BEFORE:

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

For the Appellant                 Mr Aditya Narain, Ms Avni Sharma,

Ms Ridhima Sharma and Mr Mishra Raj Shekhar, Advocates

For the Respondent              Mr Maibam N Singh, Advocate with

                                                                                Respondent in PERSON

ORDER

1.     This First Appeal under Section 19 of the Consumer Protection Act, 1986 ( in short, ‘the Act’) assails the order dated 03.10.2018 of the Delhi State Consumer Disputes Redressal Commission, New Delhi (in short, ‘the State Commission’) in complaint case no. 32 of 2011, allowing the complaint and directing the opposite parties (Appellant herein to pay a sum of Rs.50 lakh with interest @ 8% per annum from the date of the complaint till realisation along with compensation of Rs.10,000/- and litigation charges of Rs.10,000/- within a period of 30 days failing which the amounts awarded shall carry interest @ 24% per annum.

2.     I have heard the learned counsel for both the parties and have carefully perused the material on record.

3.     The relevant facts of the case in brief are that the appellant which is in the business of manufacture and sale of flavoured beverages had initiated a sales promotion scheme in the year 2010 and designed a contest called ‘Pepsi Youngistan Kaa WoW”. The contest was opened to television audiences and involved 4 levels of participation during the period 25.03.2010 to 24.10.2010. The contest involved participation on phone and under this contest the first 35,000 participants were to receive mobile talk time of Rs.50/- and the other/balance participants with correct answer were to receive a Pepsi WoW Song. All the participants were to receive a Pepsi WoW Ringtone. The participants who answered correctly at all the three levels were eligible to participate in Level Four of the contest which involved submission of a situation and slogan to be judged by an independent Jury for which the prize money was Rs.50 lakh.  Participation of level 4 was to end at 02.00 pm on 22.04.2010. The appellant declared one Ms Maria Islam on 25.04.2010 as the winner of the game and informed all the participants on 26.04.2010 of the same from their official number “TM–The Game”. According to the appellants, the prize money was paid by cheque to the winner after deduction of the requisite taxes.

4.     In June 2010, respondent approached the appellant claiming to be the winner of the game. Appellant appointed an independent auditor to verify the claim and it was discovered that a message dated 26.04.2010 had been received by the respondent on her phone that she had been declared the winner of the contest. However, as per the report of the auditor appointed by it, it was contended by the appellant that the respondent had saved her own mobile number on her cell phone as “TM-The Game” and on 12.06.2010, she fabricated a message dated 26.04.2010 and forwarded it to herself. The appellant therefore turned down the claim of the respondent. The respondent then approached the State Commission claiming to be the winner of the contest and alleged unfair trade practice on the part of the appellants and prayed for the relief of being paid the prize money of Rs.50 lakh with interest @ 18% per annum along with compensation of Rs.10,000/- for mental agony and harassment and  Rs.10,000 as litigation cost.

5.     On contest, the State Commission, vide its order dated 03.10.2018, allowed the complaint and directed the payment of Rs.50 lakh along with Rs.10,000/- each for harassment and litigation with 9% interest within 30 days failing which with interest @ 24% per annum. This order is impugned before us.

6.     It is the contention of the appellant that the claim of the respondent is fraudulent, concocted and baseless and the allegation that she was denied the prize money was wrongly based on unverified articles on the internet and unverified comments of such articles by unknown persons. It was contended by the appellantthat the contest had been decided fairly by them and a cheque dated 05.05.2010 drawn on Citi Bank had been handed over to the winner, Ms Maria Islam  against receipt of acceptance which was properly documented through photographic and videographic documentation of the prize ceremony. It was contended that despite the fact that the contest had been run and adjudged fairly, the appellant company, out of a sense of responsibility, had appointed a Chartered Accountant, M/s S R Bansal and Co., to consider and verify the contention of the appellant. It was submitted that the same had been done in consultation with and after notice to the respondent.  It was also stated that the appellant relied upon a message stated which was to have been received by it from a phone number “TM-the Game” which was subsequently discovered to have been created by the appellant herself and was a message from her own mobile sent to herself. Reliance placed on a webpage on the internet by the respondent was argued to be mere heresay and therefore not admissible evidence unless proved by evidence which had not been done by the respondent and therefore, its veracity could not and should not have been considered by the State Commission.

7.     It was also contended that the respondent was not a “consumer” under Section 2(1) (d ) of the Act as she had not purchased any good or service from the appellant for a consideration. No proof of consideration paid for either goods or services had also been produced by the respondent. Reliance was placed on this Commission’s order in Coca Cola India Pvt Ltd., vs Sachidanandan G and Ors., 2015 SCC OnLine NCDRC 2353. It was further contended that the respondent had only produced the typed copy of the alleged message which could not be considered since the law prescribed that electronic records are to be proved in a particular manner as held the Hon’ble High Court of Delhi in India Infoline Ltd., and Anr. vs Dana Singh Bisht, 2018 SCC OnLine DEL 10695.  It was therefore contended that the impugned order be set aside.

8.     Per contra, it is the case of the complainant/ respondent that she was the rightful winner of the contest run by the appellants and that denial of the award to her was an unfair trade practice on the part of the appellant.  It was contended that the State Commission had rightly observed that the proposition of sending the winning message from the complainant’s own mobile phone to its own number was impractical and that the appellant had failed to establish this contention by verifying the mobile number and mobile set of the respondent. It was argued that the State Commission had rightly observed that the ID ‘TM-The Game” had been issued by the telecommunication company to the customers so as to facilitate transmission of messages in bulk. Therefore, the organisers of the contest could send messages from the computer to the participants and vice versa. Hence, it was averred that the contention that the respondent had fraudulently created the message to herself was incorrect and not possible. It was also argued that the appellant did not choose to take the respondents mobile phone for any examination to establish whether the version of the respondent was correct or otherwise. The State Commission’s conclusion that on the basis of available evidence, unfair trade practice stood established and therefore, the State Commission order should be upheld.

9.     The issue that falls for consideration is whether the complainant/ respondent is a complainant under the Act who is eligible to seek compensation for unfair trade practice as claimed.

10.   From the foregoing, it is evident from the material on record that the respondent was a participant in a contest run by the appellants essentially as a sales promotion activity.  There was no requirement of purchase of any product manufactured, marketed or sold by the appellant. In this sense there was no consideration paid for any item or product of the appellant by the respondent.  There was also no service which was either paid by the respondent for or promised by the appellant respectively. Admittedly, there was a sales promotion related contest in which the respondent participated and that there were certain prizes / awards that were available to the participants either on a “first come, first served” basis (in so far as the first 35,000 participants are concerned) and thereafter at Level 4, for participating in a slogan contest to be judged by a Jury for which a separate prize money was allocated.

11.   The State Commission has not addressed the issue of whether the respondent as a participant in the contest was a “consumer” qua the appellant and therefore, eligible to seek relief for unfair trade practice under the Act. It had instead proceeded to adjudicate the matter relating to whether the appellant rightly or otherwise considered the entry allegedly sent by the respondent to be the winning entry.

12.   Section 2 (1) (d) of the Act read as follows:

       consumer" means any person who-

(i)    buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 (ii) 1[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 1[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person;

2[Explanation: -- For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;] 

13.   It is evident that there was no sale transaction for a consideration of either good or service in which the two parties were engaged to establish a relationship of a consumer and a service/ product provider. In view of the fact that ingredients requiring the respondent to be a “consumer” under the Act have not been met, it cannot be held that the respondent was a “consumer” under the Act.  Furthermore, the contention of the respondent that she was a winner under the contest is based on her contention that it had received a message from “TM-the Game”.  The onus of proving the same lies upon the respondent which has not been done on the basis of cogent evidence. She has instead tried to shift the onus on the appellant by alleging that the mobile phone set was not subject to forensic examination. The interpretation of the State Commission that the said message could not have been generated by the respondent to herself is also not based on any evidence from the service provider but is an interpretation which is conjectural and based on surmises.  In the absence of any cogent and documentary evidence from the service provider, tele-communication company, to conclude that such a report or message could not have been generated by the respondent herself cannot be sustained.

14.   In view of the foregoing discussion, I find merit in the appeal which is accordingly allowed. I do not find any reason to uphold the impugned order. There shall be no order as to costs.

15.   Pending IAs, if any, stand disposed of with this order.