BEFORE:

HON’BLE MR. JUSTICE A P SAHI, PRESIDENT

For the Appellant(s)          :      Mr Hrishikesh Baruah, Advocate with

                                            Mr Shahrukh Ejay, Advocate

For the Respondent           :       In person

ORDER

1.     The present First Appeal (FA) has been filed by Living Media India Ltd. which is stated to be of the India Today Group of publication and since 2003 has taken over the publication and distribution of a well-known magazine of international repute, Reader’s Digest. 

2.     The  complainant alleged deficiency in service against the appellant contending that the appellant has failed to deliver the issues of the year 2007 that were subscribed, as per the advertisement made by the appellant in the  November and December 2006 issues of Reader’s Digest, whereby a discount of 42% had been offered coupled with three surprise gifts. This was further augmented with the offer and return of “Pink Entry Tickets” that would make the subscriber eligible for participating in the Sweepstakes Scheme of 2008.    The complainant alleged that being attracted towards this scheme which offered the prize money of 23 lakhs, the complainant offered to pay the annual subscription that was accepted by the appellant. The VPP parcel was promised to be sent for Rs.398/- including Rs.19/- as money order fee. The said parcel was received by the respondent complainant and payments made.

3.     The complainant alleged that he received only three issues of the first batch. He did not receive any surprise gift. The complainant had sent the Pink Entry ticked duly filled in with an option of the prize of a new car worth Rs. 8 lakh.  The complainant alleged that the said offer was also coupled with an early bird bonus of Rs.3 lakhs as a gold offer but inspite of having dispatched, the said “Pink Entry Tickets”, no information was given inspite of telephonic and fax messages.

4.     The complainant then dispatched a legal notice on 6.1.2008 calling upon the appellant to answer as to why no intimation has been given inspite of the fact that he had filled up the tickets and the formalities had been completed.  Accordingly, the appellants were cautioned that in case they fail to provide all the complete benefits as offered including the benefits of the lucky winner scheme (Sweepstake) and the mystery gifts, the complainant would be taking suitable legal action. The legal notice dated 6.1.2008 was dispatched through Mr. Ashok Shrivastava.

5.     The appellant in response to the aforesaid letter wrote back on 21.1.2008 clarifying that the complainant had opted for the annual subscription which was entered into and a parcel was dispatched to him through VPP for Rs.379/- containing the three mystery/surprise gift that were offered against the subscription. It was stated that since the payments were not received against the subscription, the copies had not been mailed. It was further informed that the photocopy of VPP wrapper be sent which is a bonafide proof of payment and the appellant shall on receipt of the same regularize the subscription and also take up the matter with the postal authorities.

6.     With regard to the prize draw, it was informed that the annual draw was held on 16.8.2007 and the winners were chosen through a random drawing supervised by an independent auditor.  It is only the winners who are to be personally notified and the top winners were announced in the issue of October, 2007.  Nonetheless the list of prize winners were made available to the complainant. The reply given by the appellant on 21.01.2008 is extracted herein under:

“Dear Mr.Shrivastava

We acknowledge receipt of your letter dated January 6, 2008   w.r.t. non-receipt of copies by Mr.H.M.B. Sinha against his above subscription to the Reader’s Digest magazine.

We have verified our records and would like to clarify as under :

Mr.Sinha had opted for a subscription to the Reader’s Digest magazine our Introductory Offer.

Accordingly we entered a subscription in his name under reference number quoted above and to enable him to make the payments we had sent him a VPP (No F 9240 dated 7.12.2006) for Rs.379/-. This VPP parcel had contained the Mystery Gifts was offered against this subscription.

Unfortunately we have till this date not received payment against this subscription and this is the reason why copies were not mailed.

We request you to please send us a photocopy of the VPP wrapper. Since the VPP wrapper is a bonafide proof of payment, we shall on receipt of the same regularize Mr.Sinha’s subscription and also follow up the matter with the postal authorities to expedite payment. Had we received this earlier, necessary action would have been taken.

Regarding the prize draw, we wish to clarify that the annual draw was held on August 16, 2007. The winners were chosen through a random drawing, supervised by an independent auditor. As specified in the rules of the draw, only winners of the draw were personally notified in writing and the top winners were also announced in the October 2007 issue. Nevertheless, we are enclosing a copy of the prize winners list for your perusal.

We trust the above submissions are to your satisfaction.

Meanwhile in anticipation of the above details, we are arranging to send the January 2008 issue to Mr.Shrivastava. On receipt of the photocopy of the VPP wrapper. We shall regularize his subscription for one year w.e.f. January, 2008.”

7.  Additionally, the January, 2008 issue was dispatched by the appellant in anticipation the receipt of the details as indicated.

8.     According to the complainant, it was only the January, 2008 issue which was received by him and no information was given about the winners of the lucky draw.

9.     The complainant has also brought on record the letter dated 6.2.2008 sent by one Mr. Vikas Malhotra on behalf of the appellant intimating about the complainant being confirmed as a participant in the prize winning contest. This letter which was by mail is extracted herein under  (page 119-120):

“The fact that you are in possession of this letter is proof that your chance of becoming a prize winners is now confirmed.

There are financial facts as Prize Draw Manager, I would be authorized to transfer funds from our bank account directly to your account should your be selected as Rs.20 lakh Grand Prize winner. To date, we have given away more than Rs.1,50,000/- worth prizes in the course of our prize …………. Based on the previous prize distributions. I can safely predict that this figure is likely to use substantially.

Let me explain over the last few weeks, our prize draw Department approved a list of India Today Group Magazine readers who are entitled to receive a Statement of prize eligibility (See enclosed). After a computerized national selection process for our magazine offer your name was one of those that passed through careful consideration, confidential scrutiny and detailed analysis to be amount the few ………our selection requirement and eligible for potential Final List Status.

Arrangements for paying what could be your Rs.20 lakh in cash gold prize have been approval funds for prize in excess of Rs.50 lakh will be kept on deposit and the first of our winning ……………………………………within 72 hours of our winner continuation procedure. ………………your pink Entry Ticket in time, nothing will stand between you and your chance   ………………….

When people receive a finalist notification like the one you are holding now many defied to threw their entries away, thinking that ……………………………… many people –people like you have not to reply and so that all chance of claiming …..

The ………………………………………………….. (not readable)

………………..Spending less on everything from taxes to used cars. Out original investigative reports will bring you eye-opening insight and practical advice through provoking articles every month. Plus you will get face-to-face with today’s most compelling personalities like Hollywood star Amitabh Bachan, Hrithik Roshan, Sushmita Sen, Preity Zinta as well as ordinary people turned into heroes by extraordinary events.

So why not send for a 12 months trial subscription for only Rs.343/- + Rs.36 postage and handling saving you Rs.257/- off the full subscription price of Rs.636/-. Once the year is up, you will be under no obligation to continue your subscription. But most people, once they have sampled Reader’s Digest, want to go on reading it, So just like any newsagent who receives an order, we guarantee to continue sending it until you tell us to stop which you can do any time.  As part of our commitment to your satisfaction, each year you’ll receive another full year of Reader’s Digest at the privileged subscriber’s price then in effect.

As an added bonus, on receipt of your YES reply, we will send you a set of three mystery gifts. To receive your free gifts please stick the Star stamp on to the YES envelope. Your YES reply envelope ensures you receive priority handling and processing for your order, free gifts and pink entry tickets. You risk nothing by saying ‘Yes’ to our offer Moreover, there is no need to send money now, it will be satisfaction for you to pay the postman when he delivers you the mystery gifts by VPP.

URGENT

But your offer benefits don’t end here, there is another valuable prize you could win as a special “Bumper Prize” for responding to Reader’s Digest. Here’s how the enclosed car key could open the door to a brand new Car Match the number on the key we have given you with the one shown on the enclosed Yes reply envelope you could then be on your way to winning that car in our special bumper prize draw worth upto Rs.8 lakh when you reply within 14 days/

Take Advantage of all your benefits

Return your pink entry tickets in the YES envelope and you’ll make sure of all your benefits, a subscription offer that saves you Rs.257/- a set of mystery gifts and the opportunity to via a car. And all this in addition to your chance to win any of the 1503 prizes in the strike it rick prize draw, including the grand prize of Rs.23 lakh. If you wish to enter the prize draws without sending for Reader’s Digest, you can of course still enter by returning your pink entry tickets in the No envelope. But it’s a lot to turn down.

If you do turn out to be the Rs.23 lakh winner, you will be invited to a celebration to be held in your honour, where you’ll be presented with your big money cheque.  So, before you reply, I’d like to ask a favour of your won’t you please take advantage of these exclusive privileges now by saying “YES” to our magazine offer?  It would be  a particular pleasure for me to present a new Reader’s Digest subscriber with a huge prize cheque for Rs.23 lakh.

It’s not every day that you will get the opportunity to claim Finalist Status. We can’t return your pink entry tickets for you, the decision is yours alone. But why lose your chance of winning Millions of Rupees (it must be in your best interest to send your tickets back straight away).

I wish you every success good luck.”

10.    The complainant after about three months wrote back to the appellant on 8.4.2008 annexing therewith, the VPP  wrapper dated 7.12.2006, and a copy of the mail dated 6.2.2008 sent by the appellants, it was also informed that January 2008 part of Reader’s Digest has not been received and therefore it is apparent that the complainant’s name was not included in the list of winners on account of the mistake of the appellants which is a deficiency in service and is an unfair treatment.

11.    On having received the reply of the complainant, the appellant send a communication dated 21.4.2008 informing the complainant of having received the VPP envelope and also arranging to dispatch the April 2008 issue as well. The letter further records that in order to enable the complainant to receive the full benefit of subscription ordered by him, the appellant were treating his subscription as paid up w.e.f. May 2008 to April, 2009 with a further information that his name will also be entered in the next prize draw schedule to be held in January, 2009. 

12.    The complaint was filed thereafter alleging deficiencies of non-receipt of the subscribed issues, the non-receipt of the mystery gifts and the erroneous exclusion of the complainant’s name in the participation of the prize draw under the Sweepstakes scheme.

13.    The complaint was accompanied by the letter of offer which is extracted herein under (page 116) :

“Dear Subscriber,

I am delighted to confirm that your final stage certificates reached…. In time and that you are now being entered into the Reader’s Digest Rs.50 lakh strike.  It rich prize draw. The certificate of benefits (over-leaf) summarizes what you have gained by your prompt action including your chance to win the grand prize/bonus of Rs.23 lakh in cash/gold.

I am also pleased to confirm that your annual subscription to Reader’s Digest has been accepted at the highly discounted rare of Rs.379/- for a year. The mystery gift promised …..you will reach within the next few days by VPP. Please pay the postman Rs.398/- (including Rs.19)  M. Commissioner charged by the post office on delivery of your gift books. And if for any reason you are likely to be at home when the VPP arrives, may I ask that you leave instructions with ………………………..

Your annual subscription ………..post selling magazine commence with ……………..mentioned in your preferred subscriber guarantee. Please also note the unique subscription number allotted to you in the guarantee. IF you ever need to contact me this number can help me access your computer record and respond to you quickly.

Your certificate of benefit assures you the chance to win any of the 1503 great prizes in our strike in ……….. If your name is drawn as one of the lucky winners, you will receive a registered letter from me with details of the …………….as also the arrangements for distribution. In fact, if you happen to be the winner of the Grand prize of Rs.23 lakh in cash/gold my letter will ask you to call me back at the phone numbers given on this letter to confirm the arrangements. So please keep this document very safely…for now.”

14.    The complainant has also brought on record letter dated April 2007 informing the complainant for sending the “Pink Entry Tickets” which is extracted herein under (page 118):

“April 2007

Dear Valued Reader

It’s with great that I send you this letter. Especially because as a valued of the INDIA TODAY Group of Publications, this letter brings you more than reading pleasure. If offers you a chance to win up to Rs.23 lakh in cash/Gold in the Reader’s Digest Rs.50 lakh prize draw.

Yes, you now have a chance to enter the Reader’s Digest Rs.50,00,000/- Prize Draw. And if you return the “Pink Entry Tickets” within 14 days sand if you happen to be the Grand Prize Winner, you even stand to get the early bird bonus of Rs.3,00,000/- in cash/Gold. That amounts to a total of Rs.23 lakhs. Just imagine what you and your family can do with that money!

Appreciating you as someone who likes quality reading, you are also given an irresistible subscription offer for Reader’s Digest, which is now a part of the India Today Group of Publication. You can now subscribe to Reader’s Digest at a saving of 42%. And also get up to three mystery gifts. Of course, the best part is that you get a year of great reading that millions of people worldwide  have grown to appreciate over the years.

So please return your “Pink Entry Tickets” right away. I’d love to see one of our valued walking away with the grand prize of Rs.23 lakh in Cash/Gold.

Warm Regards

Ashish Bagga”

15.    Consequently, with all these documents, the complaint was filed to which the appellant filed a reply which is extracted herein under (page 62) :

That contents of paragraph 3 of complaint is admitted to the extent of advertisement regarding saving of 42% amount regarding the annual subscription of magazine and regarding grant prize of 23 lakh and gold was not mentioned and is denied.

That contents of paragraph 4 of complaint is not correct as stated hence denied.  In this regard, it is stated that complainant wishes for subscribe for the reader’s digest for the year 2007 then a VPP was sent containing three mystery gifts that were three books and against that VPP complaint was required to pay Rs.378/-.

That contents of paragraph 7 of complaint are not correct and hence denied. In this regard it is stated that after receiving amount the subscription of the magazine were accepted and the free gifts were send to the respondent after which the magazines were regularly posted via ordinary/general post.  The complainant is alleging in his complaint that the magazines were not received by the complainant. This respondent is perusing a complaint with postal department, but in view of long term relationship with its customers the respondent had send all the editions of the magazine included in the subscription for the year 2008 has been sent to complainant through registered parcel. So far as mystery gift are concerned those were three books in the VPP which has been duly received by the complainant.

The contentions of para 8 are denied. The Pink Entry ticket is part of the invitation documents send to customers and potential customers, alike for entry into sweepstakes conducted by the opposite. The entry/participation in the sweepstakes is free and no purchase or subscription of the magazine is required. The return of Pink Entry Ticket shall only make the sender eligible to participate in the lucky draw.  Only if the sender shall win any prize in the sweepstakes draw he/she will be contacted by Reader’s Digest for due intimation regarding the prize.  The Annual Draw as mentioned by the complainant in his letter dated 6.1.2008 was held on August 16, 2007.  The winners were chosen through random draw and only the winners were personally notified in writing and top winners were announced in October 7 issue. The copy of winner’s list for the above said draw was send to the complainant as evidence from the letter dated January 21, 2008.

That contents of paragraph 10 of the complaint is not correct as stated hence denied and the issues of magazines were sent through general post each and every month and again all the parts have been sent through the registered parcel and since in the list of prize winners, it is obvious that the complainant has not won the lucky draw and  therefore he is not entitled to receive the gift.

After receiving the VPP wrapper issues of 2008 were went sent through general post as per the practice prevalent in the respondent  company.

The contents of paragraph 13 of complaint case is not correct as stated hence denied.  In this regard it is stated that after receiving the VPP wrapper all the issues of magazines for the year 2008 were sent through general post and again all the parts has been sent to complainant collectively through a registered parcel and since his name does not find place in draw in the list of prize winners therefore, he was not entitled for any gift.

In reply to the contents of paragraph 14 of complaint case it is submitted that all the issues of magazine for the year 2008 were sent to the complainant month to month through general post and again all the parts of 2008 has been sent collectively through registered parcel.

 In reply to the contents of paragraph 15 & 16 complaint case it is submitted that whole problem accrued due to misunderstanding the complainant regarding mystery gifts which were three books containing in VPP which have been duly received by the complainant and since he was not a winner in draw therefore he was not a winner in draw therefore he was not entitled for any gift.

The case are not correct as stated hence denied all the issues for the year 2008 has been sent twice by the company and no fault or deficiency comes on the part of the company and complaint is liable to be dismissed with cost.”

16.    A rejoinder to the same was filed by the complainant and on reading of the these documents, it appears that so far as the subscription issues of 2008 are concerned, the same were all received by the complainant.

17.    There are some subsequent communications which have been referred to by the complainant to urge that a mistake occurred on the part of the appellant in not having included the complainant in the prize winning Sweepstakes Scheme. This communication is of the year 2010 regarding the participation of the complainant in the Sweepstakes scheme as the complainant had alleged that he has already despatched the Pink Entry Tickets in 2008 and he was not included in the participating list of that year. The contention is that this mistake is evident which was accepted as a technical error and for correcting this error, the offer was made through the mail dated 4.5.2010, which is extracted herein under :

“Dear Sinha

I am delighted to confirm that you are now being entered into the Reader’s Digest Rs.11 crore Sweepstakes 2010.  The Certificate of Benefits (below) summarizes what you have gained by your prompt action including your chance to win the super grand Prize (with early reply bonus) of Rs. Thirty Lakhs in cash.

While we appreciate you had submitted your subscription details, due to a technical error on the website, your details were not recorded properly and hence we were unable to process your subscription and the free gifts that we assured you.

We  have in the meantime, kept your four sweepstakes entries in reserve and we invite you once again to activate your chance of winning in our Reader’s Digest Rs.1.1 crore Sweepstakes 2010.  As a gesture of appreciation for your effort, we offer to double your chances of winning the Super Grand Prize of Rs.30,00,000 including Early reply Bonus. In addition  to your four sweepstakes entries that we are holding in reserve, we would like to offer you four additional entries.

Just pay now and ask for a full year’s subscription of Reader’s Digest Magazine at only Rs.449/- (including postage and handling) that’s  46% off the yearly cover price of Rs.720/-.”

18.    The State Commission proceeded to examine these documents and then concluded that non-supply of the subscribed issues as also depriving the complainant of his right to participate in Sweepstakes, are all deficiencies which are established and consequently, the complainant deserves to be compensated.  Accordingly, a direction was issued partly allowing the complaint to provide all the issues of 2008 Reader’s Digest and in the event, they are not available, then all the issues of 2022 should be supplied to the complainant by registered post or through courier. 

19.    Over and above this, a sum of Rs.2 lakh was awarded as compensation, Rs. 10,000/- for mental harassment, and Rs.10,000/- as litigation cost.  In default, an interest @ 10% was also awarded with a direction that appellant shall also include the name of the complainant for participation in the lucky draw and provide him with the mysterious gift for the year 2022.

20.    The appellant has challenged the impugned order of the State Commission dated 10.1.2022 in this appeal and they have also stated on affidavit that once the complainant had not ultimately disputed the receipt of all the issues of the year 2008 and 2009, the final order of the State Commission could not have been passed directing the appellant to once again send the same issues which had already been received by the complainant. This error is apparent and further directions to give separate issues for 2022 are also superfluous. It is therefore submitted that the said directions are erroneous and without any basis.

21.    It has been submitted by Mr. Baruah, learned counsel for the Appellant that free gifts and the prize money offered are all in the shape of a speculation similar to lotteries and therefore, this cannot be a subject matter of claim in a consumer forum for which he has relied on the decision of this Commission in  the case of Jyotish Chandran Vs. Zee Telefilms Pvt. Ltd. & Ors. reported in 2016 SCC Online NCDRC 744.  That was a case of online lottery launched by the Government of Maharashtra and a complaint with regard to non-payment of prize money was held to be a subject matter which depended purely on chance and on the draw of lots.  Since, the same did not involve any skill or judgment therein and the winning or otherwise was based only on chance, there was no predictability and therefore, it was a gaming or wagering transaction which was void and unenforceable in a Court of law. He relies on para 20 to 24 of the said order, which is extracted herein under:-

22. The word "Lottery" as per the  Webster's dictionary means: -

"Á scheme for the distribution of prize by lot or chances, specially a scheme by which one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them, usually as determined by the numbers on tickets as drawn from a lottery wheel."

Yet again in Murray's Dictionary the following meaning is given to the word Lottery:

"An arrangement for distribution of prizes by chance among persons purchasing tickets."

23.       From the above it is clear that the lottery is dependent purely upon chance in the fortuitous mode on draw of lots. There is no element of skill or judgment involved therein and the winning of a lottery is dependent upon succeeding in draw of lot beyond any predictability. Thus, it is clear that the lottery is purely a gaming or wagering transaction which in view of Section 30 of the Indian Contract is void and unenforceable in a court of law.

24.       Having taken the view that a lottery transaction is void and unenforceable in a civil court, the question arises whether the position would be in any way different in the consumer law? In our considered view the position would remain the same under the consumer law also. The basic consumer right flow from the contracts of sale and purchase of goods or hiring or availing of services for consideration. If the contract itself is void in view of Section 30 of the Indian Contract Act the party to the wagering contract agreement inevitably would have no right flowing from the void contract even in consumer law jurisdiction. Taking any other view would, in our opinion, go against the object and spirit of Section 30 of the Indian Contract Act.”

22.    It is then submitted through the Affidavit which has been filed on 16.5.2024, and 8.7.2024, copies whereof been served on the complainant Mr H M B Sinha who appeared in person, to urge that since the documents pertaining to the list of participants in the year 2008-2009 was not available, therefore, the same cannot be supplied but at the same time, the list of winners was available and the same is referred to in the said reply. The submission is that each participant does not have to be individually intimated and it is only the winners who are informed about the lucky draw.  The complainant was in all probability a part of the lucky draw and since he was not a winner, there was no question of informing him nor is there any such obligation in this regard created under the terms and conditions of the lucky draw. The discussions by the State Commission that it was incumbent to have informed the complainant by post or by mail about the status of his participation or success is a totally misconceived approach of the State Commission as there is no such obligation on the appellants.

23.    Mr. Baruah then urged that the fact that the complainant was allowed to participate later on in 2010 has no connect with the participation regarding the year 2008. The complainant however has insisted that the letter dated 04.05.2010 which was sent accepting the mistake of non-participation and his subsequent inclusion in the draw of lots was connected with the previous years. It was for this reason that they attempted to rectify the error in the year 2010. This admission therefore, according to the complainant amounts to the acceptance of the deficiency by the appellant and therefore, the appeal deserves to be dismissed.

24.    Having considered the submissions raised, it is evident that so far as the number of issues subscribed by the respondent is concerned the same appears to have been delivered in 2008 and the fact that the issues have been received by the opposite party has not been disputed.

25.    The dispute in essence as contended by the learned counsel centres around on the benefits arising out of the offer under the Sweepstakes Scheme. The deficiency in service alleged and which needs to be examined at the instance of the respondent is about the respondent having not been able to participate in the lucky draw that was promoted through Pink Entry Tickets. The stand of the appellant is that no consideration was charged and the Pink Entry Tickets are available in open domain which can be availed of by any one for participating in the lucky draw, where afterm from amongst the possible winners, the final draw is made and those who are winners are intimated. According to the appellants there is no provision for intimating the list of participants who were included in the lucky draw. It is only the winners whose names are notified and in the present case, the draw was conducted in respect of the year 2006-2007 which was held on 16.08.2007 and the winners were accordingly notified. The names of the winners were also published subsequent there to, and as such the Super Grand Prize relating to the Sweepstake was accordingly announced.

26.    On the other hand, the respondent contends that the appellant are obliged to intimate the list of participants and not only this to verify as to whether subscribers like the respondent were allowed to participate or not. The contention of the respondent is that he was not allowed to participate and his name was not included for being considered in the lucky draw and hence, this denial by the respondent amounts to deficiency as well as an unfair trade practice by not fulfilling the promise that was made to the respondent through the Pink Entry Tickets.

27.    It is the case of the respondent that when he complained about the non-receipt of the issues for which he had subscribed, he received three of the issues without the three mystery gifts. The complainant/ respondent had filled up and sent the Pink Entry Tickets that were received and which fact has been admitted by the appellants. The grievance of the respondent/ complainant is that his name was not included in the Sweepstake draw that has been discovered after the complainants had sent a legal notice on 06.01.2008.

28.    It has been stated by the complainant that he had received the information about his eligibility to participate through the letters quoted above of Mr Vijay Malhotra despatched in December 2006 and Mr Ashish Bagga in April 2007. This according to the complainant is an evidence of the fact that the complainant had subscribed for the issues as well as also having expressed his desire to participate in the lucky draw through the Pink Entry Tickets.

29.    It is the case of the respondent that the legal notice dated 06.01.2008, was responded to by sending three issues of the subscribed magazine and later on the other issues were also received. A perusal of the said letter indicates that the said reply informed the respondent that the subscription payment had not been received and it is for the said reason that the copies were not mailed. According to the complainant the appellants have acknowledged the fact about non-receipt of the subscribed issues by the complainant, but promised to take appropriate steps for rectifying the same and also demanded the VPP wrapper for confirmation.

30.    In response to the aforesaid letter the complainant dispatched a reply sending the VPP wrapper along with it, with complaint that on account of the mistake of the opposite parties the name of the complainant had not been finalised in the list of winners.

31.    Upon having received the VPP envelope, the appellants informed that they have arranged for the issues of subscribed magazine and the subscription was treated as paid up for the current period from May 2008 to April 2009. What is significant about this letter is that the appellants also assured that the name of the respondent shall be entered in their next prize draw that was scheduled to be held in January 2009.

32.    During the course of the hearing in this appeal the appellant had been called upon to intimate the Commission about any participation and draw of lots of the year 2009. In order to clarify this the appellants have filed, an affidavit dated 16.05.2024 where in paragraphs 2 and 3, the following statements have been made:

2.       I say that in terms of the aforesaid order, I had tried to locate the list of participants for the Reader’s Digest Sweepstakes for the year 2008 (draw of which was held on 22.01.2009 at New Delhi). I have not been able to locate any such list. I have however been assured by Mr G L Ravik, who is now working as the General Manager (Circulation), Reader’s Digest that in terms of the letter dated 21.04.2008 (page 73 of the Appeal) that the name of Mr H M B Sinha would have been included in the participants list. I have also received a copy of the e mail dated 22.01.2009, in relating to the Reader’s Digest Sweepstakes, 2008, thereby forwarding the list of winners. It also records that the said prize draw was held in Delhi on 22.01.2009.

A copy of e-mail dated 22.01.2009 issued by Mr Vikas Malhotra (who was then as working as the Senior General Manager, Marketing and Circulation, Reader’s Digest) is attached herewith and marked as “Annexure A”

3.       The e-mail dated 22.01.2009 indicates the details/ names of persons who were present during the said draw. It clearly indicates that certain number of customers, external auditors and employees of the Appellant were present during the draw.

33.    The annexure which has been appended there with is a mail dated 21.01.2009 confirming the same, which is extracted herein under:

        Dear All,

We had Sweeps 08 draw as scheduled, today at New Delhi. It was attended by the following:

4 customers – Ms Prerna and Ms Lata Saini, Mr M Ahmed + 1 Mr Bhavesh Gandhi, Auditor from Gandhi Associates, Mr Rajat Sethi, Aditya Mehrish, Manas Mohan, Sandeep Padoshi, Digvijay S  Shekhawat, Girish Kawatra, GL Ravi Kumar, Deni D’mello Vikram Uppal and Madhsudhan along with myself.

The list of various winners is attached along with. The winners shall be intimated individually by Courier/ registered letters.

          Best Regards

          Vikas Malhotra

          Sr Gen. Manager

          Marketing & Circulation

          Reader’s Digest India

34.    Admittedly, the name of the respondent is not in the list of winners but his contention is that he could not have won unless he had been allowed to participate. To substantiate this contention the complainant has invited the attention of the Bench to the mail sent to the complainant on 10.03.2010, describing him as a potential finalist along with extending him with an official access code.   This document has been filed on record of this appeal which is followed by another mail of the same nature indicating that the complainant was a potential winner. This mail dated 29.06.2010 is also on record. The complainant therefore, states that in response to the aforesaid information, the complainant had entered the contest and the appellant vide mail dated 04.05.2010 had confirmed the selection of the respondent for participation in the Sweepstakes to be conducted in the year 2010.

35.    The Complainant has urged that this mail confirms that there was no previous participation of the complainant which was acknowledged by the appellant, but it was due to a technical error on the website and since the details of the subscription paid by respondent were not recorded properly, hence, the appellant had not been able to process the subscription details of the respondent or send the free gifts that were assured to him. The complainant was invited to activate his chance of winning in the 2010 in the Sweepstake and four additional entries were also offered to him. He was also asked to pay the subscription of a full year through the said mail.

36.    The complainant therefore, submits that with this mail on record, there is a clear acknowledgment of deficiency regarding previous years of subscription particularly of the year 2008 as a result whereof, the complainant could not participate in the Sweepstakes. It is urged that the appellants have not produced the documents to indicate the participation of the complainants in the year 2008 – 2009, which establishes that realising their error they offered participation to the complainant in 2010 and for also offering further Sweepstake entries.

37.    Contesting the aforesaid position, learned counsel for the appellant Mr Baruah submits that Sweepstake 2009 was declared and the contention of the complainant that he was not allowed to participate therein is based on no evidence. He submits that indication of an error in the website as per the mail dated 04.05.2010 has no connect with the previous draws and there is nothing to establish the same. The contention is that these are routine offers made to all subscribers and the respondent/ complainant has not been able to establish that there was any such deficiency regarding the participation in the Sweepstake which even otherwise was legally not a subject matter to be entertained by the Consumer Forum.

38.    The first contention regarding the non-participation of the respondent/ complainant can be gathered from the fact that there is no dispute that the complainant subscribed for the 12 annual issues for which he had tendered the VPP Parcel cover that was acknowledged by the letter dated 21.04.2008, the same is extracted herein under:

        Dear Mr Srivastava,

Thank you for your reply dated 08.04.2008 received by us on 15.04.2008.

We are indeed grateful to you for sending us the photocopy of the VPP Envelope. Although we have arranged an April 08 issue for Mr Sinha, considering that he should receive the full benefit out of the subscription ordered by him, we are treating his subscription as paid up for the current period May 08 to April 09.

His name will also be entered into our next prize draw scheduled to be held in January 2009.

          Thank you once again

          Yours faithfully

          For Reader’s Digest

          Prathibha Rai

39.    It is thus evident that the respondent/complainant in all probability had not been treated to be a subscriber as per the letter dated 21.01.2008 (quoted in paragraph 6 above) as a consequence thereof he could not avail of any chance in the Sweepstake prior to 21.04.2008. This is evident from the letter dated 21.01.2008 and 21.04.2008. This is further confirmed by the fact that the appellant indicated that the name of the complainant would be entered into their next prize draw schedule to be held in January 2009. The appellants have brought on record their mail dated 22.01.2009 quoted herein above which demonstrates that the draw of lots was held on 22.01.2009 in terms of their advertisement and the list of winners were also attached thereto which has been indicated along with the said mail that has been filed as an annexure. The procedure of the appellants is only to intimate the winner and hence, it is evident that the complainant/respondent was not a winner in the said contest of 2009.

40.    The question is as to whether the letter dated 04.05.2010 demonstrates non-participation of the complainant. The said letter does record about the technical error on the website but this letter nowhere specifically records about the past errors of the previous years. As noted above, the mail dated 10.03.2010 and 29.06.2010 are both in relation to the Sweepstake of 2010. The mail dated 04.05.2010 does reflect the technical error about the recording of subscription and free gifts and raises a doubt about the need to mention an error.

41.    The appellants have also stated in their letter dated 21.01.2008 that in respect of the year 2007, the annual draw was held on 16.08.2007 and the list of winners were also announced in October 2007. A copy of the previous prize winners list was also sent to the complainant. The complainant in response, wrote letter dated 08.04.2008 alleging mistake on the part of the appellant in not including him for participation as result of which he could not succeed in getting a place in the list of prospective winners, where after the appellant promised to enter his name in the next prize draw for the year 2009.

42.    The promotional e-mails that were sent in the previous years do not establish necessarily that the complainant was deprived of his opportunity to participate. Essentially, promise to include his name in the year 2009 was to ensure that the subscriber is given a chance to participate.

43.    At this juncture the argument of Mr Baruah about the nature of this Pink Entry Ticket Sweepstakes deserves to be analysed.

44.    In ordinary parlance Sweepstake is a method of gambling where people put their money into a common pool and draw numbered tickets. All the money is divided among those who draw tickets bearing the winning names. A ticket is a printed card or a piece of paper which entitles the holder of certain privileges. In the instant case, the said tickets are Pink Entry Tickets.

45.    The question is the nature of service which is being claimed to have been deficient on the basis whereof the complaint was filed. The contention of Mr Baruah is that this question has been answered by the Commission in the case of Jyotish Chandran (Supra). According to Mr Barauh the present nature of transaction was also gaming which in essence is a wagering transaction which therefore does not give rise to an issue of deficiency in service. He submits that the nature of the transaction therefore cannot be essentially treated to be a service within the definition of the Consumer Protection Act, 1986 and hence, the claim itself was not maintainable.

46.    It may be pointed out that unfair trade practice has been defined under the Consumer Protection Act, 1986, which is applicable in the present controversy under section 2(1) (r) (3) (b) as follows:

(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.

47.    In the instant case, it is not the case of the complainant that the nature of the offer made is a game of chance so as to construe it as a shade of gambling. Even otherwise the Pink Entry Tickets are an incentive, and not an allurement for subscribing to the magazine Readers Digest is one of the internationally acclaimed magazines which book and magazine readers are privileged to subscribe given its reputation of contributing towards some of the best reading literature. The complainant also has not come up by contending that this is a game of chance.

48.    The incentive of winning a prize in a draw through this method has an element of chance but it is neither deceptive nor can it be described as an unfair method adopted by the publisher to promote its sale. Reading a magazine is by a selective choice and the reader subscribes predominantly for having the benefit of reading the magazine. A magazine is not subscribed by a serious reader randomly for playing a game of chance. The subscription is made as a consideration for the issues to be received and is not an investment arising out of any enticement or allurement to play a game. Thus the subscription for the magazine is not for any gaming purpose. The participation in the lucky draw through the Pink Entry Tickets is therefore, an incentive which is offered by the magazine to create an interest for subscribing at the subsidized rates on which the magazine is offered which in turn would also promote sale of the magazine for desirous readers. There is, therefore, no element of unfair trade practice in such a scheme offered that was sought to be availed of by the complainant.

49.    The question is as to whether the complainant had been deprived of the participation in the lucky draw and even otherwise whether the same was remedied by the appellants treating the respondent to be a valued customer.

50.    From the facts that have been brought on record, it is apparent that the complainant in spite of having paid his subscription did not receive his issues timely as the appellants in their letter dated 21.01.2018 have alleged to have not received the payments. The same was rectified only after the VPP packet was sent by the complainant in response and then accordingly, all the subscriptions were made available. There might have been a glitch of exchange of payments through the postal department but the fact remains that the subscription was ultimately acknowledged in 2008 by the appellants and the issues were supplied and received by the complainant.

51.    The acknowledgment therefore confirms the complainant’s subscription and it also therefore leads to the conclusion that he was entitled to participate in the lucky draw. The mails on record do indicate that he was given this opportunity but the fact remains that he could not succeed in any of these lucky draws.

52.    The letters dated 21.04.2008 and 04.05.2010 demonstrate that the appellants have acknowledged the non-participation of the complainant. This therefore establishes the deficiency as alleged by the complainant to that limited extent. There was no need for the appellant to have allowed the complainant to participate again and to make a mention about a technical error regarding recording of the subscription paid by the complainant, if there was no mistake on their part. The appellants themselves accept the same through their letter dated 21.04.2008 and mentioned the errors, subsequently again in the letter dated 04.05.2010. These two letters therefore indicate the deficiency of depriving the complainant of his winning chances in the lucky draw.

53.    But the fact remains that all the subscribed issues were delivered and received by the complainant and thereafter the complainant has been made to participate in the lucky draws and it is quite possible that the complainant may not have been successful in winning any prize.

54.    There is one other argument which has been advanced by Mr Barauh regarding the hearing of the complaint by a member who himself was a complainant against the appellants Company namely India Today Group and its officials. This issue does not seem to have been raised before the State Commission but has been contended in this appeal. In the opinion of this Commission if the said plea had not been raised before the State Commission or any attempt was made to seek transfer of the complaint on this ground then the said plea now is of no avail. In this regard, it is relevant to mention that whenever a plea is raised about an alleged bias or disqualification for an adjudicatory authority, including Judges, in that event such a fact may not necessarily be remembered by the Presiding Officer and it is the learned Counsel who owes a duty to either take it as a ground before the Court concerned or bring it to his notice courteously and in the event of still feeling aggrieved if the circumstances and facts so permit, a transfer application can be moved. Here the allegation has come for the first time in this appeal and after proceedings had terminated before the State Forum.

55.    However, a relevant fact touching upon the said issue has to be pointed out for taking as a ground before the same forum or during the pendency of the said proceedings before any higher Forum. The Apex Court in the Case of Trishala vs M V Sundar Raj and Anr. (2010) 15 SCC 714 paragraphs 6 to 9 thereof reflects on the said issue. Consequently, the argument of bias and prejudice against the presiding offer is rejected.

56.    Learned counsel then contends that there was no occasion to have awarded any compensation by calling upon the appellants to provide all the issues of 2008 and in the absence thereof to provide all the issues of 2022. It is submitted that no dispute survived about the issues of 2008 that had already been supplied and which is admitted by respondent/ complainant.  Mr Barauh seems to be right in his contention and therefore the directions given by the State Commission for providing 2008 issues or in default the 2022 issues is manifestly erroneous and cannot be sustained.

57.    Thereafter a sum of Rs.2.00 lakh has been awarded as compensation coupled with Rs.10,000/- as mental agony and Rs.10,000/- as litigation cost. It is urged by Mr Baruah that the imposition of compensation is absolutely unwarranted as there is no question of awarding compensation when there is no deficiency. The award of mental agony and cost is equally untenable.

58.    In view of the discussions that have been made herein above, the nature of deficiency has to be viewed proportionately keeping in view the subsequent offers that were made to the complainant and which have not been disputed.

59.    The complaint was filed in the year 2009 and it is subsequent thereto that on 04.05.2010 the mail was sent by the appellant. Prior to that the letter dated 21.04.2008 also indicates the non-participation of the complainant in the lucky draw which he was promised in the year 2009.

60.    This therefore, establishes the initial deficiency of not allowing the complainant to participate in the lucky draw 2007-2008. There is no material to demonstrate that the appellant had included name of the complainant for participation in 2007-2008. This fact stands confirmed as the appellant themselves sent the letter dated 21.01.2008 to the complainant that he had not been included as they had not received the payment of subscription. The question as to whether there was no postal default or not stood explained and proved by the complainant with the production of VPP parcel envelop that was acknowledged by the appellant in their letter dated 21.04.2008. They did not dispute the receipt of the payment thereafter. It is therefore, established that the subscription had been paid by the complainant and he was entitled for the participation in the Sweepstake lucky draw through Pink Entry Ticket for the year 2007-2008. This deficiency to that extent is therefore evident which also, even though faintly, gets confirmed with the letter dated 04.05.2010.

61.    The appellants however, attempted to rectify and did offer participation in 2009 and 2010 which has not been denied by the complainant. These are therefore mitigating circumstances. The complainant was offered benefits and therefore this ought to have been taken into account by the State Commission before having proceeded to award Rs.2.00 lakh compensation or Rs.10,000/- for mental agony and costs. In the opinion of this Commission the aforesaid award is disproportionate and not commensurate to the allegation of deficiency as discussed hereinabove. The deficiency in the first year of subscription therefore, calls for imposition of compensation but the same needs to be tapered in the light of the subsequent conduct of the appellants who have made all efforts to comfort the complainant.

62.    Consequently, the impugned order directing for sending the issues for the year 2008 or in the alternate for the year 2022 had been rendered infructuous as the said issues had been admittedly been received by the respondent. The said directions therefore could not have been given while allowing the complaint on 10.01.2022 as all the issues had already been received prior to that. Accordingly, the directions for providing the issues of 2008 or alternatively 2022 are set aside. The directions given for any future participation of the complainant does not appear to be justified, when the complainant has been allowed to participate in 2009 and 2010 and therefore, the said direction is also set aside.

63.    Coming to the quantum awarded as already discussed herein above, the compensation awarded is in respect of the deficiency as if it was continuing and needed to be compensated more as a punitive measure. This approach of the State Commission is unsustainable, and accordingly, the directions to pay Rs.2.00 lakh as compensation is set aside. For mental agony the amount of Rs.10,000/- and costs of Rs.10,000/- are also set aside.

64.    The amount of compensation shall stand reduced to and quantified to Rs.25,000/- coupled with Rs.5000/- as costs of litigation. The direction to award 10% interest does not appear to be justified and the same is reduced to 6% on Rs.25,000/ that shall be payable from the date of the complainant till the date of actual payment.

65.    This appeal is therefore allowed modifying the impugned order dated 10.01.2022 to the extent indicated above subject to the directions in respect of the compensation and interest awarded.

66.    The appeal stands disposed off accordingly.