DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

Civil Station, Palakkad 678001, Kerala

Dated this the 15^th day of January, 2009

Present: Smt.Seena.H, President

Smt.Preetha.G. Nair, Member

C.C.No.92/2007

P.Arjun.

S/o.Prabhakaran, Muthalanghat House,

Athipotta Post, Palakkad.

(Rep by Father & Guardian,

Shri.M.Prabhakaran) - Complainant

(By Adv.Reetha.V, K.Vijaya & M.Sugathakumar )

Vs

1. The Chief Editor,

Malayala Manorama,

P.B.No.311,

T.B.Road, Palakkad.

2. M/s.Silver Storm Water Theme Park,

Athirapally.

3. Vaisali Karkoonthal Herbal Oil,

Ayur, Kollam.

4. M/s.G Tec Computer Education,

Stadium Road,

Palakkad. - Opposite parties

O R D E R

By Smt.Seena.H, President

The case of the complainant is that he has participated in a lucky dip contest conducted jointly by Malayala Manorama and Silver Storm Water Theme Park, Athirapally. The terms and conditions of the contest are stated in the advertisement published in Malayala Manorama daily. According 750 families consisting of 4 members each from 63 Taluks will be selected and free passes will be issued to them to visit Silver Storm Water Theme Park. It is further stated that 9 persons will be selected from the coupons of each Malayala Manorama unit and they will get a bike each. Induced by the advertisement complainant participated in the lucky dip and had sent all the five coupons published in the Malayala Manorama daily duly filled up. On 12/04/2006, out of coupon No.1, 10 families were announced winners and a bumper coupon winner, namely Muhammed

Ramshad P was announced. On 19/04/2006, list of 2^nd coupon winner and bumper coupon winner were published. Complainant was luckily declared as bumper winner of coupon No.2. Subsequently on 26/04/2006, list of 3^rd coupon winners were announced along with the name of one Sri Krishnan.C.K, Palakkad declared as winner of the bike. Subsequently on 3/05/2006 and 10/05/2006 the list of winners of coupon No.4 and 5 were published. But no bumper coupon winner was announced. In all the results published, it has been stated that the details of the results will be informed by post. On 10/05/2006, the list of Mega bumper winners were published. The complainant received no information regarding his prize. When enquired with the 1^st opposite party there was no proper reply from the staff of 1^st opposite party. Complainant caused a notice dt.19/07/2006 to the opposite parties for which opposite parties replied admitting that he is the winner but stating that there was a mistake in process and the actual winner has been given the bumper price. Complainant was ridiculed by his friends and relatives which resulted in untold mental agony and shame. According to the complainant, acts and omissions of the 1^st opposite party jointly with the other opposite parties amounts to unfair trade practice and deficiency in service. Hence the complaint.

2. opposite parties 2 and 3 was set exparte. Opposite party 4 neither filed version nor affidavit. 1^st opposite party filed version with the following contentions. The complaint is made with a prayer to deliver the bike alleged to be won in a lucky draw by the complainant. Since there is no consideration either paid or promised , complainant is not a consumer as defined under the Consumer Protection Act. Further it is only a lucky draw conducted to encourage the existing readers and not for the subscribers only. To participate in the contest no consideration is received. A contestant in such a lucky draw contest will not come under the definition of consumer. The terms and conditions of the contest is clearly mentioned in the advertisement published in the daily. The scheme promised 9 mega prizes i.e, one mega winner from each of the nine Malayala Manorama units in Kerala. According each unit had been intended to select one mega winner other than the lucky winners already selected for the trip to Silver Storm. Their intentions were strictly followed by eight of the Malayala Manorama units except the Palakkad unit due to an inadvertent oversight and misinterpretation because of which an additional bumper coupon winner was selected for draw number 1, 2 and 3. This was not according to the rules of the contest. Finally again draws for mega prize was conducted with the 3 winners from first three draws and contestants of fourth and fifth drawn. In that one C.K.Krishnan

was the winner and he was declared as winner of the mega prize and prize was also handed over. After this news complainants father made a claim for the prize. Later a lawyer notice was also received for which proper reply was sent. According to opposite party No.1 no cheating, unfair trade practice or deficiency in service is involved in this matter.

3. The issues for consideration are;

1) Whether the complainant is a consumer and whether the complaint comes under the purview of Consumer Protection Act.

2) Whether there is unfair trade practice or deficiency of service on the part of the opposite parties.

3) If so, what is the reliefs and costs.

4. Evidence adduced consists of Exts.A1 to A11 and proof affidavit on the side of the complainant and proof affidavit and Exts.B1 and B2 on the side of opposite party No.1.

5. Issue:No.1: Opposite party 1 has raised a contention that since there is no consideration either paid or promised complainant is not a consumer under Consumer Protection Act and also as it is a lucky contest no consideration is received. Complainant has produced subscription receipt marked as Ext.A11, from where it can be seen that he is the subscriber of the Malayala Manorama daily. Hence complainant is a consumer under Consumer Protection Act.

6. Issue No.2: Opposite party has raised a contention that complaint regarding lucky draw will not come under the purview of the Consumer Protection Act. Complaint as defined u/s 2(I)(c) specifically included any allegation in writing made by a complainant as against unfair trade practice. Point is answered in favour of the complainant.

7. Issue No.3 & 4: The case of the complainant that he has participated in the lucky dip contest conducted by the Malayala Manorama and Silver Storm Water Theme Park and he was declared a winner of bumper coupon. This is evident from Ext.A1 to A6. Ext.A3 clearly shows that the complainant was declared as the winner of bumper coupon. As no proper information regarding the prize was received from the staff of opposite party 1 complainant has caused a lawyer notice dtd.19/07/2006 to the opposite parties stating his

grievance. According to the 1^st opposite party it was a mistake on their part and only one person from each of the 9 Malayala Manorama unit will be awarded the bumper prize. This is evident from Ext.A9, reply notice dtd.7/8/06 sent by opposite party 1. Perusing the entire evidence on record, we find that there is an admitted fault on the part of the 1^st opposite party which has resulted in mental pain to the complainant. Admittedly complainant was declared winner of bumper coupon on 19/4/06. Had it been a mistake as contented by 1^st opposite party, opposite party 1 has a bounden duty to publish the correct version as soon as the mistake was detected. Instead they kept mum. True fact was disclosed to complainant only when a lawyer notice was caused. We are of the view that the act of the opposite party 1 amounts to clear deficiency of service on their part.

8. As the contest is conducted by opposite party 1 and opposite party 2 jointly, they are jointly liable to compensate the complainant. Opposite party 3 and opposite party 4 being sponsors are exonerated from liability.

9. In the result, complaint partly allowed. We direct the opposite parties 1 and 2 to pay an amount of Rs.10,000/- (Rupees Ten thousand only) as compensation and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings to the complainant. The order shall be complied within one month from the date of communication of the order failing which the whole amount shall carry interest @ 9% per annum from the date of order till realisation.

10. Pronounced in the open court on this the 15^th day of January, 2009

     

Sd/-

Smt.Seena.H,

President

Sd/-

Smt.Preetha.G. Nair,

Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 – Malayala Manorama daily dtd.1/4/2006

Ext.A2 - Malayala Manorama daily dtd.12/4/2006

Ext.A3 - Malayala Manorama daily dtd.19/4/2006 (result)

Ext.A4 - Malayala Manorama daily result coupon (2) dt.26/4/06

Ext.A5 - Malayala Manorama daily result coupon (2) dt.3/05/06

Ext.A6 - Malayala Manorama daily result coupon (2) dt.10/5/06

Ext.A7 - Malayala Manorama daily dt.10/5/06

Ext.A8 – Copy of lawyer notice dt.19/7/2006 sent by complainant to opposite parties

Ext.A9 – Reply notice sent by counsel of 1^st opposite party

Ext.A10 – Cash Receipt dt.1/4/2006 issued by the Malayala Manorama Agent.

Exhibits marked on the side of opposite party

Ext.B1 – Paper news dt.31/3/2006

Ext.B2 – Paper news dt.10/6/2006

Costs (allowed)

Rs.1,000/- (Rupees One thousand only) allowed as cost of the proceedings to complainant.