IMPORTANT POINT
No direction can be given based on pure surmises.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in these appeals is to the order of National Consumer Disputes Redressal Commission, New Delhi (in short the ‘National Commission’). One order was passed in exercise of revisional jurisdiction against the concurrent finding of the District Consumer Disputes Redressal Forum, Yamuna Nagar (in short ‘District Forum’) and State Consumer Disputes Redressal Commission (in short ‘State Commission’) dated 11.5.2001 and 12.7.2001 respectively. Commission has also issued directions.

3. The review petition filed was also dismissed, which also forms subject matter of challenge.

4. Background facts in a nutshell are as follows :

The respondent filed a complaint in respect of an advertisement given by the appellant, alleging unfair trade practices. The advertisement was issued in newspapers and magazines in 1999 for the cigarettes manufactured and sold by it under the brand name of “Red & White” in respect of which the directions have been issued.

The impugned advertisement apart from showing the packet of cigarettes with the aforesaid brand name stated “Red & White smokers are one of a kind”. The advertisement also shows the smiling face of actor Akshay Kumar holding a cigarette. It also contains the statutory warning “Cigarette smoking is injurious to health” as well as price of the pack. The complaint was dismissed by the District Forum as the complainant had also filed a suit in relation to the impugned advertisement in the Civil Court. It was therefore held by the District Forum that parallel proceedings in the District Forum by way of Public Interest Litigation could not be entertained. In appeal, the State Commission affirmed the order of the District Forum. Thereafter, complainant withdrew the suit, but filed Revision Petition before the National Commission. The National Commission held that the slogan in the advertisement that “Red & White smokers are one of a kind” showing the image of Akshay Kumar indicated that “––smokers of Red & White cigarettes could be super actor performing all the film stunts without duplicates”. According to the appellant, no evidence was led in the case by the complainant either with regard to the ability of film star Akshay Kumar to carry out stunts without duplicate or with regard to the alleged impression created by the impugned advertisement upon the complainant. Interestingly, the complainant admitted that he continues to smoke cigarette for more than two decades. The National Commission held as follows :

“The case of the complainant is that smoking of cigarette by Akshay Kumar with the slogans used in advertisement would detract the people from the statutory warning. Seeing comparative size of the letters etc. the statutory warning in our view loses its prominence which is usurped by more prominent and attractive Akshay Kumar et al and is sufficient to detract the attention of the viewers from the statutory warning to the image of Akshay Kumar with the slogan indicating smokers of Red and White cigarette could be super actor performing all the film stunts without duplicates.”

This according to the National Commission was sufficient to hold that the impugned advertisement amounted the unfair trade practices. On the basis of the aforesaid finding, the National Commission gave the following directions :

“(i) to discontinue forthwith the unfair trade practice of detracting from the statutorily specified warning and not publish any advertisements like Ext. ‘R-1’ in any language giving any impression that a person who smokes Red and White Cigarette could perform such acts as could be performed by Akshay Kumar in films and thereby detracting from the specified warning; and

(ii) to issue corrective advertisements of equal size in all the newspapers in which advertisements in Hindu & English like Ext. R-1 were published to neutralize the effect of the said impugned misleading advertisements.

(iii) Shri Ajay Kumar, the petitioner, shall be p