BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 9^th May 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDERS IN

C.C.No.283/2014

(Admitted on 5.8.2014)

MR. Surendra K. Acharya,

S/o Ramesh Acharya,

Golden Jewellery,

Bhavanthi Street Cross Road,

Mangalore 1.

                                                                         ….. COMPLAINANT

(Advocate for the Complainant: Sri. KSNR)

VERSUS

1. Authorized person,

Sri Sai Engineering works,

Opp. Karnataka Bank Limited,

Antady Lorette Padavu,

Bantwal Taluk.

2. Mr. Sathish Poojary,

S/o Dharmanna Poojary,

Adult, R/at 92/A, Gundoori,

Belthangady, D.K. District.

3. Mr. Dinesh Poojary,

S/o Krishnappa Poojary,

Adult, R/at 1/21, Amtady,

Bantwal Taluk, D.K. District.

                                                                        …..........OPPOSITE PARTIES

(Opposite Party No.1 and 2: Ex-parte)

(Advocate for the Opposite Party No.3: Sri. SK)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

I.   The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to handover the R 15 Bike Yamaha or Rs.1,25,000/, being the value of the said prize and also direct the Opposite Parties to pay a sum of Rs.50,000/ as compensation and also litigation expenses to the complainant and such other reliefs.

 2.   In support of the above complaint the complainant Mr. Surrender K. Acharya, filed affidavit evidence as CW1 and produced documents C1 to C3 and got marked Ex.C1 and C3 as detailed in the annexure here below.  On behalf of the opposite parties any evidence treated nil.

The brief facts of the case are as under:

            We perused the complaint and the version of the parties. The dispute is in relation to lucky coupon sold to complainant and on getting prize the opposite parties not honoured the draw result. The material facts of the dispute is the complainant had purchased one lucky draw coupon from the opposite parties for Rs. 500/ and the draw held and the complainant won the prize of R 15 YAMAHA MOTOR BIKE.  On claiming the prize, the opposite party not delivering the prize won by the complainant in spite of repeated requests. However the opposite party no 3 only contested and denied all the allegations and contended that the complaint is not maintainable and matter to be heard as preliminary issue. Opposite party No 1 and 2 are placed ex parte. These are being the facts of dispute we are of the view to decide the following

POINTS FOR ADJUDICATION

          After having a close look into the facts of the case and the evidence and the documents lead by the complainant, there is no admitted facts and whatever pleaded by the complainant has been denied by the opposite party No 3 and the opposite party disputed the maintainability of the complaint. These being the case we are of the opinion that the following points may be decided in resolving this dispute.

1. Whether the complainant is the consumer under the consumer protection Act 1986? And whether the complaint is maintainable?
2. Whether there is deficiency in service on the part of the opposite party?
3. Whether complainant entitled for the prayed relief?
4. What order?

We have gone in detail the facts of the case and the documents on record and heard the complainant counsel and considered the submissions of the party counsels and answered the above points as under.

1. In the affirmative.
2. In the affirmative.
3. In the affirmative.
4. As per delivered order.

REASON

POINT NO.1: On scrutiny of the facts it ex facie found that the transaction is of speculative one and the complainant purchased a lucky draw coupon from the opposite parties to be drawn on a particular day the winners will get the prize. The opposite party also contended the complaint is not maintainable. But we gone to the fathom of the transactions and found the lucky coupon produced by the complainant which we now marked as EX C 1. This show a mention in the behind portion of the coupon under terms of scheme that, in condition No 3 the remaining members will get any one of the prize mentioned below within 15 days. There were four items mentioned below the conditions as IRON BOX, PLATE SET, SOUCEPAN, DEEP KADAI. So inference is every person who has become member by paying Rs. 500/ will get some product in 15 days period. We see promise for deferred delivery of the product for the consideration received. The lucky draw is an additional promise to those who win in the draw. So if we look in this angle the complainant being a member by paying consideration will be a consumer for the product to be delivered in future. As for as the point of jurisdiction is concern the complainant is the consumer and the opposite parties are the trader under as per Sec. 2 (c) of the consumer protection Act. Hence the point no 1 answered in the affirmative.

POINT NO 2:  The complainant case is he is the purchaser of the lucky coupon sold by the opposite party and he won the prize but the opposite party not delivered the same. The opposite party No 3 denied all the allegations of the complainant but not produced any evidence. The opposite parties no 1 and the 2 remained ex parte. Our attention was drawn towards the reply to legal notice given by the opposite party.  The reply dated 28.03.2014 now marked as EX C 3 shows that the opposite party admitted the selling of the coupon and the draw made and also the complainant had won the prize of R 15 YAMAHA MOTOR BIKE and the opposite parties failure to deliver the prize. But requested 6 months time and contended that the YAMAHA vehicle dealer not delivered the Bike in spite of order booked before announcement of lucky draw. So there is clear admission of the allegation made by the complainant. The excuse given for not delivering is not acceptable. It is the commitment given by the opposite parties and opposite parties have to take all care to deliver the prize and it will be a bounden duty of the opposite parties. It seems from the coupon that the scheme is a sales promotional scheme with a promise of lucky draw and prize for the winners and consolidation prize for all those who have purchased the coupon by paying  Rs.500/. Hence we found the deficiency in service as well as unfair trade practice from the opposite parties. Hence the point no 2 answered in the affirmative.

POINT NO 3: The opposite parties have promised a draw for lucky prize as well as a guaranteed prize for all those who have not won in the draw but not delivered the prize won by the complainant in the draw held on 10.02.2014. It amounts deficiency in service and an unfair trade practice hence we hold the opposite parties liable for the complainant. The complainant prayed a relief of R 15 YAMAHA MOTOR BIKE to be delivered to him or in alternative the value of the prize of the bike amounting to Rs.1,50,000/. We are of the view since the dispute arose 3 years back and the position and availability of the vehicle in stock/model in existence, the alternative prayer is to be considered. The opposite parties have not disputed the value ascertained by the complainant; the complainant is entitled to an amount of Rs. 1,50,000/ with an interest at the rate of 9% per annum from the date of lucky draw on 10.02.2014 till the date of payment. The interest awarded will serve as compensation, no separate compensation to be awarded. The complainant also entitled for Rs. 6,000/ as cost of the complaint. Hence we answered the point no 3 in the affirmative.

POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following

ORDER

The complaint is allowed. The opposite parties jointly and severally shall pay the complainant an amount of Rs.1,50,000/ (Rupees One lakh fifty thousand only) towards the value of the prize with an interest at 9 % per annum from the date of 10.02.2014 till the date of payment  and an amount of  Rs.6,000/ (Rupees six thousand only) towards cost within 30 days from the date of order copy is received.

      Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 7 directly typed by Member, revised and pronounced in the open court on this the 9^th May 2017)

               MEMBER                                               PRESIDENT

      (T.C. RAJASHEKAR)                        (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                   D.K. District Consumer Forum

  Additional Bench, Mangalore.                   Additional Bench, Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 : Mr. Surrender K. Acharya

Documents marked on behalf of the Complainant:

Doc. No.1: Original lucky draw coupon bearing card No.0223  (Ex.C1).

Doc. No.2: 17.3.2014: Legal notice issued to Opposite Party.

Doc. No.3: 28.3.2014: Reply issued by the Opposite Party (Ex.C3).

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents marked on behalf of the Opposite Parties:

Nil

Dated: 9.5.2017                                            MEMBER