Delhi

East Delhi

CC/408/2018

MAYANK - Complainant(s)

Versus

DR. SUNITA GODERS - Opp.Party(s)

15 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 408/18

 

Mayank

S/o Sh. Bhagiram

House NO. 175/24

Surat Nagar Phase-II

Gurugram, Haryana                                                                               ….Complainant

Vs.     

 

1. Dr. Sunita Godara

1-2 Floor, Community Bhawan,

DDA Janta Glats, Mini Mkt,

Kalka Ji, New Dehli- 110019

 

2. Heath Gitness Society

1-2 Floor, Community Bhawan,

DDA Janta Glats, Mini Mkt,

Kalka Ji, New Dehli- 110019

 

3. Bharat Beard Club

TF 03, Om Complex, Swastik Society,

 Nr. Swastik Cross Road, CG Road,

Ahmedabad, Gujarat, 380009

(Through its president Mr. Vishal Singh)

 

4. Sh. P.C. Kushwaha

1-2 Floor, Community Bhawan,

DDA Janta Glats, Mini Mkt,

Kalka Ji, New Dehli- 110019

 

5. Wasteland Entertainment Pvt. Ltd.

242-B, The New Mahalakshmi Silk Mills

Mathuradas Mills Compound

Senapati Bapat Marg, Mumbai- 400013

 

6. Sh. Manoj Tiwari (Member of Parliament)

159, North Avenue,

New Delhi- 110001

Tel:  011- 23094123, 91013869536

 

7. Department of Sports

Ministry of Youth Affairs and Sports

Government of India

Shashtri Bhawan, New Delhi 110001

 

8. Athletics Federation of India

WZ-72, Todapur Main Raod,

Dev Prakash Shastri Marg,

New Delhi- 110012

 

9. Pradeep Kumar

(Address not known

To be provided by OP-1)                                                                …Opponents

 

Date of Institution: 20.12.2018

Date of Order: 25.01.2019

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

ORDER

            This complaint has been filed by Shri Mayank against Dr. Sunita Godara (OP-1), Health Fitness Society, Kalkaji (OP-2), Bharat Beard Club, Ahmedabad (OP-3), Dr.P.C. Kushwaha, Kalkaji (OP-4), Wasteland Entertainment Pvt. Ltd., Mumbai (OP-5), Shri Manoj Tiwari (OP-6), Department of Sports, Ministry of Youth affairs and Sports, Govt. of India (OP-7), Athletics Federation of India, New Delhi (OP-8) and Shri Pradeep Kumar (OP-9) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service.

            The facts in brief that in the month of July, 2018, OP-1 to OP-4 advertised on the website https://events.indiarunning.com of their upcoming events Marathon to be organized. They invited applications for taking participation in their upcoming Marathon event named as “Beardo Thon Delhi 2018” scheduled on 04.11.2018 at CWG Sports Complex, Near Akshardham Temple, Patparganj, New Delhi on payment of entrance fee amounting to Rs. 400/- from each participant.  There were three categories of Marathon races. The complaint pertains to 10 KM Marathon race.

The complainant being convinced with the event, called OP-4 and he was provided an appointment and was asked to bring his all documents pertaining to education in order to assess the eligibility of the complainant for participation in the said Marathon. He was informed that the said Marathon has all statutory approval and compliance from concerned Government Department such as OP-7 and OP-8.  On 15.10.2018, the complainant paid a sum of Rs. 400/- on account of entrance fee to OP-5 as per directions of OP-4.

On 04.11.2018 Marathon was conducted at CWG Sports Complex near Akshardham Temple, Patparganj, New Delhi in which the complainant participated. It was successfully completed without any problem by OP-1 to OP-5 except declaration of results. Approximately 1500 candidates participated in the same. The complainant was declared as first runner up. He was awarded a symbolic cheque of Rs. 7,000/- and some other gifts by OP-6. He was promised by OP-1 that prize money would be transfer to his bank account soon.

On 11.11.2018 when the complainant did not receive any prize money in his bank account, he contacted OP-1 to know about his prize money.  However, he was informed that due to some technical error, he was erroneously declared to be the first runner up and it was infact someone else i.e. Pradeep Kumar. The complainant was shocked and surprised to hear this.

It has been further stated that the organizers of the said Marathon had unilaterally tampered with the result of subject Marathon without giving any opportunity of hearing to complainant. The complainant agitated against the said conduct of the OPs.  However, OP-1 to OP-4 remained adamant without giving him any hearing in this behalf and justifying their stand as before.

He has also stated that OP-1 to OP-4 has virtually withdrawn the award of first runner up given to complainant, causing him unexplainable tremendous disrespect, physical and mental agony and harassment besides loss of his valuable image in the eyes of his friends, relatives, competitors and society at large.

On further enquiry, it was found that OP-1 to OP-5 not only had illegally, arbitrarily and with malafide intentions, unilaterally tampered with the result of complainant, but also of winner and second runner up as per details:

Position	Persons actually declared to be successful after completion of marathon	Persons illegally shown to be successful subsequently
Winner	Pankaj Kumar	Kuldeep Singh
First Runner up	Mayank (Complainant)	Pradeep Kumar (OP-9)
Second Runner up	Sumit Kumar	Deepak Rawat

 

Even they have refused to pay the prize money of Rs. 7,000/- to the complainant. OP-6, being the Chief Guest also participated in the Marathon which gives impression that the Marathon organized by OP-1 to OP-5 was having the State approval and recognition, OP-7 and OP-8 jointly and vicariously responsible for the events organized by OP-1 to OP-5.

It has been prayed that complainant be declared as the first runner up; “Beardo Thon Delhi 2018” with full honour and dignity, appropriate certificate and with an unconditional apology; payment of Rs. 7,000/- against the prize money for first runner up to “Pandit Deendayal Upadhyay National Welfare Fund for Sportspersons” on behalf of complainant and submit the receipt before this Hon’ble forum with a copy to the complainant; each Opposite Party pay Rs. ONE only in Consumer Welfare Fund on account of cost and penalty against physical and mental agony caused to complainant as described in the complaint and pay a suitable sum on account of cost of litigation for pursuing the forced litigation by a sportsperson.

 

Hearing on admission.

It has been argued on behalf of the complainant that he was a consumer and there was deficiency and unfair trade practice on the part of the OPs.

At the outset, it has been noticed from the memo of parties and the facts stated in the complaint that the complainant have impleaded organizer of the event, viz.

            The complainant have based his complaint on the premise of “Unfair Trade Practice” and “Deficiency in Services”.  In the prayer, he has prayed that he be declared as the first runner up of “Beardo Thon Delhi 2018”.  When the complainant have asked for a declaration that complainant be declared as the first runner up of  “Beardo Thon Delhi 2018”, his complaint has been with regard to declaration which relief can be given by a civil court.  Even ignoring the same, it has to be seen as to whether his complaint securely falls under the Consumer Protection Act, 1986.  Counsel for complainant have vehemently argued that OPs indulged in “Unfair Trade Practice” and “Deficiency in Services”.

            To appreciate his arguments, a look has to be made to the definition of “Unfair Trade Practice” and “Deficiency in Services” as provided under Section 2 of the Act.  Before looking to the definition of “Unfair Trade Practice” and “Deficiency in Services”, a look has to be made to the definition of ‘Consumer’ as provided under Section 2(1)(d) of the Act.  The relevant portion of the same is extracted hereunder:-

Section 2(1)(d) “consumer means any person who, -

1. -
2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose].

           

A bare reading of Section 2(1)(d)(II) of the Act says that the person must hire or avail any services for a consideration.  The availing of services by such person will bring him within the definition of ‘Consumer’.  Further, the meaning of service have also to be looked into.  The word ‘Service’ has been defined under section 2 (o) of the Act which is reproduced hereunder:

Section 2(1)(o) “service” means service of any description which is made available to potential (users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board of lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

 

From the reading of this section, it comes out that service has been defined as service of any description which is made available to the users and not limited to the facilities in a connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board of lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information etc.  Thus, the service has wide connotation which brings within its scope, the service of any description. Though section illustrates the service in respect of banking, financing insurance, transport etc. etc., but its definition is not exhaustive.

To ascertain whether the case of the complainant will fall within the meaning of ‘Service’ as defined under Section 2(o) of the Act, the dictionary meaning of the word ‘Service’ has also to be looked into.  The dictionary meaning of the word ‘Service’ has been “The action of helping or doing work for someone”.  Thus, the dictionary meaning of the word ‘Service’ makes it very clear that the word ‘Service’ connotes the action of helping or doing work for someone. 

In the present complaint, the complainant have participated in “Beardo Thon Delhi 2018” as a participant and his allegations have been that though he was declared as the first runner up, but his prize money was not paid as he was erroneously declared to the first runner up due to some technical error.  He has sought a declaration that he be declared the first runner up of “Beardo Thon Delhi 2018”.  When the complainant have participated in the marathon “Beardo Thon Delhi 2018” as a participant, he cannot say that he has availed any service of the organizers of the marathon to whom he has impleaded as OPs.  Thus, when the complainant have not availed any services of organizers of marathon, he does not fall under the definition of ‘Consumer’ under Section 2(1)(d) of the Act.  When the complainant is not a consumer under Section 2(1)(d) of the Act, the question of examining the definition of “Unfair Trade Practice” and “Deficiency in Services” does not arise.

In view of the above, we are of the opinion that complainant Mayank was not a ‘Consumer’ under the Consumer Protection Act, 1986.  Therefore, his complaint is not admitted and stands rejected.  There is no order as to cost.     

Before parting with, it would not be out of place to mention that complainant Mayank have filed the complaint against the organizers of marathon “Beardo Thon Delhi 2018” impleading Manoj Tiwari (MP) (OP-6), Department of Sports, Ministry of Youth Affairs and Sports, Government of India (OP-7), and Athletic Federation of India (OP-8) complaining that he having been declared as first runner up, later on his award of first runner up was withdrawn due to some technical error.  The documents and the photographs placed on record show that Shri Manoj Tiwari, Member of Parliament was the chief guest and Dr. Sunita Godara was the Marathon Ambassador.

It has been stated in the complaint that the marathon which was presided over by Shri Manoj Tiwari (MP) was not having the approval of Athletics Federation of India.  Though the complaint fails on technical ground, but the fact that Shri Manoj Tiwari (MP) who was the chief guest of the marathon was to ensure that the marathon was having approval of Athletics Federation of India.  Shri Manoj Tiwari (MP) is advised to ensure that in future whenever he is approached by such bodies to be the chief guest, he has to see that such events are organized with the necessary approval of competent authorities so that the public at large was not misled.  A copy of the order be sent to Shri Manoj Tiwari, Member of Parliament, as an advisory.

A copy of the order be also sent to Department of Sports, Ministry of Youth Affairs and Sports, Government of India (OP-7), and Athletic Federation of India (OP-8) with the direction to take appropriate action against the organizers of such bodies who organise such events without their approval.  This will deter such events being organized illegally.

 Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

 

 

(DR. P.N. TIWARI)                                            (HARPREET KAUR CHARYA)

       Member                                                                   Member    

 

 

            (SUKHDEV SINGH)

                   President