TaxTMI 
TaxTMI 
2024 (4) TMI 897
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....e held that promotional trailers are unilateral and do not qualify as offers eliciting acceptance, and as such they do not transform into promises, much less agreements enforceable by law. We have also held that the facts do not indicate adoption of an unfair trade practice under the Consumer Protection Act, 1986. Before we delve into the analysis to draw our conclusions, the short facts necessary for the case are as follows. 2. The appellant is a known film producer. It produced a film called 'Fan' in the year 2016. Before the release of the film, 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 s....
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....n widely on TV Channels but excluding the said song while exhibiting the movie, in my opinion, constitutes an unfair trade practice. The obvious purpose behind such an unfair trade practice is to draw the potential viewers to the cinema hall by luring them with the song which forms part of the promo and thereby making gain at the cost of the viewer if the song does not form part of the movie for which consideration is paid by the viewer. The exclusion of the song from the movie will also constitute a deficiency, as defined in Section 2(1)(g) of the C.P. Act, if 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 ....
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....authorities for the settlement of consumer disputes. A 'consumer' has been defined in Section 2(1)(d) as a consumer of goods or services. A consumer of goods is one who buys any goods, and a consumer of a service is one who hires or avails of any service, for a consideration, except when such goods or services are for a commercial purpose. 6 Section 2(1)(d) of the Act defines 'consumer' as follows': "2. Definitions.-(1) In this Act, unless the context otherwise requires,- (d) "consumer" means any person who,- (i) buys any goods 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 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 benef....
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....the Act as follows: "2. Definitions.-(1) In this Act, unless the context otherwise requires,- (g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;" 11. As per the definition, there is deficiency when there is a fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance that is required to be maintained either in terms of a law or in terms of a 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 childre....
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....sal;" When the other person signifies his assent, the proposal gets accepted and becomes a 'promise'. 10 Section 2(b) of the Indian Contract Act, 1872 defines 'promise' as follows: "(b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise;" A proposal is therefore a prerequisite to a 'promise' and a 'contract'. Section 2(h) of the Indian Contract Act, 1872 defines 'contract as follows: "(h) An agreement enforceable by law is a contract;" 'Agreement' has been defined in Section 2(e) as follows: "(e) Every promise and every set of promises, forming the consideration for each other, is an agreement;" 14. A promotional 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 'invitatio....
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....g Society Ltd, (2009) 12 SCC 369, paras 18-23. 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. Lakhanpal National Ltd (supra), para 7. Further, "statements of the nature which are wilfully made knowingly false, or made recklessly without honest belief in its truth, and made with the purpose to mislead or deceive will definitely constitute a false or misleading representation. In addition, a failure to disclose a material fact when a duty to disclose 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 ....