These two first appeals have been filed against the order dated 13.10.2011 passed by the State Consumer Disputes Redressal Commission, Rajasthan, Circuit Bench-3, Jaipur ( for short, State Commission) in Consumer Complaint No.10 of 2005. 2. Brief facts of the case are that the appellant in Appeal No.474 of 2011 M/s. Videocon Industries Ltd. advertised one scheme, namely, Pataka Ek Se Chaar Dhamaka, wherein on purchase of electric items, the purchaser would get a scratch card and after scratching the same, he may get various prizes including first prize of 5 kg. gold. The appellant in Appeal No.481 of 2011, who is the original complainant, purchased a fridge and a washing machine from respondent no.2, Goodluck Electronics in FA No.474 of 2011. It has been alleged by the complainant that when the scratch card given by the dealer was scratched, she got the prize of 5 kg. gold. She informed all the relevant parties. However, no prize was given to her and therefore, the complaint was filed before the State Commission bearing complaint no. CC No.10/2005. The complaint was resisted by OP-3, to 5 i.e., Videocon Industries Ltd. on the ground that there was another winner of 5 kg. gold and this card was fake. The State Commission vide its order dated 13.10.2011 allowed the complaint and ordered as follows:- “After allowing the complaint against respondents no.3 to 5, they are directed to give the 5 kilograms of gold of 24 carate standard to the complainant within two months, otherwise its value of Rs.36 lakh as on 30.10.2003 alongwith interest @ 12% p.a. from the above date be paid. Rs. 1 lakh on account of mental agony and Rs.20,000/- towards cost of proceedings be also paid. Remaining complaint is dismissed. Respondents No.3 to 5 are given two months time to comply with the above order.” 3. Hence, the present appeals. 4. Appeal No. 474 of 2011 has been filed by appellant, M/s. Videocon Industries Ltd. and Appeal No.481 of 2011 has been filed by the complainant, Neelam Shah. 5. Heard learned counsel for the parties and perused the record. 6. For the sake of convenience the parties will be referred to as complainant and OPs as they are arrayed in the impugned order of the State Commission. 7. The learned counsel for Videocon Industries Ltd./OP-3 to 5, stated that the original card was never sent by the complainant to the OPs for verification and therefore, there was no question of sending any prize money to the complainant. The complainant deposited the card with the State Commission and with the permission of the State Commission, the same was sent for verification to the original printer who had printed these cards. Vide letter dated 30.12.2003, OPs had informed the complainant that as the original card was not sent, they were unable to verify the card and there was only one prize of 5 kg. gold and the same was already given to some other customer on presentation of the original card. The printer M/s. Saraswati Printers after verification submitted the report on 30.10.2009, wherein it has been stated that there has been overwriting in the upper portion and the ink of ‘E’ and ‘A’ are different. It has been concluded that overwriting has been done with the malafide intention by the purchaser. The State Commission has not given importance to this report. The question of authenticity can only be decided by the civil court and not by a consumer forum in summary proceedings. The complainant has not submitted any evidence in respect of the authenticity of the card. 8. Learned counsel for the OP further stated that complainant is not a consumer under the purview of Consumer Protection Act, 1986 as no price was charged for the scratch card. This was a complimentary offer and has nothing to do with the purchase price of the electronic items. In the Consumer Protection Act, 1986, it is clearly mandated that if the complainant has not paid any consideration for either the goods or the services, he will not be considered as a consumer. To support his arguments, learned counsel referred to the judgement of this Commission in Gadhadharan P. Vs. United Trust Bank, U.K., Consumer Complaint No.178 of 2012 decided on 13.12.2012. 9. In this regard, the learned counsel also referred to judgement of this Commission in Byford Vs. S.S. Srivastava, II (1993) CPJ 155 (NC) and pointed out the following portion of the judgment : “6 . We are of the opinion that there is force in the contention put up by the revision petitioner that the complainant Shri S.S. Srivastava was not a ‘consumer’ as defined in the Consumer Protection Act, 1986. He had paid for a Padmini Premier Car which he had duly received and there is no complaint that it has any defect. So the revision petitioner herein was not liable as far as that contract was conceded. Receiving two air tickets to New York was an additional attraction that was attached to the sale, but which depended upon a lottery draw. It was not an intrinsic part of the contract deal for which payment was made. Thus as far as the lottery winning is concerned, it cannot be said that the complainant was a ‘consumer’ who had hired any service for consideration and hence he has no right to get redressal under the Consumer Protection Act, 1986”. 10. It was further pointed out by the learned counsel for the OPs that there was only one prize of 5 kg. gold and the same has already been given to another customer after due verification by the company. Therefore, no question arises for any second customer to claim the same. As the card in question has also been found tampered with overwriting, the State Commission has grossly erred in allowing the complaint of the complainant and the same needs to be rectified in the appeal. 11. On the other hand, the learned counsel for the complainant stated that scratch card was scratched in the presence of the dealer, M/s. Goodluck Electronics and the dealer himself in its written statement has also accepted the same. The complainant did not get any time to tamper with the card as the original card itself was seen by many people alongwith dealer and the news had come in the newspaper also. It was also mentioned by the learned counsel that the OPs have not filed the card on which the alleged first prize of 5 kg. gold has been already given. Even no details of the person who has won this prize has been filed. This is being alleged only to disentitle the complainant for claiming the first prize of 5 kg. gold. It was further argued that on 8.11.2016, this Commission had directed the OP to place on record other winner’s original scratch card. However, the same has not been placed on record till date. This strengthens the view of the complainant that story has been cooked only to deny the benefit to the complainant. 12. The learned counsel for complainant further stated that the complainant has also filed appeal with a view to set aside the order of the State Commission in respect of alternative relief of payment of Rs.36 lakhs by the OPs to the complainant. It was stated that the scheme provided only for payment of 5 kg. gold and not for equivalent cash. Accordingly, the State Commission did not have any right to modify the scheme on its own. The complainant deserves to get 5 kg. of gold. 13. I have carefully considered the arguments advanced by both the parties and have examined the material on record. 14. First of all, the question arises whether a purchaser of electric items who gets these prizes is getting these free of cost or something is being paid. Obviously, no company will give prizes from its own fund and these funds are supposed to come from sales of the products themselves. The sale price of individual items might be having additional profit inbuilt and every consumer would be paying the sale price to the company. Thus, it cannot be said that this offer was for free. As this offer was only available to those persons who purchased electronic items and therefore, this offer was only applicable after paying the sale price of the electric items to the OP. The judgment of this Commission in Gadhadharan P. Vs. United Trust Bank, U.K., (supra) does not seem to be applicable in the present case as the facts of that case relate to a lottery and the facts are totally different in the present case. Similarly, the judgment of the Byford Vs. S.S. Srivastava, (supra) has different facts similar to lottery, but in the present case the prize was to be known after scratching the card then and there. Moreover, this Commission in a similar prize scheme case in FA No.419 of 2002, Coca-Cola India (P) Limited Vs. Dr. Amarjit Singh, decided on 9th August, 2010 has held the folloiwng: “(ii)(a) The appellant’s preliminary objection in this case is that the complainant is not a “consumer” so far as the scheme in question is concerned and hence he could not have filed a “complaint” under the Act, as defined in section 2(1)(c), before any Consumer Forum. The first limb of this argument is that the scheme was not a “service” under the Act and the second is that no participant in the scheme, including the complainant, had to pay any “consideration” for participating in the said scheme per se, as the price of a bottle of coca-cola charged during the scheme was the same that was chargeable without the scheme, i.e., that price was not enhanced specifically towards “consideration” for inviting the consumers to participate in and for running the scheme. (b)(i) In the first flush, this objection would appear to be plausible. However, careful consideration would show that it is fallacious, because if the objections and arguments of the appellant were to be accepted, it would mean that in no circumstances could a buyer/consumer of a bottle of coca-cola under such a scheme file a complaint against the scheme alleging unfair trade practice under section 2(1)(r)(3)(b). When a person bought a bottle of coca-cola in the ordinary course, he would of course be a consumer of that product, with all the attending rights under the Act to file a complaint in respect of quality and quantity of the soft drink (and quality of the bottle), service rendered by the trader/manufacturer in selling the drink, unfair trade practice, if any, adopted by the trader/manufacturer in the process, etc. However, when the same person bought the same bottle of coca-cola under the promotion scheme, according to the appellant he was debarred from filing any such complaint against the scheme, including one under section 2(1)(r)(3)(b) of the Act, because the scheme was not a “service” nor the buyer a “consumer” for he did not have to pay any consideration for participating in the scheme. This absurdity is certainly not what the Act intended. 15. On the basis of the above judgment of this Commission, one thing is certain that the complainant was entitled to file a consumer complaint under the Consumer Protection Act, 1986. As has already been concluded that the complainant would be treated as having paid something and the scratch card did not come free to the complainant, hence on the basis of all above considerations, in the facts and circumstances of the present case, I find that the complainant would be considered a ‘consumer’ under the definition of the consumer given in the Consumer Protection Act, 1986. 16. The State Commission has allowed the complaint on the basis of the evidence produced by all the parties. The counsel for the OPs have specifically stressed upon the fact that the State Commission has not considered the report of M/s. Saraswati printer who has clearly stated in its report that there has been overwriting on the card. The State Commission has observed the following in this regard: “Report of Saraswati Printers is not acceptable because it is not an expert nor any affidavit of it has been filed in this regard. Mere on the basis of the report of Saraswati Printers, scratch card could not be deemed fake. Card was scratched before the respondent no.1 Dealer and thus, there is no evidence that card has been forged by the complainant. Respondent no.2 had sent the above scratched card No.175349 to the respondent no.1 and thus, charge of forgery is absolutely baseless and wrong.” 17. Broadly I agree with the observation of the State Commission on the ground that the report has not been proved before the State Commission by producing evidence/affidavit of printer. Moreover, it was not a report of Forensic Science Laboratory that can be relied upon without raising much questions. Had the OPs been really interested in getting the card tested from an authorized Forensic Science Laboratory, they would have made application before the State Commission for the same. In respect of the main defence of the appellant regarding another winner of prize of 5 kg. gold, the following observation of the State Commission seems to be important. “As far as the question of complaint is concerned, it has been proved very well that scratch card was given on purchasing the fridge and washing machine, which scratch card has been produced in original, on the basis of which 5 kilograms of gold and 50 per cent discount on purchasing another product should be given. Thus, onus to prove lies on the respondents No.3 to 5 to prove that this scratch card is duplicate. In this regard, person to whom the first prize has been given, his original card or receipt etc. have not been produced nor his affidavit has been produced nor the TDS Certificate has been produced.” 18. Apart from the above observation, this Commission also vide order dated 8.11.2011 had ordered the OP to place on record the original scratch card of the winner of 1st prize of 5 kg. gold as alleged by the OPs. The same has not been delivered till date. No details have been given of that card or of that winner. All this goes to prove that the story of another winner has been either concocted by the OP Nos.3 to 5 or they have failed in proving their story miserably. In either case, the version of the OP Nos.3 to 5 that there was some other winner cannot be accepted. 19. Based on the above discussion, I reach to the conclusion that there seems to be no error in the reasoned order dated 13.10.2011 passed by the State Commission and I do not find any reason to interfere with the same. So far as the First Appeal No.481 of 2011 filed by the complainant is concerned, it is seen that the complainant has filed this appeal stating that the State Commission should not have allowed in the alternative to pay Rs.36 lakhs by the OPs to the complainant instead of 5 kg. gold as the offer was only for the gold and not for equivalent cash. The State Commission order in this regard is very clear and the State Commission has calculated the value of gold on the date of purchase of the items and this view seems to be perfectly in order. 20. Accordingly, both the appeals, F.A. No. 474 of 2011 and F.A. No.481 of 2011 are dismissed. | 
