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TMI Blog2024 (4) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no offer, much less a contract, between the appellant and the complainant to the effect that the song contained in the trailer would be played in the movie and if not played, it will amount to deficiency in the service. The transaction of service is only to enable the complainant to watch the movie upon the payment of consideration in the form of purchase of the movie ticket. This transaction is unconnected to the promotional trailer, which by itself does not create any kind of right of claim with respect to the content of the movie. In various decisions, LAKHANPAL NATIONAL LTD. VERSUS M.R.T.P. COMMISSION AND ANOTHER [ 1989 (5) TMI 321 - SUPREME COURT] , KLM ROYAL DUTCH AIRLINES VERSUS DIRECTOR GENERAL OF INVESTIGATION AND REGISTRATION [ 2008 (10) TMI 353 - SUPREME COURT] . This Court has held that a false statement that misleads the buyer is essential for an unfair trade practice . ibid. A false representation is one that is false in substance and in fact, and the test by which the representation must be judged is to see whether the discrepancy between the represented fact and the actual fact would be considered material by a reasonable person. The ingredients of unfair tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant circulated a promotional trailer, both on television and online, which contained a song in the form of a video. 2.1 The respondent no. 1 ( complainant ), a teacher in a school in Aurangabad, states that having watched the promotional trailer of the film, she decided to go to watch the movie on the silver screen with her family. However, she found that the movie did not contain the song, even though the song was widely circulated for promoting and publicising the movie. She filed a consumer complaint before the District Consumer Redressal Forum wherein she has stated that she decided to watch the movie after watching the song in the promotional trailer, with the expectation of watching the song in the theatre. However, to her disappointment, she found that the song was not played in the movie. She alleges that due to this, she felt cheated and deceived by the appellants and has undergone mental agony. In view of the above, she claimed Rs. 60,550 as damages. 3. In a short order dated 29.04.2016, the District Consumer Redressal Forum dismissed the complaint on the ground that there is no relationship of consumer and service provider. 3.1 Against the above order, the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the song is impliedly promised, but is later omitted while exhibiting the movie. 4. Before we proceed to delineating and applying the test for deficiency of service and unfair trade practice under the Consumer Protection Act, 1986 Hereinafter the Act , it is necessary to set out the context in which a promotional trailer would or would not create a contractual relationship or any other right or liability between the producer and the consumer. 5. A promotional trailer is an advertisement for a film. It is a settled position of law that commercial speech, which includes advertisements, is protected through freedom of speech under Article 19(1)(a) of the Constitution, subject to the reasonable restrictions in Article 19(2). Tata Press Ltd v. Mahanagar Telephone Nigam Limited, (1995) 5 SCC 139, paras 17-18 and 25 It is also a settled position that commercial speech that is deceptive, unfair, misleading, and untruthful is excluded from such constitutional protection and can be regulated and prohibited by the State. ibid, para 17 Subject to these restrictions, the producer/ advertiser has the freedom to creatively and artistically promote his goods and services. 6. Information dissemin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose A consumer can file a complaint , which is defined in Section 2(1)(c) of the Act, 7 The relevant portion of Section 2(1)(c) of the Act defining complaint is as follows : (c) complaint means any allegation in writing made by a complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract. Arulmighu Dhandayudhapaniswamy Thirukoil, Palani, Tamil Nadu v. Deptt. of Post Offices, (2011) 13 SCC 220, para 18 To appreciate the allegation of deficiency, it is necessary to refer to certain portions of the complaint: 3. The Complainant states that, her children are big fans of Shahrukh Khan and after watching the promos of the song Jabra Fan they decided to go to the movie Fan to watch the song Jabra Fan on silver screen. She had given 2 option (1) Jungle Book and the second one was Fan to both the children namely Nabeel and Flora. Out of two option they preferred the later one because of song Jabra Fan to enjoy on celluloid. 4. The Complainant states that, she accordingly convinced her mother-in-law, father-in-law, sister and brother-in-law for the movie by saying that, the film is looking great and the song Jabra Fan which is now become jingle, is also there for the entertainment which will feel great on the silver screen. She bought 7 Tickets of first day first show on 15.04.2016, show time 6.10 p.m. Friday of PVR Cinema of the row G-4 to G-10 of Rs. 150/- each which cost her Rs. 1050/. The copy of all the Tickets are dated 15.04.2016 are annexed herewith and mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al trailer is unilateral. It is only meant to encourage a viewer to purchase the ticket to the movie, which is an independent transaction and contract from the promotional trailer. A promotional trailer by itself is not an offer and neither intends to nor can create a contractual relationship. It is well-established in contractual jurisprudence that an advertisement generally does not constitute an offer and is merely an invitation to offer or invitation to treat . See Halsbury s Laws of England, vol 22 (5th edn, LexisNexis 2012), para 240; Pollock and Mulla, The Indian Contract and Specific Relief Acts, vol I (14th edn, LexisNexis 2013), p. 42. Since the promotional trailer is not an offer, there is no possibility of it becoming a promise. Therefore, there is no offer, much less a contract, between the appellant and the complainant to the effect that the song contained in the trailer would be played in the movie and if not played, it will amount to deficiency in the service. The transaction of service is only to enable the complainant to watch the movie upon the payment of consideration in the form of purchase of the movie ticket. This transaction is unconnected to the promotional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that fact has arisen will also constitute a false or misleading representation. KLM Royal Dutch Airlines (supra), para 20 Therefore, only substantive and material discrepancies are covered under unfair trade practice . 18. The ingredients of unfair trade practice under Section 2(1)(r)(1) are not made out in this case. The promotional trailer does not fall under any of the instances of unfair method or unfair and deceptive practice contained in clause (1) of Section 2(1)(r) that pertains to unfair trade practice in the promotion of goods and services. Nor does it make any false statement or intend to mislead the viewers. Furthermore, the burden is on the complainant to produce cogent evidence that proves unfair trade practice Ludhiana Improvement Trust (supra), para 23 but nothing has been brought on record in the present case to show the same. Therefore, no case for unfair trade practice is made out in the present case. 19. There is another important distinction that we must bear in mind, i.e., the judicial precedents on this point do not relate to transactions of service relating to art. Services involving art necessarily involve the freedom and discretion of the service provider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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