1) Sri Devraj Bhattarai, P-7, Hide Lane, Kolkata-700012. ---------- Complainant ---Verses--- 1) Hindustan Liver Limited, 9, Shakespeare Sarani, Kolkata-71. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Smt. Jhumki Saha, Member. Sri T.K. Bhattachatya, Member. Order No. 2 0 Dated 0 7 / 1 0 / 2 0 0 9 . Complainant, Devraj Bhattarai by filing a petition under Section 12 of the Consumer Protection Act on 06.02.2007 has prayed for issuing direction upon the O.P. – Hindustan Lever Ltd. to pay the award of scholarship-prize of Rs. 5,00,000.00 to the Complainant’s son Joseph Bhattarai and compensation of Rs. 50,000.00 and such other relief or reliefs as he is entitled to. The fact of the case, in short, is that as a sales promotion scheme the O.P. launched the brand name “NEW SURF EXCEL QUICK WASH’ AS 10/10 Contest of Rs. 5,00,000.00 offered to the consumers on condition that if the score of the consumer is 10/10, the consumer will win Rs. 5,00,000.00 as prize and if the score is not 10/10 then consumer will collect pieces of cloths to add up to 10/10 or more and win a “SCO OBY DOO Sports Bag” e.g., 2/10 + 3/10 + 5/10 = 10/10 and to send the same along with the name and address to “SURF EXCEL 10/10 contest”, c/0 ‘Alpha Data Centre, Post Bag No. 3904, Girgaum HPO, Mumbai-400 004’. The Complainant purchased a bag of New Surf Excel Quick Wash and after opening the bag found the stained cloth and according to the direction he washed the cloths with New Surf Excel Quick Wash and the score 10/10 appeared. Accordingly, the Complainant claimed his prize of Rs. 5,00,000.00 as scholarship for his younger son, Joseph Bhattarai and sent the same to the address of the Opposite Party. But the O.P. on receipt of the same sent a letter dated 05.12.2006 refusing the Complainant’s claim on the plea that as a matter of commercial control all swatches that carry the score of 10/10 are coded. But the swatch submitted by the Complainant did not bear the code and accordingly the O.P. is unable to accept the claim of the Complainant. The Opposite Party by offering or announcing “Surf Excel 10/10 Contest” impliedly gave guarantee that each and every purchaser of Surf Excel Quick Wash will win the prize who will submit the swatch carrying score of 10/10 and such refusal for commercial control is nothing but unfair trade practice which has caused immense harassment and frustration to the Complainant because he had high hope that by winning the prize of Rs. 5,00,000.00 will help him a lot financially for the education of his son Joseph. He had requested the O.P. but his request was not complied with and finding no other alternative he has filed this case with the aforesaid prayer. O.P.-Hindustan Lever Ltd. has contested this case by filing a written version on 26.07.2007 denying inter-alia that the petition of Complaint is absolutely vexatious, baseless and harassing for the purpose of undermining the reputation of the O.P. It is their specific case that the Complainant is not a purchaser because his cash-memo is missing and as the instant case involves complicated question of facts and law it requires evidence to be laid and so the Consumer Forum has no jurisdiction to decide this case by its summary procedure. The case is also bad for non-joinder of necessary party as the retailer from where the product in question was purchased has not been made party by the Complainant. Their further case is that there is no defect in the goods but for the additional attraction for the sales promotion the Complainant purchased the Surf Excel Quick Wash. But the eligibility to get prize is based on many collateral facts to be considered. The O.P. likes to mention that swatch bearing 10/10 mark automatically does not entitle to get the prize of Rs. 5,00,000.00 scholarship but it must be coded and in absence of such code the swatch only bearing 10/10 mark shall be treated as a tampered or manufactured as done in the instant case by the Complainant, and this code is a secret one, known only to a select few people to prevent any chance of misappropriation by any one either internal or external to their organization. The code is not an extra condition that a consumer needs to fulfill to get the high-valued prize and if the claim is genuine then the code is an integral part of 10/10 cloth and the consumer is entitled to get the high-valued prize. With this view in mind we can very well appreciate that the code cannot be revealed / disclosed on the wrapper along with other terms and conditions as that may defeat the very purpose of the genuine claimant, and as the code was not found with the cloth sent by the Complainant to the O.P. the claim of the Complainant cannot be accepted and it was duly communicated to the Complainant by the O.P., and accordingly they have prayed for dismissal of the case. DECISION WITH REASONS Main grievance of the Complainant is that being attracted by the advertisement of the O.P. for its sales promotion he purchased one brand under the name and style as “New Surf Excel Quick Wash” and by such purchase he participated in the contest to win a prize of Rs. 5,00,000.00. And according to him he had high hope that if he could win in the contest the amount of Rs. 5,00,000.00 will be of great help for the education of his son Joseph Bhattarai. He was favoured in the said contest as according to him the score 10/10 appeared on the cloth and he accordingly demanded Rs. 5,00,000.00 from the O.P. in the 1st week of November, 2006. But he was surprised when the O.P. in reply to his letter informed him by their letter dated 05.12.2006 that they received the letter of the Complainant claiming for prize money of Rs. 5,00,000.00 as scholarship as a part of New Surf Quick Wash Scheme in 10/10 Contest that they were unable to entertain his claim “that as a matter of commercial control, all the swatches that carry the score of 10/10, and therefore, eligible for prize of Rs. 5,00,000.00 scholarship are coded. They regret to inform you that the swatch submitted by you does not have the code on it. Hence, we are unable to accept or process your claim”. In his letter dated 20.10.2006 the Complainant informed the O.P. with a request to arrange to disburse the scholarship money of Rs 5,00,000.00 to his son on the address given in the letter as he was lucky to get a piece of cloth marked 10/10 from Surf Excel Quick Wash powder. The O.P. in paragraph 7 has admitted that the Complainant has paid consideration for the purchase of Surf Excel and he accordingly received the product for the same. So it cannot be said that the Complainant is not a consumer. It is the main contention of the Complainant that he purchased the product along with the swatch bearing 10/10 mark on the cloth and he sent it to the O.P. for disbursement of the prize money of Rs. 5,00,000.00 to his son Joseph Bhattarai. On the other hand it is the specific case of the O.P. that as a matter of commercial control it is not only the swatch bearing 10/10 mark but it must be accompanied with the code which entitles the purchaser to get the prize money of Rs. 5,00,000.00 and their further case is that the question of bearing code with the swatch is not disclosed either internally or externally of the organization as a matter of protection of the genuine claimant whose swatch bears with the code.. So it is their business secret and it cannot be disclosed to all and sundry by way of open advertisement. But according to the Complainant it is unfair trade practice on the part of the O.P. because in the advertisement there was no mention that the swatch must bear the code and according to the Complainant this hidden practice of the O.P. amounts to unfair trade practice. And in this respect the Complainant has referred to a decision reported in (2005)2 WBLR(CPNC)973. But it has been argued by the O.P. that the code is not an extra condition that a consumer needs to fulfill but only in order to prevent the malpractice and misappropriation of money by any one, code is not disclosed, save and except, a few people only to select the genuine winner of the prize of high value. And it has also been argued that only for fulfilling the dream of higher education of his son the Complainant has contested this sales promotion scheme of the O.P. of Surf Excel and as because his swatch is marked with 10/10 he is entitled to get the prize of high value. It is also argued that the terms & conditions of the contest was clearly printed in the leaflet to maintain transparency and the cloth was provided in coded form with stamp and signature so used in particular ink. The word of code is not mentioned anywhere in the advertisement. Further in terms & conditions of the advertisement it is stated that “ 4 first of 10,000 (Ten Thousand) entries only, offer valid till February 28, 2007, packs also available without this offer.” It appears from the supplementary Affidavit sworn in by Meenakshi Sharma Agarwal of O.P. which runs as “Since the prize money involved here was substantial, therefore, the Company has decided to put a particular code which can be used for authentication and verification purposes on all the cloths having 10/10score on them. For this purpose all the cloths containing 10/10 scores were signed by the concerned factory managers and the seal of the said factory was also put on them hereto annexed and marked with Exhibit A”. And it appears from Exhibit A that Nischay Garments had printed swatches as per specifications approved; and Nischary Garments with great care and caution printed 4 swatches by screen printing with intention to maintain uniformity/similarity between them. And it also appears from her evidence that only “2 cloths were found to be original and genuine and duly having the code, i.e., seal of the factory and signature of the factory manager as put by the Company.The Appellant-Company has given the prize of Rs. 5,00,000.00 scholarship to both the consumers. The 1st winnerMiss S. Pragatheeswari of Karaikal, Tamilnadu, the other Sunil Kumar De Sarkar from Kolkata. It was duly published as reflected in Exhibit-B, a Notification published by the O.P.. In view of this position it cannot be said that there was any hide & seek policy or concealment of actual fact or unfair trade practice committed by the O.P. –Company. The publication runs ‘ 10-year old Pragati from Karaikal wins Surf Excel’s Rs. 5,00,000.00 Education Bond”. In this respect the Ld. Lawyer for the O.P. has referred to us one decision of State Consumer Disputes Redressal Commission, Union Territory of Chandigarh in Appeal Case No. 241/2008 and the decision is aptly suited in the instant case. Therefore, considering the facts & circumstances, evidence on record and legal position, we are of the opinion that the Complainant is not entitled to get the relief as sprayed for. Fees paid are correct. Hence ordered that the case is dismissed on contest. No Order is passed as to cost. Sd- Sd- Sd- ____________ ____________ ____________ MEMBER MEMBER PRESIDENT |
