MOKSH AGARBATTI CO v. GANESH

(BY SRI. S G BHAGAVAN., ADVOCATE) …APPELLANTS AND:

1. GANESH S/O. KISHEN B.B., 39 YEARS, NO.100, ADDIKEMARANAHALLI, MAKALI POST, NELAMANGALA TALUK, BENGALURU NORTH - 562123.

2. S. NARAYAN PROPRETOR: CHALUVAMBIKA, Digitally signed by VASANTHA KUMARY B K Location: HIGH COURT OF KARNATAKA - 2 - NC: 2026:KHC:914-DB RFA No. 891 of 2018 HC-KAR PICTURES, NO.17, KEERTHI, 1ST CROSS, 1ST MAIN, BASAVESHWARA NAGAR, BENGALURU - 560079. (BY SRI. SHRIDHAR PRABHU., ADVOCATE FOR R1; NOTICE IS HELD SUFFICIENT IN RESPECT OF R2, VIDE ORDER DATED 08/07/2024) …RESPONDENTS THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF THE CPC., AGAINST THE 02.04.2018 PASSED IN OS NO.218/2008 ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU DISMISSING THE SUIT FOR DAMAGES AS AGAINST DEFENDANT AND DECREEING THE SUIT AS AGAINST DEFENDANT NO.1 AND DEFENDANT NO.2/APPELLANTS HEREIN. NO.3/RESPONDENT HEREIN NO.3 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE D K SINGH HON'BLE MR. JUSTICE S RACHAIAH ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE D K SINGH) The present appeal has been filed under Section 96 read with Order XLI Rule 1 of the CPC, 1908 against the judgment and decree dated 02.04.2018 passed in O.S.No.218/2008 filed by the appellant/plaintiff against the respondents/defendants.

2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. - 3 - NC: 2026:KHC:914-DB RFA No. 891 of 2018 HC-KAR

3. The plaintiff filed a suit claiming a sum of Rs.75,00,000/- being compensation for illegal and unauthorized morphing of his photo/image in the advertisement put in at banners and posters holding two packs of incense sticks manufactured by the respondents.

4. When the plaintiff came to know about his photographs/image being morphed in advertising the incense sticks manufactured by the respondents/defendants, he issued legal notice to the respondents demanding compensation of Rs.75,00,000/- illegally morphing his in the advertisement put on banners and posters by the defendants. The defendants filed their written statement and denied the claim of the plaintiff for the compensation. On the basis of the pleadings, the learned trial Court framed the following issues:

1. Whether the plaintiff proves that on

18.08.2007, his picture was used in morphing illegally in the advertisement, banners and posters holding to packs of incense sticks to make wrongful financial gain and it is caused loss or damage to the plaintiff as alleged? - 4 - NC: 2026:KHC:914-DB RFA No. 891 of 2018 HC-KAR

2. Whether the plaintiff proves that he is entitled for Rs.75,00,000/- by way of damages or compensation as sought for?

5. The trial Court, having considered the evidence and pleadings, held that the photographs/image of the plaintiff was illegally used in advertisement put on banners and posters holding two packs of incense sticks by the defendants for wrongful financial gain. In respect of Issue No.2, the trial Court has held that the plaintiff would be entitled for Rs.75,00,000/- as compensation for unauthorizedly/illegally using the plaintiff's image in the advertisement of the incense sticks manufactured by the defendants. Thus, decree in aforesaid terms was drawn.

6. The issue involved in the present appeal is that whether the amount of compensation of Rs.75,00,000/- would be justified in the facts and circumstances of the case and the evidence led by the parties.

7. There is no dispute to the fact that the defendants have used the plaintiff's image/photographs advertisement without any authorization or permission by him. The said advertisement was financial gain by the - 5 - NC: 2026:KHC:914-DB RFA No. 891 of 2018 HC-KAR defendants/respondents. Therefore, we are of the view that the plaintiff is entitled for compensation. But what amount of compensation is the question which needs to be decided.

8. The plaintiff has issued legal notice in Exhibit-P3 demanding damages of Rs.75,00,000/- for using his image/photographs in the advertisement put in at banners and posters by the defendant Nos.1 and 2. To support the claim for Rs.75,00,000/- the plaintiff has led documentary evidence. The plaintiff who got himself examined as PW1 has stated that the plaintiff's fee for doing a film at the relevant time when the advertisement was put was Rs.1 crore. He has also stated that as a brand ambassador of Reliance Products, the plaintiff was paid remuneration of more than Rs.35,00,000/- for a year.

9. We, however, do not find sufficient evidence to substantiate the demand of Rs.75,00,000/- as damages for using his photographs/image in the advertisement by the respondents/defendants. The appellant/plaintiff cannot draw the equivalence between the remuneration paid to him for doing movie and remuneration for an advertisement. The advertisement does not require the same kind of time, efforts - 6 - NC: 2026:KHC:914-DB RFA No. 891 of 2018 HC-KAR and devotion as spent in doing a movie. The best evidence was led was in respect of him being a brand ambassador of Reliance products for which for a whole year he was paid remuneration of Rs.35,00,000/-. Hence, we are of the view that the amount of compensation of Rs.75,00,000/- awarded by the trial Court appears to be excessive and not supported by sufficient and cogent evidence led by the appellant/plaintiff. It was for the appellant/plaintiff to prove the damages by leading cogent and credible evidence in this regard. Therefore, the compensation awarded to the appellant/plaintiff must be reasonable, through proper assessment.

10. Learned counsel for the respondents/defendants has left it to the discretion of this Court to fix appropriate compensation, taking into account the plaintiff's own evidence that he had received Rs.35,00,000/- for being the brand ambassador of Reliance product for a whole year at the relevant time.

11. Considering the aforesaid fact and the submission advanced, we fix the compensation at Rs.40,00,000/-. As the respondents/defendants have not paid any amount to the - 7 - NC: 2026:KHC:914-DB RFA No. 891 of 2018 HC-KAR appellant/plaintiff, we direct the payment of Rs.40,00,000/- along with 6% interest from the date of the judgment and decree passed by the trial Court i.e., 02.04.2018 till payment is made.

12. In compliance of interim order dated

04.05.2018 respondents/defendants already deposited Rs.18,75,000/- on 04.06.2018. The balance amount shall be paid within six weeks along with interest. We direct the Registry to release the amount of Rs.18,75,000/- along with accrued interest if any in favour of the appellant/plaintiff on proper identification.

13. Accordingly, the appeal is disposed of. Let modified decree be drawn in terms of the aforesaid. Sd/- (D K SINGH) JUDGE Sd/- (S RACHAIAH) JUDGE RKA List No.: 1 Sl No.: 18