RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 837 of 2007

1- Smt. Rekha Sharma w/o Sri Anil Sharma,

    R/o 47, Badujai-II, Town Hall, Shahjahanpur.

2- Nirbhay Sharma s/o Sri Anil Sharma,

    (Minor aged about 10 years) through guardian

    Sri Anil Sharma s/o Sri Radheshyam,

    R/o Badujai-II, Town Hall, Shahjahanpur....Appellants.

Versus

1-  M/s Hindustan Lever Ltd. (now known as

     Hindustan Unilever Ltd.), 165/166, Backbay

     Reclamation, Mumbai- 400020 sponsor of the

     Scheme Surf Excel 10/10 Contest executed by

     Alpha Data Management Center, First Floor,

     Ravalpindiwala Building, Opp. Dreamland Cinema,

     2- Tribhuvan Road, Mumbai-400004 through

     Manager Director.

2- O.P. Kirana Store, Bahadurgang, Sahjahanpur

    (Seller Surf Excel) through Proprietor.

3- Advertisement Director, Doordarshan Kendra,

    Lucknow.                                              ….Respondents.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri Govardhan Yadav, Member.

Sri R.K. Gupta for the appellants.

Sri Rajesh Chaddha for the respondent no.1

None for the respondents no.2 & 3.

Date   9.11.2016

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the judgment and order dated 31.32008, passed by the Ld. DCDRF, Shahjahanpur in complaint case No.8 of 2007, the appellant/complainants Smt. Rekha Sharma and Nirbhay Sharma  have preferred the instant appeal under Section 15 of the Consumer Protection Act, 1986 (Act 68 of 1986)

(2)

on the ground that the impugned order is arbitrary, perverse and is bad in the eye of law. It was delivered without proper appreciation of law and/or application of mind on the basis of surmises and conjectures and therefore, it has been prayed that the same be set aside in the interest of justice and they be granted the relief sought by them in the original complaint, otherwise they will suffer irreparable financial  loss.

          From perusal of the complaint bearing no.8 of 2007, it transpires that the appellant/complainants saw an advertisement on Door Darshan on 24.11.2006 relating to a promotional scheme of Surf Excel, in which it was advertised that every packet of Surf Excel contains a coupon in the form of a piece of cloth and if the buyer gets a coupon with a score of 10/10 printed on it then he  will get a sum of Rs.50,000.00 as scholarship for education of the children. Allured by the this offer the appellants purchased a packet of Surf Excel on 24.11.2006 from M/s O.P. Kiran Store, Bahadurganj, Shahjajanpur. The packet contained a coupon having 10/10 score. Upon this, the appellant/complainant no.1 Smt. Rekha Sharma informed about it to Manager (Personnel) Surf Excel, Mumbai on 27.11.2006 and claimed the scholarship/prize amount.  However, the respondent Surf Excel neither paid her the winning amount nor responded to the notice. Aggrieved by this deficiency in service and unfair trade practice, complaint case no.8 of 2007 was preferred before the ld. DCDRF, Shahjahanpur in which Manager, O.P. Kirana Store and Director (Advertisement), Door Darshan, Lucknow were impleaded as OP no.2 and 3. It has been

(3)

alleged that this allurement was given through D.D. Telecast and amounted to unfair trade practice as defined under Section 2(1)(r) of the Act 68 of 1986.

The records show that the Door Darshan denied having telecasted any such advertisement on 24.11.2006 between 4 p.m. to 8 p.m. during its Central Regional Broadcasting as alleged by the appellants/complainants. The excerpts of the Studio Log Book of Door Darshan was filed alongwith the Written Statement. It was further submitted that the Door Darshan has been made a party in the case with an ulterior motive to gain some undue advantages/coverages.

The respondent no.1 Manager, Surf Excel and the respondent no.2 Manager, M/s O.P. Kirana Store, Shahjahanpur did not contest and therefore, the case proceeded exparte against them.

The Forum below, after hearing the contesting parties came to the conclusion that the basis of the complaint was proved wrong in view of the fact that no such advertisement was telecasted on 24.11.2006 by the Door Darshan. The Studio Log Book is maintained in course of official duties by  Government Officers and its genuineness can not be doubted in view of the provision of Indian Evidence Act. Besides this, receipt of purchase of Surf Excel was neither produced nor the genuineness of the stained-cloth was proved. The appellants/ complainants. The allurement was alleged to have been given through D.D. Telecast which was found to be wrong. Considering the totality of the circumstances, the complaint was dismissed with no order as to costs.

(4)

Aggrieved by this judgment and order, the instant appeal was preferred.

Heard both the parties and have gone through the records carefully. From perusal of the records, it transpires that the complaint was filed against (a) Manager, Surf Excel 10/10 Contest through Alpana Data Centre, (b) Manager, O.P. Kirana Store, Shahjajanpur and (c) Director (Advertisement), Door Darshan, Lucknow. However, the appellant/complainants filed the appeal against (a) M/s Hindustan Lever Ltd., presently known as Hindustan Unilever Ltd., (b) Manager, O.P. Kirana Store, Shahjajanpur and (c) Director (Advertisement), Door Darshan, Lucknow. It was argued by the ld. counsel for the respondents that the appeal was bad for mis-joinder and non-joinder of the necessary parties. Admittedly, the parties to the complaint were not impleaded in appeal and no cogent reason has been assigned for their non-impleadment. Similarly, Hindustan Lever Ltd. was not a party before the Forum below, yet it has been impleaded at the appellate stage without any formal order. Thus, the appeal suffers form non-joinder as well as mis-joinder of parties. Besides this, the respondent no.3 Director (Advertisement), Door Darshan on the basis of Studio Log Book of Door Darshan submitted that it did not telecast any advertisement regarding Surf Excel on 24.11.2006 between 4 p.m. to 8 p.m. during its Central Regional Broadcasting. Thus, the basis of allurement and allegation relating to unfair trade practice stand disproved. It has been alleged that the allurement was through D.D. Telecast. No such telecast was ever made on 24.11.2006

(5)

as per the Studio Log Book. The genuineness of the Studio Log Book can not be questioned.  Thus, the very basis of communication of advertisement stands disproved. No cogent evidence has been adduced by the appellants to prove the contention that telecast regarding the promotional scheme was made by the Door Darshan on 24.11.2006. The appellants have neither filed receipt of purchase of Surf Excel packet form M/s O.P. Kirana Store, Bahadurganj nor photocopies of the stain and other documents have been formally proved. The letter dated 27.11.2006 addressed to Manager (Personnel), Surf Excel does not bear the signature of complainants Smt. Rekha Sharma or Nirbhay Sharma. It was sent at a wrong or incomplete address as is clear from the perusal of the photocopy of the letter dated 27.11.2006.  The basis of knowledge of the scheme through Door Darshan stood falsified. The Forum below took all facts, circumstances and evidence on record into consideration and dismissed the complaint on 31.3.2008. There is no irregularity or illegality in the same and therefore, we are not inclined to interfere in it.  Consequently, the appeal, being meritless, is liable to be dismissed.     

ORDER

The appeal is dismissed. No order as to costs.  Certified copy of the judgment be provided to the parties in accordance with rules.

         (A.K. Bose)                          (Govardhan Yadav)

    Presiding Member                             Member

Jafri PA II

Court No.3