DATE OF FILING: 03.10.2012
DATE OF DISPOSAL: 01.09.2017.
O R D E R
Dr. Alaka Mishra, Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the Opposite Parties (in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that the complainant while working as a Senior Manager of UCO Bank at Phulbani being approached by the agent of the O.Ps he had deposited one time installment of Rs. 10,000/- on 14.08.2003 under the Sahara India Commercial Corporation Ltd. Scheme vide receipt No.38364946894 and an account was opened in the name of the complainant on 14.08.2003 along with a pass book bearing the control No. 18539201149 during the year 2006 i.e. on 13.04.2006. The office of the O.Ps declared a bumper prize in favour of the complainant that he has own a house worth of Rs. 5,00,000/- in a lucky draw for “Sales Promotion of Immovable Property ( Housing Unit/Commercial Unit) products and services and the payment should be made in 360 equal monthly installments and later on a letter bearing No. Nil dated 07.02.2012 along with a circular in Hindi was sent to the present address of the complainant mentioning regarding the procedures to avail his prize. As per the daily Oriya newspaper advertisement made on behalf of the O.Ps, the housing project will be at Berhampur, Bhubaneswar and Rourkela in Odisha, so the complainant took interest to invest the amount in the said housing project of the O.Ps. In the meantime the complainant has made many correspondences with the O.P.No.1 dated 20.05.2010, 23.12.2011, 24.01.2012 and 06.03.2012 respectively to know the location and place where the housing project of the O.Ps are in existence and how to pay the monthly installment and what is the amount per installment but the O.P.No.1 is totally silent about the same and there is no clear response from the O.Ps to that effect. So the complainant is still in dark with regard to his bumper prize from which it transpires that the O.Ps though have declared a bumper prize in favour of the complainant but have not handed over yet to the complainant the house in question worth of Rs.5,00,000/- as per their commitment though he has expressed his interest to deposit the installments against the housing project and despite repeated reminders the O.Ps have taken no steps and remained silent. So when all the best attempts of the complainant ended in vain, finding no other alternative he has filed this consumer complaint in this Forum alleging deficiency in service on the part of the O. Ps and has prayed to direct the O.Ps to handover the bumper prize of the house worth of Rs.5,00,000/- as per their commitment and to make transparent of its location and award compensation and litigation expenses in the best interest of justice.
3. Upon notice the O.Ps appeared through learned counsel Dr.L.N. Dash, Advocate and filed version. In the written version it is stated that the complainant Sri Hari Prasad Panda with an intent to purchase immovable property (Housing Unit/Commercial Unit) and or products of Sahara India Commercial Corporation Limited or its business associates as per the terms and conditions of the Company advanced Rs.10,000/- for booking under Sahara India Commercial Corporation Limited vide control No. 12539203726 at Branch Office Phulbani of O.Ps on 14.08.2003. At the time of advancing the money the terms and conditions of the scheme were read over to the complainant and the complainant after being fully satisfied, deposited money under the scheme as advance for purchase of product of Sahara India/ or immovable property or to avail the services of the Sahara India and its subsidiary. Thus various options were available to the complainant to utilize the advanced amount and complainant was required to exercise his option subject to availability of the property/product and services. The term and conditions provided that so long as the advance amount remains with the O.Ps it will yield credit value and complainant would be able to utilize the advance amount and the credit value accrued on it in purchasing any of the products or services of the O.Ps or may get its redemption along with the credit value. The complainant never tried to avail the facilities and did not convert his account in to Sahara City Homes Scheme for allotment of the housing unit. The complainant fully understood that various options were available to him, but filed the present complaint without any cogent reason and with an ulterior motive to pressurize the answering O.Ps for unlawful gain. The O.Ps have also provided a list of ongoing projects of Sahara City Homes and the applications form for booking the unit but in spite of repeated requests from the O.Ps the complainant has not shown interest in booking the unit for availing the facility of prize coupon, as such answering O.Ps can’t be blamed for deficiency of service. The O.Ps has not made any agreement with the complainant under the scheme for providing of benefit coupon/prize in lucky draw. Hence, the benefit of prizes in lucky draw does not fall under the definition of ‘deficiency’ mentioned in Section 2(1) (g) of the Consumer Protection Act, 1986; as such the present complaint is not maintainable under Consumer Protection Act and deserves to be dismissed. The complainant was gaining all the benefits of Silver Year Labh Swarna/Rajat Scheme. The prize is additional benefit without any charge and agreement. The complainant has misinterpreted the terms and conditions of the scheme. Investment made in the scheme is simply an advance which earns credit value and may be utilized by the investor either for buying any product or services of the O.Ps company or take refunds. This does not confer any right on the investor for allotment of any unit at a particular place or city as per benefit coupon in lucky draw, he can also exercise his option to surrender his bond in favour of the company and get the redemption value. The complainant has fully understood these terms and conditions of the scheme, but he has willfully suppressed the same in his complaint. The lucky draw held by O.P. complainant won a lottery/benefit coupon whereby he won a prize of house worth Rs.5,00,000/- subject to terms and conditions of the sales promotional scheme. At the very time when complainant won the benefit coupon he was made aware of the terms and conditions of the sales promotional scheme under which the coupon can be utilized and a copy of the company circular Ref No. 24/101/1982 dated 17.03.2005, 24/101/1982(1) dated 19.03.2005 & 02/101/1982(2) dated 04.06.2005 pertaining to terms and conditions relating to use of lottery/ benefit coupon was provided to the complainant. Under the terms and conditions of sales promotional scheme the value of prize can be utilized in purchase of house in the ongoing project of Sahara City Homes. The prize money shall be adjusted in the cost of the house and at the initial stage lottery winner shall be required to pay an amount remaining balance after deducting the prize money from the value of the house and the amount equivalent to the value of prize money shall be recovered from him in 360 monthly installments, without charging any interest on this amount. The same is apparent on the lottery/benefit coupon itself. But the complainant being well aware of the use of lottery/benefit coupon did not apply to avail the prize on the lottery and filed the present complaint in order to harass the O.Ps. The averments made in the complaint petition are false hence denied. In reply it is submitted that the complainant is not a consumer of the O.Ps in respect of the said lottery/benefit coupon of House worth Rs.5,00,000/-. The complainant has won the lottery/benefit coupon in a lottery/ lucky draw and he has not paid any consideration for the same. The complainant is the consumer of O.Ps only in regard to control No. 12539203726 which he has advanced Rs.10,000/- under the scheme with O.Ps and the O.Ps have provided best of their services in regard to this advance booking. The advance given by the complainant is not the consideration for prize under lucky draw, nor there any agreement to allot the housing unit at any particular place/city. The advance was taken for various options mentioned in the scheme form and it was the duty of the complainant to specifically mention his option and fulfill the required conditions, which he did not discharge. If the complainant was interested in the facility under benefit coupon/prize, he was required to book a housing unit in any ongoing Sahara City Home Project. But the complainant did not complete the formalities of booking the housing unit by giving advance amount as per terms and conditions of the benefit coupon/prize. The complaint is liable to be dismissed with cost as has been filed without any cause of action and also being wholly false and frivolous. The relief sought by the complainant is not maintainable, hence prayed to dismiss the complaint with cost.
4. On the date of final hearing both parties are present. We heard argument from both sides at length. We have gone through the record of the file and perused the materials on the case record. It is a fact that the complainant is a Senior Manager of UCO Bank deposited one time installment of Rs.10,000/- on 14.08.2003 as advance for purchase of immovable property (Housing Unit/ Commercial Unit) products and services under the Sahara India Commercial Corporation Ltd. scheme vide receipt No. 38364946894 along with a pass book bearing the control No. 18539201149 which is beyond any doubt or dispute. It is also a fact that the complainant received a letter which shows he has won a prize from O.P.No.1 with advertisement of Sahara India Pariwar on 13.3.2005 and another coupon dated 17.3.2005 in Hindi literature. Thereafter on 20.05.2010, 23.12.2011 and 24.01.2012 respectively the complainant approached to O.P.No.1 for the said purpose. On 07.02.2012 Sahara India Pariwar confirmed that the complainant won a bumper prize i.e. a house worth Rs.5,00,000/- to be repaid in 360 equal monthly installments but did not prefer to disclose the of the site the landed property, sqfts. of the land and monthly installment rate and despite several approaches made the O.Ps did do anything and remained silent and when did not respond, the complainant approached this Forum on 03.10.2012 for redressal of his grievance and prayed for relief as claimed.
5. On contrary the O.Ps filed written argument and contended that that the complainant is not comes under definition of consumer u/s 2(1) (d) of C.P. Act. Winning of lucky draw is not a consumer. The benefit coupon provided by O.Ps to the complainant falls under the category of service rendered free of charge within the meaning of section 2(1)(o) of Consumer Protection Act, 1986 . For free of charge complainant can’t claim as a consumer. The O.Ps filed a number of reported decisions of Hon’ble State Commission, National Commission and Supreme Court where it was held that concerned lottery winner can’t be said that the complainant was a consumer who had hired in the service for consideration. Hence the complainant has no right to get redress and O.Ps are not liable to pay as prayed in the complaint. Similarly, the learned counsel for the O.Ps also argued that the complainant has misrepresented the terms and conditions of the scheme. He further contended that the complainant won the benefit coupon and he was aware of the terms and conditions of the scheme under which the coupon can be utilized and the copy of Company Circular Ref No. 24/101/1982 dated 17.03.2005, 24/101/1982(103.2005 and 02/101/1982(2) dated 04.06.2005 pertaining to terms and conditions relating to use of lottery/benefit coupon was provided to the complainant. Under the terms and conditions of sales promotional scheme the value of prize can be utilized in purchase of house in the ongoing project of Sahara City Homes and the value of money shall be recovered from him in 360 monthly installments without charging any interest on the amount. It is further submitted that there is no agreement to allow the housing unit at particular city and the advance was taken on various option in the scheme so the O.Ps. is not duty bound to release only a house site plot to the complainant because Sahara India Pariwar in category “C” is a lump sum under Sahara Rajat Yojana as advance for purchase of immovable property either housing site or commercial or any other product or availed service of Corporation Ltd or its business assets as per the terms and condition of the company. However, the O.Ps neither supplied any relevant documents in support of his case to substantiate their arguments nor filed any documentary evidence even after several opportunities given such as request form, coupon holder form to deposit 5% of total amount, adjustment request letter etc. The O.Ps cited a number of decisions in support of their case such as in the case of Byford Vs. SS Srivastava, reported in CPR 1993 (2) 83 (NC), Madhya Pradesh Shasan Vs. Romesh Jajodia & Ors, reported in 1 (1999) CPC 703, in the case of M/s S.B.P & Comp.. Vs. Patel Engineering Ltd (2005) 8 SCC 618, in the case of M/s Agrigold Exjims Ltd Vs. M/s Laxmi Nits & Wowen, in the case of State Bank of India Vs. B.S. Agricultural Industries reported in AIR 2009 SCC 2210, in the case of M/s Kerala Agro Machinery Corporation Ltd. Vs. Binoy Kumar Roy and Others reported in 2002 (3) CPR -107 SC, in the case of Haryana Urban Development Authority Vs. B.K. Sood reported in 2006(1) CPR, 121, SC, in the case of Punjab Urban Development Authority & Anr. Vs. S.Gurjinder Singh and Anr reported in 2004(3), CPR, 122(NC) and in Mark International Vs. Bank of India & Ors reported in 2000(1) CPR, 296, SC-UP etc and prayed to dismiss the case of the complainant as the complainant is not a consumer as it was a sales promotional scheme and a lottery winner is not a consumer. Similarly, he also contended that the claim is barred by limitation and in the light of fact and circumstances as submitted through oral argument and through written arguments, the O.Ps prayed to dismiss the case with cost.
6. We have gone through the aforesaid decisions and have also perused the citations. On perusal of the citations in all the above citations, it was held that the lottery winner is not a consumer and the case is barred by limitation. We are not inclined to accept all the above cited decisions due to distinguishable factual differences of all above cases since in this case the O.Ps have received an amount of Rs.10,000/- from the complainant towards purchase of moveable property as per the schemes floated by the them. When the O.Ps have received the amounts under proper issuance of acknowledgement of money receipt, they are liable to refund the amount with interest. As far as the interest is concerned, we would like to view that the complainant had deposited the amount during the year 2003 and in the mean time a long period has already been passed. It is also a fact that the O.Ps did not take any steps to refund the amount even after the dispute filed in this Forum. We are, therefore, feel that the O.Ps are liable to pay interest @ 9% per annum from the date of receipt of the amount till actual payment is made to the complainant since the complainant though invested the amount but could not get the house on winning of the lottery. We are also convinced that the complainant is entitled for cost of litigation and as far as the cost of litigation is concerned, the complainant has been harassed for the last 14 years and have also filed this case in this Forum for the last five years with the help of an advocate. We, therefore, feel that an amount of Rs.5000/- will be just and proper towards litigation cost to meet the ends of justice. In the light of the above discussion and taking into account to the facts and circumstances of the case we partially allowed the case of the complainant against O.Ps, who are liable to compensate the complainant due to unauthorized withholding the advance amount of the complainant and for adapting unfair trade practice by harassing a bona fide consumer.
7. Resultantly, we direct the Opposite Parties to return the amount of Rs.10,000/- (Rupees Ten Thousand) to the complainant with 9% interest per annum from the date of depositing the amount with the O.Ps. We also direct the O.Ps to pay an amount of Rs.5,000/- towards cost of litigation to the complainant at the same time. The O.Ps are directed to comply the above orders within 45 days from the date of receipt of this order, failing which the complainant is at liberty to recover the same under Section 25/27 of the Consumer Protection Act.
8. The order is pronounced on this day of 1st September 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
