Order No. 12 Dt. 09.10.2007
The petitioner’s case in brief is that he purchased one packet of Surf Excel Blue weighing 500 grams from the shop of O.P. No.1 at Rs.41/- vide cash memo No.18 dated 24.12.2006. In the body of the said packet of Surf Excel Blue there was an offer to win a prize of Rs.5,00,000/- in case a cloth-coupon of 10/10 be available by purchaser from the packet after observing the formalities scribed on the body of the packet. The petitioner got such cloth-coupon of 10/10 from the packet following the instructions and handed over the same to O.P. No.2 on 07.02.2007 which was also duly acknowledged by O.P. No.2 but the O.P. No.2 vide his reference No.44056 dated 11.02.2007 informed the petitioner that he was not entitled to the prize because the cloth-coupon was found absent of a code and was disbelieved and this gives rise to the instant proceeding for the reliefs as prayed for.
Notices has duly been served upon O.P. No.1 but he has not made appearance in Forum. At a subsequent stage on prayer of the petitioner O.P. No.1 has been expunged from the cause title vide order No.07 dated 29.08.2007.
O.P. No.2 contests the case by filing written version (to be called O.P. hereinafter) and who has denied the claim of the petitioner which is absolutely baseless and without merit. O.P. has submitted that all the pieces of cloth that carry the score 10/10 are specially coded in the Form of stamp and signature with a particular ink and the cloth sent by complainant did not bear the code. It was also submitted that the scheme was conducted by the reputed organization namely Alpha Deta Centre, Girgaon, H.P.O , Mumbai – 400 004 and all the valid entries were directly sent to the aforesaid organization as per the terms and conditions and the promotional prizes were accordingly disbursed to almost 21000 valued customers, hence has prayed for dismissal of the case.
On the pleadings of both parties the following points have emerged.
- Whether the petitioner be termed as ‘Consumer’ as per C.P. Act.?
- Whether the O.P. has adopted unfair trade practice?
- Whether the petitioner is entitled to the reliefs as prayed for?
:DECISION WITH REASONS:
Point No.1
‘Consumer’ means any person who buys any goods which has been paid which is applicable in the facts and circumstances of the present case having regard to the facts and circumstances of the case it can safely been concluded that the petitioner purchased some stationary goods for which he was granted a cash Memo No.18 dated 24.12.2006 from one Ghosh Varieties, Old Malda. Said cash memo includes the impugned article ‘Surf Excel’ for Rs.41/- vide Ext.1. Accordingly, the complainant has become a ‘consumer’ within the meaning of the Act. as envisaged in Sec.2(1)(d)(i) of the C.P. Act. which disposes of the present point in affirmative.
Point No.2
We have heard ld. counsel for the petitioner and ld. counsel for the O.P. as well. Be it mentioned herein that as O.P. No.1 (who has sold the Surf in question to the petitioner) who has since been expunged vide Order No.07 dt.29.08.2007. The petitioner has examined himself as P.W. – 1 and has categorically stated that he was given the understanding from
the packet (Ext.2) that there is existence of one cloth-coupon and on his purchase the Surf Excel Blue, he got the said cloth-coupon and found the same containing 10/10 and has further stated that on receipt of such coupon he has won Rs.5,00,000/- for his having cloth-coupon of 10/10 from inside the packet of Ext.2. But he has been deprived of getting such prize illegally.
Against such statements O.P. has examined one Goutam Dutta as O.P.W. – 1 who appears to have stated that the petitioner has filed the complaint only on the basis of lottery scheme but his company never intense to defraud his Customer. In course of his cross-examination this O.P.W – 1 has admitted that this offer was intended to increase sales promotion. Perused the packet in original (Ext.2) and Xerox of stained cloth with endorsement of Alpha Deta Centre dated 07.02.2007 (Ext.3).
It has been contended on behalf of the petitioner by the ld. advocate that this is a contract coming within ambit of Sec.40 of the Indian Contract Act., 1872 which envisages “If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it” and it has also been urged on behalf of the petitioner that when there is specific insertion in Ext.2 that in case of Surf Excel contest if there be score 10/10, the purchaser will be the winner of Rs.5,00,000/-, it has also been submitted on behalf of the petitioner that this case is within the principle of promissory estoppel and in support of his contention ld. advocate for the petitioner has taken assistance of definition of promissory estoppel which appears in the observation appearing in AIR 1972 SC 1311 wherein it has been laid down:-
“The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective whether there is any pre-existing relationship between the parties or not.”
Ld. counsel appearing on behalf of O.P. has referred to the written version wherein it has been stated that the eligibility to get prize having been based on many co-lateral facts of the parameters need to be considered and in a case like the present one and in order to protect the interest of the genuine customer by way of awardment a system of coding be embedded in the stained cloth. It is with this objective that all the pieces of the cloth that carry the score of 10/10 and therefore eligible for the high value prize which specially coded in the form of stamp and signature with particular ink. This code is known to only a select few people to prevent a chance of mis-appropriation by any one either internal or external to organization. The present case is devoid of the picture appearing in Annexure. 1 (Ext.1) and hence the petitioner cannot be deemed to be a prizewinner.
Admittedly, in order to promote a sale of the product Surf Excel Blue the company announced scheme that in case purchase of Surf Excel Blue, if any person gets this score 10/10 he will be a prize winner but it has been contended on behalf of O.P. and also the averment appearing in para – 11 of the written version that getting the prize is a matter of chance and the code was absent in the stained cloth filed by the petitioner was absent for which his claim cannot be acceded to. The petitioner claiming to be the holder of the prize approached the O.P. for the prize and the same was denied to the former who, thus, has approached the Forum attributing deficiency in service and adoption of unfair trade practice on the part of the O.P.
Hd. ld. counsel on behalf of both the parties at length. This Forum has gone in to the statutes appearing in the Contract Act. and the Evidence Act. both of which have been referred to earlier. It is seen that awardment of price is dependent on a single draw or on draw of lots, obviously it is a case of wagering contract. All such agreements by way of wagery are declared void under Sec.30 of the Indian Contract Act. which runs as under:-
“Agreements by way of wager, void. - Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made.”
In view of the specific statute, as referred to hereinabove specially when Ext.2 reveals that many other purchase of such Surf Excel Blue which ends in result of 10/10 cannot, by no stretch of imagination, can be said to be a promissory contract and Sec.40 of the Indian Contract Act. also, when there are some hidden portions behind it, apparently do not manifest its applicability in the peculiar circumstances of the present case.
In this connection this Forum finds is fortified with the observation of the Hon’ble Supreme Court appearing in the case of HMM Ltd. :vs: Director General, Monopolies and Restrictive Trade Practices Commission, [1998 CTJ 249 (SC)MRTP = AIR 1998 SC 2691] where prizes were offered on the packets of Horlicks carrying prize coupons. Therein the Hon’ble Supreme Court has been pleased to observe. :-
“There is no material that indicates that there was a draw of lots or that a prize was charge for participation in the draw. The fact that some bottles of Horlicks contained a slip of paper which entitled the buyer to a prize is not lottery in the ordinary sense of word.”
So in a case where the awardment of prize is dependent on a single draw or draw of lots the same would be hidden by Section.30 of the Contract Act. and also amounting to unfair trade practice as defined under Sec.36A of the MRTP Act. 1969 and has reproduced in Sec.2(1)(V) of the Consumer Protection Act.
It has also been observed in AIR 2000 H.P. 109 the agreement for payment of prize money based on the draw of lots of lottery ticket comes within category of wagering contract and cannot be enforced specifically being void. In the instant case after going through the material on record including the Exts. filed by both the parties this Forum is of considered opinion that the awardment of prize is dependent on a single draw with some specifications appearing in the stained cloth and its portion appearing on the facial part of the packet and also dependent on a draw of lots which would produce the result of 10/10 cannot be said to be any agreement for payment of such prize and hence is void under Sec.30 of the Indian Contract Act. and cannot be enforced in law.
May it be mentioned herein that which is declared illegal under any law may not be made lawfull by taking recourse to the provision of Consumer Protection Act. which has no overriding effect on other laws. We may usefully refer Sec.3 of the Consumer Protection Act. which clearly provides that the provisions of this Act. shall be in addition to and not in derogation of the provisions of any other law for the time being in force. So, what is declared void under the Indian Contract Act. cannot but be said to remain void notwithstanding the provision of Consumer Protection Act. 1986.
However, the question still remains as to whether the O.P. guilty of unfair Trade Practice and if so, whether the petitioner is entitled to any compensation.
On facts there is overwhelming evidence on record to show that the complainant has purchased one packet of Surf Excel Blue on payment of cash price along with other stationary articles through Ext.1. P.W. – 1 in this regard has not been challenged or controverted successfully by the O.P.; on the other hand, the contestant O.P. has named two winners are there of Rs.5,00,000/- scholarship and in the written version this has named Mrs. Pragati from Kranail, Tamilnadu and Mr. Deysarkar from Kolkata. But it is significant to note that neither of the two winners has made their appearance in Forum nor the O.P. has produced the said packet of either of the winners or any declaration there to satisfy the Forum. That apart, no fact, vision at the belated stage of either of the winners has been filed and hence this Forum has reason to believe that the names apparently appear to be not genuine.
‘Unfair Trade Practice’ as defined in Clause (r) of Section 2 (1) of the Consumer Protection Act, amongst other things provides that following practices shall mean unfair trade practice.
“(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest.”
In the instant case O.P. has offered gifts with the intention of not providing them to the consumers even otherwise the price being dependent on a draw which reveals otherwise picture inside Ext-2 as attended by O.P. and dependent on draw of lots resulting 10/10 are securely covered by Sub-clause (b) of Para – 3 of the said definition.
In view of above the O.P. is clearly guilty of adopting unfair trade practice in the matter of sale of its product i.e. Surf Excel Blue.
Accordingly this point is disposed of in the affirmative.
Point No. 3
The petitioner has been dragged in the litigation and has naturally become subject to harassment and mental agony. While he was not entitled in law to specifically enforce the said void agreement and receive the said prize, he certainly needs to be compensated with the compensation of Rs. 20,000/- which, in our opinion, will meet the ends of justice.
That apart the petitioner has also become entitled to cost of litigation of Rs. 5,000/-.
This point is thus disposed of.
Proper fees have been paid.
Hence, ordered
that Malda D.F. Case No. 28/2007 is allowed on contest. The petitioner do get Rs. 20,000/- towards compensation and also do get Rs. 5,000/- towards cost of litigation
The O.P. do pay the aforesaid quantum of money within 30 days from date failing which the petitioner be at liberty to take recourse to law.
This Forum has passed order restraining the O.P. (Prakash Sangam, Senior Brand Manager SURF EXCEL HINDUSTHAN LEVER LTD. C/O. Alpha Deta Centre, P.O. Bag No.3904, Girgaon H.P.O. Mumbai – 400 004)from continuing the said unfair trade practice and order it not to repeat the same in future.
Let a copy of this order be given to parties free of cost.
