DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.196/11

Sh. Vijay P. Ahire

10- Koyana, New TIFR Staff Quarters,

Sion-Trombay Road, Mandala,

Mankhurd, Mumbai-400088                                         ….Complainant

Versus

Living Media India Ltd.

India Today Book Club,

(also known as Bag IT Today)

B-47, Indira Enclave,

Neb Sarai, New Delhi-110068

Having registered office at:

Living Media India Ltd.

1-A, Hamilton House,

Connaught Place,

New Delhi-110001                                                         ….Opposite Party

                                                  Date of Institution        :  31.05.11        Date of Order                :  16.04.19 

Coram:

Sh. A.S. Yadav, President

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

1. Briefly put case of the complainant is that the complainant, Vijay Ahire was enticed and offered cash and other prizes on the purchase of products sold by Living Media India Ltd. hereinafter referred to as OP. The complainant believing the offers made by the OP’s representative to be genuine fell prey and accepted the membership of India Today Book Club ( ITBC). 
   1. It is averred that  in the first week of March, 2010 complainant on the assurance of OP’s representative that on the purchase of mobile phone costing Rs.13,998/-, he would get a reward of Rs.10,000/-.  The complainant agreed to purchase the same and made payment through his ICICI Bank credit card and was provided the booking ID. On asking, the complainant was informed that  he would receive a call confirming the prize amount but then the complainant received a call confirming that he was rewarded sum of Rs.10,000/-. The complainant asked how the payment would be made, OP’s representative said that the same would be informed later.
   2. It is further averred that at regular intervals on OP’s provocation the complainant purchased several products such as Samsung Mobile Phones, Blackberry Mobile Phones, Whirlpool Water Purifiers, Whirlpool Microwave Oven, Aptech and Samsung Camera Recorder, Philips Home Theater and Microsoft Gaming Console etc. amounting to Rs.2,10,153/- from 4^th March till 13^th June, 2010 from OP.
   3. It is next averred that the complainant was informed by OP’s representative that various prizes would be given in the form of cash and after purchase of products worth Rs.2,10,153/- the cash rewards would total upto Rs.10,21,000/-.  Further to the surprise of the complainant all the said orders were accompanied with Reebok free gifts. It is next alleged that besides not receiving the cash prizes all the products that the complainant received were alongwith the invoice cum delivery note  but most of them did not have any octroi slip which shows  that OP have not paid any Maharashtra octroi duty on those products. It was also discovered by the complainant that the products in question were without any warranty/guarantee, as all the warranty cards were unstamped. It is next alleged that both the Blackberry handsets delivered to the complainant had AT & T tag i.e.  the set could not be sold in India legally but only in USA but the OP had got it unlocked and was trying to sell locally in India illegally. The box also seemed to be tampered with, as to its price. Further the complainant was doubtful about the prices of few products and the false representation made by the OP that the Samsung and Aptech cameracoder were of 12 & 10 megapixel respectively but on receiving it was found that they were 1.9 MP and SVGA camera respectively.
   4. It is next averred that  on asking of the OP’s representative  to pay the taxes amounting to Rs.34,978/- in two installments, the complainant  would get details of the cheque amounting to Rs.10,21,000/-. The complainant paid the so-called tax amount but he received two Microsoft X-Box 360 Arcade Gaming console products worth Rs.17,489/-  each. It is alleged that lot of false promises and misrepresentations were made by the OP but on 21.06.2011 the complainant was shocked to receive an email from the OP stating that he was not entitled to any cash prize.
   5. Later on 05.10.10 the complainant was again offered a gold box cash worth Rs.1,10,000/- and was  confirmed that if he pays Rs.29,992/- in two installments the complainant  will get confirmed Rs.1,10,000/- in his bank account directly within two hours. The complainant states that he was in urgent need of money to pay up the loans and agreed to give another try and paid Rs14,996/-  in two installments on 5^th October. After waiting and not receiving any cash prize the complainant threatened OP and the amount paid was refunded.  On a similar occasion the complainant in December, 2010 had told OP to return the products as there was mis-commitment on behalf of the OP. In return the OP compensated the complainant by giving him Samsung 22” LCD television worth Rs.18,000/-. It is further averred that all the products sold to the complainant by the OP were as a result of fraud and unfair trade practices and finally on realizing that he was not going to receive any prize money in cash or otherwise the complainant had to sell off most of the products for less than 50% of the purchase price to the friends and relatives. It is next averred that he was forced to take up the loan from his Provident Fund and Employees Society to pay up credit card bills. The complainant took a loan of Rs.1,59,233/- from Tata Institute of Fundamental Research Institutes Employees Credit Society and Rs.72,000/- from Provident Fund loan annexed as Annexure -10. Alleging that the OP who is a leading Media House in India has been indulging in unfair trade practice and  is also liable for deficiency in service. The complainant seeks directions to the OP to give him the cash price of Rs.10.21 lakhs alongwith interest, Rs.9.5 lakhs by way of compensation for cheating, harassment and Rs.25,000/- as litigation costs.

2. OP resisted the complaint inter-alia with the preliminary objection that the complaint is not maintainable since admittedly the complainant purchased the goods from the OP and resold them to third person therefore the complainant is not a consumer but a reseller.
   1. It is submitted that www.bagittoday.com and www.indiantodaybookclub.com are online sales portal which are under the same group and hence while logging to www.indiantodaybookclub.com the browser redirects to www.bagittoday.com. The sale portal in the process of selling its products undertook promotional activities. The Sweepstake competition is a promotional activity of the sale portal during the period 1^st May, 2009 to 30^th June, 2010. Sweepstake competition is a price draw/lucky draw and any customer can enter into the competition on his own choice. It is denied that the OP has offered cash prizes on sale of products. Purchase of the product from the OP only qualifies a customer to enter into the sweepstake competition. It is further reiterated that at no stage OP has ever promised a cash reward for particular purchase. Further it is submitted that the complainant always accepted the free gifts in addition to the products ordered and never complained about the same at that point of time.
   2.  It is submitted by OP that all taxes and duties levied on the sale of goods have been paid by OP. Further it is averred that the complainant was well informed at the time of sale that the products do not carry manufacture’s warranty and only covers Seller’s guarantee.
   3. It is further averred that the payment of Rs.34,978/- as alleged by the complainant was not towards payment of taxes but towards the purchase of two Microsoft X-Box 360 Gaming Console which were duly ordered by the complainant under his own free will.
   4.  Emails dated 21.06.10 & 22.06.10 from India Today Book Club very clearly mentions about the sweepstake competition. It also clarifies the draw date would be informed to the complainant and no mention of any venue or any arrangement of hotel or air ticket is made therein.  OP further submits that the gold box is the name given to a combination of products and the said product combination was purchased by the complainant by his own free will and he accepted the same.  Further the complainant has averred that he took a loan of Rs.1,59,233/- to pay up the credit card bill of his purchases. However, in the application to TIFR Employees Co-operative Society Ltd. he has mentioned that he requires the loan for repairing his parents’ house.  This clearly reflects upon the false allegation that the complainant continuous to make without any basis. Therefore, it is prayed that present complaint being frivolous and vexatious should be dismissed with exemplary costs.
3. Complainant has filed replication to written statement of OP.
4. Complainant has filed evidence by way of affidavit wherein facts of the complaint are reiterated. Evidence of Sh. Manoj Madhavan, employee of OP has been filed on behalf OP.
5. Written arguments have been filed on behalf of the parties.
6. Oral arguments on behalf of the parties are heard and material placed on record is perused very carefully.
7. Going through the pleadings it is observed that no prudent person would purchase 2-3 mobile phones or 2 washing machines or 2 water purifiers or 2 home theaters for himself and later on sell the same products to his friends and relatives at half the price just to pay up the credit card bills. Therefore since the complainant purchased the goods from the OP and sold them further the complainant ceases to be a ‘consumer’ as per the Consumer Protection Act, 1986. However, the complaint being very old we would decide it on merits as well. 
8. It is noticed that the complainant purchased products through ITBC from 04.03.10 and continued to purchase till 13.06.10 under the presumption that he will get a cash prizes in return. No documentary evidence is placed on record which proves the averment that the complainant was promised cash prizes by OP. We have heard the C.D. and gone through the  transcript provided by the complainant but did not find any credible evidence regarding the same. Further admittedly all the said products/ orders were accompanied with Reebok free gifts which were accepted by the complainant without any complaint or objection. We wonder that despite receiving the free gifts the complainant still expected that a cash reward upto Rs.10,21,000/- and voucher worth of Rs.70,000/- will be provided to him on the purchase of products of Rs.2,10,153/-? 
9. It is not just hard to believe but very difficult to conceive that somebody who seems to be well informed and educated can be that naive to think that on purchasing of the products worth Rs.2,10,153/- he would receive the cash prize of five times the amount paid for the products. Further the allegations as regards octroi and other taxes the complainant had no reason to be concerned with these aspects lest he was interested in the re-sale of those products/any form of commercial dealing of the goods purchased.
10. We further wonder as to why someone who was doubting the credibility of OP, genuineness of the products sold by OP, products without guarantee/warranty would again burn his fingers and purchase products from OP after a gap of 4-5 months. The complainant had realized in the month of June that the OP was misrepresenting and making false promises. Despite having that knowledge he still went ahead and purchased products in October. Further an application for medium term loan annexed as A-103 with the evidence shows that the complainant  has made false averment regarding the medium term loan taken by him from TIFR Employees Co-operative Society Ltd. which was specifically taken for his parents house repairing work and not to pay the credit card bills as averred.

In view of the above discussion, the complaint is dismissed being false and misconceived 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 16.04.19.