Kerala

StateCommission

A/14/386

M/S HERO MOTO CORP LTD - Complainant(s)

Versus

JOSEPH KADAPPURAN - Opp.Party(s)

G.S KALKURA

20 Jun 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL NO.386/2014

JUDGMENT DATED  20/6/2016

  (Appeal filed against the order in C.C No.937/2007 dt. 5/12/2013 on the file of CDRF, Thrissur)

 

PRESENT:

SMT. A. RADHA                                      :         MEMBER

SHRI. K. CHANDRADAS NADAR           :        JUDICIAL MEMBER

APPELLANTS:

1. M/s. Hero Motocorp Ltd., (earlier known as

M/s. Hero Honda Motors Limited),

Registered Office 34, Community Centre,

Basant Lok, Vasanth Vihar,

New Delhi-110 057.

 

2.  M/s. Kalyan Mobike Private Ltd.,

Guruvayur Road, Punkunnam, Thrissur.

(By Advs:  Sunil C.G & Others –

                 M/s. S.G. Chancery Chambers)                    

                        Vs

RESPONDENT:

            Fr. Joseph Kadappuran, Kadappuran House,

Varakara, Thrissur.

(By Adv: Biju Joseph Edakkalathur)  

                

 

JUDGMENT

SMT. A. RADHA  : MEMBER

          Appellants are the opposite parties who preferred this appeal against the order passed in C.C.No.937/2007 on the file of CDRF, Thrissur wherein the Forum Below allowed the complaint and directed to pay an amount of Rs.95,000/- to the complainant and Rs.5,000/- as compensation by the 2^nd opposite party. 

2.  It is the case of the complainant that attracted by the advertisement given by the opposite parties on 28/01/2007 in the daily newspaper Malayala Manorama  the complainant purchased a Hero Honda Motor Cycle on 30/01/2007 and got a scratch card along with the purchase.  When the card was scratched he turned to be a lucky winner as the magic  letters found as ICC Cricket World Cup 2007.  As per the advertisement the purchase of a Hero Honda Motor Cycle if he is lucky was promised with 4 day and 3 night vacation in West Indies to watch ICC Cricket World Cup.  The 2^nd opposite party is the authorized agent and dealer of 1^st opposite party and issued a confirmation letter proclaiming the complainant as lucky winner with certain new conditions.  The vehicle was purchased by the complainant as there had the scratch and win card and could fly to West Indies to watch Cricket Match.  It is the bounden duty of the opposite party to issue necessary documents in order to avail the visa.  The complainant is having a valid passport and the offer to fly to West Indies free of charges will not entitle the opposite parties to ask for a DD for Rs.82,290/- towards TDS.  It is stated in the complaint that anybody can fly to West Indies to and fro for less than the amount.  The complainant alleges fraud and unfair trade practice upon the opposite parties.  The complainant was induced to purchase the Hero Honda Motor despite the fact that similar or better Motor Cycles are available from other branded manufacturers.  The opposite parties gave wide publicity of winning the contest by the complainant which induced hundreds of people to purchase Hero Honda Motor Cycle.  The complainant had to suffer mental agony as he was not in a position to pay the TDS which was not published in the advertisement.  The complainant is entitled for Rs.95,000/- for the mental agony caused due to the unfair trade practice.  The complainant also sought for Rs.5,000/- towards cost from the 2^nd opposite party.

3.  It is contended in the version that the transactions between the   1^st and 2^nd opposite party are on principal to principal basis.  The 1^st opposite party used to place bulk orders for the vehicles and is not aware about the ultimate buyer of vehicle at the time of purchase.  The 1^st opposite party had no transactions with the complainant and there is no privity of contract between the complainant and 1^st opposite party.  Hence complaint is to be dismissed in-limine.  The other contention is that the complainant is not a ‘consumer’ as defined under Consumer Protection Act.  The scratch and win offer did not form part of the goods offered for consideration hence the complainant cannot be considered as a consumer since the goods and service offered by the opposite party is the Hero Honda Motor Cycle independently.  As a gesture of goodwill to his customers who purchased Splendor or Super Splendor or Passion + Motor Bike, the booklet which contains besides other information a scratch card claim form for trip to West Indies for winners, reservation form for holiday in India, and other terms and conditions pertaining to the details of holiday locations to be chosen at India the detailed terms and conditions for redemption  of lucky gift for Indian Holiday Package and also for redemption of lucky gift for ICC World Cup 2007 at West Indies.  The scratch card is supposed to be scratched in the presence of authorized dealers or the representatives at the dealer’s premises.  It was specifically mentioned in the scratch card with a ‘* mark’ the terms and conditions apply.  The terms and conditions governing the offer is provided in the side page of the booklet.  The complainant came up with the case without any merit and is liable to be rejected.  The advertisement given by opposite parties is admitted and also the offer was also admitted which clearly followed by the terms and conditions.  The participation in the contest was purely optional being a customer of goodwill.  It is also admitted that the complainant was a winner of the contest since the scratch card provided to him after scratching the same reflected the ICC Cricket World Cup 2007.  The winners of contest are bound by the terms and conditions as provided in the booklet containing the scratch card.  It is the primary obligation of the complainant to make all the arrangements as per the terms and conditions for facilitating the travel.  Since the complainant became a winner and also holding a passport does not exempt the complainant from the Clause II of the terms and conditions in the scratch card.  It is the responsibility of the complainant to organize all valid travel documents including passport and visa for becoming fully eligible for the trip.  Any short fall in the in-eligibility of the contestant to obtain necessary travel documents cannot be termed as a negligence or inaction on the part of opposite parties.  The visa of the complainant was rejected and it is also stated that several other persons who won the offer had the occasion to visit West Indies after complying all the pre-requisites of the terms and conditions in the booklet provided by the opposite parties.  The offer made by 1^st opposite party would be subject to Indian laws including tax regulations and other taxes as applicable to the winners.  No fraud or unfair trade practice committed by the opposite parties.  It is also contended that the scratch and win offer is purely optional and independent by itself and was made as a gesture of goodwill for those who purchase Hero Honda Bikes from the opposite parties.  There is no cause of action to file a case against the opposite parties.

          4.  The evidence consisted of the oral testimony of the complainant’s power of attorney as PW1 and Exbts: were marked as P1 to P3 and on the part of opposite parties R1 to R4 were marked.

          5.  The counsel for the appellant argued that the complainant’s primary intention was to purchase a motor cycle.  Under normal circumstances, a person will consider the quality of the product and the price for which it is sold.  It is admitted that there had a scratch and win offer provided by appellant and a chance to win is conditional.  The claim of the respondent that he purchased the bike lured by the advertisement for the particular offer providing opportunity to watch ICC World Cup in West Indies is without any bonafides since it is clear that only a person who    succeeds would be getting the opportunity to visit West Indies and it is only a chance.  The person would be known only after a scratch offered by the dealer in fact after scratching it.  Hence it is a clear optional offer to win the scratch.  The counsel also pointed out that the complainant did not choose to enter the box and give evidence.  District Forum passed the order without considering the terms and conditions which was clearly given in the booklet provided by the appellants.  There is no privity of contract between the appellant and the respondent by winning the scratch card and it is admitted that the respondent primarily qualified to visit West Indies.  At the same time clause-13 of the terms and conditions specifically states that the TDS is to be remitted by the complainant for visiting West Indies.  The appellants are obliged to the Indian law and the TDS is to be remitted to the Government and not to the appellants.  Exbt: R1 is produced to prove the case of the appellants.  B3 is the paper publication which was not marked through the right person and cannot be taken into evidence.  The evidence adduced by the appellants were not considered by the Forum Below.   There is no unfair trade practice as the scratch and win card was only offered as a gesture of good will without taking any consideration from the respondent.  The appellants accepted only the value of the Hero Honda bike and the scratch and win card is only an additional offer without accepting any consideration.  The respondent is abide by the terms and conditions followed by the scratch and win card which was made available along with booklet provided to the respondents.  As the respondent is not a ‘consumer’, the Consumer Forum has no cause of auction to entertain the complaint as a ‘consumer’.

          6.  The counsel for the respondent vehemently argued that the complainant purchased the Hero Honda Motor Cycle from the 2^nd appellant  as there had the offer of scratch card with assured travel to West Indies for watching ICC World Cup.  The complainant purchased the vehicle only due to the offer made by the appellants.  This offer was widely published in all the newspapers and specially in newspaper Malayalam Manorama.  The scratch card was scratched before the authorized agent of the appellant and came to know that the complainant is a lucky winner to get the trip to West Indies to watch ICC Cricket Cup.  It is specifically mentioned that the scratch card would carry in its text either ‘ICC World Cup 2007’ or the text ‘Holiday in India’.  The appellants offered vacation for 4 days and 3 nights in West Indies and an opportunity to watch ICC Cricket World Cup match live.  The 2^nd appellant informed the complainant that he had to produce Rs.82,290/- towards DD to consider him for the visit to West Indies.  The complainants were having a passport and as per the offer given to him the appellants are duty bound to take the complainant to West Indies by providing necessary visa.  It is the duty of the appellant to issue necessary documents so as to avail the visa to the complainant.  It is an undisputed fact that the complainant was having a valid passport.  It is argued to visit West Indies a person need to pay less than the amount requested by the appellant to deposit as TDS.  The respondent could have purchased better motor cycle other than the Hero Honda if there had no offer from the part of the appellant.  The appellants also gave wide mis-lead coverage in the newspaper with the photograph of the complainant that the complainant received the lucky winner of scratch and win.  This of course leads to unfair trade practice on the part of the appellant and they were mis-using the lucky draw to allure customers to purchase the motor bike.  Due to the publishing of lucky draw the complainant had to suffer mental agony on the ground that he was not given any facility and also assuring to pay Rs.82,290/- towards TDS purchase.  The respondent was not amenable to this offer as the advertisement seen to be fraud and amounts to unfair trade practice.  The complaint is filed for compensation as he had purchased the Hero Honda Motor Bike nor with the scratch and win card.  The 2^nd respondent harped with terms and conditions in the booklet in a very small letters. This itself is a fraud committed by the appellants and it is to be compensated in favour of the complainant.

          7.  We have heard both the counsels at length and had gone through the documents.  It is an undisputed fact that the respondent purchased Hero Honda Bike from the appellants.  It is also evident that the respondent  attracted by the advertisement  in the daily newspaper Malayala Manorama purchased the bike by paying consideration of Rs.82,290/-. The appellants offered in the newspaper scratch card as a gesture of goodwill without collecting any money from the customers and lucky winner would be sent to West Indies to watch cricket.  Those who win the scratch card is offered in its text either ICC Cricket World Cup 2007 or holiday in India.  It is also admitted that the complainant is the lucky winner to have the text ICC World Cup 2007.  The scratch card was scratched in the presence of the opposite parties.  The respondent was provided with a booklet which is having the terms and conditions of the offer made by the appellants for those who are lucky in the scratch card.  The opposite parties produced the booklet as Exbt: B1 wherein it is stated that the terms and conditions for redemption of lucky gift.  ICC Cricket World Cup 2007.  The Forum Below ignored the terms and conditions and awarded compensation to the complainant which is not sustainable.  It is also pertinent to point out that the terms and conditions followed the offer booklet.  As per condition 11 the Lucky Winner of ICC Cricket World Cup 2007 should arrange to their own valid travel documents including passport and visa, besides paying applicable income-tax and other taxes with the concerned authority.  The TDS comes to Rs.82,290/- which is to be paid under the Indian law and not to the appellants.  Moreover, the respondent paid only the cost of the Hero Honda and nothing is paid against the offer made by the appellants.  Hence the claim for compensation from the appellants is not sustainable.  No consideration is paid by the complainant against the offer made by the appellants.  Since the offer is given as a free gift, the complainant will not come under the definition ‘consumer’ and is not entitled for compensation.

          In the result, appeal is allowed setting-aside the order passed by the Forum Below.

The office is directed to send a copy of this order to the Forum Below along with LCR.

 

A. RADHA              :                MEMBER

 

 

K. CHANDRADAS NADAR  :  JUDICIAL MEMBER

 

 

Sa.

 

 

 

 

 

 

KERALA STATE CONSUMER

      DISPUTES REDRESSAL

 COMMISSION, SISUVIHAR LANE,

VAZHUTHACAUD   

                           THIRUVANANTHAPURAM.

 

 

 

 

 

APPEAL NO.386/2014

     JUDGMENT DATED  20/6/2016

 

 

 

 

 

Sa.