DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.38/2007. Date of filing of the Case: 28.06.2007 Complainant | Opposite Parties | Sri Joydeb Saha S/O. Late Jatindra Nath Saha, aged about 53 years, by caste – Hindu, by profession – Business, residing at Vill. & P.O. Debinagar, P.S. Raiganj, Dist. Uttar Dinajpur. | 1 | Lottery Ghar Agency, Prop. Firoj, Netaji Market, Rathbari, P.S. Englishbazar, P.O. & Dist. Malda. | 2 | The Marketing Manager, Tiger Associates / Best & Company 41, Swamiji Sarani (Ward No.16) Hakimpara, Siliguri, Dist. Darjeeling 734401 (Opp. Siliguri Vivekananda Vidyalaya). | 3 | The “Best & Co.” Tiger Associates, P – 46 Hide Road Extention, Brace Bridge, Taratala, Kolkata – 700 088. | 4 | The “ Best & Co.” “ Daisy Plaza” No.355-359, 6th street, Gandhipuram, Coimbatore – 641012. | 5 | Amar Sarkar C/O. Late Hari Krishna Sarkar Vill Debinagar (Beltala) P.O. Debinagar, P.S. Raiganj, Dist. Uttar Dinajpur. |
Present: | 1. | Shri A.K. Sinha, Member | 2. | Smt. Sumana Das, Member |
For the Petitioner : Utpal Kr. Bagchi & Piyal Saha, Advocates. For the O.P.s For the O.P. No.1 Krishnagopal Das, Advocate. For the O.Ps. No.2 & 5 Tapan Kr. Roy, Advocate. For the O.Ps. No.3 & 4 None appeared. Order No. 23 Dated 29.04.2008 The petitioner’s case in a narrow campus is that he used to earn his livelihood by way of selling lottery tickets as agent since long. He purchased huge lottery tickets of ‘Future’ from Lottery Ghar Agency (hereinafter to be called O.P. No.1 ), sponsored by Royal Government of Bhutan Lottery under the supervision of Best & Co. (hereinafter to be called O.P. No. 3 & 4) and marketed by Tiger Associates for West Bengal (hereinafter to be called O.P. No.2) on 11.03.2007 under voucher no. 15154. The petitioner sold some tickets of ‘Future’ to O.P. No. 5 who sold the same to customers directly. O.P. No. 3 published an advertisement in Uttar Banga Sambad, a news daily on 15.03.2007 that agent holding of Contd….P/2…. P-2 winning ticket of last voucher will get agent gift i.e. Maruti Alto Car or 150 gms gold. The said gift was declared on 364th weekly draw falling in the weekdays from 12.03.2007 to 18.03.2007. One person own the first prize on ticket no. 376794 sold by O.P. No.5 ( Amar Sarkar) who purchased the said ticket alongwith others from the petitioner. The petitioner had purchased the said winning ticket alongwith bunch of tickets of ‘Future’ from O.P. No.1 who is a stockiest of O.P. No. 2 to 4 on 11.03.2007 under Challan No. 15154. The petitioner requested O.P. No. 1 to 4 to make arrangement for delivery of the gift prize i.e. Maruti Alto Car or 150 gms of Gold in his favour but none of the said O.P.s pay heed to his request and finding no alternative the petitioner sent a lawyer’s letter on 05.04.2007 to the O.P.s. The aforesaid O.P.s ultimately handed over the prize gift to O.P. No. 5 as seller of first prize winning ticket seller depriving the legitimate claim of the petitioner and this gives rise to present proceeding for the reliefs as have been mentioned in the petition of complaint. O.P. No. 1 , 2 & 5 contest the case by filing written version separately. O.P. No. 3 & 4 did not turn up to the Forum inspite of notice to defend their case and the case against O.P. No.3 & 4 will be heard exparte. O.P. No. 1 & 2 have denied the material allegations. O.P. No. 1 also denied any role to deliver the declared prize gift to the seller of the first prize winning ticket i.e. O.P. No. 5 as the same was declared and published in news daily by O.P. No. 3 & 4 and he is simply the stockist under them as well as of different distributors of other lottery company. The written version of O.P. No. 2 is just parawise repetition of that of the O.P. No. l except in para – 6 wherein one more line is inserted stating that O.P. No. 2 is an unnecessary party. O.P. No. 5 also denied the material allegations and claimed that he sold the first prize winning ticket and by placing his sale voucher of the said ticket etc. placed his claim and collected the gift prize Maruti Alto Car from Best & Co. who is authorized distributor of Royal Government of Bhutan Lottery. This O.P. also stated that he gave Rs. 25,000/- to the petitioner as he purchased the first prize winning ticket from him alongwith other tickets. On pleadings of both the parties the following pertinent question have been emerged 1) Whether the petitioner be treated as agent of O.P. No.2 who is marketing the lottery tickets sponsored by Royal Government of Bhutan for and behalf of O.P. No.3 & 4 Contd…..P/3 P-3 2) Whether the news declaring gift prize to agent of first prize winning ticket published in news daily under Uttar Banga Sambad on 15. 03.2007 was circulated by the O.P. No.2 on behalf of O.P. No. 3 & 4. Point No. 1 The petitioner has examined himself as PW-1 and deposed that he earned his livelihood by selling lottery tickets under the name and style Babai Lottery Agency. He used to purchase bulk lottery tickets from O.P. No. 1. PW-1 also filed 24 vouchers issued by O.P. No.1 against the sale of bulk lottery tickets time to time which have been marked Ext – 2, 2(a), 2(b), 13, 13 (a) to 13 (t). Scrutiny of the exhibits reveals that the printed vouchers denotes O.P. No..1 as commission agent and the petitioner’s name finds in the column – agent’s name but strange to note that in Ext – 2 the word ‘Commission Agent’ and ‘Agent’s Name’ have been penned through. This Ext – 2 also reveals the issue of tickets of ‘Future’ Lottery 364th draw, drawing date between 12.03.07 to 18.03.07 in respect of 2000 tickets against each draw date. The serial number of first prize winning ticket number 376794 is available from Ext – 2 against the bunch of 2000 having draw date 14.03.2007. PW-1 also filed the voucher carbon copy book maintained in his shop marked ( Ext- 3) which reflects that ‘Future’ 364th – 14.03.2007 bearing serial 376760 to 779-400 tickets were issued in name of O.P. No. 5 under signature of Babai Saha dt. 14. 03.2007, the son of the petitioner. PW-1 in cross-examination admitted that he did not have any agency certificate. O.P. No. 5 who as OPW-2 admitted that he is a lottery ticket seller and the first prize winning ticket of ‘Future’ 364th draw with drawing date 14. 03.2007 was sold by him and the same was purchased from the petitioner alongwith other tickets. He also stated that he received the gift prize of first prize winning ticket seller a Maruti Alto Car declared by Best & Co. (O.P. No. 3 & 4) In the argument the O.P.s have defined the meaning of word ‘Agent’ as envisaged under Mines Act, 1952, Representation of People Act, 1951 and Indian Contract Act, 1972. True it is that in relation to Mine, Agent means any person whether appointed as such or not, who acts as the representative of the owner in respect of the management of Mine or any part thereof and as such superior in a Manager under Mines Act, 1952. According to Contract Act, 1972 an Agent is a person employed to do any act for another in dealing with third person. Contd.P/4…… P – 4 In the instant case the O.P. No. 2 who deposed as OPW- 1 claims himself as distributor of lottery tickets of Royal Government of Bhutan Lottery and also admitted that his concern is a part of Best & Co. ( O.P. No 3 & 4) . The OPW-1 has denied to engage the petitioner as Agent rather admitted that the petitioner is a stockist of him. This OPW-1 in cross- examination could not file any document to show that he is a marketing of Best & Co. ( O.P. No. 3 & 4). From the above deposition of O.P. No. 1 it reveals that no agent is appointed by O.P. No. 2 who is the distributor of Royal Govt. of Bhutan Lottery for West Bengal and he is a part of Best & Co. If that be the so then how the advertisement declaring prize gift of Maruti Alto Car or 150 gm Gold to selling Agent of first prize winning ticket of 364th draw of future lottery circulated in Uttar Banga Sambad on 15th March , 2007 SLG was published in the name of Best & Co. (O.P. No. 3 & 4) marked Ext 1 & 1 (a). Now this give rise to a confusion as to whom will be considered agent in the light of the said advertisement in respect of delivery of the prize. This O.P. No. 3 & 4 are the best witnesses to give proper clarification but unfortunately none appears in the Forum in spite of receiving notice and their cases have been declared exparte. On the contrary O.P No.2 as OPW-1 claimed himself as marketing Agent of O.P. No. 3 & 4 whereas O.P. No. 1 used to issue vouchers after selling bulk lottery tickets to the petitioner as agent which manifests from Ext – 2, 2(a), 2(b), 13, 13 (a) to 13(t) except in Ext – 2 in the column of ‘Agent’s name ‘ is penned through by O.P. No.1. This O.P. defended this point by saying that it was wrongly Printed by press but he is silent in respect of other exts. referred to hereinabove as to why in the column of ‘Agent’s name’ reflects the name of the petitioner. For proper adjudication of this point the concerned Press authority need to be examined and the matter handed over to him for printing the vouchers in question is required for corroboration of the statement of O.P.No.1 as OPW-3. Point No. 2 It appears on careful scrutiny of the news declaring prize gift to ticket selling Agent of first prize winning ticket of ‘Future’ 364th draw published in Uttar Banga Sambad on 15th March, 2007 SLG that it was a caption heading ‘Best & Co.’( O.P. 3 & 4) and not of Tiger Associates ( O.P. No. 2 ) but in Ext – B filed by OPW-1 being the news daily title ‘Lottery Sambad’ published from Kolkata 13th March, 2007 circulated the prize gift of one Maruti Alto Car or 150g Gold free to the first prize winning ticket selling agent, wherein publication done in the name of Best & Co. Contd.P/5….. P – 5 main stockiest marketed by Tiger Associates. The OPW-1 has filed Ext – A being the circular Dt. 10.03.2007 and a letter dt. 10.03.2007 in the letterpad of Tiger Associates addressing to Gandhara Consultants, Kolkata – 07 wherein it requested the publication in Uttar Banga Sambad. For this purpose the circular is written as such which manifests names of lottery – gift ‘Future’ – 10 was among others scribing Maruti Alto or 150g Gold. The Ext.A enclosed xerox copy of circular which reads as follows, “ The prize will be gifted only to the last retailing seller who retails those tickets provided the last voucher will have to be produced by him.” From the above facts it can safely be concluded that the caption published in Uttar Banga Sambad on 15th March, 2007 SLG does not tally on question of selection of winner of the gift prize with that of the instructions of O.P. No.2 referred to hereinabove in Ext.A. This point needs further adjudication from the evidences of Gandhara Consultants, Kolkata – 07 or Circulation Department of Uttar Banga Sambad, SLG and that of Lottery Sambad. Thus from the above discussion that it can safely be said that instant case involves complicated and complex questions of facts as well as laws for determination of which further oral and documentary evidence is necessary. In the above view of the matter this Forum does not appear to be competent to enter into all these intricate question of laws and facts which is to be determined by a competent Court having jurisdiction over the matter. Accordingly, the instant application is thus disposed of. The petitioner is at liberty to take recourse to law as he deems fit and necessary. Let a copy of order be given to both parties free of cost. Sumana Das A.K. Sinha Member Member D.C.D.R.F., Malda. D.C.D.R.F., Malda. | 
