IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the  27^th   Day of  April  2019

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                                                                                       CC No.213/16

Gangadethan.G                                 :         Complainant

Residing at Sundarasseril

Puthenthura  P.O, Neendakara

Kollam-691582

V/s

1. The Manager                           :         Opposite parties

         T.V.Sundaram Iyengar & Sons Ltd.

        Simis square, near IOC fuel station

       Muttathara, Vallakkadavu P.O

        Thiruvananthapuram-695008.

       [By Adv.Sabor Alexander]

2. The Manager

         Renault India

       Sharon Building, door No.29787

        Near Mega mart Building, Vyttila Junction

       Cochin-682019.

ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

          This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act.

 The averments in the complaint in short are as follows:-

          2.       During the month of August 2014 which was the  Onam festival season the 2^nd opposite party given vide advertisement in daily news papers and television channels, by offering that  those  customers who books Renault vehicles during the month of August 2014 have the opportunity to win 5 Duster vehicles as bumper prize and other assured gifts.  Fascinated  by the above offer, the complainant  who is a lawyer by  profession booked a  Duster vehicle  on 16.08.14 through the consultant of the 1^st opposite party named  Mr.Mithun

2

who approach the complainant at his residence at Puthenthura.  While booking the above vehicle the complainant paid an advance of Rs.10000/-.  A lucky draw  coupon has been issued to the complainant vide No.321 was also issued to the complainant and the counter  foil of the same was taken up for lucky draw.    It was informed that the draws are conducted on 18^th August,1^st,10^th, 24^th September and 3^rd October respectively.  In the mean time the 1^st opposite party delivered the vehicle to the complainant  on receiving the balance amount.  The complainant was waiting for the draws and on each day tried to contact the opposite party in order to  know the result of draws, they pretend  busy engagement and told that it will inform in proper way at the earliest.  The 1^st opposite party somehow evaded the queries and were informed that the results will intimated through SMS but it was not materialised.  They have not intimated  the results neither through SMS nor via letter.  That since there was  no clarity  in the draws, on a detailed enquiry  it was revealed that the draws were not properly conducted, manipulations are done in the process and the opposite parties failed in carrying out the process of draw of lucky coupon as envisaged by law.  An advocate notice was sent to both the opposite parties in this regard and even though they have received the same only 1^st opposite party responded by sending a  reply notice stating vague arguments which will not in no way establish with  proof that they have properly conducted the draws and published the result.   All those activities of the opposite parties constitute unfair trade practice, deficiency in service and ultimately cheating of customer by way of advertisements.  There is gross negligence on the part of the opposite parties and the same amounts to deficiency in service.  The  attitude and feeling of  being subjected  to deception by the opposite parties caused much mental agony to the complainant the opposite parties are liable to compensate.  Hence the complaint.

3

          3. The 2^nd opposite party remained exparte.  1^st opposite party filed a detailed written version raising the following contentions.  The complaint is not maintainable  against the 1^st opposite party and it is to be dismissed inlimini.  However the 1^st opposite party would admit that they have  made an advertisement during Onam festval of 2014 at the instance of  2^nd opposite party.  But the 2^nd opposite party had given specific guidelines with regard to the  offer.  The   terms   and   conditions   are  clearly enumerated in Item No.2 of the list of documents produced by the complainant.  The 1^st opposite party is not answerable to any of the averments in this regard.  The 2^nd opposite party reserved the right to alter or modify the terms as per their discretion.  1^st opposite party  is only  a sales and service centre of the 2^nd opposite party.  Therefore it is the 2^nd opposite party who is answerable to all the averments in para 3 of the complaint.    The   2^nd  opposite   party   has been set exparte in this complaint.  The complainant is seeking a relief against the 2^nd opposite party who is the manufacturer of  Duster Vehicles and the creator of this disputed Onam offer. 

4. The 1^st opposite party had specifically informed the complainant that being a lucky draw of coupons there was no certainty that the complainant would be selected.   The complainant was fully appraised  of his chances of either winning or losing in the offer made by the 1^st opposite party.  The proposed lucky draws had been conducted on the notified dates at the 2^nd opposite party’s show room at Kalamassery in Eranakulam  District.  The complainant was aware of this fact as per item 9 in the terms and conditions executed by the complainant.  The 1^st opposite party asserts that on prior dates of the draw on all five instances the complainant was informed through SMS/telephonically of such date of draw.  Finally on 10/10/14 the complainant was informed through a letter by the 1^st opposite party, of the names of the winners   of   the   lucky   draw.   The 1^st opposite party has published the details

4

regarding the result of the lucky draws in several leading daily news paper and is ready to produce the list of the lucky winners in this draw shortly.  All allegations raised therein are only to suit the complainant’s case and hence denied.   The complainant lacks bonafides in raising such allegations regarding conduct of the draw, alleged manipulation and process of draw.  The complainant is put to strict proof to prove his shameless and imaginary allegations. 

5. A befitting reply was sent by 1^st opposite party in response   to    the    advocate    notice    of    the    complainant.  The  facts  and circumstances of this complaint will only undermine the complainant’s case.  There is no instance of deficiency in service and unfair trade practice on the part of 1^st opposite party as against the complainant.  The allegation of customer cheating is stoutly denied by 1^st opposite party.  The complainant is trying to extract unlawful gain from 1^st opposite party by such baseless allegation.  The 1^st opposite party is neither liable nor responsible for the  alleged pain and suffering of the complainant.  The complaint is only to harass and an attempt to bring disrepute to the 1^st opposite party.  The relief claimed by the complainant is unsustainable as against the 1^st opposite party.  The 1^st opposite party is not liable to compensate the complainant as per his claim.  Neither the 1^st opposite party nor M/s.TVS&Sons Ltd.  are liable to grant compensation  or any relief to the complainant.  The 1^st opposite party further prays to dismiss the complaint with costs and compensatory costs. 

          6. In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite parties No.1&2 in respect of the lucky draw?
2. Whether the complainant is entitled to get  reliefs sought for?
3. Relief and costs.

5

7. Evidence on the side of the complainant consists of the oral evidence of PW1&2 and Ext.P1 to P13 series.  Evidence on the side of the 1^st opposite party consists of oral evidence of DW1&2 and
Ext.D1 to D5 documents. 2^nd opposite party remain exparte. Both parties have filed notes of arguments.

Point No.1&2

          8. For avoiding repetition of discussion of materials these 2 points are considered together. Admittedly the opposite parties especially the 1^st opposite party for their  promotion of business and  to attract the customers a scheme was formulated  and made wide  publicity through medias making  an offer that if any customer  book any Duster  vehicle from 1^st August 2014 to 30^th  September 2014 will get a coupon to participate in the bumper prize draw. In fact it was Onam   offer.     It  is    also    brought    out in evidence that the above offer was published through Ext.P7 Hindu daily newspaper.  According to the complainant he is an advocate by profession and was attracted by the above advertisement purchased one Duster car –SUV.  It is also an undisputed fact that  while purchasing the car the 1^st opposite party has issued Ext.P2 lucky coupon to the complainant.  The terms and conditions of the lucky draw was stated  in Ext.P2 itself.  Accordingly a purchaser of a Renault Duster is eligible to get one coupon and  for establishing the fare trade practice the draws of the said coupon would be  done by a prominent independent person  and the announcement of the winner has to be done in public and should be published in media as early as possible.  The above facts remains  unchallenged.  However the complainant would alleged that there was no clarity in conducting draws.  Now the question to be considered is  whether the lucky draw was fairly conducted by the opposite parties.  According to the opposite parties the 1^st opposite party was only facilitating this lucky draw and the 2^nd opposite party who is the manufacturer    of    the    vehicle   has   conducted   the  lucky draw.  As per the

6

advertisement the lucky draw has to be held on 5 different days and each days winner would get  a Duster vehicle free.  But the winner has to bear the insurance and registration charges,  that 5 seperate  lucky draws  were held at the showroom at Eranakulam on different dates as published and 5 winners were selected  out of these  draws and  they have published the list of winners in the draws as at the earliest. 

9. The above contentions of the 1^st  opposite party according to the complainant is incorrect.  The oral evidence of PW1 who is none other than the complainant would show that the complainant  was eagerly waiting for the draws and on each day he tried to contact the opposite party inorder to know the result of draws.  But the opposite party pretended busy engagement and told that it will be informed in proper way at the  earliest.  They somehow evaded the queries and informed   that the result will intimated  through SMS.  However that was not materialised.    Opposite parties have not informed the result either through SMS nor through any other manner.  The opposite parties did not care to do the minimum  publicity in the daily newspaper.  The result was also not published in the official website also.  According to PW1 he made a detailed enquiry and it was revealed that  the  draws were not properly conducted and manipulations were done  in the process and the opposite parties failed to carry out the process of  draw of lucky coupon as per the terms and conditions.  Hence he send Ext.P4 notice alleging the above facts.  Ext.P5 series  is the postal receipts evidencing the sending of P4 notice. Inspite of lengthy cross examination nothing material has been brought out in evidence to disbelieve the oral evidence of PW1 which stands corroborated  by Ext.P4 lawyer notice.

10. It is true that  on receipt of Ext.P4 notice the 1^st opposite party has sent Ext.P6 reply notice.  The 2^nd opposite party though received notices has not responded.   It is not clear from the  content of  Ext.P6 reply notice that the draw

7

of lucky coupon and publishing the result was  fairly done as claimed by the 1^st opposite party.

11.  The complainant would further allege that the opposite parties have ultimately cheated the complainant and other customers by way of advertisement and opposite parties have gathered unlawful gain by making Ext.P7  paper publication.  According to the complainant the date of draw of  lucky coupon including Ext.P2 issued to the complainant was not intimated to the complainant.  But the  opposite party would claim that the date of draw was intimated to the complainant through SMS on the previous day of the draw.  The complainant has denied the same but the contesting 1^st opposite party has not taken any steps to prove that the date of lucky draw was intimated to the complainant through SMS.  It is pertinent to point out that the complainant has filed one  IA praying to produce the list of  5 persons to whom price has been given in  the lucky draw.  Though the 1^st opposite  party  has produced the name of 5 persons (Ext.P9) they have not produced any reliable evidence to show that  the above 5 persons have been given  the prize as claimed.  It is to be pointed out that the 1^st opposite party has not produced the list of winners along with their written version which creates doubt in the minds of the forum regarding the genuiness of the list of winners. 

12. The oral evidence of PW2 also would support the case of the complainant.  According to PW2 is Abhilash (who has also purchased one Duster SUV car from the opposite parties,)  he is the owner of the car sold by the opposite parties and Ext.P8 is the true copy of R.C book of that vehicle.  He further proves Ext.P9 list of 5 persons who won the prize in the lucky draw.  It is clear from Ext.P9 list that the 2^nd name in the said list is  Abhilash who is none other than PW2 in whose name Duster RXL 788500 model has been given.  But according to PW2 he has purchased the above Duster car  from the 1^st   opposite  party  by  paying   its price.  The  evidence of  PW2  would further

8

show that he intended to purchase one Duster car in connection with his marriage.  Hence he  approach several dealers including 1^st opposite party .  But the vehicle offered for  sale by the dealers were not liked  by him.  When he was about to return from the showroom of  the 1^st opposite party the  executive informed that one Duster car won in the lottery is available at the showroom and they have also given the details of the person who won the lottery.  The person who won the lottery was Thara Biju.  She has also telephoned himself and offered lesser price than the showroom price.  Finally she agreed to sell the car to himself at a price  of Rs.6,00,000/-.  He agreed for the same and made an advance payment of Rs.10000/- for purchasing the same.  Later he paid Rs.1,85,000/- as gift tax.  Ext.P10 is the receipt indicating the payment of gift tax.  According to PW2 he paid the above amount as  gift tax as directed by the 1^st opposite party.  That he paid  Rs.5,50,000/- in the name of Thara Biju and Biju on 01.10.14 through bank and obtained Ext.P11 receipt.  Later the said Thara  Biju   demanded  Rs.50,000/-   more.   Accordingly   he     paid   the  said 50,000/- and altogether he  paid Rs.6,00,000/-  to Smt.Thara Biju.  According to PW2 t he fact that he had paid the amount to the said Thara Biju  is known to the 1^st opposite party also  PW2 has further sworn that while purchasing the above Duster car he has not received a coupon like Ext.P2.  Ext.P7 advertisement published in the newspaper has also not come  to his knowledge.  The   opposite parties have not informed the fact that he is one among the  person who won the lucky draw.  The vehicle purchased by him as per Ext.P8 RC book is not to the one  obtained by him by winning any lucky draw.  He further proves Ext.P11 to P13 series documents.  Ext.P11 is the original Ext.P10 receipt which was marked subject proof.  Ext.P12  is the original receipt evidencing the booking of the Duster on 30.09.14 by paying Rs.10,000/- to the 1^st opposite party.  Ext.P13 series are the 4 receipts obtained  by PW2 from District  Co-operative  Bank  while   effecting  payment  of  the sale price of  the

9

above vehicle. It is brought out in evidence that the road price of the duster vehicle during the year 2014 was above  8,00,000/- and PW2 come to know that Thara Biju has won in the lottery through the executives of the opposite party.  Though PW2 has been  subjected to severe cross examination  nothing material has been brought out to disbelieve the above evidence of PW2.  We find nothing to disbelieve the above version of PW2.  In view of the oral evidence of PW2 coupled with Ext.P8, P10 to P13 documents the contention of the 1^st opposite party that P9 is the list of winners in the lucky draw proved to be false.

13.   The specific contention of the 1^st opposite party in this regard is that in connection with Onam season of the year 2014 the 2^nd opposite party had intimated Onam campaign as part of sales promotion.  The campaign period was 01.08.14 to 30.09.14.  The 2^nd opposite party had given specific guidelines with regard to conduct the lucky draw and the terms and conditions enumerated in Ext.P2 coupon.  As the terms and conditions were laid down by the 2^nd opposite party they have every right to alter or modify the terms and conditions as per their discretion.  The 1^st opposite party was only facilitating the  lucky draw.  The   1^st opposite party  would  rely on the oral evidence of DW1&2 and Ext.D1 to D5 documents to substantiate their contention and to disprove the case of the complainant. 

14.     According to DW1 there were 5 draws conducted on different date at the 2^nd opposite party’s showroom at Kalamassery, Eranakulam District and 5 customers were selected as lucky winners in the above draws and all these 5 winners were promptly informed the  fact by the 1^st opposite party.  According to DW1 as the complainant was not a winner he was not informed.  DW1 has further sworn that one Thara Jayasree Nair had purchased  Renault vehicle as per  Ext.D1 to D5 documents and as she came out  as a winner she was informed by the 1^st opposite party.  She acknowledged the information and given declaration to the   1^st opposite party acknowledging the receipt of the gift

10

vehicle and also payment of gift tax.  The declaration dated 30.09.14 is proved through this witness as Ext.D7.  As the said Thara Jayasree Nair was not intended to retain  a 2^nd Duster vehicle she informed  the 1^st opposite party to find someone who would be interested in purchasing the said vehicle and in such a context PW2 approached the 1^st opposite party and decided to purchase the said  vehicle.  The 1^st opposite party provided the said Thara’s details to PW2 and thus a deal was struck between Thara and PW2 exclusively.  The price and manner of transaction were negotiated between these parties and finally PW2 agreed the price demanded by Thara.  She was also given Ext.D8 NOC to the 1^st opposite party for billing the gifted vehicle to PW2.  The  1^st opposite party has obtained  confirmation  from the 2^nd opposite party and a copy of the e-mail obtained from the 2^nd opposite party  is marked as Ext.D9.  The  sale  consideration  has been passed between PW2 and Thara and the 1^st opposite party is not a party  to these transactions.  The 1^st opposite party only helped their customer Thara to find out a prospective buyer for her  gifted vehicle and has not committed any unfair trade practice or deficiency in service.  It is to be pointed out that the above version of DW1 is to viewed  with suspicious since the 1^st opposite party has no such pleadings either in the written version or in P6 reply notice.  The fact that 1^st opposite party is having documentary evidence to prove that Smt.Thara Jayasree Nair is one of the winners who ultimately sold the vehicle to PW2 is a new case which is not made mentioned in the pleadings.

          15. According to DW1 the lucky draw was conducted with utmost transparency.    In the list of winners(Ext.P9) produced by the 1^st opposite party a  typographical error has been occurred.  Instead of mentioning Thara Jayasree Nair who won the lucky draw the name of Abhilash who purchased Thara’s gifted vehicle crept while stating  the 5 winners.  This  is an inadvertent mistake according to DW1.  Infact Thara was the actual winner and PW2 Abhilash is the person who purchased  the  said   vehicle   from  Thara  except the actual winner

11

Thara Jayasree  Nair all the remaining 4 are of the actual winners.  However during cross examination DW1 would admit that  the lucky draw has not been published in any newspaper and he was no knowledge that the list of  winners  has been published in any  newspaper and he has not find any such news items.  The fact that PW2 Abhilash is  a winner is not  stated in the written version.  The averments stated in paragraph 5&6 of the proof affidavit are not  find a  place in the version.

16. Even if the entire version of DW1 is believed in toto it would not help to prove the defence contention,  due to the following reasons DW1 would admit that he is unaware of the publication of news item regarding taking lottery.  He has not seen any publication of news in any newspaper.  DW1 would further admitted that the Abhilash whose name is stated in P9 list is not a winner.  The fact that Thara is a winner is not stated  in the P9 list.  DW1 would further admit that the person who booked the car  is  Thara Biju but the person who signed against the name  in Ext.D1 is not Thara Biju.  According to DW1 Thara Jayasree is the winner but there is no chance of Thara Jayasree winning the lottery as Thara Biju is the lady who booked the car as per customers order form.  The address of   Thara   Biju  stated in Ext.D1 and  the address of Thara Jayasree shown in Ext.D2 are different.  The address of the said lady shown in  D2 to D4 are also entirely different.  The on road price of the vehicle  booked as per D1 order form and purchased as per D3 invoice form and D5 document are also entirely different.

17. The contention of the 1^st opposite party that they have conducted draw as per rules and duly published P9 list stating the name of winners appears to be  totally incorrect.  It is also clear from the materials available on records including the  admissions of  DW1 and  DW2 that the lucky draw was conducted not in a transparent manner and that the name of winners was not duly published in the news paper as alleged by the complainant.

12

18. It is true that DW2 who is another customer of 1^st opposite party has  deposed to the effect that by seeing P7 paper publication  the Palode Agricultual Co-operative Bank has purchased one Duster car for the use of the said bank and the said Bank has  registered the said car in its name and the registration number of the said car is KL-21-J-7269 and the coupon  received by the Secretary while purchasing the above car was also included in the process lucky draw and won a petrol Duster car and that fact was intimated to the Bank but as the said car was a petrol vehicle,  the Bank decided to sell it.  However DW2 would admit that is having no knowledge how many cars were given in the lucky draw nor  aware of the places which the lucky draw was conducted.  DW2 would further admit that "hnP-bn-bm-b-h-cpsS t]cv hnhcw F§pw {]kn-²o-I-cn-¨-Xmbn R§Ä¡v Adn-bnÔ

19. The above version of DW2 would also probabilise the fact that the lucky draw was conducted not in a transparent manner and the name of the winners were not duly published as per the terms and conditions stated in Ext.P2 coupon.  Hence  there  is  deficiency  in  service and unfair trade practice on the part of  the opposite parties and therefore the complainant is entitled to get the reliefs sought for.  The points answered accordingly.

Point No.3

In the result complaint stands allowed in the following terms.

1. The opposite parties No.1 & 2 are directed to pay Rs.2,00,000/- as compensation for the pain and suffering and mental agony caused to the complainant.
2. The opposite parties are also directed to pay Rs.10,000/- as costs of the proceedings.

13

Opposite party No.1&2 are directed to pay compensation along with costs within 30 days from the date  of receipt of a copy of this order, failing which the complainant is entitled to recover Rs.2,00,000/-  with interest at the rate of 9% per annum along with costs Rs.10,000/- from Opposite party No.1&2 jointly and severally and from their assets.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 27^th   day of  April 2019.  

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

            Forwarded/by Order

           Senior Superintendent

14

INDEX

Witnesses Examined for the Complainant:-

PW1                     :         Gangadethan.G

PW2                     :         Abhilash.V. M

Documents marked for the  complainant

Ext.P1                  :         Customer Order form

Ext.P2                  :         Lucky Draw Coupon

Ext.P3                  :         Retail Invoice Form No.8B

Ext.P4                  :         Lawyer notice

Ext.P5                  :         Postal receipt

Ext.P6                  :         Reply notice

Ext.P7                  :         Newspaper cutting

Ext.P8                  :         Copy of  certificate of registration

Ext.P9                  :         Memo

Ext.P10                :         Copy of receipt

Ext.P11                :         Copy of acknowledgement  for NEFT/RTGS

Ext.P12                :         Copy of receipt

Ext.P13                :         Copy of acknowledgement  for NEFT/RTGS(4 No.s)

Witness examined for the opposite party:-

DW1                    :         Ratheesh Kumar

DW2                    :         Ramachandran Nair.M

Documents marked for the opposite party

Ext.D1                 :         Copy of customer order form

Ext.D2                 :         Copy of sale certificate

Ext.D3                 :         Copy of retail invoice form 8B

Ext.D4                 :         Copy of temporary certificate of registration

Ext.D5                 :         Copy of  letter.

E.M.Muhammed Ibrahim:Sd/-

                                                                                    S.Sandhya Rani:Sd/-

                                                                                     Forwarded/by Order

                                                                                     Senior Superintendent