SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint against OP U/S 12 of Consumer Protection Act 1986, for getting an order directing opposite parties to repay the value of lottery ticket sold by him along with Rs. 25000/- towards compensation, alleging deficiency in service and dereliction of duty.
Brief facts of the case are that complainant is a lottery agent under kannur district lottery office and also a lottery ticket seller. According to him, he directly purchase ticket or collect ticket from other lottery agents as a sub agent and used to sell them. It is submitted by the complainant that up to the value of Rs. 10000/- normally lottery agents directly pay the prized lottery amount of the prized ticket holders by collecting the ticket from them and after that those ticket will submits to concerned district lottery office within 90 days and collect the amount. The district lottery officer after verify the barcode or counterfoil, disburse the amount to agents.
Complainant further submitted that as a sub agent he had collected ticket from customers who had obtain price of Kerala win win lottery NO:W224 bearing ticket number 302162 having prized of Rs.5000/- and lottery No W232 bearing ticket number 18188 having priced amount Rs 1000/- after disbursed prized amount to customers which were purchased from lottery agent V Umesh and were entrusted to agent.
Umesh for collecting prized money from 1st OP. But first OP reluctant to disburse the amount to the agent stating that the barcode on the left side of ticket cannot be read. Complainant submitted that the barcode on the right side of those ticket could be read. According to complainant1st OP could have easily disbursed the prize amount after verified with counterfoil. Like – wise complainant entrusted other prized tickets to agents namely Prakashan and Saneesh for collecting amounts. But OP refused to accept those tickets …to the reason that the prized amount concerning to those tickets were already disbursed to other persons who had won the prize. Thus the complainant sustained a loss to the tune of Rs. 21000/-. Hence filed this consumer complaint for getting back Rs. 21000/- along with Rs 25000/- as compensation from the opposite parties 1 to 3
After receiving notice from this commission, opposite parties 1 And 2 filed separate version. The contentions in both versions. The contentions in both versions are more or less same except certain things. OP 1 and 2 averred that the complainant neither approached with the disputed prized lottery ticket to opposite parties nor they refused to disburse the prize amount to him. According to them they can release the prized lottery money only after verified the number code and screen code in the prized ticket. Those instructions are clearly mentioned in front and back side of the ticket. As per condition No.6, if any fraud committed by ticket holder or any damage occurred on the ticket, the prize amount will be denied. OP1 further contended that tickets produced by V Umeshan having NO W232, W U 185188 and No.244,WU302162 were shown as in a fold condition and also in a scratched conditions, the number code and screen code were not in a readable condition on scanning. Opposite parties further submitted that for the prized amount less than Rs 10000/- there need not keep counterfoile and not necessary to verify with it. OP1 submitted that with regard to the lottery ticket presented by P Prakashan, has already been given the prized amount to one K Balachandran M 2453 agent at Malappuram on 17/04/2014 as per Voucher No : 6244/4/2014, OP2 submitted that Saneesh has received prized amount of Rs .5000/- as per voucher No. 4199/12/2014 on 16/12/2014 for the ticket no WM420312.
Both opposite parties concluded their version with a submission that the prized amount will be given either to the customer who purchased the ticket or to the agent who collected ticket form the lottery office. Here complainant neither purchased the disputed lottery ticket from opposite parties 1& 2 nor presented them for collecting the prized amount. There is no deficiency in service or dereliction of duty on their side. Hence prayed for the dismissal of this complaint.
The point that arise for consideration are
- Whether complainant is a consumer?
- Whether there was deficiency in service on the part of the opposite parties?
- If so what relief can be granted to the complainant?
At the time of evidence complainant has filed his chief affidavit and documents.. He was examined as pw1 and marked Ext A1, to A1 from his side. Ext.A1 is the copy of letter given by V Umesh to OP1 dated 22/03/2014. Ext. A2 is photocopy of reply of OP1 dated 28/03/2014. Ext. A3 is photocopy of letter issued to OP3 by V Umesh. Ext. A4 is Reply to A3. Ext. A5 is disputed the lottery tickets 2 in Nos. Ext. A6 is its result published by Kerala State Lotteries Ext. A7 is the photocopy of letter given by V Umesh to OP1 which was marked subject to proof as it does not contain signature of the person Ext. A8 is letter given by p Prakashan to OP1 dated 25/04/2014. Ext.9 is the reply to Ext A8 issued by OP1, Ext A 10 photocopy of that lottery ticket which was marked subject to proof. Ext A 11 is the photocopy of letter given by Saneesh P to OP2 which was marked subject to proof as it does not bear signature of the sendor. Pw1 was cross – examined for opposite parties 1 to 3. From the side of complainant witness list filed to examine V. Umesh, P Prakashan and Saneesh P. But only P Prakashan was examined as PW2 and was cross- examined for Ops. On the side of opposite parties Mr. Asokan Parakkandy, District lottery officer, Kannur has filed chief affidavit and examined as Dw1, Ext B1 Receipt given by Saneesh P dated 16/12/2014 and Ext. B2 Attested copy of letter sent by OP1 to OP3 dated 08/09/2016 were marked. At the argument stage the learned counsel of complainant Advocate Pramod K and Learned Additional Govt. pleader Adv. Rajendra Babu appearing for the opposite parties filed written argument notes.
We have examined the entire material on record and considering the submission in the argument notes.
Point No.1
The first plea raised by the Learned AGP that the complainant is not a consumer. There is no consumer relationship with the opposite parties and complainant. The contention of opposite parties is that as the complainant neither approached them for collecting the prize amount of lottery nor they refused to disburse the prize money to him, there is no consumer relationship with the Opposite parties.
On the other hand the Learned Counsel for complainant submitted that it is an undisputed fact that complainant is a lottery agent of opposite parties and further pw2 lottery agent Prakashan gave evidence that the prized ticket No. 134224 was submitted by him before opposite party was entrusted to him by the complainant as a subagent. Thus he is a consumer.
Further on the testimony of DW1 it is seen that he admitted the lottery agency ship of complainant and also admitted that complainant entrusted the tickets to agents for presenting before opposite parties 1 and 2.
For the reasons stated above, we find no reason to take a different view than that he is a consumer. Hence our view is that complainant is a consumer and has locus standi to file this consumer complaint 1st point answered in favour of the complainant.
Point No.2 and 3
The main allegation of the complainant is that he had given the prized amount of Rs 5000/- to the ticket holder and collected prized ticket from the customer and then entrusted to lottery agent V Umesh for submitting before OP1 for collecting the prized amount. But OP1 refused to disburse the amount stating a reason that the barcode on the left side of the said lottery ticket was not readable. The said fact of allegation is admitted by OP1 also. According to OP1 as per the instructions on the front page and back side of lottery ticket, it is specifically stated that the number code and secret code of the prized ticket should be readable at the time of presenting before them and also as per condition No 6 there should not be any damage happened to the ticket and also no fraud committed from the side of agent. According to opposite parties if there is any violation of those instructions, the prize amount will not be disbursed. More over the tickets having below the prize amount of Rs.10000/- it is not necessary to keep the counterfoils after selling those tickets.
Firstly the question to be decided is where there is any violation of conditions mentioned in the tickets. Here complainant produced Ext. A5 series the original prized tickets having Nos. WU 185188 and WU302162. Opposite parties version is that at the time of presenting those tickets were in a folded condition and also were damaged and torned and repasted. Hence the secret code of the ticket could not be read during scanning.
On thorough perusal of Ext.A5 series, we could notice that both the tickets are torned and repasted with cello tap at the barcode portion and also folded. It is clearly stated in each ticket that “ To check its Genuiness, damage to any portion at the ticket will invalidate the claim, so take extra care” with regard to that instruction and instruction No.6 on the back page, it is sufficient to say that those ticket are t be exempted from disbursing the prized amount. It is pertinent to be noted that the complainant was in the particular field for many years. So he should have knowledge about those instructions. On the testimony of PW1 we can reveal that he has no idea about the persons who has purchased Ext. A5 series from him.
Considering all these circumstance, Ext.A5 series are not entitled to get prized amount.
Next with regard to ticket No Wm420312 purchased by Agent Saneesh P, opposite parties contended that he himself came to their office and collected the prized amount Rs 5000/-. For substantiating said contention OP produced Ext. B1 the original receipt bearing signature of Saneesh P. Moreover, though complainant has taken steps to examine him as a witness, he has reluctant to appear and gave evidence. Hence we are inclined to believe the contention of opposite parties.
Another allegation with regard to ticket No. 134224 OP submitted the prize amount was given to one K Balachandran at Malappuram 2453 by submitting orginal ticket on 17/04/2014 as per voucher No 6244/04/2014 which was confirmed by OP3. Here we ccan notice that the complinant couldnot produce orginal ticket for substantiating his case and more over on the testimony of PW2, he deposed that in page 3 “orginal lottery മാത്രമാണ് റീഡ് ചെയ്യുകയുള്ളൂ എന്ന് പറഞ്ഞാൽ ...ശരിയല്ല. ഫോട്ടോകോപ്പി റീഡ് ചെയ്യും എന്ന് പറഞ്ഞയു ഞാൻ പരാതി ഒന്നും കൊടുത്തിട്ടില്ല. പരാതിക്കാരൻ എന്നെ ലോട്ടറി ഏല്പിച്ചു എന്നതിന് തെളിവില്ല. പരാതിക്കാരൻ തന്ന ലോട്ടറി ഒറിജിനൽ ആണോ എന്ന് എനിക്ക് പറയാൻ കഴിയില്ല”
The learned counsel for the complainant submitted that it is specifically requested in the letter sent by PW2 that the originality of the ticket submitted by him as well as the ticket to which the prize was disbursed first is to be verified and tested but no steps was taken by the opposite parties to test that authencity of lottery tickets which were submitted before them. This amount to deficiency in service and dereliction of duty.
It is seen in IA 215/18, this commission allowed the petition filed by the Ops to send the lottery tickets bearing number Bill 122-134224 and WM 420312 for expert verification at the expense of opposite parties.
But on 09/10/2019 complainant filed on affidavit stating that those ticket had not handed over to him either from the lottery office or from the lottery agent. Hence the said tickets were not in his custody. This statement of complainant cannot be believed. He has produced photo copy of that ticket and marked it as it as Ext. A10 as subject to proof. If complainant wanted to prove the originality of the ticket he would have taken steps to take coercive steps against opposite parties. The burden of proof lies on the complainant to prove his case before commission, ie the tickets presented him before lottery officer was original in nature. DW1 deposed that രണ്ടാമത് ഹാജരാക്കിയ ടിക്കറ്റുകൾ വ്യാജമായി ഉണ്ടാക്കിയതാണെന്ന് പരാതിയില്ല (Q) Ans.അങ്ങനെ പരിശോധിക്കാനുള്ള സംവിധാനം ഇല്ലാത്തതുകൊണ്ടാണ്. ഇത്തരത്തിൽ വയനാട് കോഴിക്കോട് മലപ്പുറം എന്നിവിടങ്ങളിൽ ആദ്യം സമ്മാനം കിട്ടിയ ടിക്കറ്റുകൾ വ്യാജമാണോ എന്ന് എനിക്ക് പറയാൻകഴിയില്ല"
In such situation boundan duty lies upon the complainant to prove the originality of the disputed lottery ticket. Hence without producing he original tickets, just fling affidavit alone is not sufficient.
Considering all these facts and circumstances, there appear to be no merit and complainant failed to prove his allegations. Hence the complaint is dismissed.
In the result complaint fails and hence it is dismissed. No order as to cost.
Exts.
A1-Copy of the letter given by V Umesh to OP1
A2-Photocopy of reply of OP1
A3-Photocopy of letter issued to OP3
A4-Reply to A3
A5-Disputed lottery tickets 2 in Nos.
A6-Its result published by Kerala State Lotteries
A7-Photo copy of letter given by V. Umesh to OP1
A8-Letter given by P Prakashan to OP1
A9-Reply to Ext A8 issued by OP1
A10-Lottery ticket (proof)
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
Forward by order
Senior Superintendent
