KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. OP. No. 144/1999 JUDGMENT DATED: 23-04-2009 PRESENT: SRI. M.V. VISWANATHAN : JUDICIAL MEMBER SRI. M.K. ABDULLA SONA : MEMBER COMPLAINANT Sri. Sachidanandan . G, C/o Sree Bhadra Cool Bar and Bakery, North Fort Gate, Tripunithura, PIN – 682 301. (By Adv. Sri. Sajan Mannali) Vs OPPOSITE PARTIES 1. Coco-Cola India Ltd., : (Amended as per order in Plot No. 1107 – 1110, IA 661/01 in OP 144/99 Village Pirangati, Dated 21-06-2001) Taluka Mulshi, District Pune, Maharashtra, represented by its Managing Director. 2. Sri. Amar Singh Gill (Tony), The General Manager, Thums Up and Coca Cola Company P.B. No. 13, Kalkaji, New Delhi – 19. 3. Alloh Khanna, The General Manager of Thums Up and Coca Cola Company, P.B. No. 13, Kalkaji, New Delhi – 11. 4. Sudheer Mathulla, C/o Hindustan Coca Cola Botteling, South West Pvt. Ltd., 14/1904 A, Providence Road, Ernakulam, PIN – 682 018. (R4 represented by Menon & Pai Advocates) JUDGMENT SRI. M.V. VISWANATHAN : JUDICIAL MEMBER This is a complaint filed under section 18 of the Consumer Protection Act, 1986. The case of the complainant is as follows:- 2. The first opposite party Coca Cola India limited introduced the prize winning scheme by the name “Thums-Up Thunder Gear” and the said scheme was advertised as part of their sales promotion of their soft drinks product “Thums-Up”. The aforesaid prize scheme offered various prizes such as Tata Safari Car, woodland jacket, waist pouch, thunder jeans, woodland T-shirt, woodland shoes etc. As per the advertisement any person who collects liners attached to the caps (crown) of the Thums-Up bottles with the alphabets – T,H,U,M,S,U,P plus the liner containing the visual or picture of the prize would be awarded the said prize shown in the liner. The said offer was valid from 15th December 1998 to 15th February 1999 and that the prizes will be awarded on “first come first served basis”. The said offer was later extended to 28th February 1999. The complainant collected the caps and liners of Thums-Up bottles containing the alphabets ‘Thums Up” and also collected the picture of a car printed on a liner contained in the “Thums-Up” cap. The complainant sent such liners to the address mentioned in the advertisement as P.B. No. 13, Kalkaji, New Delhi-19. The complainant sent the said liners on 15-02-1999 by speed post and the same was received by the opposite parties on 16-02-1999. After receiving the prize winning liners, the opposite parties kept mum without sending any reply to the same. The complainant sent several remainders to the opposite parties. However the opposite parties did not respond. The aforesaid action or inaction on the part of the opposite parties would amount to deficiency in service and unfair trade practice. Hence the complaint is filed for directing the opposite parties to give a Tata Safari Car and to award the entire cost of the proceedings. 3. The opposite parties 1 to 3 filed joint written version (reply) contending as follows:- The complainant is not a consumer within the meaning of the term ‘consumer’ as defined under section 2(1)(d) of the Consumer Protection Act, 1986. There is absolutely no proof of the alleged sale and purchase of the bottles of Thums Up. No cash memo has been filed by the complainant relating to the alleged sale and purchase. The complainant purchased the Thums Up bottles for resale purpose. The complainant is running a cool bar and had collected caps/crowns of Thums Up bottles while selling Thums Up bottles to his customers. Since the complainant purchased the Thums Up bottles for resale and for commercial purpose, the complainant cannot claim status of a consumer under the Consumer Protection Act. The complainant has no cause of action to file the present complaint. According to the complainant he sent the liners in question by speed post, whereas as per the prize scheme the liners are to be sent by ordinary post. So, the complainant is not entitled to participate in the prize scheme. The complaint is filed with malafide intention to harass the opposite parties. The complaint is bad for mis-joinder of parties. The opposite parties 2 and 3 are impleaded with ulterior motive. No allegation is made against the opposite parties 2 and 3. There was no cause of action against the opposite parties 2 and 3. No relief can be granted against the opposite parties 2 and 3. The first opposite party conducted the prize scheme according to the terms and conditions published in the advertisement. The entries were shown and prize given in accordance with the terms and conditions stated in the advertisement appeared in the leading newspapers in the country. As per the terms and conditions of the prize scheme the entries sent by ordinary post up to 28-02-1999 were applicable and entertainable. The entries sent by the complainant cannot be entertained as the same was sent by speed post. The allegation that the complainant sent the entries such as the liners to the opposite party is denied. The allegations that the complainant collected the caps and liners of Thums Up bottles containing alphabets T,H,U,M,S,U,P and the picture of the a car printed on the liner are denied. No liners/entries sent by the complainant were received by the opposite party. No remainder was also received by the opposite party. The allegation that the Tata Safari Car was not awarded on first come first serve basis is also denied. The prize Tata Safari Car was awarded to the person in strict compliances of the terms and conditions of the prize scheme. All the entries received under the prize scheme were duly received by the Auditors M/s S.R. Bansal and Company and M/s S.R. Batly Bol and Company Chartered Accountants and the prize Tata Safari Car was awarded to the winner on first come first serve basis. The complainant is not entitled for the prize since the entries sent by him was not a valid entry. The opposite parties have no liability to deliver the Tata Safari Car and to pay any sum to the complainant by way of cost of the proceedings. Hence the opposite parties prayed for dismissal of the complaint with exemplary cost 4. The 4th opposite party filed written version (reply) contending as follows: The 4th opposite party is the Hindusthan Coca Cola Beverages Private Ltd. The complainant has wrongly arrayed the officer of the Hindusthan Coca Cola Bottling, south west private limited as opposite party No. 4. No order can be passed against any officer of the 4th opposite party-company. The complaint has been filed in respect of the prize scheme “Thums Up Thunder Gear” and the complainant pertains the said prize scheme only. The said prize scheme was promoted and conducted by M/s Coca Cola India Limited. All the allegations made in the complaint can be dealt with appropriately by M/s Coco-Cola India Limited only. The 4th opposite party was not in any way involved in promoting and conducting the said prize scheme. The 4th opposite party is involved in the business of manufacturing and bottling of beverages such as “Coca-Cola”, “Limca”, “Thums Up”, “Fanta” etc. The first opposite party M/s Coca Cola India Limited have accepted that they conducted the prize scheme “Thums Up Thunder Gear”. The 4th opposite party is not proper and necessary party for the adjudication of the present complaint. The name of the 4th opposite party should be deleted from the array of the opposite parties in the present complaint. The complainant is not entitled to any relief against the 4th opposite party. 5. The points that arise for consideration are as follows:- 1. Whether the complainant is a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986? 2. Whether the complaint is bad for mis-joinder of parties? 3. Whether the opposite parties can be justified in repudiating the claim made by the complainant for Tata Safari Car as the prize of the scheme “Thums Up Thunder Gear”? 4. Whether there was any deficiency in service or unfair trade practice on the part of any other opposite parties as alleged by the complainant? 6. The evidence in this case consists of the oral testimony of the complainant as PW1 and Exts.A1 to A6 and MO1 series of Thums Up bottle caps 8 in number. No evidence was adduced from the side of the opposite parties. 7. Point No. 1: There is no dispute that the 1st opposite party M/s Coca-cola India Limited conducted the prize scheme “Thums Up Thunder Gear” and that the 1st opposite party advertised the said scheme in leading newspapers in the country. Ext.A1 is the advertisement given by the 1st opposite party with respect to the aforesaid prize scheme “Thums Up Thunder Gear”. As per the said prize scheme various prizes including Tata Safari Car were offered as prizes for the said contest. There is also no dispute that any person who collects Thums Up crowns with blue band containing the liners with the alphabets T,H,U,M,S,U,P with the visual of any of the prizes is entitled for the prize shown in the said liner. The terms of the said offer were also incorporated in Ext.A1 advertisement. 8. The definite case of the complainant is that he collected the Thums Up bottles crowns with blue band containing the alphabets T,H,U,M,S,U,P and also the liner with a visual of Tata Safari Car and forwarded the same to the 1st opposite party in the address given in the said advertisement. It is an admitted fact that the address provided for sending the liners was P.B. No. 13, Kalkaji, New Delhi-110019. It is the case of the complainant that he forwarded the aforesaid article to the aforesaid address namely P.B. No. 13, Kalkaji, New Delhi-110019. It is also the case of the complainant that he forwarded the same by speed post. Ext.A2 is the acknowledgement card evidencing delivery of the article in the aforesaid address. Ext.A2 proof of delivery would show that the said speed post article was posted on 15-02-1999 and the same was delivered on 16-02-1999. The complainant as PW1 has also categorically deposed about the sending of the aforesaid articles to the 1st opposite party in the aforesaid address. The said oral version of PW1 has not been challenged by the opposite parties in cross examination. In other words, the opposite party admitted the fact that the said articles were delivered at the said address shown in Ext.A2. It is pertinent to note at this juncture that the opposite parties were dare enough to dispute acceptances of the aforesaid postal articles on 16-02-1999. This circumstance would give an indication that the opposite parties have no hesitation or reluctance in denying the fact which is true to the knowledge of the opposite parties. At this juncture it is pertinent to note that the opposite parties 1 to 3 insisted on the terms incorporated in the scheme that the entries should be sent by ordinary post. If the complainant had sent the said entry in ordinary post it would have been very easy and convenient for the opposite parties to deny acceptance of such entry or postal article. In such a situation the complainant will not be in a position to prove his case regarding the forwarding of the articles to the address shown in Ext.A1 advertisement. The opposite parties completely denied the case of the complainant regarding acceptance of the entry by the opposite parties in the address given in their advertisement. In this circumstance the action of the complainant in sending the entry by speed post and not sending by ordinary post is to be appreciated. We could not find any fault with the complainant in sending the entry by speed post instead of sending the same by ordinary post. 9. The case of the complainant is that he issued a number of remainders to the opposite parties. Exts. A3 to A5 letters would show that the complainant was sending remainders one after another to the 1st opposite party in the address P.B. No. 13, Kalkaji, New Delhi-110019 and the opposite parties failed to respond to those remainders. The complainant as PW1 has deposed about the remainders issued to the 1st opposite party in the aforesaid address. The aforesaid testimony of PW1 has not been challenged by the opposite parties in the cross examination. Moreover, the documents issued by the postal department and produced as document Nos. 6 and 7 would also show that the aforesaid remainders were issued by the complainant to the first opposite party in the address P.B. No. 13, Kalkaji, New Delhi-110019. Ext.A6 letter issued by the Local MLA would also reveal the fact that the complainant had also taken initiative to move the then Member of Parliament Mr. Eaden to get favourable disposal of the matter. But the complainant could not succeed in the aforesaid attempt made by him. Thus, the evidence of the complainant as PW1 and documentary evidence would establish the fact that the complainant collected the prize winning caps of the Thums Up bottles with the liners therein and he forwarded the same to the address as shown in the A1 advertisement and that the said articles were accepted by the 1st opposite party in the aforesaid address. The complainant has established his case regarding his eligibility and right to get the Tata Safari Car in his capacity and status as the winner of the said prize namely Tata Safari Car. 10. The opposite parties 1 to 3 have taken up the contention that the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986 and so the complaint preferred is not maintainable. They have also got the case that the complainant was running a cool bar and he purchased the Thums Up bottles for resale and for commercial purpose and so he is not a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. It is true that Exts. A3 to A5 documents would give an indication that the complainant is running a cool bar. But there is no whisper in his letters that he is or was conducting sale of Thums Up. The mere fact that the complainant was running a cool bar cannot taken as a ground to hold that he was a dealer or supplier of Thums Up bottles or he had conducted sale of Thums Up soft drinks to his customers. It is to be noted that the 4th opposite party is the distributor of the soft drinks such as Thums Up, Coca-cola manufactured by the 1st opposite party. But the 4th opposite party has no case that the complainant has been appointed as a dealer or retailer for the sale of Thums Up soft drinks. The complainant was examined as PW1. But no question was put to PW1 regarding the aforesaid contention that he has been conducting sale of Thums Up soft drinks. There is no whisper in the testimony of PW1 regarding the alleged sale of Thums Up soft drinks by the complaint. So, it can only be presumed that the complainant consumed soft drinks Thums Up and he collected the caps/crowns containing the respective liners with the alphabets T,H,U,M,S,U,P and liner with the visual of the Tata Safari Car. So, the contention of the opposite parties 1 to 3 that the complainant has been conducting the sale of Thums Up bottles cannot be accepted. 11. The opposite parties 1 to 3 have also got a case that the complainant could not produce any cash memo for he purchase of Thums Up. It is the common knowledge that on purchase of soft drinks like thums Up, coca-cola etc. nobody will ask for any cash memo or cash bill and that no seller or retailer of the soft drinks would give cash memo for sale of such soft drinks. We have to take into consideration the trade practice of purchase of soft drinks by the ordinary consumer for his consumption. The mere non production of cash memo for the purchase of soft drinks Thums Up cannot be taken as a ground to hold that the complainant had not purchased the Thums Up soft drinks for his consumption. The very production of the liner and MO1 series of Thums Up bottle crowns would establish the fact that the complainant had purchased the Thums Up bottles with the soft drinks. It is further to be noted that the complainant (PW1) was not cross examined on that point. There was no case for the opposite parties that the complainant did not purchase Thums Up soft drinks and collect the crowns of the bottles with the liners therein. It can only be concluded that there was sale and purchase of the Thums Up bottles and that the complainant collected the relevant crowns with the respective liners therein. So, it can very safely be concluded that the complainant is a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. 12. The complainant has got a case that the failure on the part of the opposite parties in not giving the prize namely Tata Safari Car to the complainant would amount to unfair trade practice. The term unfair trade practice is defined under section 36(a) (iv) of the MRTP Act and under Section 2(1)(r) of the Consumer Protection Act, 1986. There can be no doubt that the failure on the part of the opposite parties in awarding the offered prize would amount to unfair trade practice. If the case of the complainant is accepted as such there can be no doubt that the conduct and the method adopted by the opposite parties 1 to 3 would amount to unfair trade practice. If that be the position, the complaint filed alleging unfair trade practice on the part of the opposite parties is to be entertained by this Commission constituted under the Consumer Protection Act, 1986. Thus, in all respects it can very safely be concluded that the complainant is a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. This point is answered accordingly. 12. Point No. 2: The first opposite party Coca-Cola India Limited admitted in their written version that the first opposite party conducted the prize winning scheme by the name “Tums Up Thunder Gear”. The opposite parties 2 and 3 are the General Managers of the first opposite party. It is to be noted that the opposite parties 1 to 3 filed the joint written version by denying and disputing the case of the complaint. It is further to be noted that the first opposite party failed to give their proper address in A1 advertisement. The only address given in A1 advertisement is the address P.B. No. 13, Kalkaji, New Delhi-110019. So, the complainant cannot be found fault with in not giving the proper name and address of the first opposite party. It is to be noted that after filing the written version the complainant could take necessary steps and thereby the correct name and address of the first opposite party has been incorporated in the complaint. The opposite parties 2 and 3 being the General Managers of the first opposite party- company can be considered as proper and necessary parties. There is nothing on record to show that the opposite parties 2 and 3 are not competent officers to represent the first opposite party-company. If that be so, the opposite parties 1 to 3 can be treated as necessary and proper parties. 13. The 4th opposite party in his written version categorically contended that he is an officer of M/s Hindusthan Coca Cola Beverages Private Limited and his former office was Hindusthan Coca-Cola Bottling south west private limited. He has categorically contended that the Hindustan Coca-Cola beverages limited is a separate entity and it had nothing to do with the prize winning scheme “Thums Up thunder Gear” which was conducted by the first opposite party M/s coca-Cola India Limited. The complainant could not point out the involvement of the 4th opposite party in conducting the aforesaid prize scheme. It can be concluded that the 4th opposite party is an unnecessary party to the proceedings. The mere fact that the 4th opposite party is unnecessary party or not necessary party cannot be taken as a ground to hold that the complaint filed against the opposite parties 1 to 3 is not maintainable. At the most it can be held that the complainant is not entitled to get any relief against the 4th opposite party as the 4th opposite party is unnecessary to the proceedings. This point is answered accordingly. 14. Points 3 & 4: The fact that the complainant collected the crowns to Thums Up bottles with blue bad which contained the liners with the alphabets T,H,U,M,S,U,P and liner having the visual of a Tata Safari Car is stand established. It is also established that the complainant forwarded the aforesaid articles to the opposite party in the address P.B. No. 13, Kalkaji, New Delhi-110019. The delivery of the aforesaid postal articles with the aforesaid liners is also proved by the complainant. It is further to be noted that the aforesaid facts are not disputed by the opposite parties by adducing cogent and acceptable evidence. It is pertinent to note that the testimony of PW1 stands admitted. There is no contra evidence forthcoming from the side of the opposite parties. If that be so, the case of the complainant that he is to be awarded the prize namely Tata Safari Car is to be acc and upheld. 15. The only deviation made by the complainant as far as the terms of the said scheme is that the complainant sent the aforesaid articles by speed post. Admittedly as per the terms of the offer the articles should be sent by ordinary post. But instead of sending the articles by ordinary post the complainant sent the same by speeds post. The aforesaid deviation or violation of the terms of the offer cannot be treated or considered as a valid ground for repudiating the claim of the complainant or to deny the prize to the complainant. It is to be noted that in all other aspects the complainant is to be considered as the winter of the said prize “Tata Safari Car”. The mere fact that the complainant forwarded the entry by speed post cannot be taken as a ground to hold that he is not entitled to get the prize. It cannot be taken as a valid ground to hold that his entry cannot be entertained fro the contest. At this juncture, it is pertinent to note the denial of the delivery of the postal article at the given address. The opposite parties 1 to 3 in para 3 of the written version (reply) at page 7(a) contended that no liners entry as alleged to be sent by the complainant was received by the concerned party. Had the complainant sent the said entry/liners by ordinary post there would not have been any document to evidence delivery of the postal article. In such a situation it would have been very convenient and easy for the opposite parties to deny acceptance of the postal articles. IN this situation the decision taken by the complainant to forward the same by speed post can only be appreciated. The mere fact that the complainant forwarded the said entry/articles by speed post instead of sending the same by ordinary post cannot be taken as a ground to delay the prize which the complainant is entitled. It is not just or fair on the part of the opposite parities in the prize to the complainant on the ground that the entry was sent by speed post. It is also to be noted that no harm or prejudice has been caused to the opposite parties or to any of the participants by sending the entry by speed post. The conduct of the opposite party by filing a reply by denying acceptance of postal article would show that the opposite parties insisted for sending the entry by ordinary post with some ulterior motive and for the purpose of defeating the interest of the consumers like the complainant. The aforesaid method adopted by the first opposite party can be considered as unfair trade practice. 16. The complainant has categorically contended (para 5 of the complaint) that the opposite parties have no case that the Tata Safari Car was awarded to any other person or persons. Since the prizes were to be awarded non firsts come first served basis. 17. Thus, according to the complainant the method adopted by the opposite parties is only to avoid awarding of the prize to the complainant and the said attitude and method adopted by the opposite parties would amount to unfair trade practice. It is also alleged that the opposite parties attempt is to avoid giving of the prizes to the actual winners. IN the written version the opposite parties have not disclosed the name of the person who has been awarded the prize “Tata Safari Car”. There is only a vague statement in their written version that the prize of Tata Safari Car was awarded to the person in strict compliances of the terms and conditions of the prize scheme. It is further stated that the prize Tata Safari Car was awarded to the winter on first come first served basis. But the opposite parties totally failed to give the name or names of the persons who won the prize “Tata Safi Car”. There was no difficulty of hindrance for the opposite parties in disclosing the names of the persons who have been awarded the ‘Tata Safari Car’. This circumstance would give an indication that no such prize was awarded to any of the participants and that the opposite parties adopted unfair trade practice by making such an offer to attract the consumers for the purpose of sales promotion of their product Thums Up. So, the opposite parties cannot be justified in denying the prize ‘Tata Safari Car’ to the complainant, on the sole ground that the complainant failed to send the entry by ordinary post. So, it can be held that there was deficiency in service and unfair trade practice on the part of the opposite parties in denying the prize ‘Tata Safari Car’ to the complainant. If that be so, the opposite parties 1 to 3 are to be directed to deliver the Tata Safari Car to the complainant as the winner of the prize ‘Tata Safari Car’ and in the alternative to pay a sum of Rs. 8 lakhs to the complainant by way of price of the car. The complainant is also entitled for sum of Rs. 1,000/- by way of his cost in the proceedings. These points are answered accordingly. In the result, the complaint is allowed. The opposite parties 1 to 3 are directed to deliver the Tata Safari Car to the complainant as the winner of the prize ‘Tata Safari Car’ and in the alternative to pay a sum of Rs. 8 lakhs to the complainant representing the prize of the said vehicle with a cost of Rs. 1,000/-. The aforesaid order is to be complied within a period of none month from the date of receipt of copy of this order, failing which interest at the rate of 9% per annum is to be given to the complainant on the sum of Rs. 8 lakhs from the date of this order till the date of payment/realization. M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER APPENDIX Witness for the complainant PW1 31-`10-2003 Sachidanandan. G Exts. for complainant A1 -- Advertisement A2 15-02-1999 Acknowledgement Card A3 15-02-1999 Letter A4 22-04-1999 Letter A5 02-07-1999 Copy of Letter A6 10-10-1999 Letter MO1 series Thums Up bottle caps 8 in number M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER
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