BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.420 of 2015
Date of Instt. 29.09.2015
Date of Decision: 27.06.2017
Jaskaran Jit Singh Rai son of Ranjit Singh Rai resident of H. No.87, Defence Colony, Jalandhar.
..........Complainant
Versus
1. The Coca Cola India, Enkay Tower, Industrial Area, Udyog Vihar, Phase-V, Gurgoan-122001
2. The Kandhari Beverages Pvt. Ltd. Village Nubipur, Distt. Fatehgarh Sahib, Punjab-140406.
3. Sharma Milkbar, Defence Colony, Jalandhar
.........Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh. Parminder Sharma (Member)
Present: Sh. Varun Kumar, Adv Counsel for complainant.
Sh. Ajay Kohli, Adv and Sh. GPS Rana, Adv Counsel for OP No.1.
Smt. Shelly Shukla, Adv Counsel for OP No.2.
OP No.3 exparte.
Order
Karnail Singh (President)
1. This complaint filed by the complainant, wherein stated that the complainant falls with in the provision of consumer as such the complainant has been purchasing the product from OP No.3 and consuming the same. The OPs are dealing in the business of beverages and there are also dealing to promote their product through telecommunication. The complainant participated in the scheme proclaimed by the OPs for the promotion of their products. The complainant purchased the pet bottles from OP No.3. That complainant saw advertisement at the pet bottle of product named Limca 500ml @ 35 in which there was the “Dring Dring” offer promotion published by OPs. When complainant read this promotional offer at the pet bottle, the complainant was ready to participate in this promotional offer after reading that promotional scheme. Complainant purchased a pet bottle of product named Limca 500 ml @ Rs.35/- with details B. No.19 dated 08.02.2015 from the market. And the product label was printed with promotional scheme and to get a chance to win “Samsung Galaxy Note 4” during the period from 15.02.2015 to 31.03.2015. It is a SMS base game. Complainant sent a SMS with Unique Code L121BX9715 to 70655-70000 on 20.02.2015 as token of proof to participate in the game from his Mobile No.98155-30560 and the SMS cost to the complainant was Rs.1.50 per SMS. The SMS was delivered to OPs company and a question was asked by your company:-
What is the Capital of Maharastra? With option
A. Spain B. England
C. Mumbai D. Egypt
The complainant replied his option “C Mumbai” through SMS which cost to complainant Rs.1.50 per SMS but complainant received a reply from OPs company by SMS “Sorry incorrect answer, you are not eligible to win. Better Luck next time”. Complainant is 100% sure that his answer is correct. Original pet bottle Labels Limca, Thumsup & Sprite are enclosed here with.
2. That complainant next day i.e. 21.02.2015 again purchased a Limca Bottle Pack 500ML @ Rs.35 with detail batch No.19 dated 08.02.2015 from the market. Complainant again sent a unique code L121BX9604 to 70655-70000 which cost to complainant Rs.1.50 SMS delivered again a question was asked by your company:-
What is the Capital of Bihar? With option
A. Patna B. Spain
C. Rome D. Australia
Complainant replied his option “A Patna” through SMS which cost to complainant Rs.1.50. Now this time complainant got the same reply from your company i.e. “Sorry incorrect answer, you are not eligible to win. Better Luck next time”. Complainant gave the right answer but according to your company complainant's answer was not correct. Complainant was surprised to see the reply of your company and confused by your reply. Then complainant on next day i.e. 22.02.2015 again purchased a Thumsup 500ml @ Rs.35 with detail batch No.22 dated 10.02.2015 from the market. Complainant again send a unique code TU21AEAY06 to 70655-70000 which cost to complainant Rs.1.50 SMS OPs again sent a question:-
What is the Capital of Gujrat?
A. Italy B. Gandhi Nagar
C. Spain D. London
Complainant replied with option “B Gandhi Nagar” through SMS which cost to complainant Rs.1.50. Now this time complainant got the same reply from OP i.e. “Sorry incorrect answer, you are not eligible to win. Better Luck next time”, complainant was totally frustrated by company every time the complainant gave correct answer but your company always sent the same reply i.e. incorrect answer.
3. That complainant 4th time i.e. 24.02.2015 again purchased a Limca Mobile Pack 500 ml @ Rs.35 with detail batch No.19 dated 08.02.2015 from the market. Complainant again sent a unique code L121DX9880 to 70655-70000 which cost to complainant Rs.1.50 OPs again sent a question:-
Which is the longest bird alive? With option
A. Elephant B. Tiger
C. Lion D. Ostrich
Complainant replied his option “Ostrich” through SMS which cost to complainant Rs.1.50. Now this time complainant got the same reply from your company i.e. “Sorry incorrect answer, you are not eligible to win. Better Luck next time”. Complainant also read this promotional scheme/offer in the newspaper Punjab Kesari dated 03.03.2015. That complainant totally surprised how it is possible for a reputed company which is world famous can play with the emotions of complainant and with the help of fake promo scheme, complainant purchased your product in good faith and to win but your company's main motive is to increase the sale. The complainant sent OPs so many letters/complaints against your promo “Dring Dring” Scheme but your company did not reply even a single letter.
4. That complainant again purchased a Limca Mobile Pack 500 ml @ Rs.35 with detail batch No.19 dated 08.02.2015 from the market. Complainant again sent a unique code L121BQ568T to 70655-70000 on 06.03.2015 which cost complainant Rs.1.50. SMS delivered again, a question was asked by your company:-
What is the Capital of Karnatka? With option
A. Canada B. Sri Lanka C. Banglore
Complainant replied his option “C” from Mobile No.98155-30506. This time complainant surprised to see the reply of your company i.e. correct answer you are eligible to win gifts. On receiving the present correct answer, complainant really shocked as it was after lodging a complaint previously it was always shown as incorrect answers. OP again shocked on 07.03.2015 when he sent a Unique Code L121B24036 with detail 17.02.2015, but the complainant received a question at 6:26 PM, the question was Sania Mirza is famous for:-
A. Fishing B. Cooking C. Tennis?
He replied with “C Tennis”. He has not received any reply or answer this time from your company till date. Here a important thing is to be noted that the promotion time is formed 10 am to 6 pm as mentioned by OPs. Complainant again sent a unique code L121EN2959 to 70655-70000 on 10.03.2015 which cost him Rs.1.50 SMS delivered again a question was asked by your company:-
Which planet is known as Red Planet?
A. Saraswati B. Mars C. Yamuna
Complainant replied with option “B Mars”. No reply/answer received till date. After some days complainant received a call from your executive name Mr. Mukul on 24.03.2015 from his number 0120-6636854 at 6:32 pm and your company's executive told the complainant that complainant participated in this scheme/offer on 07.03.2015. OPs executive also told the complainant that his complaint had already been sent to the Legal Department. Thereafter complainant served a legal notice upon the OPs vide dated 30.07.2015 but all in vain and as such necessity arose to file the present complaint with the prayer that the complainant is entitled to get Rs.5,00,000/- as compensation amount from OPs being the complainant and Rs.50,000/- for harassment, humiliated and annoyed by the OPs and Rs.15,000/- for litigation charges.
5. Notice of the complaint was given to the opposite parties but despite service OP No.3 did not come present and ultimately OP No.3 was proceeded against exparte. Whereas OP No.1 filed its written reply and contested the complaint by taking preliminary objections that the complainant does not come within the definition of Consumer as defined under Section 2(d) of the Consumer Protection Act, 1986 because the complainant has not purchased or hired any services for paying any consideration or promised to be paid. It is also clear that there is no payment whatsoever being made for the prize purported to be won by the complainant nor has he availed any services as enumerated under Section 2(d) (iii) of the Act. Admittedly, the complainant has received the value of his money, in the form of the beverage which he alleges to have purchased. It is submitted that no loss or injury has been caused to the complainant. In fact, as per the complainant himself he has not paid anything more than the price of the beverage and accordingly the complainant is not a consumer under the Act and his grievance, if any, whatsoever cannot be entertained under the Consumer Protection Act, 1986 and complaint needs to be dismissed. It is further averred that there is no consumer dispute as complainant does not fall within the definition of the expression “Complaint” as provided under the Consumer Protection Act, 1986. The promotion as launched by the answering respondent was an exhaustive and fair promotion scheme and does not suffer from any element of unfair trade practice and as such the complainant is not covered under the definition of Complaint. The “Dring Dring” Offer 2015 (Promotion) was launched by the Coca Cola India Private Limited across India, where individuals, based on their skill, knowledge and timing had the opportunity to win Samsung Galaxy Note 4, were invited to SMS with certain unique code printed behind the labels of CCIPL products to the designated number prescribed and it is the duty of participants to read the said terms and conditions before participating and even the said scheme was administered by Times Internet Limited, who were authorized to manage the execution and logistics related to the promotion, commencing from the SMS application process, leading upto the handing over of the final list of validated winners to answering respondent. The entire computerized data with respect to the above contest recording every detail of the entries received in the normal course of activity is maintained by the said administrator. An Accredited firm of Charted Accountants appointed by answering respondent were authorized to determine the winners of the promotion in accordance with the terms, conditions and procedure of the said scheme. As per terms and conditions, the participants must answer the question at the latest within 60 minutes of the time from which the question is sent to him, “Valid Answer Period”, the participant correctly answering the promotion question within a shortest possible time shall be declared the winner for that hour of the promotion period in which the answer is received by TIL provided, it has been sent within the valid answer period. If the participant sends a correct answer to a Promotion Question in the prescribed format and during the Valid Answer Period, the participant will receive a message confirming the participant's entry in the promotion “Valid Entry” informing the participant that the participants will be contacted in case the participant is shortlisted as a winner under the promotion. During the “Promotion Period” hourly total of three hundred and sixty winners will be shortlisted “Eligible Winners”. The winners shall be chosen based on their skill, knowledge and timing in answering the Promotion Question correctly and each Daily Winners shall be eligible to win a prize, subject to the terms and conditions. In view of the above, it may thus be appreciated that the scheme as promoted by “CCIPL”/answering respondent did not suffer from any element of unfair trade practice. The answering respondent has taken all reasonable, valid and legal steps to ensure that there was no scope for any grievance and/or even iota of unfair trade practice as it is falsely alleged by the complainant. The scheme was exhaustive, fair and was conducted in accordance with the terms thereof and was thus in compliance of all applicable laws. The complaint is thus frivolous and malafide exercise, devoid of any cogent, tenable and true averments and further submitted that the complainant has come to the Forum with unclean hands as he has concealed the true facts. On merits, it is admitted that the complainant had participated in the said scheme but he was not successful in any manner and further alleged that the allegations made in the complaint are totally wrong, false, frivolous and the same is liable to be dismissed. OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that the complaint is liable to be dismissed qua answering OP as no cause of action arose against the answering OP and further averred that the complaint is liable to be dismissed for non joinder of necessary parties. On merits all the averments made in the complaint are categorically denied and lastly submitted that the complaint of the complainant may be dismissed.
6. In order to prove the case of the complainant, the complainant himself tendered into evidence affidavit Ex.CA alongwith some documents Ex. C-1 to Ex.C-43 and closed the evidence.
7. Similarly, counsel for OP No.1 tendered into evidence affidavit Ex.OP-A alongwith some documents Ex.OP-1 to Ex.OP-8 and closed the evidence and then counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A and closed the evidence.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. A simple claim of the complainant is that he came to know about the promotional offer of the OP No.1 and 2 through newspaper and copy of the newspaper is available on the file Ex.C4 as well as from the wrapper/label of Limca, Coca Cola and Thumsup bottles and these rapers are placed on file Ex.C9 to Ex.C11 and accordingly, the complainant played the game by sending unique code about 6 and 7 times but all the times his answer was denied being not correct, whereas the reply/answer of the complainant was apparently right and as such the OP has defrauded and cheated the complainant to inducing him by providing fake and frivolous promotional scheme to purchase their product and as such the OPs are liable to compensate the complainant in terms of money.
10. No doubt the OP No.1, who is main contester, of this complaint, and alleged that the complainant is not a consumer nor he is a complainant as he has not paid any consideration for playing the said game and as such the complaint of the complainant is liable to be dismissed.
11. We have gone through the pleadings as well as documents and find that the complainant has spent Rs.35/- on each occasion and for that purpose, he has purchased pet bottle of Limca and admittedly the complainant has not paid any amount for playing the said game, if so then, the complainant is not a Consumer. Apart from above, the said promotional scheme is not covered under the definition of providing a service by the OP, if so then, the complainant is again not a Consumer of the OP and as such the complaint of the complainant is not maintainable in this way.
12. Further more, the case of the complainant is not that there is any unfair trade practice on the part of the OP rather the claim of the complainant is only as alleged in para No.13 of the complaint that the OP has defrauded and cheated the complainant to inducing him by providing fake and frivolous promotional scheme for purchase of the product. If there is a fraud or cheating then again the jurisdiction of the Consumer Forum is ousted and the remedy with the complainant is to file a suit in the Civil Courts.
13. The complainant has proved on the file mobile print Ex.C12 to Ex.C36 just to prove that the question put to him and answer given by him but these prints are not proved to be connected with the promotional scheme of the OP and therefore, the said documents are not helpful to the complainant in any manner. Even if we go through the reply of the OP, wherein it is categorically mentioned the procedure of playing the game and evaluation of the winner which depends upon the time, consuming by each candidate and it also depends upon the skill and personal knowledge of each participants. In one hour game, one winner is to be selected, on the basis of above criteria and the said criteria is also very well mentioned in the publication, published in the newspaper Ex.C4 which is like to reproduce that the timing of the game was fixed 10 hours to 18 hours and “on receiving a question, reply via SMS be sent. The promotional scheme have 360 winners in total, who shall each receive Samsung Galaxy Note 4 (prize). Each day of the promotional period, 8 winners shall be shortlisted, based on their skill, knowledge and timing in correctly answering the question sent to them”, simply giving a correct reply, he cannot be considered that the candidate is a winner rather the other aspects as mentioned in the publication are to be also taken into consideration, only then is to select one candidate at a time and accordingly the case of the complainant was considered by the OP and evaluated accordingly and found that he is not a winner, evaluation sheet is available in para No.3 of the written reply. So, from all angles, the complaint of the complainant is not proved. Therefore, the same is dismissed with no order of cost. Parties will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.
14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
27.06.2017 Member President
