said complaint and preliminary investigation report submitted by

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2002 Supreme(SC) 1136

IMPORTANT POINTBefore 1993 Amendment to Section 36A(3)(b) of MRTP Act, 1996 "loss or injury to the consumer" was a pre-requisite for attracting provisions of Section 36(3)(b) of the MRTP Act, 1969.

Cases Referred (1)

IMPORTANT POINT
Before 1993 Amendment to Section 36A(3)(b) of MRTP Act, 1996 "loss or injury to the consumer" was a pre-requisite for attracting provisions of Section 36(3)(b) of the MRTP Act, 1969.