Heard learned counsel for both the parties virtually.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the OP in order to promote the business of surf excel blue made advertisement stating that whoever would purchase surf excel blue shall win with the prize having entered to contest by scoring 10/10. The complainant alleged inter-alia that he had purchased one packet of surf excel blue from the shop at Pratapnagari on payment of consideration. As per the scheme of the contest the complainant allegedly opened the packet and looked for a box inside which found a cloth and same after wash by the surf excel blue showed mark 10/10. The complainant followed the instruction meticulously. So, claiming the prize money of Rs.5,00,000/- he sent the copy of cloth to the OP No.2 but they repudiated the claim stating that the original cloth should be sent instead of Xerox copy of the score mentioned on the cloth. Accordingly, he sent the concerned cloth but the OP refused to pay prize as Code which is required to get prize was missing. So, alleging about deficiency of service and unfair trade practice, the complaint was filed.
4. The OP participated in the hearing but did not file written version for which the OP was set ex-parte.
5. After hearing the case ex-parte, learned District Forum passed the following order:-
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“From perusal of the cover advertisement filed by the learned counsel for the complainant, we find there was an advertisement for awarding a scholarship of Rs.5,00,000/- if a customer secures 10/10 as per their scheme. From the correspondences relied upon and received from the OPs dtd.25.12.06 & 1.2.07, we find the complainant is quite eligible for award of the scholarship as per the advertisement. The question of pre-coding as intimated by them vide the above letters was not a pre-condition in the original advertisement. This being the crux of the case, we find, the OPs have adopted unfair trade practice for a avoiding award of scholarship to the complainant. Learned counsel for the complainant, in order to substantiate his stand, refers decisions of the Hon’ble National Commission reported in 2007(1) CPR 456 and ambit of unfair trade practice available in Sec.2(3) of the C.P.Act,1986. The Hon’ble National Commission have held that “offering a scheme with confusion in advertisement is an unfair trade practice.” On perusal of the act itself and the judgement referred, we find the OPs have committed unfair trade practice for which, we direct the OPs to ensure award of scholarship of Rs.5,00,000/- to the complainant within a span of one month from the date of this order alongwith cost of Rs.2000/- for their lapses. With this the case is disposed of. “
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the provisions of the Act. According to him, the complainant, in order to become consumer U/S-2(d)(i) of the Act has not produced any document to prove himself as purchaser of surf excel blue packet. Apart from this he submitted that the OP No.1 has left the job of the appellant and for that he has filed the appeal to appraise this Commission that being employer he has taken responsibility to file appeal. He submitted that the complainant failed to prove ingredients of the Section-2(d)(i) of the Act, for that the impugned order even if ex-parte against the OPs is illegal and improper. Apart from this he submitted that as per the scheme of the OP the complainant has not produced the relevant proof to get the prize and this fact has not been examined by the learned District Forum for which the impugned order should be set aside by allowing the appeal.
7. Mr.A.K.Samal,Advocate appearing for the respondent submitted that the complainant has already made affidavit towards purchase of the surf excel blue in 2006 even if no cash memo or receipt is filed. Further he submitted that the complainant has proved the case by filing the documents in his favour for which the learned District Forum has passed the impugned order which is legal and proper. So, he supports the impugned order.
8. Considered the submission of respective counsels, perused the DFR and impugned order.
9. The complainant has filed affidavit to show that he has purchased the surf excel blue from a shop at Pratapnagari. But neither the name of the shop is disclosed nor the concerned shop keeper was examined to support his claim. He has not produced any cash memo towards purchase of the surf excel blue. It is only available from the complainant’s documents that he has got the reply from the OP that the original cloth sent by him does not bear the code so as to claim the prize under the scheme. Once he has not proved the purchase of goods by evidence, the rest of the facts disclosed need no discussion.
10. Any person may purchase surf excel blue and hand over same to another to claim prize, but the Act mandates that the purchaser is only entitled to lay claim under the Act. Therefore, the ‘person’ U/S-2(d) of the Act must prove by either direct or circumstance evidence that he is buyer of the concerned subject or the goods so as to lay claim prize under the Act. Since, the complainant has failed the status as purchaser, he has not proved himself to be a consumer to file the consumer complaint and as such the consumer complaint does not arise. Be that as it may, the complainant having not proved the complaint case he is not entitled to any relief as passed by the learned District Forum. On the otherhand learned District Forum has not considered all these facts and law while passed the impugned order. Hence, the impugned order is liable to be set-aside and it is set-aside and the appeal stands allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
