KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No.12/2013

JUDGEMENT DATED: 13.12.2023

PRESENT:

COMPLAINANT:

(by Adv. R. Jagadishkumar)

Vs.

OPPOSITE PARTIES:

(by Advs. Baiju A. Joseph & G. S. Kalkura)

JUDGEMENT

SRI. AJITH KUMAR  D.  :  JUDICIAL MEMBER

          This is a complaint filed under Section 17 of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice on the part of the opposite parties.  The averments contained in the complaint in brief are stated hereunder:

          2.       The opposite party is M/s Emanuel Silks, Thrissur and its four partners.  The complainant is a consumer who had purchased clothing from the shop run by the opposite parties during the Royal Shopping Festival conducted in the year 2011.  Advertisements were published that there will be draw among the purchasers who had purchased clothing during the Royal Shopping Festival period and the person winning first prize in the draw will be given a Mercedes Benz car.  In pursuance of the above advertisement, the complainant had purchased clothing and the opposite parties had issued a coupon assuring that the future draw will be held on 10.02.2011 and the first prize winner in the draw will get a Mercedes Benz car.  In view of the assurance and the advertisement draw was conducted on 10.02.2011 and the complainant was declared as the winner in a function held at K.C. Mamman Mammen Mappila Hall Kottayam.  The lucky draw was done in the presence of Sri. Oommen Chandy, the then leader of the Legislative Assembly of Kerala.  The print media and the visual media had given coverage of the draw held on 10.02.2011.

3.       The then Opposition Leader of the Legislative Assembly had congratulated the complainant through a letter dated 23.02.2011.  The message of the complainant being declared as the winner was communicated to him by the opposite party through a letter dated 12.02.2011.  He was also intimated the fact over phone and Jeevan TV channel also had telecasted these facts.  Believing all these the complainant had gone to claim the prize of Benz car, but he had misplaced the coupon and the fact was conveyed to the opposite parties.  They assured that the missing of the coupon will not be a problem since the opposite party had the counter foil of the coupon.  On 16.06.2011 the complainant received a notice from a lawyer at Thrissur stating that he would have to appear with the coupon and that if he wanted to explain the facts he could come to their corporate office.  Though the complainant had appeared before the opposite party to get the prize, they were prolonging the matter by saying flimsy excuses.  The complainant apprehended that the opposite parties wanted June 2013 to be crossed so that the complainant cannot approach even this Commission as his claim would be barred by limitation.

4.       The complainant is legally entitled to get the Mercedes Benz car as he was declared the winner of the draw on 10.02.2011.

          5.       On admitting the complaint, notice was issued to the opposite parties.  They entered appearance and filed a joint version with the following pleadings.

          6.       The complaint is not maintainable either in law or on facts.  The complaint ought to have been filed within the territorial jurisdiction of Thrissur district as the entire scheme contemplated in this regard arose within the limits of that district.  The definition “complainant” and “deficiency in service” as defined in the Consumer Protection Act, 1986 is not applicable to the given case.  There was no deficiency in service on the part of the opposite parties.  The opposite party would admit the fact that the complainant had purchased materials.  But the bearer of the prize winning ticket cannot be deemed as a “consumer” as the ticket is rendered free of cost and the definition of consumer is restricted.  The opposite parties would admit the advertisement in respect of their business promotion that purchases made by its customers between 24 July and December 2010 for a certain amount would entail for them a ticket and a draw would be held and prizes would be fixed to the tickets taken up in the draw.  It is also conceded that the first prize that was announced was a Mercedes Benz car.  The coupons of the draw had two parts.  One part bearing the number permitting the customer to write his name and address and the other part with the terms and conditions of the draw.  Each purchaser of goods worth Rs.2,000/-(Rupees Two Thousand only) would be given a free coupon and the lucky winners have to approach the 1^st opposite party with all the documents i.e. purchase bill along with the coupon within seven days in the showroom from where the goods were purchased.  They were to bring the original of their I.D. proof also.  The lucky draw winners were not entitled to claim money instead of the prize.  All the taxes, Government dues, cess should be paid by the prize winners.  The ultimate decision shall vest with the management of the 1^st opposite party.  The coupon was issued free of cost.  The terms and conditions of the offer shall form a binding contract between the holder of the ticket and the 1^st opposite party.  The coupon itself contains specific terms and conditions which implies that all conditions are imperative and mandatory to be followed by the purchaser of the ticket.  After the lucky draw held on 10.02.2011 the complainant was informed by the opposite party to bring all the records including the prize winning coupon.

7.       On 17.02.2011, the 1^st opposite party had issued a registered letter informing the complainant that he was the winner of the draw and requesting him to be present on 06.03.2011 with the prize coupon and other documents. On 06.03.2011 the complainant appeared before the office of the 1^st opposite party, but he was unable to cause production of the winning coupon.  He was fully aware that production of winning coupon was a condition precedent and so he submitted a request written in his own handwriting seeking two month’s time for causing production of the winning coupon.

          8.       The loss of winning coupon or manipulation or tampering of the same would disentitle the prize winner from claiming the prize.  On 16.06.2011 the 1^st opposite party issued a notice requesting the complainant to surrender the prize winning coupon for completing the formalities.  On 24.06.2011 the complainant had again requested for a further ten day’s time for replying to the letter.  Thereafter, the complainant did not make any response.  On 22.01.2012 the complainant had issued a suit notice demanding the prize within seven days failing which he would be constrained to initiate legal proceedings against the opposite parties.  The complainant was not entitled to prize as he did not surrender the coupon within the extended period granted by the 1^st opposite party.  The transaction of purchase is independent of the prize scheme.  The tickets were issued free of cost.  There was no consideration for the ticket given in the scheme. Granting of prize contrary to the scheme would only invoke suspicion and create unwanted disputes among the customers.  Granting prize to a person who had not surrendered the original coupon would invite unwanted litigation. There is no unfair trade practice or deficiency in service on the part of the opposite party.  Hence, they would seek for the dismissal of the complaint.

          9.       The evidence consists of the testimony of PW1 on the side of the complainant.  Exhibits A1 to A7 and C1 series were marked.  On the part of the respondent its Managing Partner was examined as DW1.  Exhibits B1 to B3 were also marked. 

          10.     Heard both sides.  Perused the records.  Now the points which arose for consideration are:

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties as alleged? 
2. Whether the complainant is entitled to get any relief as sought for?

Points 1 & 2

          11.     There is no dispute that the complainant had purchased textile items from the shop owned by the opposite parties and that the complainant was declared as the winner in the draw held on 10.02.2011.  Exhibit A1 is the intimation issued by the 1^st opposite party to the complainant on 10.02.2011.  On 12.02.2011 the 1^st opposite party had issued a letter intimating the fact that the complainant was declared as the winner in the draw and the complainant was asked to appear in person at the Thrissur showroom of the opposite party and on 06.03.2011 the complainant was asked to bring the prized coupon, purchase bill, I.D. card and the letter for verification.  Exhibit A2 is the paper cutting with respect to the function held at Mamman Mappila Smaraka Town Hall on 10.02.2011.  Exhibit A3 is a letter issued by the Leader of the Opposition in the Legislative Assembly in response to a letter sent to the complainant wherein it is stated that the Leader of the Opposition front of the Kerala Legislative Assembly had tried to contact the complainant over phone from the procession but he could not succeed in getting connection.  Exhibit A4 is the lawyer notice sent on behalf of the 1^st opposite party requesting the complainant to appear in the office of the 1^st opposite party with the prize winning coupon, purchase bill and I.D. proof.  Exhibit A5 is the copy of a lawyer notice issued on behalf of the complainant to the 1^st opposite party.  Exhibits A6 and A7 are the postal receipts and acknowledgement cards in respect of the lawyer notice sent by the complainant.  The opposite party had caused production of Exhibit B1 which is a letter sent by the complainant on 06.03.2011 requesting the 1^st opposite party to grant two month’s time for the complainant to cause production of the prize winning coupon.  Exhibit B2 is another letter put in by the complainant dated 25.06.2011 requesting the 1^st opposite party for further ten day’s time to attend the meeting proposed by the opposite party on 25.06.2011 in connection with the lucky draw of the Benz car. 

          12.     The learned counsel for the complainant would submit that there is a clear element of deception in the conduct of the opposite party in declining the disbursement of the Mercedes Benz car to the complainant though the complainant was proclaimed as the winner of the lucky draw.  The learned counsel would also submit that the definition contained in Section 2(1) of the Consumer Protection Act, deals with “advertisement” which means “any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents”.  So according to the learned counsel, the advertisement made by the opposite party had persuaded the complainant for effecting the purchase of textile items from the shop of the 1^st opposite party.  The definition of advertisement contained in Section 2(1) of the Consumer Protection Act, 2019 was not available in the 1986 Act.  The definition of “advertisement” was incorporated in the 2019 Act.  The disputed purchase and the issuance of the prize coupon was in 2011.  For ascertaining the true state of affairs, the evidence let in by the complainant has to be taken into account.  During the cross examination the complainant had given evidence that he had purchased textile items worth Rs.13,000/-(Rupees Thirteen Thousand only) from the shop of the 1^st opposite party in connection with the marriage of his younger brother.  As consequence to the said purchase a lucky coupon was also received.  The lucky draw coupons available for a period from 24.07.2010 to 31.12.2010.  During the cross examination Exhibits B1 and B2 were confronted to DW1 who admitted that those letters were given by him.  Even after noting this fact, the opposite parties had declined to disburse the prize.  The learned counsel would submit that when an original document is missing a party is entitled to seek for the admission of secondary evidence since Section 65(c) of the Indian Evidence Act and the provision contained in Order 16 Rule17 of the CPC would enable the complainant to request the Court for accepting the secondary evidence instead of the original documents.

          13.     The learned counsel for the complainant, drew our attention to the scope of adjudication as required in this matter.  The learned senior had drawn our attention to the definition of Section (2)(d) of the Consumer Protection Act wherein “consumer” is defined as “(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”.  According to the learned counsel, definition of “consumer” denotes a person who buys any goods for a consideration.  The evidence let in by the complainant would convincingly prove that no consideration was paid by him with respect to the lucky draw.  As long as the lucky draw was not received for consideration it would not come within the definition of “consumer”.  The jurisdiction of a Consumer Forum could be availed if that person comes within the definition of a consumer.  A Consumer Forum is not expected to extend its jurisdiction as that of a Civil Court.  The adjudication according to the learned counsel can be done by an ordinary Civil Court, but the State Commission is expected to appreciate the materials on record and reach a conclusion as to whether the complainant is a consumer as far as the prize coupon is concerned.  It is also argued by the learned senior that when certain stipulations are incorporated by the opposite party in respect of the lucky draw, no one can dictate different conditions or variations to the conditions and direct the opposite party to distribute the prize to a particular individual.  He had invited our attention to Exhibit A1 which is an admitted document brought by the complainant.  In Exhibit A1 there is a specific request made by the opposite parties to the complainant to appear with the prize coupon, purchase bill, his I.D. proof and Exhibit A1 for verification.  No evidence is forthcoming on the side of the complainant with respect to his inability to cause production of the documents as required in Exhibit A1.  So, on that account alone the claim of the complainant has to be disallowed.

          14.     The learned counsel for the complainant had drawn our attention to the following decisions of the National Commission:  Pepsico India Holdings Pvt. Ltd. Vs. Sanjay Prasad Kushwaha IV (2012) CPJ 190 (NC), Randhir Singh Vs. Kartar Singh II (1995) CPJ 132, Punjab Backward Classes Land Development & Finance Corporation Vs. Kulbir Singh & Ors. 2002 STPL 16407 NC, Global Tele System Ltd. Vs. Unique Sales Agency 2000 STPL 13195 WB.

15.     All these decisions relate to lucky contests.  When the car to be given in the lucky draw did not form part of the consideration given for the purchase of the textile items from the shop of the opposite party, it would never come within the definition of “consumer” as contemplated in the Consumer Protection Act, 1986.  As long as the complainant does not come within the definition of a “consumer” as far as the lucky draw is concerned, he cannot seek for an adjudication in respect of such a prize before a Consumer Forum.

          16.     So we find that the complainant has failed to establish any deficiency in service or unfair trade practice on the part of the opposite parties.  It is seen that the opposite parties had provided sufficient time as requested by the complainant for producing the prescribed documents and the complainant has admitted his incapability to produce the same also.  So the complainant is found not entitled to get any relief.  Hence, points are found against the complainant. 

          In the result, the complaint is dismissed.  Parties shall bear their respective costs.

Dictated to my Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 13^th day of December, 2023.

SL

C.C.No.12/2013

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

5. COURT EXHIBIT

JUDICIAL MEMBER