ITC LIMITED versus AASHNA ROY

14. Learned counsel for the appellant had also referred to two applications filed by them before the Commission: [2026] 2 S.C.R.  ITC Limited v. Aashna Roy (i) praying for production of original documents; (ii) seeking permission to cross-examine the respondent.

15. We had summoned the record of the Commission and found that the aforesaid two applications are available on record.

16. The National Commission exercises original jurisdiction under Section 22 of the 1986 Act. This section provides that the provisions of Sections 12, 13 and 14 of the Act and the Rules framed thereunder for disposal of complaints by the District Forum, with such modifications as may be considered necessary by the National Commission, will be applicable for disposal of disputes by the National Commission. Section 13 thereof deals with the procedure on admission of complaints before the District Forum.

17. It is well-settled that the provisions of the Indian Evidence Act, 1872 (Bharatiya Sakshya Adhiniyam, 2023) are not strictly applicable for proceedings under the 1986 Act. The Commission is, however, bound to comply with the Principles of Natural Justice, save and except as laid down in sub-section (4) of Section 13 of the 1986 Act. Reference can be made to para 43 of the judgment of this Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and others11: “43. Apart from the procedures laid down in Sections 12 and 13 as also the Rules made under the Act, the Commission is not bound by any other prescribed procedure. The provisions of the Evidence Act are not applicable. The Commission is merely to comply with the principles of natural justice, save and except the ones laid down under sub-section (4) of Section 13 of the 1986 Act. The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. (See Bharat Bank Ltd. v. Employees and Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corpn.)” (2009) 9 SCC 221 470 17.1 Judgment of this Court in Dr. J.J. Merchant and others v. Shrinath Chaturvedi12 deals with the issue as to how evidence is to be recorded before the Commission under the 1986 Act. The idea behind is that in the process, the proceedings should not be delayed. While trying a complaint the evidence of the parties could be taken on affidavits as provided in Section 13(4) (iii). The Commission is also empowered to issue commission for examination of any witnesses in terms of Section 13(4) (v) of the 1986 Act. It is akin to Order XVIII Rule 4 CPC, which also provides that in every case examination-in-chief of the witness shall be on affidavit. Further, witness could be examined by the court or the Commissioner appointed by it. The Commission also needs to follow the same system. In case the facts are taken in evidence and cross-examination is sought by the other side, the Commission can easily evolve a procedure permitting the other side to cross-examine the witnesses. The same can be done by putting certain questions in writing or through video conferencing or by appointment of a Commission. Relevant para 19 thereof is extracted below: “19. It is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It (2002) 6 SCC 635 [2026] 2 S.C.R.  ITC Limited v. Aashna Roy also provides that witnesses could be examined by the court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.” 17.2 The enunciation of law by this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another13 with reference to evidence to be led by the parties under the 1986 Act was quoted with the approval in a matter pertaining to Consumer Protection Act by this Court in Malay Kumar Ganguly (supra). Para 40 thereof is extracted below: “40. This Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple held at SCC p. 764, para 20: “20. … Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that (2003) 8 SCC 752 472 the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading [2026] 2 S.C.R.  ITC Limited v. Aashna Roy the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.” (emphasis in original)

18. While remanding the case back to the Commission, in the earlier round of litigation, this Court had specifically observed that ‘quantification of compensation has to be based upon material evidence and not on the mere asking’. ANALYSIS

19. We may add here that whatever documents the respondent produced along with her affidavit were in the form of photocopies. None of the authors of those documents was summoned nor did the respondent get a commission issued for examination of those witnesses. In case any witness was produced, the appellant would have opportunity to cross-examine the same regarding veracity of the documents and/ or the contents thereof.

20. Despite denial of all the documents filed by the respondent in evidence to claim damages, the respondent did not take any steps to prove the authenticity thereof. Some of the documents are prior to the relevant date, namely, when the respondent had a haircut in a salon in the hotel managed by the appellant, whereas some are later in time. The manner in which the photocopies thereof are sought were produced do not inspire confidence specially where the claim of damages is made for crores of rupees. From the evidence placed on record, a case is not made out for such a huge compensation to the respondent.

21. At the time of hearing, the appellant had referred to each and every document produced by the respondent along with the affidavit and pointed out the discrepancies therein. The idea was to raise an 474 argument that none of the documents produced by the respondent could be relied upon to award her compensation to the tune of ₹5,20,00,000/- as sought to be claimed by her or justify award of ₹2,00,00,000/-. It is in the form of a table filed along with the written note on behalf of the appellant. “Documents relied upon by the Respondent and Rebuttal of the Appellant to the Documents Date Document filed by Respondent Original/ Photo-copy Appellant’s rebuttal On Existing Job/Loss of Job May, April, Pay-Slip from one AMC Marketing Research Associates indicating that her net salary is INR 3.53 lakh Pay-Slip from one AMC Marketing Research Associates indicating that her net salary is IN 3.53 lakh Photo-copy Photo-copy The Pay-slip does not indicate when the Respondent quit her job (if at all she did quit). It further does not indicate why she quit her job. There is no causal link shown to the haircut received by her. On the contrary, the Pay-Slip indicates that she was gainfully employed before and after the haircut. The Respondent has not produced payslips for other months. This apart, even assuming that thepay-slips are legitimate, it would not amount to INR 1 crore per annum, as claimed. [2026] 2 S.C.R.  ITC Limited v. Aashna Roy 10.03.18 E-Mail from Mr. Pawan Goenka informing the Respondent that she is ‘good fit’ for a senior level position in Delhi for which Mr. Rajeev Dubey will get in touch to ‘possibly organize a meeting’ Photo-copy The E-mail does not indicate any specifics of the job that she was purportedly offer, particularly the salary. There is no evidence to show that any official offer was made to the Respondent herein with any details. There is no evidence presented to show that she lost out on this job opportunity purely due to the hair-cut. 09.04.18 E-Mail dated 09.04.2018 from Mr. Rajeev Dubey informing the Respondent to meet at 11 AM without specifying the date. It is indicated to her to recheck before 21.04.2018 Photo-copy The e-mail does not indicate any formalized meeting or offer made to the Respondent, particularly the financial details. The emails/ messages filed are incomplete. No offer/ interview letter has been produced. 476 On Modelling Assignments Photographs from purported modelling assignments Photo-copy Photographs are un- dated and no proof of receipt of payment qua these specific advertisements are shown to prove any legitimacy. Certificate from one M/s Glitz Modelling and Production Pvt. Ltd. indicating that the Respondent had modelled from 2015- 2018 and was offered feature films. Photo-copy The Certificate is undated and further, no details or monetary aspects are mentioned in the Certificate. The money, if any, received from such assignments have not been proven by the Respondent through any pay-slip, like she has sought to do with her salary. 11.12.17 Certificate dated 11.12.2017 from M/s Glitz Modelling and Production Pvt. Ltd. proposing a second lead role in a feature film for which the remuneration would be INR 60 lakh. Photo-copy The Certificate does not contain any details or specifics and does not provide any evidence regarding her offer. No terms and conditions relating the alleged role are set out. The Certificate is a photocopy and the authenticity of which is under cloud. [2026] 2 S.C.R.  ITC Limited v. Aashna Roy The role was offered to her, even assuming that it was, in December, 2017 which was much prior to the haircut. No nexus is shown between the loss of assignment and the haircut. 02.02.18 Certificate from Mr. Jeet Surendranath [Partner Far Commercials] offering the Respondent an annual modelling assignment with a reputed haircare brand and other brand campaigns for IN 50 lakh Photo-copy The document is illegible and unclear as to whether it is on some letterhead. The Certificate does not indicate any details regarding said modelling assignments. No agreed terms and conditions mentioned relating the said alleged assignment. There is no proof of payment made, if any, from any of the assignments 11.07.18 Certificate from doctor dated 11.07.2018 stating that the Appellant is under medical examination and that she Photo-copy The Doctor is not qualified to provide such a certificate. Certificate is from the same doctor who had allegedly treated the Respondent for scalp disorder. The certificate is of July 2018 and was 478 is suffering from mental trauma, depression and anxiety never filed before by the Respondent, either in the original Complaint or before this Hon’ble Court. The certificate mentions that “She should be relieved of his duties for 30days.” The Respondent’s contention that she was in modelling for hair-products also belied by these certificates as the doctor who issued these certificates was not a dermatologist. 13.02.23 Certificate dated 13.02.2023 from Mr. Jeet Surendernath [Partner Far Commercials] indicating that the Respondent has modelled in various advertisements for Pantene and VLCC and has featured in some short films Photo-copy The Certificate does not indicate any details regarding said modelling assignments. The details of the cast of the film on IMDB does not show the name of the Respondent. There is no proof of payment made, if any, from any of the assignments. [2026] 2 S.C.R.  ITC Limited v. Aashna Roy

22. The damages cannot be awarded merely on presumptions or whims and fancies of the complainant. To make out a case for award of damages, especially when the claim is to the tune of crores of rupees, some trustworthy and reliable evidence has to be led. It is not a case where the Commission was considering a small issue where compensation could be awarded by applying a thumb rule. Claim of compensation was for crores of rupees, for which some loss suffered by the respondent because of deficiency in service was required to be established. This could not be established by merely producing photocopies of the documents. Even the discrepancies in the photocopies produced on record by the respondent, as pointed out by the appellant, have been noticed above. Thus, even after remand, respondent has not been able to make out a case for award of such huge compensation.

23. In our view, on the basis of photocopies of the documents placed on record by the respondent, the Commission has committed an error in awarding huge amount of compensation of ₹2,00,00,000/-, which in our view cannot be justified. The observation made by the Commission that because of the trauma suffered by the respondent, she may not have maintained the originals of the documents produced before the Commission, hence, reliance could be placed on mere photocopies, cannot be a justification for awarding such a huge compensation. Even if the photocopies were to be produced, there are other ways and means to justify the claim made on that basis. Even if the Code of Civil Procedure may not be strictly applicable, the Commission has not assessed as to how the respondent suffered loss to the tune of ₹2,00,00,000/-. General discussion in the impugned judgment may not justify the same. 23.1 The fact remains that in the earlier round of litigation, the appellant had deposited a sum of ₹25,00,000/- in this Court. While deciding the appeal14 and remitting the case back to the Commission, this Court had directed for transmission of the said amount to it. While deciding the complaint in the second round of litigation, the Commission had directed release of the aforesaid amount in favor of the respondent. Civil Appeal No.6931 of 2021 480

24. For the reasons mentioned above, the present appeal is partially allowed. The impugned order passed by the Commission is modified to the extent that the amount of compensation, to which the respondent is entitled to, shall be restricted to the amount already released in her favor. Result of the case: Appeal partly allowed. †Headnotes prepared by: Nidhi Jain