National Consumer Disputes Redressal Commission (NCDRC): Prem Narain (Presiding Member) upheld the State Commission’s order partly and confirmed that the promotional scheme by Mc Donalds — ‘Mc Donald’s Mein Khao Har Bar Prize Le Jao’ was an unfair trade practice.
Present revision petition was filed against the Delhi State Consumer Disputes Redressal Commission’s decision.
Facts
Complainant in the year 2005 had participated in OP’s widely published scheme ‘Mc Donald’s Mein Khao Har Bar Prize Le Jao’ by placing two separate orders worth Rs 81.
It was alleged that the complainant did not find any terms and conditions on the notice board of OP, instead found a leaflet of another scheme ‘McDonald’s Ghar Bulao Sab Lucky Ban Jao !’.
Further, on OP’s manager’s advice, complainant had sent two SMS on 8888 giving the coupon nos., for which Rs 3 per SMS were charged.
In view of the above stated facts, complainant alleged that OP indulged into unfair trade practices by not giving the assured prizes as per the scheme.
Moreover, the details of the entire scheme with terms and conditions and the result of the winners were also concealed from the participating customers, therefore, the complainant filed a consumer complaint before the District Forum praying to declare the scheme as unfair trade practice and a direction was sought against OP to disclose the entire scheme, winners of the prizes.
Refund of the amount collected in lieu of premium SMS charges levied as well as refund of Rs 81 and Rs 6 for SMS with cost and compensation was also demanded.
District Consumer Disputes Redressal Forum had awarded Rs 10,000 as compensation and Rs 2000 as cost to the complainant.
Aggrieved by the above Order, complainant filed the present revision petition.
Decision
Bench stated that the scheme was run by the OP to promote the sale of products of the OP by giving various offers to consumers of the OP.
Supreme Court decision of Lourdes Society Snehanjali Girls Hostel v. H&R Johnson (India) Ltd. , (2016) 8 SCC 286, was also cited, wherein it was held that,
“The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
Complainant failed to file any proof with regard to the collection of SMS charges by the OP or OP’s agreement with the Telecom Company/Service provider on sharing of SMS charges.
“It can only be presumed that the OP facilitating income of the Telecom Company/ service provider by encouraging the customers of Telecom company/ service provider to make use of the services of commercial SMS, will definitely get some benefits out of the increased earnings of the Telecom company/ service provider.”
However, the Commission stated that without any proof of the above stated, State Commission’s award to the complainant cannot be sustained.
Another observation in view of the facts stated, OP’s scheme was unfair trade practice as established by the fora below and hence complainant and other customers subjected to the same scheme need relief.
While partly allowing the revision petition, Commission allowed compensation of Rs 30,000 to be paid to the complainant and an amount of Rs 70,000 to be deposited with Consumer Welfare Fund. [Connaught Plaza Restaurants Ltd. v. Kapil Mitra, Revision Petition No. 2731 of 2016, decided on 04-08-2020]
