DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.63/2008
Sh. D. Prasad,
Supdt. (RPS) Section,
Kendriya Vidyalaya Sangathan
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016 ….Complainant
Versus
1. Hindustan Unilever Ltd.
165/166, Backbay Rcclamation,
Mumbai-400020
2. Alpha Data Centre
1st Floor, Rawalpindiwala Building
2 Tribhuvan Road, OPP. Dreamland Cinema,
Mumbai-400004 ….Opposite Parties
Date of Institution : 04.03.08 Date of Order : 13.04.18
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Pleading that the OPs are guilty of unfair trade practice and also deficiency in service inasmuch as the OPs with the intention to promote their product, namely, Surf Excel announced a contest in which a purchaser who found a cloth of 10/10 score from the pocket of Surf Excel would get a prize of Rs.5 lacs scholarship otherwise they may add up 10/10 or more and could win a “Scooby Doo Sports Bag”. The complainant believing on the aforesaid announcement of the OPs and with the intention to participate in the aforesaid contest purchased many pockets of Surf Excel at Katwariya Sarai and he got a cloth of 10/10 score from one of the pockets purchased by him. However, to the utter shock and surprise of the complainant the OP No.1 in collusion with OP No.2 malafidly refused the claim of the aforesaid prize of Rs.5 lacs to the complainant on the basis of false and frivolous ground by stating that the swatches that carry 10/10 was pre-coded by the OP and the swatch submitted by the complainant did not contain the said code. According to the complainant, in the advertisement the OPs nowhere had mentioned about the so- called pre existed code and, hence, the reason offered by the OPs was not tenable. Letters were sent to the OPs. Hence, this complaint for directing to impose punitive damage on the OPs for unfair trade practice adopted by them, to direct the OPs to pay to the complainant Rs.5 lacs under the contest announced by the OPs, to pay Rs.50,000/- as compensation for mental agony and harassment suffered by him due to callous and arbitrary attitude of the OPs and also to direct the OPs to pay litigation cost of Rs.15000/-.
In its written statement OP No.1 has inter-alia stated there was stained cloth inside in Surf Excel packet; that this cloth on being washed revealed a score ranging from 1/10 to 10/10 and that a consumer who got 10/10 swatch alongwith a unique code (i.e. seal of the company alongwith the signature of the factory manager) was qualified to be the contender for the high value price of Rs.5 lacs scholarship; that this was done in order to prevent misappropriation; that this unique code was known to certain officials of OP No.1; that the scholarship intended to be given was in the form of ICICI Study Plan and it was necessary for the consumer to post the stained cloth to the collection centre; that with this in mind it should be appreciated that the code could not be shown on T.V. as that would have defeated the very purpose of having it which was to validate the genuine claim. It is stated as under:-
“II. The promotional offer was run in full conformity with the provisions of law and as such there was no inaction or violation of any law, as alleged. It is submitted that the 10/10 promotion for Surf Excel was patently in public interest and consumer interest as the prize money of Rs.5.00 Lacs scholarship was offered by the answering opposite party to promote the cause of education.”
“XII The answering opposite party would like to submit that they already have two winners of Rs. 5 lakh scholarship, Ms Pragathee from Kranail, Tamil Nadu and Mr Dey Sarkar from Kolkata. The name and addresses of the two winners under the 10/10 Scheme to whom the scholarship money of Rs.5 lakhs was actually been paid by Hindustan Lever Limited (now Hindustan Unilever Limited) alongwith copy of swatches submitted by each of them were as follows:-
1. Mr. Sunil Kumar Dey Sarkar, 42-G/8,
B.C. Chatterjee Street, Kolkata-700056,
Mobile No.9433401148.
2. Ms. S. Pragatheesweari, D/o M. Sambath
Kumar, No.6, Middle Street, Neravy,
Karaikal 609 604, Mobile No.9894425472.”
It is stated that the notice of the complaint was duly replied by the OP No.1 and reasons of the rejection of the complainant’s claim were also explained in detail. It is submitted that the complainant has failed to establish any actual loss caused to him. The case of the OP No.1 is that the case of the Complainant is not covered under the clauses “service”, “deficiency in service” as defined in sections 2(1) (o) & 2 (1 (g) of the Consumer Protection Act and hence it is not a case of deficiency in service. It is stated that the complainant has failed to prove the allegations of unfair trade practice. It is stated that in the light of the definition of “service” and “deficiency” under the said Act it is clear that purchasing a packet of Surf Excel and any alleged rejection of the claim would not by any stretch of imagination amount to deficiency in service as the same does not fall under the category of “service”. It is prayed that the complaint be dismissed.
From a perusal of the order sheet recorded by our Predecessors it transpires that no separate written statement or reply has been filed on behalf of the OP No.2.
Complainant has filed a rejoinder to the written statement of OP No.1. He has inter-alia submitted that he had fulfilled the condition of the offer made by the OP No.1; that the terms and conditions which were not mentioned by the OP No.1 in its public offer is not applicable to the present matter and non-est in the eyes of law; that the concealment of terms and conditions by the OP No.1 clearly shows that the OP No.1 is indulging in unfair trade practice and the same is liable to be punished. It is stated in para 6 of reply to the preliminary submissions as under:
“…..The word CAN in declaration “You Can Win-if you score 10/10, suggest is connotes one stage prior to purchase could win the above said prize by getting 10/10 score. It is submitted that once a consumer purchased the product of the opposite party and gets the 10/10 score the declaration made on the pack that “YOU CAN WIN-if you score 10/10” become redundant and lost its value.”
Complainant has filed his own affidavit in evidence wherein he has not even mentioned his residential address. We do not know the reason.
On the other hand, affidavit of Ms. Aparna Sundaresh, Marketing Manager has been filed in evidence on behalf of the OP No.1.
No written arguments have been filed on behalf of the complainant.
Written arguments have been filed on behalf of the OP No.1.
We have heard the oral arguments advanced on behalf of the OP No.1.
No arguments have been advanced on behalf of the complainant despite opportunities given in this behalf.
We have also carefully gone through the judgments referred to on behalf of the OP No.1.
We are of the opinion that if any Company or Manufacturer of a consumer product gives any such types of advertisements in the newspaper or in the electronic media or by any other means of communication thereby inviting the members of general public to take part in the Scheme and to win the prizes subject to certain conditions, then those certain conditions must also be disclosed in the advertisement and cannot be allowed to be withheld from the general public on a lame excuse that in order to prevent misappropriation the unique code was not made known to the general public and it was known only to certain officials of advertiser as has happed in the present case. If any such certain conditions are not disclosed to the general public and their claims are subsequently rejected/repudiated on any such undisclosed stipulation/condition, such act on the part of the Manufacturer/Company/Advertiser is not proper and may amount to unfair trade practice or even deficiency in service. Therefore, in our considered opinion, it is the bounden and legal duty of any such Company/Manufacturer /Advertiser to disclose all the terms and conditions of the Scheme and the prize in the advertisement itself.
Now, we turn to the facts of the present case. The OP No.1 had been allowed to file additional documents and it appears that the application was allowed by our predecessors. The OP No.1 has filed a copy of analysis report on surf excel promotion swatches as Annexure-2 (page 13 to 15) whereby Intertek Laboratory, Mumbai had compared these swatches alongwith swatch sent by the complainant and the swatch sent by the complainant was found to be different. Therefore, there is un-rebuttal material on the record to prove that swatch sent by the complainant did not tally during its laboratory examination,
In this context para 5 of the affidavit of OP No.1’s witness is material which reads as under:-
5. I say that the appellant Company also received cloths/swatches allegedly containing 10/10 scores from a number of consumers. Since only 4 swatches with 10/10 printed had been put into random boxes/pouches of surf, the appellant company was surprised to receive more than 4 swatches that could possibly be there. All the swatches/cloths were carefully examined by the appellant Company and Alpha Data Centre. Out of those 10/10 clothes submitted by the consumers, two 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 lakhs scholarship to both the Consumers. The first winner was Ms. Pragatheeswari, of Karaikal, Tamil Nadu. The other winner of the said first prize was Mr. Sunil Kumar Dey Sarkar from Kolkata. A copy of the publication in the Trinity Mirror dated 20th October 2006 published by the Company notifying to the public about Ms. S. Pragatheeswari having won the first prize is annexed hereto and marked as Exhibit ‘B’ to this Affidavit.”
She has further deposed that since the swatch sent by the complainant was found to be false and frivolous the OP No.1 vide its letter apprised the complainant of the fact and informed the complainant that the OP No.1 is not in a position to process his claim. She has also relied on the lab report of Intertek Laboratory, Mumbai and has marked the same as Ex. C (Annexure 2). No evidence to the contrary has been filed on behalf of the complainant. Therefore, the swatch in question was not genuine. The complainant does not fall within the definition of ‘consumer’ nor OPs can be held guilty of unfair trade practice or deficiency in service in the special facts and circumstances of the case.
In view of the above discussion, we do not find any merit in the complaint. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 13.04.18.
