The challenge in this appeal is to the order dated 20.05.2002 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, ‘the State Commission’) in complaint case no. 8 of 1999 by which the State Commission held and directed as under: “We, therefore, hold that it is a case of deficiency in rendering service as well as of ‘Unfair Trade Practice’. Since there was deficiency in service in arbitrarily rejecting the claim of the complainant as winner of the prized Honda City Car, the complainant is held entitled to the same. For the reasons recorded above, the complaint is allowed with the direction to the opposite party no. 1 to deliver a brand new Honda City Car to the complainant along with Rs. 20, 000/- as compensation for harassment and costs for litigation. This order shall be complied with within one month of receipt of copy of this order.” Before the State Commission, the appellant was opposite party no. 2 (OP 2) while respondent no. 2 was OP 1 and respondent no. 1 was the complainant. Thus, though the order was against OP 1, Kidstuff Promotions, Britco Foods Company Limited, it is OP 2, M/s Coca-Cola India (P) Limited, which has filed this appeal. This is because the appellant, it seems, owned Britco Foods. For the sake of convenience, we shall refer to the parties in this appeal according to their status in the complaint. 2. The facts are that OP 2 launched a promotion scheme for its soft drink coca-cola during the period 03.10 – 26.10.1998 in some selected cities (emphasis supplied). The scheme, as advertised in newspapers, declared six types of prizes and for the first five (of higher value and specified numbers), it envisaged that if a buyer of a coca-cola bottle found a cap (“crown”) with a yellow band and a printed liner on the inside surface, with both the inside of the crown and the liner showing the visual of one of the five specified prizes, s/he would send the liner, along with personal details, in a sealed envelope by post to a post box of given number at Kalkaji, New Delhi. The entitlement to prizes was on ‘first come, first served’ basis. The last date for receipt of the entries was 26.10.1998. The specific type of liner, relevant to this case, reflected entitlement to the prize of Honda City cars (five in all) – in other words, each of the first five persons whose valid entries with the specified liner reached the given post box address, by ordinary post, before the last date was to get the prize of a new Honda City car, subject to verification on the basis of the crown which was to be retained by the buyer/participant in the scheme. The results of the prizes under the scheme were to be declared in December 1998; the winners’ names were to be published in local newspapers and they were to be also informed individually. 3(i) The complainant’s case before the State Commission (noted in some detail for reasons which we would discuss presently) was that he participated in the scheme on learning about it from the advertisement in the “Punjab Kesari”. He got a (coca-cola bottle) crown with the liner showing the visual of a car and thus reflecting his prima facie entitlement to the prize of a Honda City car. To quote from the complaint, “On 7.10.1998 itself, the complainant rushed to Delhi” and “handed over” a letter and “Photocopy of the Plastic Liner (Crown)”. We may note, however, that the complaint did not state to whom the letter and the liner were handed over. Further, for some reason not clear from the complaint, the complainant also sent a letter (date not specified and content not known, because a copy of this letter was not produced before the State Commission) to the publishers of the contest (Hind Samachar Ltd), which the latter forwarded, by its letter of 30th October 1998, to OP 2 for clarification. The relevant part of the publishers’ letter read as under: “We have received a letter of Dr. Amarjit Singh, Vice Chairman, Sadhu Sangh, D A V Rural Public School, Mukandpur, District Nawanshahar the contents of which are self-explanatory. Although we have received the same for publication in our papers under Editor’s Mail, instead of publishing we are sending the same to you so that you may have the matter looked into for taking appropriate action Sd/- (AVINASH CHOPRA) Joint Editor” (ii) Presumably in response (because the letter reproduced below does not refer to either the complainant’s (unspecified) letter to the publishers of the contest or that of the publishers of the contest noticed above), OP 1 (Kidstuff) wrote, by its letter dated 26th November 1998, as under: “On behalf of Britco Foods Company Ltd., we thank you for participating in the Coca-Cola Diwali Karishma” consumer promotion which ran from Sep 21, ’98 to Oct 26, ’98. “We regret to inform you that your entry did not qualify as a winning entry as it was not among the first requisite number of eligible entries for that particular prize. As you are aware all prizes were to be awarded on a first-come first-served basis as advertised in leading publications during the promotion period (Times of India, Hindustan Times, Hindu, etc.).” (iii) According to the complainant, the result of the scheme for the States of Punjab and Haryana was declared in the Punjab Kesari of 18th December 1998 and “the complainant was shocked to go through the result that his name did not figure in the winners of the lucky prizes. It was more shocking that City Honda (sic) car was never declared in the result although the opposite parties had received the copy of letter and plastic liner (crown) from the complainant …… ……” (iv) In his complaint before the State Commission, the complainant, therefore, alleged that (i) “the opposite parties had adopted malpractice for the promotion of their product namely coca-cola”, (ii) “the opposite parties did so without intending to perform their promise” and (iii) “their conduct violates the provisions of section 2 (r)(3)(b) of the Consumer Protection Act, 1986 … … covered by the definition of ‘unfair trade practice’”. In addition, the complaint alleged that the rules of the scheme launched by the OPs were not uniform for all the States where the scheme was run and that though the OPs notified the closing date of the scheme, the date of launch of the scheme was not notified. Claiming that the OPs could not run away from the liability to hand over a new Honda City car to the complainant because he had participated in the scheme and got the plastic liner (crown) within the stipulated period, the complainant prayed that the OPs be directed to hand over a brand new Honda City car to the complainant and also pay Rs. 1 lakh as compensation for mental agony and Rs. 2,000/- as costs. 4(i) In its written version, OP 1 (M/s Coca-Cola India Ltd., earlier known as Britco Foods Company Ltd.) denied all the allegations. No written version was, however, filed on behalf of Kidstuff Promotions or the Marketing Manager, Coca-Cola, Gurgaon though the latter was cited as OP 2 in the complaint. (ii) As preliminary issues, OP 1 contended that the complaint was not maintainable before any Consumer Forum because the ground of “unfair trade practice” alleged in the complaint was examined by the Monopolies and Restrictive Trade Practices (MRTP) Commission independently in respect of the same promotion scheme in identical sets of facts in case nos. 239/98 and 240/98 before that Commission and the Commission had returned a finding that “the scheme was not hit by section 36A of the MRTP Act in general and sub-section 3(b) thereof in particular” and further that there was no relationship of “consumer” and “service provider” between the complainant and the OPs in respect of the prizes declared under the promotion scheme. (iii) In particular, OP 1 stated the following in its written version: (a) Though the terms and conditions of the scheme required all entries to be sent, in sealed envelopes bearing the name address of the sender, only by ordinary post to the designated post box address, the complainant had, by his own admission, personally handed over his entry along with an open letter. Thus, for violating this condition, his entry was not valid at all. (b) By its letter of 26.11.1998, OP 1, through Kidstuff Promotion, clearly informed the complainant that his entry was not among the first requisite number of eligible entries for that prize (i.e., Honda City car). (c) “In compliance of the procedure stated in the advertisement, all the entries came to a Central P.O. Box. The entries were collected from the Post Box in the presence of auditors (External Chartered Accountants) from S. R. Batliboi & Company and S. R. Bansal & Company, on a day-to-day basis. After collection, the entries were taken to an authorised external agency and sealed in a bag and a marking was given on each and every bag bearing the date of receipt, which was duly countersigned by the auditors. The bags were then locked in a trunk. The procedure was followed every day during the period when the promotion scheme was in operation. After the close of the promotion (i.e., after the last date of receiving entries) each individual bag of entries (starting from the first date and proceeding chronologically) was opened and entries were numbered in the presence of auditors. Then these entries were opened one by one and checked and counterchecked for validity. Registers were maintained for each category of prizes and in case an entry was deemed valid for a particular prize then the details were noted in the register for that prize (the register was countersigned by auditors). All entries were then filed in chronological order. Among entries received on a particular day, the order in which they were picked out of the bag and numbered decided chronological order. All this was done in presence of auditors. The procedure was strictly followed.” [Emphasis supplied] (d) “The entry forwarded by the complainant in this promotion was the 6th entry as per the audited entries in the registers maintained by the fulfillment agency (Kidstuff). The first five entries were eligible for the prize of Honda City car. This entry was the 6th and therefore received a reject letter from Kidstuff. The entry number if (sic) 311 and was received on 8th Oct ’98. The last prize winning entry was 288 and was received on 7th Oct. There were five Honda City cars as prizes. The following persons were found to be the lucky winners of the cars: Ajay Joshi New Delhi Harish Chandra Rohilla Bareilly M Pravallieka Anantapur, AP Joginder Kaur Chawla New Delhi Priya Kala Mumbai” [Emphasis supplied] (iv) Further, the winners of the five Honda City cars were informed by authorisation letters and their names were published in the respective regional newspapers. The cars were also delivered to them. The names of prize winners from Punjab and Haryana were similarly published: the list did not include any winner of a Honda City car because neither the complainant nor anyone else from these States was a winner of a Honda City car, the complainant’s entry not being eligible for winning the said prize according to the rules of the promotion scheme. The rules were applied uniformly to all participating States. Since all the prizes of Honda City cars were delivered to the winners, there was no question of compensating the complainant with money for of the car. The complainant could not claim to have suffered any injury by participating in the scheme and, on that count too, he could not claim any compensation. 5 (i) We have heard Mr. M. N. Krishnamani, senior advocate on behalf of the appellant/OP 1 and Mr. Satinder Pal Singh, authorised representative on behalf of the complainant and carefully gone through all the records. (ii) During the pendency of the appeal, by order of 9th March 2005, this Commission directed OP1 to (i) file the record relating to receipt of entries of claims to Honda City cars, (ii) the report of S. R. Batliboi and Company which was said to have scrutinized the entries and (iii) an affidavit to explain how far it was possible to receive the entries by post as early as claimed for the said scheme from 3rd October 1998. The complainant was also given an opportunity to file a counter affidavit. On behalf of the appellant/OP 1, an affidavit dated 28th April 2005 was filed along with photocopies of a hand-written list of entries (enclosed as Annexure I to the said affidavit) stated to be the list of all valid entries received for the prizes of Honda City cars and several certificates purporting to be certificates of auditors of the scheme, viz., S. R. Batliboi and Company and S. R. Bansal and Company, both firms of Chartered Accountants. The complainant also filed a rejoinder affidavit. (iii) After considering the affidavit dated 28th April 2005 filed on behalf of OP 1, the counter affidavit filed by the complainant and further submissions on behalf of the parties during the period thereafter, we found it necessary to give further directions to OP 1 by our order dated 17th March 2009: “Affidavit of Mr. Deepak Gupta, Authorised Signatory of the appellant filed under the direction of the Commission contains Annexure I (running in four pages) which is a handwritten list of the applicants. It is not explained in the affidavit whether this Annexure I is prepared by the appellant-company or S. R. Batliboi and Co. or S. R. Bansal and Co. and on what date. This needs to be clarified by filing affidavit of the author who prepared this Annexure I to the said affidavit. The respondent has also pointed out that in brief synopsis of appeal filed by the appellant it is mentioned that the total number of entries received between 24th September and 21st October 1998 was 1735 whereas Annexure I shows the number of such entries as 1955. It is also stated that even before the State Commission, the appellant had stated that they received the 5th entry at sl. no. 288 on 7.10.98 whereas Annexure I referred to above shows that the 5th entry bears sl. No. 308. This aspect also needs to be clarified by filing additional affidavit.” (iv) In compliance of the said direction, one Mr. Joel A. Peres, an officer of OP 1 filed an affidavit dated 6th July 2009. (v) The parties also submitted their notes of written arguments along with judgments that they sought to rely on. 6. In his arguments before us (and also summarised in his written submissions), learned senior counsel for the appellant, Mr. M. N. Krishnamani emphasised the following: (i) According to the ratio of the judgment dated 22nd July 2009 of this Commission on the revision petition filed by one Mangaliya Ram Baghel involving the same scheme [Mangaliya Ram Baghel v M/s Coca-Cola India Pvt. Ltd. and Another, Revision Petition no. 3188 of 2005], it was necessary for the complainant in this case too to produce evidence of having purchased a bottle of coca-cola before he could initiate the proceedings before the State Commission. This, the complainant failed to do and thus he was ab initio not entitled to agitate any grievance before a Consumer Forum. (ii) The complainant did not suffer any loss or injury, either personal or financial, by buying a bottle of coca-cola and consuming the soft drink during the relevant period; it was not even his case that the drink was in any way defective. Further, he did not pay any extra charge for participating in the scheme and hence the prizes distributed under the scheme were without any “consideration” therefor. Merely because he was not among the first five to send valid entries for the prize of Honda City cars did not mean that he suffered any loss or damage - he was merely unlucky that his was the sixth entry in the list of which only the first five were entitled to the said prize. In this regard, reliance was placed on the decision of the Apex Court in the case of HMM Ltd. v DG, MRTP [(1998) 6 SCC 488]. (iii) The same scheme had been held to be fair and proper by both the MRTP Commission and the Delhi High Court. In its order dated 9th October 1998, the MRTP Commission held, “…. we think that no prima facie case is made out of any unfair trade practice on the part of the contesting respondents or any other respondent. We think the case does not call for any enquiry into any unfair trade practice.” In its order dated 1st may 2009 in Writ Petition no. WP (C) 6771/2007 in Coca-Cola India Pvt. Ltd. v Zed Ahmed, the Delhi High Court also held as under: “In view of the statements made, the impugned order is quashed to the extent it records that the scheme of the Petitioner amounted to an unfair trade practice. …… The said contention shall be appropriately considered by the National Commission in the pending proceedings, having regard to the fact that the scheme was declared genuine by the MRTP Commission and that part of the findings is squashed.” (iv) Prizes as promised in the scheme, including five Honda City cars, were actually given out and appropriate procedure was followed in awarding these prizes. In various submissions, including the additional affidavit dated 28th April 2005 filed before this Commission, the appellant clarified these facts repeatedly. According to the complainant’s own admission, he made his entry through proper channel on 8th October 1998 while, by 7th October 1998, the Fulfillment Agency had already received five valid entries for the prizes of five Honda City cars. (v) The scheme was widely publicised in national and regional newspapers, including the Times of India and Punjab Kesari. These publications clearly set out the terms and conditions of the scheme. The complainant was fully aware of these terms and conditions as he himself stated in reply to the present appeal that he made his entry through proper channel. (vi) The complainant had first stated that he personally handed over his entry to the appellant with a letter on 7th October 1998 at Delhi. The fact that the appellant forwarded the entry to the Fulfillment Agency in spite of violation of the terms of the scheme by the complainant showed the appellant’s “bona fides and willingness to make the scheme as fair as possible.” It was not even the case of the complainant that the appellant passed on any undue benefit to any of its employees or itself. Further, much prior to the declaration of the results of the scheme on 18th December 1998, the Fulfillment Agency, by its letter of 26th November 1998 had intimated the complainant that his entry did not qualify as a winning entry as it was not among the first requisite number of eligible entries for that particular prize. 7. On the other hand, in his arguments and written submissions, the authorised representative of the complainant sought to establish that the appellant/OP 1 had resorted to manipulation of the records to justify its contentions. In this context, he emphasised that according to the certificates of the auditors recording the number of entries received every day, a total of 1735 entries had been received from 24th September to 21st October 1998. However, according to the list of all valid entries for the prizes of five Honda City cars, the running serial number of the last entry received on 21st October 1998 was 1955. This could have simply not been so had the records of the scheme been maintained properly. Secondly, OP 1 first stated that the scheme had commenced from 3rd October 1998. However, in the appeal it averred that the scheme had started on 22nd September 1998 and the first entry was received on 24th September 1998. Thirdly, before the State Commission, the appellant/OP 1 had taken the stand that the serial number of the fifth valid entry for Honda City cars received by it on 7th October cars was 288 whereas the record (i.e., Annexure I which was produced with the affidavit of 28th April 2005) showed that the entry at serial number 288 was the fourth one and if it was the fourth entry, the complainant’s entry would be the fifth – by implication, the complainant would then be entitled to the prize of Honda city car. He finally drew attention to the dates of the daily certificates recorded by S. R. Batliboi and Company regarding the number of entries received and pointed out that the certificates were not recorded on the date on which the entries were actually received, e.g., for the entries received on 3rd October, the date of the certificate was 5th October; for the entries received on 5th October, the date of the certificate was 6th October and so on. From this he again sought to establish that the records had been manipulated. He, therefore, prayed that the appeal, based as it was on “forged and fabricated documents”, be dismissed on that ground. DISCUSSION 8(i) Before proceeding further, it will be useful to read the relevant provisions of the Consumer Protection Act, 1986 (hereafter, ‘the Act’). Thus, under section 2(1)(b), a “complainant” means a “(i) consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 or under any law for the time being in force; or (iii) the Central Government or any State Government; or (iv) one or more consumers, where there are numerous consumers having the same interest; (v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint.” Further, under section 2(1)(c), “complaint” means “any allegation in writing made by a complainant that (i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider; (ii) xxx xxx xxx xxx xxx; (iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect; xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx with a view to obtaining any relief provided by or under this Act.” Finally, under section 2(1)(r), “unfair trade practice” means “a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice, including any of the following practices, namely� xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) permits� xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;” [Emphasis supplied]. The content of sub-sub-clause (b) of section 2(1)(r)(3) of the Act is identical with that of section 36A (3) of the Monopolies and Restrictive Trade Practices (MRTP) Act, 1969. (ii)(a) The appellant’s preliminary objection in this case is that the complainant is not a “consumer” so far as the scheme in question is concerned and hence he could not have filed a “complaint” under the Act, as defined in section 2(1)(c), before any Consumer Forum. The first limb of this argument is that the scheme was not a “service” under the Act and the second is that no participant in the scheme, including the complainant, had to pay any “consideration” for participating in the said scheme per se, as the price of a bottle of coca-cola charged during the scheme was the same that was chargeable without the scheme, i.e., that price was not enhanced specifically towards “consideration” for inviting the consumers to participate in and for running the scheme. (b)(i) In the first flush, this objection would appear to be plausible. However, careful consideration would show that it is fallacious, because if the objections and arguments of the appellant were to be accepted, it would mean that in no circumstances could a buyer/consumer of a bottle of coca-cola under such a scheme file a complaint against the scheme alleging unfair trade practice under section 2(1)(r)(3)(b). When a person bought a bottle of coca-cola in the ordinary course, he would of course be a consumer of that product, with all the attending rights under the Act to file a complaint in respect of quality and quantity of the soft drink (and quality of the bottle), service rendered by the trader/manufacturer in selling the drink, unfair trade practice, if any, adopted by the trader/manufacturer in the process, etc. However, when the same person bought the same bottle of coca-cola under the promotion scheme, according to the appellant he was debarred from filing any such complaint against the scheme, including one under section 2(1)(r)(3)(b) of the Act, because the scheme was not a “service” nor the buyer a “consumer” for he did not have to pay any consideration for participating in the scheme. This absurdity is certainly not what the Act intended. (ii) The scheme was admittedly a “promotion scheme”, i.e., to promote the sale of the soft drink coca-cola at a time of the year (end September – end October) which is not when people in India would ordinarily buy aerated soft drinks. The scheme was also run with the aim of promoting the appellant’s business interest like winning over customers, at least during the period of the scheme, from groups regularly consuming other competing brands of aerated drinks. More important, the scheme sought to encourage a buyer/consumer of coca-cola during the scheme period to look under the crown and see if it contained a plastic liner with the visual of one of the prizes. If that was so, the scheme then induced him to place a photocopy of the liner and his personal details in a sealed envelope and send it, by ordinary post, to a given post box address in Delhi. (iii) On behalf of the appellant, the so-called “fulfillment agency” then undertook a variety of activities which can only be termed as “service” to the entire collective of such participants, viz., collecting all the envelopes of entries received each day in the post box till the closing date of the scheme, examining them to see if these envelopes were “valid” (i.e., unmutilated and properly sealed) entries, putting the valid entries received each day in another (larger) envelope/bag and marking the said date on the latter envelope/bag, storing the larger envelope/bag for each day in a trunk and so on. This sequence of iterative activities constituted nothing but “service” to the entire collective of participants who were, to start with, “consumers” of the product coca-cola and acquired, by virtue of being “consumers” of the soft drink during that specific period and participating in the scheme, the status of “consumers” of the said “service/s” rendered by the appellant through its fulfillment agency appointed specifically for the said scheme. (c) As regards the “consideration” paid by such (scheme participants-cum-) consumers for the aforesaid service, the important point is that the appellant obviously did not assure to give away several prizes, some of them very expensive, out of “charity” to some of these (scheme participants-cum -) consumers – surely, the additional/higher gross margin earned by the appellant from the enhanced sale of the soft drink during the scheme period was (expected to be and also in reality) large enough to not only meet the additional costs in running the scheme but also leave a higher-than-usual income/margin. For, it would not make commercial sense for the appellant, a multinational company well versed in mass marketing techniques even without resorting to such a scheme, to take the trouble of running a promotion scheme of this nature unless, on the basis of market research, experience, etc., it expected to make a higher-than-usual profit. The second source of additional income to the appellant was from the sale of bottles which did not carry the yellow band – it is not, as far as can be ascertained from the pleadings, the appellant’s case that all coca-cola bottles put in the market and sold during the scheme period in the select cities had the yellow bands and crowns with plastic liners containing visuals of prizes. Thus, though not directly, the “consideration” for the above-mentioned “services” of the appellant’s fulfillment agency, on the one hand, and the cost of the prizes as well as further operating costs of the scheme, on the other were paid/recovered out of a part of the additional margin earned by the appellant during the scheme period from maybe thousands of consumer-participants of coca-cola during the scheme period only some of whom were able to get bottles with the yellow band and prize visuals. (d) An “unfair trade practice”, as defined in section 2(1)(r)(3)(b), is an activity or set of activities (all including certain embedded but distinct services) by an entity which “permits” any of the activities proscribed under that provision, viz., “conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest”. While such an entity can either be a trader or a manufacturer or a service provider (who/which is enjoined by the statute to refrain from indulging in the specified set of proscribed activities in the course of promoting the sale of its product/services or its overall business interests), it is obvious that each of the proscribed activities would entail one or more activities in the nature of a service. The type of remedy provided under section 14(1)(f) of the Act in respect of an unfair (or restrictive) trade practice, viz., direction by the Consumer Forum concerned “to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them” is, however, “impersonal” or for the good of the general public who may be potential consumers, in the sense that there is no provision under that section of the Act to pay any compensation to the person who makes written allegations of unfair trade practice against a manufacturer/trader/service provider and succeeds in bringing home his allegations. When the said person happens to be a consumer, i.e., a buyer of the product and, by virtue thereof, a participant in the product promotion scheme as in this case, such a person would be a consumer of the service/s necessarily embedded in running such a product promotion scheme. Hence, if he succeeds in establishing unfair trade practice against the entity under section 2(1)(r)(3)(b) and also deficiency in associated service/s in the operation of the promotion scheme, he would be entitled not only to press for the general relief provided for in section 14(1)(f) but also to seek (and be awarded) any other relief, including compensation provided for in section 14(1)(d) and deemed appropriate by the Consumer Forum for such deficiency in service. (e) Relying on the judgment of this Commission in the case of Mangaliya Ram (supra), the appellant has, at the stage of written submissions, also raised the objection that the complainant in this case could not be deemed to be a “consumer” because he did not produce any documentary evidence of having purchased a bottle of during the scheme period. This objection cannot be sustained for two reasons. First, this was not a ground in the appellant’s pleadings before the State Commission and no amendment to the pleadings can be allowed at this highly belated stage. Secondly, and more important, in the case of Mangaliya Ram it was the appellant which produced before the District Forum a receipt showing that Mangaliya Ram had purchased the bottle of coca-cola (on the basis of which he filed the complaint before the District Forum) much after the scheme period. Hence, the ruling of this Commission upholding the appellant’s stand in the Mangaliya Ram case is of no avail to the appellant in this case. In passing, we may also observe that by seeking to rely on the decision of this Commission (and the Consumer Fora below) in the Mangaliya Ram case, the appellant has admitted, contrary to all its arguments discussed above, that a consumer of a coca-cola bottle during the period of the same scheme could file, on that strength alone, a complaint of unfair trade practice and/or deficiency in service in respect of the same scheme as involved in this case. (iii) As regards the complainant’s grievance, his case before the State Commission was essentially that OP 1 did not wrongfully consider his entry, which according to him, was valid and delivered through proper channel, for the prize of Honda City car. In this context, he also alleged that (i) the scheme, as published in the Punjab Kesari, did not give the full details, (ii) the date of commencement of the scheme was not published, (iii) the OPs did not intend to give the prizes as advertised and (iv) in implementing this scheme, the OPs thus resorted to unfair trade practice under section 2(r)(3)(b) of the Act. His prayer in the complaint was to direct the OPs to give him a new Honda City car apart from compensation of Rs. 20,000/-. (iv) We have already noticed that the complainant stated, in his complaint, “On 7.10.1998 itself, the complainant rushed to Delhi” and “handed over” a letter and “Photocopy of the Plastic Liner (Crown)”. As against this, in his rejoinder to the written version of OP 1 before the State Commission, the complainant stated, inter alia, “The appellant was never handed over the entry by hand. This fact is also clear by perusing the record that entry of respondent no. 1 is as per the scheme and nothing was done wrongly on his part.” (Paragraph 3(d) of the rejoinder). He further stated, “The scheme was floated on 3.10.1998 which was a Saturday. 4th October 1998 was Sunday. 5th October was Monday and 6th October 1998 was again a holiday and entry was made through proper channel by respondent no. 1 on Thursday i.e. October 8, 1998.” (Paragraph 3(f) of the rejoinder). [Emphasis supplied] (v) It was in this rejoinder that the complainant specifically alleged deficiency in service on the part of the OPs. After OP 1 filed before this Commission its first affidavit of 28th April 2005 enclosing, inter alia, the hand-written chronological list of all valid entries for Honda City cars (Annexure I noticed above), the complainant sought to demonstrate that the claim of OP 1 that the complainant’s entry was not among the first five valid entries for Honda City cars was based on manipulated records. (vi) We shall presently discuss the methods adopted by OP 1 (and its fulfillment agency, Kidstuff Promotions) in conducting the promotion scheme, including the standards of maintenance of the basic records and their verification by the so-called auditors of the scheme. However, suffice it to observe here that though the primary record of date-wise receipt of all valid entries for the prizes of Honda City cars (Annexure I referred to above) was hand-written and suffered from several other defects, we do not find it possible to conclude from its perusal that there was any manipulation in noting the entries according to the dates of their receipt, much less that the said record could be so read as to infer any fraudulent activity to specifically exclude the entry of the complainant from being among the first five. It is clear from this record that the third, fourth and the fifth valid entries for Honda City car prizes were received at the post box address on 7th October 1998 while that of the complainant was received on the next day, i.e., 8th October 1998. That the complainant submitted his entry through proper channel on 8th October 1998 is his own admission. Hence, his entry could not have qualified for the prize of a Honda City car. What, thus, emerges from the two contradictory statements of the complainant about the date and mode of delivery of his entry is that after reaching New Delhi on 7th October 1998, he first tried to deliver his entry by hand (probably at the office of OP 1) in order to be early enough to secure the prize and was told that he could not do so, whereupon he submitted his entry through the post box address on 8th October 1998. While his frustration at missing a valuable prize by the skin of the teeth, as it were, is understandable, it does not mean that his allegation about the OPs deliberately and fraudulently depriving him of the prize can be upheld, in the given facts and circumstances. 9(i) Two of the other allegations in the complaint were that the details of the scheme were not fully disclosed in the advertisement that appeared on 3rd October 1998 in the Punjab Kesari and that the date of commencement of the scheme was not notified. (ii) We have carefully perused the photocopy of the advertisement in the Punjab Kesari that was produced before the State Commission by the complainant and was not denied by the appellant/OP 1. A comparison of this Punjab Kesari advertisement with (the photocopy of) the advertisement in the Times of India, New Delhi produced by OP 1 before the State Commission makes it clear, even to the naked eye, that all the details of the scheme given in the Times of India advertisement were simply not there in the former advertisement. The Punjab Kesari advertisement was about half in size and only the stipulation that the prizes were on “first-come first-served” basis was easily readable. There were some more details at the bottom of this advertisement but they were in really fine print, completely unreadable and prima facie not comparable in content with the details published in the Times of India. (iii)(a) It is also clear that neither the advertisement in the Punjab Kesari nor that in the Times of India mentioned the date of commencement of the scheme though the date of its closure was clearly mentioned. It might have been that the newspaper advertisements about the scheme were published on 3rd October 1998, which was generally assumed to be the commencement date of the scheme. However, the statements of OP 1 on this score confound the confusion. Thus, the letter of 26th November 1998 from Kidstuff to the complainant stated unambiguously that the scheme was in operation from 21st September 1998. Yet, in paragraph 1.3 of the written version, OP 1 stated, “…the Answering Party had organised a Scheme “Piyo Coca-Cola Dekho Karishma” during the period Sep 1998 and October 1998 in select cities only.” However, OP 1 stated in paragraph 3 (a) of the memorandum of appeal, “The said Scheme was valid from 3.10.1998.” Finally, in the affidavit dated 28th April 2005, filed in response to this Commission’s direction of 9th March 2005, the deponent on behalf of OP 1 stated, “I further say that the scheme commenced on the 22nd of September, 1998 and the earliest entry was received on the 24th of September, 1998.” (iii)(b) P 1 has also not filed any document to show how the rules governing the scheme were publicised before the date (3rd October 1998) of publication of the full advertisement in the Times of India, Delhi. If, according to OP 1 (read with Kidstuff letter dated 26th November 1998 or affidavit dated 28th April 2005), the scheme actually commenced on (21st or) 22nd September 1998, how the participants at large were informed about the conditions governing the scheme before their first publication in newspapers like the Times of India on 3rd October 1998 is thus a mystery. (iv) Therefore, on the two above-mentioned counts, viz., the Punjab Kesari advertisement not fully disclosing the conditions applicable to the scheme and the date of commencement of the scheme being withheld/not published on 3rd October 1998, the allegations of the complainant were entirely valid. In fact, what has come on record now reflects acts of omission and commission on the part of OP 1 worse than what the complainant alleged. First, clearly there was suppression of information before the State Commission about the date of commencement of the scheme. Even in the submissions by OP 1 before us in this respect, there are contradictions as we have just seen. Secondly, and more important, it is completely obscure even now as to how the consumer-participants who bought the coca-cola bottles with yellow band and found plastic liners depicting visuals of any of the prizes on or after 21st / 22nd September 1998 till 2nd October 1998 were actually advised on the correct procedure to send their entries. This is so because the procedure was apparently publicised, for the first time, on 3rd October 1998. Thirdly, the scheme, as advertised, explicitly mentioned, “Offer valid only on coca-cola bottles with crowns having a yellow band, which are available in select cities.” However, neither in the pleadings before the State Commission nor in the affidavits filed by OP 1 before this Commission was it stated which these select cities were and what the criteria were for selection of these cities. From the list of valid entries for the prizes of five Honda City cars produced before us, it is seen that entries of participants located in smaller towns like Bareilly in Uttar Pradesh or Anantapur in Andhra Pradesh were also accepted – in other words, there was no disclosure at all of which the so-called “select cities” were or of the criteria to determine if a city/town would qualify to be included in the category of “select cities” for this scheme. 10(i) We have already noticed the written version of OP 1 before the State Commission regarding the procedure adopted for receipt and verification of the entries (vide paragraph 4 (iii) (c) above). In the affidavit dated 28th April 2005, OP 1 explained in further detail the procedure for running the scheme and declaring the prizes and filed, inter alia, a certificate/report dated 7th April 1999 issued by one of the partners of S. R. Batliboi and Company on the steps taken to receive, number and preserve the entries and the method of their final opening for determining the prize winning entries; the hand-written page of entries relating to the valid entries for the prizes of Honda City cars (already noticed as Annexure I to the said affidavit); and sets of copies of the daily certificates issued by the two Chartered Accountants, viz., S. R. Batliboi and Company as well as S. R. Bansal and Company in respect of the entries received. (ii) It may be first noted in this context that the complaint was filed before the State Commission on 5th February 1999. The auditor’s (S. R. Batliboi and Company) report/certificate dated 7th April 1999 was thus recorded over two months after the institution of the complaint and not contemporaneously with the conclusion of the scheme or even after the declaration of the prizes in December 1998 as would be expected in normal course, i.e., not specifically as a defence against a complaint. (iii) The certificates issued by the auditors in respect of daily receipt of entries show: (a) The daily certificates from 24th to 26th September 1998 were issued only by S. R. Bansal and Company. However, from 28th September 1998, these certificates were issued by both S. R. Batliboi and Company as well as S. R. Bansal and Company (hereafter referred to as ‘Batliboi’ and ‘Bansal’ respectively). (b) As pointed out by the authorised representative of the complainant, the certificates of Batliboi were issued one or two days after the date of receipt of entries to which they pertained. For example, the certificate for the entries received on 28th September 1998 was dated and signed by the partner concerned of Batliboi on 29th September 1998. This was also the pattern of the dates of the daily certificates issued by the partner concerned of Bansal till the certificate recorded on 18th October 1998 for the entries received on 17th October 1998. It would appear that the details of entries received on a particular day were recorded in the presence of (junior) representatives of the two auditors and, based on these details; the formal certificates were typewritten and signed by the partners concerned on the next working day(s). Unlike the complainant, we are not inclined to read any sinister design in this. (c) However, the certificate of Bansal bearing the date of 19th October 1998 referred to entries received on 20th October 1998. This pattern of recording the details/numbers of entries in the certificate of a particular date “in anticipation”, as it were, of the number of entries actually received on a subsequent date was also repeated in all the Bansal certificates issued after 19th October 1998, with the certificate dated 24th October 1998 recording the entries received on 26th October 1998, the closing day of the scheme. Another unusual aspect of the dates typed in the top right hand corner of the Bansal certificates was noting the month as “kid”. It was the same partner of Bansal who signed all these certificates, blissfully oblivious of what he was signing. (iv) In his rejoinder affidavit to the affidavit dated 28th April 2005 of OP 1, the complainant also contended that while in its defence before the State Commission OP 1 stated that the entry at serial no. 288, received on 7th October 1998, was the fifth valid entry for Honda City cars, the hand-written record detailing all the valid entries for the said prizes (Annexure I referred to above) showed that entry no. 288 was the fourth entry and, if that was so, the next (fifth) entry should have been that of the complainant’s. In the course of hearing before us, he further contended that though the sum total of the entries received, as per the auditors’ certificates, from 24th September to 21st October added up to 1735, the (running) number of the entry at serial no. 16, page 8 of the said Annexure I (shown to have been received on 21st October 1998) was 1955. (v)(1) It was in this context that on 17th March 2009, we directed OP 1 to clarify the position by filing a further affidavit. This affidavit, filed on 6th July 2009, stated inter alia as under: (a) Annexure I, the hand-written list of all valid entries for the prizes of 5 Honda City cars, was prepared by respondent no. 2, Kidstuff Promotions, as disclosed in the written version dated 3rd December 2000 filed before the State Commission. (b) The employees of Kidstuff Promotions who authored the said hand-written list and carried out the procedure of documentation of the scheme could not be located despite best efforts because in the intervening period of more than 11 years the said company had undergone change of ownership as well as employee base. (c) As regards the “alleged 1735 entries”, the affidavit stated, “… the Appellant throughout their written submissions nowhere stated the existence of such 1735 number of entries and onus is on the Respondent no. 1 to prove the same.” (d) In respect of the serial number 288 of the last prize winning entry for Honda City cars, the affidavit stated, “… on 7th October there were two prize winning entries, 4th entry was at Serial No. 288 and the 5th entry was at Serial No. 308. Due to the similarity in the numbers and because of the same date, instead of 308, 288 was inadvertently mentioned.” (v)(2) As regards the hand-written list of all valid entries eligible for the prizes of Honda City cars, it is obvious from a bare perusal that it was prepared in a most unprofessional way. The hand-writings in the list are those of several persons, apparently barely educated and not appropriately briefed on how to record such entries involving expensive prizes like a flat in Mumbai, five Honda City cars, etc. None of them believed in using (or, preparing) a register with column headings clearly written, contrary to the claim of the appellant. It is also clear from visibly discernible differences in writing that some of them wrote down only the names of the senders while someone else, probably later, wrote down their addresses (e.g., entries no. 7 to 13, page 7). The date of receipt of the entry at sr. no. 20 was scored out first and then corrected, without even initialling the correction. Most important, the list does not contain the names or signatures of the persons who made the entries, leave alone any signatures/initials which could remotely be read as that of any representative(s) of the auditors of the scheme who witnessed/vouched the correctness of these entries. This list was the final document of all valid entries for the prizes of Honda City cars, seeking to demonstrate beyond doubt the dates of receipt of the entries as well as the inter se priority of those entries, which were received on the same day. Viewed in this perspective, it is indeed surprising that a multi-national company like the appellant thought it fit to engage such a bunch of persons to run and supervise/audit the scheme and, even worse, left this bunch to its own devices in recording the entries. (v)(3) We cannot but observe that the statement summarised at (c) above is completely evasive. A primary school boy exercise of adding up the number of all valid entries received each day, as certified by the auditors Batliboi and Bansal, would show that the total number of all valid entries from 24th September to 21st October 1998 was indeed 1735. Since, by admission of OP 1, the hand-written list at Annexure I recorded only valid entries for the prizes of Honda City cars, the running number of any entry therein received upto 21st October 1998 could not have exceeded the aforesaid number of 1735 which was the cumulative running number of all valid entries for all prizes received up to that date. To merely state now that OP 1 did not mention the number of valid entries, received during 24th September - 21st October 1998, as 1735 in any of its written versions/submissions is to deny the obvious from behind a flimsy curtain of banal legalese. For a responsible officer of a multi-national company like the appellant to make such an averment is, to say the least, unfortunate. (v)(4) Even if we accept at its face value the statement noted at (d) in the aforesaid affidavit of the officer of OP 1 regarding a typographical error in mentioning the serial number of the fifth winning entry as 288 instead of 308, it cannot be overlooked that the affidavit contained a further factual error: three entries – the third, fourth and the fifth – were received on 7th October 1998 and not two, as stated in this affidavit. (vi)(1) The answer to the crucial question of determining the inter se order of chronology of valid entries for any prize received on the same day is to be found first in paragraph 1.3.3 of the written version filed by OP 1 before the State Commission (reproduced in full in paragraph 4(ii)(c)): “All the entries were filed in chronological order. Among entries received on a particular day, the order in which they were picked out of the bag and numbered decided the chronological order.” (vi)(2) On the other hand, in paragraph 10 of the affidavit dated 28th April 2005, the following was stated on behalf of the appellant: “I say that pursuant to the opening of the entries on 31st October 1999 (sic 1998?) all the envelopes containing valid entries were opened according to the dates mentioned on each envelope and one after the other the entries were removed and numbered as per there (sic – their) removal. The prizes (sic – prize) contained in each of the entry (sic – entries) were (sic – was) examined by the representatives of the Auditor along with representatives of M/s S. R. Bansal and Co. and the same was duly recorded in separate registers maintained by Respondent No. 2 for each valid prize. I say that successful winners were then declared on the basis of “first come first serve” (sic – served), i.e., the first entry in the register was declared as the first winner of the specific category of the prize. The winners were declared until prizes for each category were exhausted.” (vii) Between the written version (paragraph 1.3.3) and the affidavit (paragraph 10), there are some minor differences in the description of the actual process of recording the inter se order of chronology of valid entries for a particular prize received on the same date. However, as a comparative reading would show, the description in the written version is more complete. Thus, when it came to deciding the prize-winning entries in respect of any prize, embedded in the published criterion of “first-come first-served” there were two distinct and concurrent sub-criteria: first, the date of receipt of a valid entry (contained in an unmutilated and properly sealed envelope, according to the appellant) in the manner prescribed, i.e., mailed by ordinary post to the given post box address and the second, for all valid entries received on a particular date (in accordance with the first sub-criterion) and opened on 31st October, 1998, the order in which each entry (with the visual of a particualr prize) was “picked out of the bag and numbered”. The recording of the entries for a particular prize in a “register” “countersigned by auditors” (as we have seen, there was no register but only loose, hand-written sheets of paper – at least, for the prizes of Honda City cars - and there was no signing, leave alone countersigning by auditors of any of these pages) thus merely followed the order of their picking out of the bag containing all entries received on a particular date. This order of picking out of entries bearing the visual of a particular prize was thus the determining factor in deciding which entry, among more than one received on any particular day, would precede the rest. (viii)(a) It is the foregoing admission of the “order of picking out” of valid entries received on a particular date as the final determinant of entitlement of any entry to a prize that needs to be examined with reference to the provisions of section 2(1)(r)(3)(b) of the Consumer Protection Act, 1986 (supra), i.e., whether it amounts to admitting to a violation of the provisions of the said section, i.e., committing an “unfair trade practice” as defined in that section. (b) In this context, the appellant has sought to rely on the decisions of the MRTP Commission and the Delhi High Court cited by the learned senior counsel for the appellant (vide paragraph 6 (iii) supra), which held that the scheme did not amount to an unfair trade practice within the meaning of the term under section 36A (3) of the MRTP Act. (c) It will be useful to read the orders/judgments of the MRTP Commission and the Delhi High Court cited on behalf of the appellant. It may be noted, however, that the full order of the MRTP Commission has not been produced before us, for reasons best known to the appellant. Therefore, no discussion of the facts of that case is available. The parts of the order dated 09.10.1998 of the MRTP Commission produced before us, in the memorandum of appeal and the written submissions on behalf of the appellant, read: “Each scheme is open to a buyer at his option. A buyer may not participate in the scheme by not opting for a bottle of Thums Up with a crown of red band or a bottle of coca-cola with a crown of yellow band. There is no draw of lots involved in the scheme. Participation in the scheme is by means of sending the concerned visual or the necessary parts constituting such visual by ordinary post at Delhi, the only collecting centre. Under each scheme, the prizes are to be awarded on the first come first served basis. In that view of the matter, there is no draw of lots therein. It would not therefore partake the character of a lottery. In each scheme, consumer would get their money’s worth by means of the soft drink together with some small gift of a Mintoo or a Coffee Bite and in addition they have a chance to win fabulous prizes if Dame Fortune favourably smiles upon them or at least some of them. When no consumer has to pay any extra prize (sic - money?) for such prizes if luck favours, it has an additional benefit available to such consumers and we prima facie think that they should not be deprived of such additional benefits available to them with purchase of soft drink bottles of their choice. In view of our aforesaid discussion, we think that no prima facie case is made out of any unfair trade practice on the part of the contesting Respondents or any other Respondent. We think the case does not call for any inquiry into any unfair trade practice.” The other judgment relied upon by the appellant is that dated 01.05.2009 of the Delhi High Court in WP (C) 6771/2007 [Coca-Cola India P Ltd. v Zed Ahmed], which is reproduced below: “ Learned counsel for the respondent states that he has no objection to the setting aside of the findings recorded by the State Commission to the effect that the scheme administered by the petitioner was not genuine. In this case, the State Commission had recorded a finding that the scheme whereby prices (sic – prizes?) were offered to those who purchased Coca Cola bottles and participated in the contest consequently amounted to an “unfair trade practice”. The Board (sic) had contended that the same scheme was upheld by the Monopolies and Restrictive Trade Practices Commission (MRTPC) and in the circumstances the State Commission could not have found as it did. The petitioner contends that the State Commission also committed an error in upholding the respondent’s plea that he was a “consumer”. According to the writ petitioner, the respondent complainant was not a consumer as he did not fall within the definition under the Consumer Protection Act. The parties do not dispute that the respondent has appealed to the National Commission against a part of the impugned order vis a vis payment of compensation to the extent of Rs. 25, 000/-. In view of the statements made, the impugned order is quashed to the extent it records that the scheme of the petitioner amounted to an unfair trade practice. In view of the fact that the respondent has preferred an appeal to the National Commission, this Court is not inclined to examine whether the contentions raised by the petitioner that the complainant respondent is not “consumer”. The said contention shall be appropriately considered by the National Commission in the pending proceedings, having regard to the fact that the scheme was declared genuine by the MRTP Commission and that part of the findings is quashed. All other contentions of the parties raised in this petition to the extent they are available in the light of the previous directions are kept open, to be agitated before the National Commission. The writ petition is allowed to the above extent.” (d) We cannot refrain from observing that the appellant, while claiming that the same scheme was assailed before the MRTP Commission on the question whether it involved “unfair trade practice(s)” as defined in section 36A (3) of the MRTP Act, has not taken the trouble of producing before us the complaint/allegations and the defence version of the appellant before that Commission – in fact, as noticed above, it has not even produced the order of the MRTP Commission in entirety. The complaint/allegations and the defence version of the appellant before the MRTP Commission become singularly important because, while citing this decision of the MRTP Commission, the appellant has not claimed that it disclosed before that Commission the crucial fact which it admitted in its written version before the State Commission or in the affidavit before this Commission relating to the final criterion to determine the inter se order of priority of valid entries for a particular prize received on the same date. (e) To appreciate the significance of this admitted position, we may consider a situation that 4 valid entries for the prizes of 5 Honda City cars were received by the Fulfillment Agency at the designated post box address on 7th October 1998 – in reality, according to the appellant, only 3 entries were actually received on that date. According to the admitted position, these 4 entries would have been put in the envelope/bag marked with the date of receipt, i.e., 7th October 1998. For the purpose of deciding the remaining 3 prize-winning entries (the 1st and the 2nd valid entries having been received on the 5th and 6th October 1998 respectively), the inter se chronology of these 4 entries would then have been decided by the admitted method, i.e., “Among entries received on a particular day, the order in which they were picked out of the bag and numbered…” (according to the written version) or “the envelopes containing valid entries were opened according to the dates mentioned on each envelope and one after the other the entries were removed and numbered as per there (sic – their) removal” (according to the affidavit dated 28th April 2005). The last 3 of the 5 prize-winning entries would thus have been decided entirely by “lottery”, i.e., the order in which they were “picked out” (or, “removed”) by the official(s) concerned of Kidstuff Promotions, numbered by him/them and entered in the (so-called) register. It is obvious from this example that larger the number of valid entries received on a particular day, the more pronounced the element of chance in determining the inter se priority order of the entries and recording them as such in the register. Also obvious is that the only way to avoid any element of lottery in a “first-come first-served” system of selection of entries would be to record/stamp the time of receipt along with the date on the sealed envelopes bearing the entries. This was not the case here because the entries received by ordinary post were all collected in a post box and retrieved therefrom in one go at the end of the working hours each day. (f) Keeping this perspective in view, perusal of (the parts of) the order of the MRTP Commission produced by the appellant would show that this method of picking out the opened envelopes containing individual valid entries for a particular prize received on the same date and determining the inter se order of priority of each such entry on the order in which the entries was not brought to the notice of that Commission. Thus, with due respect, we may note that the said order of the MRTP Commission regarding the scheme in question not violating the provisions of section 36A(3) of the MRTP Act, 1969 came to be passed in the absence of this crucial input of fact. (g) On the other hand, as observed by the Delhi High Court in its order, the counsel for the respondent-complainant made a specific statement to the effect, “… he has no objection to the setting aside of the findings recorded by the State Commission to the effect that the scheme administered by the petitioner was not genuine” (given the context, the words “not genuine” would have to be treated as synonymous with “unfair”, in the sense of “unfair trade practice”). Further, the counsel for the petitioner (appellant before us) stated that the MRTP Commission did not hold the scheme as an unfair trade practice. The High Court, therefore, made the order quashing the finding that the scheme amounted to unfair trade practice, “In view of the statements made ………….” This order thus came to be passed as a consent order so far as the question of the scheme involving any unfair trade practice is concerned. With due respect, the order would, therefore, not constitute a binding ruling (based on consideration of facts, evidence and documents) in respect of any case other than the one to which it pertains. (h) Once again with full respect, we may add that had the admitted facts about the publicity and administration of the scheme that have come to our notice been brought to light in as many details, a finding of there being an explicit element of “lottery” in determining the inter se order of priority of valid entries received on the same date, given the specific method adopted in this respect under this scheme, would have been inescapable. And, when prizes are given on the criterion of “first-come first-served” combined with a concurrent method that entails a clear element of “lottery”, i.e., the order of “picking out” the entries received on the same date to determine their inter se chronological order, the provisions of section 2(1)(r) (3)(b) of the Consumer Protection Act, 1986 would certainly be attracted. (i) The appellant has also sought to rely on the decision of the Supreme Court in the case of HMM Limited v Director General, Monopolies and Restrictive Trade Practices Commission [(1998) 6 SCC 485]. In our view, this decision of the Supreme Court related to an entirely different set of allegations, viz., that covered by one of the grounds envisaged in section 36A(3)(a) of the MRTP Act, 1969 [equivalent to section 2(1)(r)(3)(a) of the Consumer Protection Act, 1986] and at a time when the definition of “unfair trade practice” in section 36A of the former Act read as, “In this Part, unless the context otherwise requires, ‘unfair trade practice’ means a trade practice which for the purpose of promoting sale, use or supply of any goods or of any services, adopts one or more of the following practices and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting competition or otherwise, namely:�”. The Apex Court’s ruling laying down the proof of “loss or injury” to the consumer as a sine qua non to bring home any allegation of unfair trade practice under section 36A(3)(a) of the MRTP Act would surely not apply to any allegation of unfair trade practice under section 2(1)(r)(3)(b) of the Consumer Protection Act, 1986 in which the emphasised phrase did not exist ab initio. Incidentally, section 36A of the MRTP Act was also amended with effect from 27.09.1991 to read as, “In this Part, unless the context otherwise requires, “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provisions of any services, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:�”, which omitted the phrase, “and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting competition or otherwise,” and has since been exactly the same as the definition of unfair trade practice under the Consumer Protection Act, 1986. Conclusions 11. The preceding discussion leads us to some conclusions: (i) From the stage of receiving valid entries at the designated post box to the declaration of prize-winning entries, the scheme consisted of a series of activities, which amounted to “service” and the participants in the scheme, including the complainant, were the “consumers” of the said service. The “consideration” for this service consisted in a subsumed part of the additional revenue/margin to the appellant, which the participation in the scheme by the collective of numerous additional consumers of the soft drink during the scheme period made possible. Therefore, a complaint of deficiency in service and/or unfair trade practice by any consumer-participant was permissible and maintainable before a Consumer Forum. (ii) The complainant admitted that he submitted his entry “through proper channel” on 8th October 1998. The (hand-written) list of all valid entries for the prizes of Honda City cars produced by the appellant/OP 1 showed that five valid entries had been received by 7th October 1998, including the 3rd, 4th and the 5th received on 7th October 1998. Contrary to what was alleged by the complainant and despite the deficiencies in the way the list of valid entries for the prizes of 5 Honda City cars was drawn up, it is not possible to infer any mala fide or fraudulent recording of the entries nor is there any room for doubt regarding the correctness of the order of the first five valid entries because of their dates of receipt clearly preceding that of the complainant’s, viz., 8th October 1998, as per his own admission. Hence, the complainant’s entry was not entitled to receive any of the five prizes of Honda City cars on the “first-come first-served” basis, which constituted one of the primary conditions that were published in some newspapers, including the Punjab Kesari to which the complainant had access. (iii)(a) From the evidence/documents on record, it is clear that the appellant/OP 1, Coca-Cola India Private Limited created utter confusion about the date of commencement of the scheme and also failed to clarify the selected cities where the scheme was run. (b) Secondly, the details of the conditions governing the scheme publicised in the Punjab Kesari of 3rd October 1998 were far fewer than those published in the Times of India on 3rd October 1998 of that date and except for the condition of “first come-first served”, other details in the Punjab Kesari advertisement were in such fine print that they could simply not be read with normal vision. (c) Thirdly, and most important, if the scheme indeed started on 21st /22nd September 1998, there is absolutely no evidence to show how the consumers who participated in the scheme between the said date(s) and 2nd October 1998 and received bottles with liners containing visuals, which prima facie entitled them to one announced prize or the other, were informed about the conditions governing the scheme (starting with where to send their entries and how), because the very first such publication of the conditions of the scheme was in some newspapers dated 3rd October 1998. Given the criterion of “first-come first-served”, these were the consumer-participants most likely to win the prizes because their (otherwise eligible) entries would have reached the designated post box much before those of consumer-participants sending their entries from 3rd October 1998. (iv) The list of all valid entries for the prizes of five Honda City cars (the subject matter of the complaint leading to this appeal) was written in hand by several persons, claimed to be the then employees of an organisation/company named Kidstuff Promotions engaged by the appellant as the “Fulfillment Agency” for this scheme. The appellant stated that the names and present whereabouts of these persons could not be ascertained and thus the appellant could not confirm the authenticity of these handwritten entries before us. While the present non-availability of these persons was sought to be explained by the passage of time since the scheme was organised, the appellant was unable to explain as to why none of the pages of the list of entries (even an over-writing) was initialled by the persons who actually recorded them nor why their names and designations were not noted down anywhere on these pages of the list nor the fact that, contrary to its claim in the written version, the said hand-written final list of all valid entries for Honda City car prizes was not signed, as proof of authenticity of these entries, by any responsible representative of any of the two Chartered Accountancy firms, purportedly engaged as “auditors” of the scheme. (v) Despite a specific direction on this point, the appellant was unable to explain the discrepancy as to how the total number of all valid entries received from 24th September to 21st October 1998, i.e., 1735 could be less than the running serial number of the last entry of 21st October 1998 in the list of valid entries for only Honda City cars, i.e., 1955. The running serial number of all valid entries for the prizes of Honda City cars as of a particualr date was after all only a sub-set of the set of running serial numbers of all valid entries for all prizes as on that date and hence no running serial number in the former list as of a particular date could be higher than the running serial number of all valid entries on that date. (vi) Some of the auditor’s daily certificates, recorded by a representative/partner of S. R. Bansal and Company, one of the so-called independent auditors of the scheme, in respect of daily receipt of entries were dated in such an erroneous way as to suggest anticipation of the number of entries of a following (future) date; for example, the certificate dated 19th October 1998 (written in the certificate as ”19/Kid/98”, for some strange reason) purported to certify the number of entries received on 20th October 1998 and so on till the certificate dated 24th October 1998 certifying the number of entries received on 26th October 1998. This manifest carelessness, coupled with that mentioned in the preceding sub-paragraph, would cast serious doubts on the degree of due diligence applied by the said auditor/s in supervising the actual operation of the scheme by the fulfillment agency. (vii)(a) The facts summarised at sr. no. (iii) - (vi) above reflect serious mismanagement in several aspects of operation of the scheme. Singly and cumulatively, they amount to deficiency in service on the part of the fulfillment agency and the auditors of the scheme and hence on the part of the appellant. The complainant has thus succeeded in establishing the general deficiency in service on the part of OP 1 and its agent in running the promotion scheme but there is no evidence that he suffered any loss or injury because of the said deficiency. (b) More significantly, the finding of facts mentioned at (iii) (c) above caused injury to an unstated, large number of unidentifiable consumers to the extent that these consumers had no demonstrated means of knowing where and how to send their entries likely prima facie to win prizes and were thus victims of discrimination vis a vis those who participated in the scheme on or after 3rd October 1998. (viii) The admitted criterion to determine the inter se chronological order of valid entries received in the designated post box on any given date, and hence their eligibility for any prize, was the order in which these entries were “picked out” of the bag containing all the entries received in the designated post box on that date and taken out therefrom. This was undoubtedly a method of drawing lots out of a bag, i.e., “lottery” as contemplated in the provisions of section 2(1)(r)(3)(b) of the Consumer Protection Act. The scheme thus violated the provisions of that section and constituted an unfair trade practice on the part of the appellant. With due respect to the orders cited by the appellant, this conclusion is unavoidable because, there is no document/evidence from the appellant to suggest that the above-mentioned method of determining the inter se chronological order of valid entries for any specific prize received on any given date was brought to the notice of the MRTP Commission or the Delhi High Court. Moreover, the order of the Delhi High Court was based on concession/consent by/of (the counsel for) the respondent/complainant in that case as also the order/finding of the MRTP Commission. 12 (i) In view of the foregoing discussion and conclusions, we hold that the appellant was guilty of both deficiency in service and unfair trade practice, the latter in terms of section 2(1)(r)(3)(b) of the Consumer Protection Act, in running the promotion scheme. Hence, the related findings of the State Commission need to be upheld, albeit for altogether different reasons (as discussed above). However, given the facts and the conclusion relating to the entry of the respondent/complainant, the State Commission’s award in favour of the latter cannot be sustained, nor can it held that the complainant suffered any loss or injury because of the said deficiencies in service in running the promotion scheme. (ii) We thus partly allow the appeal and modify the impugned order by setting aside the State Commission’s award in favour of the respondent/complainant. (iii) A question then arises as to whether the fact/conclusion that the appellant produced no evidence of taking any steps to inform the unidentifiable consumers, who participated in the scheme during 21st. / 22nd September - 2nd October 1998, of the conditions governing the scheme (as it did by way of advertisements published in some newspapers on 3rd October 1998, in respect of consumers who participated on that date or later) would warrant a direction under section 14(1)(hb) of the Consumer Protection Act. In other words, can the differential treatment accorded to the said unidentifiable consumers by the appellant vis a vis those who participated in the scheme on or after 3rd October 1998, in respect of providing essential information governing the scheme, be construed as having caused “loss or injury” to the former category of consumer-participants, as contemplated under clause (hb) of section 14(1)? In our view, the answer to these questions has to be in the affirmative – even though the former category of consumer-participants got their “money’s worth” by consuming the soft drink, such of them who received bottles with crowns prima facie eligible for winning any of the prizes suffered loss/injury as they were deprived of the opportunity of being informed how to send their entries in accord with the prescribed procedure. (iv) We, therefore, direct that out of the sum of Rs. 5 lakh deposited by the appellant initially, a sum of Rs. 2 lakh shall be credited to the Consumer Legal Aid account of this Commission under the provisions of section 14(1)(hb) of the Act, within four weeks from the date of this order. The balance, along with the interest on the entire deposit and the statutory deposit of Rs. 35,000/- with the appeal, shall be simultaneously refunded to the appellant. We further direct the appellant to ensure that if in future it undertakes a promotion scheme like that in question, it shall ensure that the criterion for determining the order of valid entries on ‘first-come first-served’ basis and the management of the scheme do not suffer from the numerous defects as in this case. (v) Before parting with the matter, we would like to observe that despite his understandable handicap with articulation, the authorised representative of the complainant, Mr. Satinder Pal Singh was both diligent and effective in bringing home the allegation of unfair trade practice and associated deficiency in service on the part of the appellant/OP 1, though unsuccessful in establishing the other allegations in the complaint. The law, however, does not permit awarding any compensation for his valiant efforts.