Nikhil Jain v. Emami Ltd. Judgment Delhi Consumer Forum

11/14/2015
Cause Title/Judgement-Entry
Heading1
Heading2
Complaint Case No. CC/53/2013
1. NIKHIL JAIN
B-9/3, VALLABH VIHAR SOCIETY, SEC.-13 ROHINI
DELHI 85
Versus
1. EMAMI LTD
687 ANANAD PUR EM BYPASS KOLKATA PINCODE
700107
...........Complainant(s)
............Opp.Party(s)
BEFORE:
HON'BLE MR. RAKESH KAPOOR PRESIDENT
HON'BLE MR. VIKRAM KUMAR DABAS MEMBER
HON'BLE MRS. NIPUR CHANDNA MEMBER
For the Complainant:

For the Opp. Party:
ORDER
PER 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
http://cms.nic.in/ncdrcusersWeb/GetPdfCaseStaus.do?method=GetPdfCaseStaus&cid=8/3/CC/53/2013&dtOfHearing=2015-09-24
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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[HON'BLE MR. VIKRAM KUMAR DABAS]

MEMBER
[HON'BLE MRS. NIPUR CHANDNA]

MEMBER
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11/14/2015

Complaint Case No. CC/53/2013

HON'BLE MR. RAKESH KAPOOR PRESIDENT

HON'BLE MR. VIKRAM KUMAR DABAS MEMBER

HON'BLE MRS. NIPUR CHANDNA MEMBER

For the Complainant:

PER SH. RAKESH KAPOOR, PRESIDENT

to give the promised benefits but the OP had refused

the Op including the Fair and Handsome cream is

make look fairer.

The particular product as would be evident from the

Rays of the sun which causes darkening of the skin. The

value of jurisdiction is to the quantum of reliefs

products and if one brand does not satisfy him , he

claimed that no compensation can be awarded to the

Kaha na handsome koi bhi ban

advertisements depict that by application of the

from wheatish to fair. It , therefore, amounts to an

[HON'BLE MR. RAKESH KAPOOR]

[HON'BLE MR. VIKRAM KUMAR DABAS]

[HON'BLE MRS. NIPUR CHANDNA]

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