Andhra Pradesh
Chittoor-II at triputi
CC/6/2019
S.Subramanyam, S/o Nagaiah - Complainant(s)
Versus
M/s MGR Mall, rep. by its Proprietor - Opp.Party(s)
National Association of Consumers (NAC)
20 Sep 2019
ORDER
Filing Date: 17-12-2018 Order Date: 20-09-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.
Present:- Sri. T.Anand, President (FAC)
Smt.T.Anitha, Member
FRIDAY THE TWENTIETH DAY OF SEPTEMBER, TWO THOUSAND AND NINETEEN
C.C.No.06/2019
Between
Sri. S. Subramanyam, S/o. Nagaiah,
Aged about 50 years, resident of # 16-1/1B,
First Floor, Munireddy Nagar,
TIRUPATI – 517502. … Complainant
And
M/s. MGR Mall,
Represented by its authorized signatory,
T.K.Street,
TIRUPATI – 517501. … Opposite party
This complaint coming on before us for final hearing on 04.09.2019 and upon perusing the complaint and other relevant material papers on record and on hearing of president, National Association of Consumers (NAC) for the complainant and Sri. G.Guruprasad, counsel for the opposite party having stood over till this day for consideration, the Forum made the following.
ORDER
DELIVERED BY SRI. T.ANAND, PRESIDENT(FAC)
ON BEHALF OF THE BENCH
1. This complaint is filed under section 12 of the Consumer Protection Act 1986, facts in brief are as follows:- On purchasing cloth items for Rs.1,039/- vide cash bill No.28888 dt: 23.08.2018 by the complainant, the opposite party issued one lucky coupon bearing No.018689 on the same day. Lucky draw scheme was announced by the opposite party from 09.07.2018 to 13.09.2018 at Tirupati stating that a Maruthi Alto 800 Basic Model Car will be presented to the winner of the bumper lucky draw and also Scooty Pep+ will be presented to the winners in mini lucky draw and the opposite party has given vide publicity to the lucky draw scheme by displaying boards in and around the city and also given advertisements in all the Telugu daily newspapers during the lucky draw scheme period. However, the said draws were not conducted on any day as stated by the opposite party in their advertisements and no Scooty Pep+ was presented to the winners and similarly in the bumper lucky draw also no car was presented to the any winner and no draw was conducted.
2. The lucky draw rules are framed in to the detrimental of the interest of consumers. The eligibility of the consumers and to participate in the lucky draw was not mentioned in their advertisement in Eenadu Telugu daily paper dt: 21.07.2018. The intention of the opposite party seems to be to lure the customers to promote their sales. The Scooty Pep+ and Maruthi Alto 800 were not purchased and displayed in the showroom of the opposite party during lucky draw scheme period. Likewise the cost of the Scooty Pep+ and Maruthi Alto 800 were not mentioned in the advertisements given by opposite party in Telugu daily newspapers. The complainant stated that, Section 2(1) (r) (3A) of Consumer Protection Act, 1986 says “ Withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the Scheme. No results were published in any leading Telugu daily newspapers during the lucky scheme period where the original advertisements were published by the opposite party. It clearly proves that no lucky draw was conducted every day as stated by the opposite party in their advertisements. As per Consumer Protection Act, 1986, fraud and cheating with public amounts to Unfair Trade Practice”.
As the opposite party cheated the consumers by not conducting lucky draws as announced by them, the complainant missed the opportunity of getting a winning chance in the lucky draw. Notice dt: 16.11.2018 was sent to opposite party by registered post with acknowledgment due vide postal receipt No.RN592023366IN dt: 19.11.2018 for which the opposite party replied through counsel stating that all the facts are false. The acts of opposite party clearly prove that they indulged in unfair trade practice. Hence the complainant was constrained to approach the forum seeking direction to the opposite party to refund Rs.1,039/- collected from complainant towards cost of dresses on 23.08.2018 with interest @ 24% p.a. from 23.08.2018 and also to pay Rs.4,90,000/- towards compensation for causing inconvenience and mental torture to the complainant due to deficiency in service on the part of opposite party and also to pay Rs.8,000/- towards litigation expenses.
3. The opposite party filed written version contending as follows:- At the outset, the complaint averments are denied. The complainant is called upon to prove that he purchased dresses from opposite party mall for Rs.1,039/- vide cash bill No.28888 dt: 23.08.2018 and that the opposite party issued one lucky coupon bearing No.018689 per coupon. However the opposite party admitted that lucky draw scheme was announced by opposite party from 09.07.2018 to 30.09.2018 at Tirupati stating that a Maruthi ALTO 800 basic model car will be presented to the winner of the bumper lucky draw and also Scooty Pep+ will be presented to the winner of each or four mini draws. It is denied that the opposite party has given vide publicity by displaying boards in and around the city and also given advertisements of Telugu daily newspapers regularly during the lucky draw scheme period. But the allegation in Para 4 of the complaint that the draws were not conducted on any day as stated in their advertisements and no car or Scooty was presented to the winners is false. It is denied that lucky draw rules are framed to the detriment of consumer’s interest and that eligibility of consumers to participate in the lucky draw scheme was not mentioned in their advertisements in Eenadu Telugu daily paper dt: 21.07.2018 and it is also denied that, the intention of opposite party is to lure the customers to promote the sales. It is denied that the Scooty Pep+ and Maruthi Alto 800 were not purchased and displayed in the showroom of opposite party during the lucky draw scheme period the opposite party has not conducted any lucky draw to present the Maruthi Car, Scooty Pep+ to the winners of lucky draw. It is denied that cost of Scooty Pep+ and Maruthi Alto 800 was not mentioned in their advertisements. It is also denied that no results were published in any Telugu daily newspapers during the lucky draw scheme period. It is denied that the opposite party indulged in unfair trade practice. It is denied that the complainant missed opportunity of getting winning chance in the lucky draw as the opposite party cheated the consumers. It is denied that notice was issued to the opposite party. The opposite party also issued a suitable reply to the complainant.
4. It is submitted that M/s. MGR Mall launched a Gift Scheme that on every purchase of Rs.1,000/- a coupon will be issued to the purchasers and that scheme offered would be started from 09.07.2018 and ends on 13.09.2018. The Bumper Draw would be held on 13.09.2018 and the winner will get Maruthi Alto 800 basic model car in the bumper draw and mini draws were held on 22.07.2018, 05.08.2018,19.08.2018 and 02.09.2018 respectively and the winners in the mini lucky draw will get TVS Scooty Pep+. Accordingly the first draw was conducted on 22.07.2018 and the winner in the draw is V.Aruna, Cell No.9966281466 and the result was displayed before M/s. MGR Mall as mentioned in the coupons and TVS Scooty Pep+ was also handed over to the winner. The second draw was conducted on 08.08.2018 and the winner of the draw is B.Murali, Cell No.9491973863. The third draw was conducted on 19.08.2018 and winner in the said draw is A.Manohar, Cell No. 7981716369 and the fourth draw was held on 02.09.2018 and winner in the said draw is V.Vinodh Kumar, Cell No. 7995332821 and the bumper draw was held on 13.09.2018 and the winner of the bumper draw is Hareeswar, Mumbai, Cell No.9423093267. All the prizes were given to the respective winners and the winners names are displayed before the MGR Mall and published in Eenadu paper also. The Income Tax was also paid by prize winners. Hence there is no unfair trade practice by giving misleading advertisements and false representations and no fraud committed by the opposite party on the consumers. Hence the complainant is not entitled for refund of the cost of the purchased items and also not liable to pay any compensation much less of Rs.4,90,000/-. The complainant is well aware that, he is not the winner of the any draw. However in order to gain wrongfully this complaint is filed on false allegations. The bumper draw was conducted by MGR Mall at the instance of Smt.Sugunamma, M.L.A., who has picked the coupon and declared Hareeswar as the winner and the opposite party intimated the same to the winners over phone but he has not turned up to receiving the car and sought time as he is residing far away from Tirupati.
5. It is alleged that, the authorized person in this complaint Sri.N.C.S.M. Prasad is running Prajaratham monthly magazine and one Katari Kesavulu Chetty who is complainant in CC. No.9/2019 is an Executive Chief Editor for that magazine, M.Prathap Kumar (complainant in CC.No.03/2019) is a Reporter in the said magazine. The authorized person in this complaint Sri.N.C.S.M.Prasad also filed complaint against opposite party before consumer forum in CC.No.23/2018 and the said complaint was withdrawn by the complainant. The complainant demanded opposite party Rs.10,00,000/- before filing the complaint, but the opposite party refused to pay the amount to Sri.N.C.S.M.Prasad. The complainant had withdrawn CC.No.23/2018. After that he demanded Rs.10,000/- from the opposite party and insisted to publish advertisement of MGR Mall in their magazine Prajaratham and that opposite party paid Rs.10,000/- for which receipt was issued by Sri.N.C.S.M. Prasad and the advertisement was published in Prajaratham magazine in August, 2018.The authorized person insisted opposite party to publish advertisements of MGR Mall in their magazine at the rate of Rs.1,00,000/- in the month of October, 2018 but the opposite party refused to pay the amount. The complainant gathered bills and coupons from customers after completion of draw and filed frivolous complaint before the Forum. The opposite party did not purchase car and Scooty pep+ prior to lucky draw scheme, since winners are at liberty to select the colours of the vehicles. V.Aruna and A.Manohar have taken cash amount instead of Scooty Pep+. There is no cause of action against opposite party to file the present complaint. Hence it is prayed to dismiss the complaint.
6. Chief evidence affidavit filed by the complainant as well as Manager of opposite party mall. Ex:A1 to A5 were marked on complainant’s side where as Ex:B1 to B6 were marked on opposite party side. The written arguments filed by both sides.
7.The point for consideration is:-
Whether there is deficiency of service and unfair trade practice on the part of the opposite party? If so, to what extent, the complainant is entitled for the reliefs sought?
8.Point:- The complainant argued that the opposite party indulged in unfair trade practice and committed deficiency of service by not conducting lucky draws as per the advertisements in Telugu daily newspapers as well as displaying boards and in order to lure the customers the opposite party mall gave wide publicity with regard to lucky draw scheme in which the winners will be presented Maruthi Alto 800 Car in bumper lucky draw and Scooty Pep+ but the customers were not presented any car or Scooty Pep+ and were cheated. It is further argued that the cost of the Scooty Pep+ and Maruthi Alto 800 Car was not mentioned in the advertisements and also the vehicles were not displayed in the mall and it shows that the opposite party mall management did not purchase Scooty Pep+ and Maruthi Alto 800 Car at all. He also invited our attention to Section 2(1) (r) (3A) of Consumer Protection Act, which reads as follows:- Withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the Scheme.
Explanation:- For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the Scheme where such results are within a reasonable time, published, prominently in the same newspapers in which the scheme was originally advertised;
9. It is argued that as per the above provision of law, the participants of lucky draw scheme will have to be informed about the final results of this scheme and no such results were published in the same newspapers which published the advertisements of opposite party mall with regard to lucky draw scheme and thereby the opposite party indulged in unfair trade practice. The complainant placed reliance on decision passed in FA/12/352 one CONNAUGHT PLAZA RESTAURANT Vs. V.KAPIL MITRA in support of his contention that the opposite parties indulged unfair trade practice.
On the other hand, the opposite party counsel argued that, opposite party mall did not indulge any unfair trade practice as alleged by the complainant and that they have followed the rules and procedure for conducting lucky draws as published in the advertisements given by opposite party in the newspapers and argued that opposite party launched Gift Scheme to the effect that on every purchase of Rs.1,000/- a coupon would be issued to every purchaser and the lucky draws will commenced from 09.07.2018 till 13.09.2018. The bumper draw would be held on 13.09.2018 and bumper draw winner will get Maruthi Alto 800 Basic Model Car and the remaining four winners of mini draws will get Scooty Pep+ and accordingly the draws were conducted on 22.07.2018, 05.08.2018, 19.08.2018 and on 02.09.2018 respectively and the bumper draw was conducted on the last date i.e.30.09.2018 and the winners were presented the vehicle on respect of dates of conducting draws as detailed in written version and written arguments. Further it is pointed out that income tax was also paid by the prize winners and TDS was collected from them.
10. The counsel further argued that the authorized person of complainant Sri. N.C.S.M.Prasad is running Prajaratham monthly magazine and one Katari Kesavulu Chetty who is complainant in CC.No.9/2019 is an Executive Chief Editor for that magazine, M.Prathap Kumar (complainant in CC.No.03/2019) is a Reporter in the same magazine. The authorized person Sri.N.C.S.M.Prasad also filed complaint against opposite party before this forum in CC.No.23/2018 and the said complaint was withdrawn by the complainant and before withdrawing the said complaint he demanded opposite party Rs.10,00,000/- and the demand was rejected by opposite party. After that the said authorized person demanded Rs.10,000/- from opposite party and insisted to publish MGR Mall advertisement in their magazine by paying Rs.10,000/- and receipt was issued Rs.10,000/- to authorized person and the advertisement was published in August, 2018. It is also alleged that the authorized person insisted opposite party to publish advertisements of MGR Mall in their magazines by paying Rs.1,00,000/- in the month of October, 2018 for which the opposite party refused. Therefore it is contended that this complaint is filed with malafide intention to extract money from opposite party. The opposite party counsel has placed reliance on a decision reported in (2013) CPJ 501 (NC) between BIG BAZAR, AHMEDABAD Vs. GOVERNMENT OF GUJARAT THR.N.V.PATEL in support of his contention that opposite party mall did not indulge in unfair trade practice and never cheated the customers.
11. Ex:A1 is advertisement published in Eenadu dt: 21.07.2018. Ex:A2 is cash bill dt: 11.08.2018 and the same is filed to show that the complainant made purchase worth Rs.1,039/- of clothes in order become eligible to participate in the lucky draw scheme. Ex:A3 is lucky draw coupon issued in favour of the complainant wherein the terms and conditions are mentioned in Telugu. The lucky draw scheme announced from 9th July to 13th September. Ex:A3 shows that the bumper draw will be held on 13.09.2018 and winner will be presented Maruthi Alto 800 Basic Model Car. As per Ex:A3 the first mini draw will be conducted on 22.07.2018, second mini draw will conducted on 05.08.2018, third mini draw will be held on 19.08.2018 and fourth mini draw will be conducted on 02.09.2019 and the winners will have to hand over the coupon and take the prize. The time limit is 30 days to take the prize the coupons are not transferable and no cash will be paid in lieu of prize. It is also mentioned that after the draw the winner details will be displayed in front of their shop at Tirupati, further the winners have to pay 30% gift tax to the Government. Ex:A4 is notice issued by complainant on 16.11.2018 to the opposite party mall stating that lucky draws were not conducted as per advertisements and no prize was delivered to winners and that no TDS was deducted from the prize cost of the gift and further they have also not followed Section 2(1)(r)(3A) of Consumer Protection Act and thus indulged in unfair trade practice and thereby the complainant is entitled for refund of money paid under Ex:A2 and also entitled for compensation. Ex:A5 is reply notice dt: 03.12.2018 issued by opposite party counsel to the complainant alleging that the facts are all false.
12. The opposite party filed Ex:B1 which is news item published in Eenadu dt: 15.09.2018 showing that the winner of bumper lucky draw is one Hareeswar and the local MLA was invited to announce the bumper lucky draw winner having coupon No.002089. As per the terms and conditions of Ex:A3 the bumper lucky draw will be conducted on 13.09.2018 and thereafter this news item was published. Ex:B2 is another news item published in Eenadu which shows that the first mini draw winner is V.Aruna and the mini draw was conducted in the presence of local Dr.Sudharani. Ex:B3 are bunch of photos 5 in number showing that mini draws were held as per the terms and conditions mentioned in Ex:A3. The lucky coupons of winners are filed under Ex:B4. Ex:B5 is Aadhar cards of mini lucky draw winners. Ex:B6 is TDS related to the three winners in the lucky draw.
13. The contention of the complainant counsel is that, no lucky draw was conducted and Section 2(1)(r)(3A) of Consumer Protection Act not complied. The photos and news items published and marked as documents by opposite party would show that lucky draw was conducted as per the terms and conditions in the Ex:A3 which is lucky coupon. From three winners of mini draw tax was collected under TDS therefore it cannot be said that final results of the winners under the scheme was not informed to the consumers. The contention of the complainant that lucky draw was conducted at all and the gifts were not presented to the winners cannot be accepted in view of the documents filed by the opposite party.
We have to see, whether there is any malafide intention on the part of opposite party in indulging in unfair trade practice by suppressing information about winners of the lucky draw scheme. The news items show that the lucky draw was conducted by inviting important persons. TDS also was deducted from the cost of gift to be presented to the lucky draw winners. Hence it cannot be said that the information about the winners of the lucky draw scheme was withheld from the participants of the scheme. The complainant thus failed to prove that he lost opportunity to participate in the lucky draw and lost winning chance. The citation relied upon by the complainant may not be applicable to the facts of the present case on hand. There is no dispute with regard to Section 2(1)(r)(3A) of Consumer Protection Act. The conduct of opposite party has to be seen on the whole in conducting lucky draw scheme. In the above citation facts are to the following:- The complainant participated in a business promotion scheme known as Mcdonald me Khao her baar prize le jao. Promotional scheme was given publicity through leaf lets, newspapers, TV and Radio advertisements. Complainant visited one of the restaurants of the opposite party at UB 33-34 Jawahar Nagar Delhi. He placed two separate orders. He was given two coupons and one receipt. The said orders were for an amount of Rs.81/-. On opening the coupons, the complainant found the following text in a designer pattern: Congratulations LUCKY! To get luck 1) Open the slot below 2) Get the sure shot prize 3) SMS the Sab Lucky Code to win exciting prizes! Sure-Shot Prize! Fries-Small French Fries Limit one offer per coupon. Congratulations! Ex-Change this coupon for FREE. FRENCH FRIES on your next purchase of above Rs.20/- at Mcdonalds (Before 30th Sept.2005). You stand to win Panasonic Mobiles Phones every hour, ipods every day and a Chevrolet Optra as Bumper Prize. Retain this coupon to claim your prize. SL3418668. SMS the code to 8888 and you stand to Win Sab Lucky Bumber Jackpot, daily and hourly prizes. (c) 2005 Mcdonalds Corporation. Fries-Small French Fries Limit one offer per coupon. Terms and conditions apply. Refer to restaurants notice board for details.
But in the present case, the facts are quite different. On the basis of documentary evidence, we are convinced that opposite party did not indulge in unfair trade practice in view of Ex:B3. The above citation did not deal with lucky draw scheme. Hence complaint is dismissed.
14. In the result, complaint is dismissed. No Costs.
Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 20th day of September, 2019.
Sd/- Sd/-
Lady Member President (FAC)
APPENDIX OF EVIDENCE
Witnesses Examined on behalf of Complainant/s.
PW-1: Sri S. Subramanyam (Chief affidavit filed).
Witnesses Examined on behalf of Opposite PartY/S.
RW-1: Sri M. Veerabhadra Rao(Chief affidavit filed).
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s
Exhibits (Ex.A) | Description of Documents |
Colour photo copy of Advertisement published in EENADU Chittoor Edition News Paper. Dt: 21.07.2018. | |
Original copy of Cash Bill of MGR Mall, T.K. Street, Tirupati. Dt: 23.08.2018. | |
Original copy of LUCKY DRAW COUPON (bearing Coupon No. 018689). | |
Notice sent to the Opposite Party. Dt: 16.11.2018. | |
Reply Notice sent by the Opposite Party. Dt: 03.12.2018. |
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s
Exhibits (Ex.B) | Description of Documents |
Photo copy of EENADU Chittoor Edition News Paper Item Dt: 15.09.2018 relating to the Bumper draw conducted by the opposite party. | |
Photo copy of EENADU Chittoor Edition News Paper Item Dt: 23.07.2018 relating to the Mini draw conducted by the opposite party. | |
Photos (5) relating to 1st, 2nd, 3rd and 4th mini draws and also bumper draw along with CD (relating to the SCOOTY PEP bumper draw winners). | |
Photo copy of List of winner of the coupons (5). (Coupon No. 002089, 004794, 022145, 015589, 017825). | |
Photo copy of Aadhaar Card of the winners in the draw (4). | |
Photo copies of the TDs (FORM No.16A) relating to the winners in draw (3). |
Sd/-
President (FAC)
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to: 1) The Complainant,
2) The Opposite party.
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