Karnataka

Belgaum

CC/458/2015

Sadashiv R Patil - Complainant(s)

Versus

The Regional Office SBI Life Insurance Co Ltd - Opp.Party(s)

K R Shaha

20 Jan 2016

ORDER

: ORDER :

        The complainant has filed the complaint U/s. 12 of C.P. Act alleging deficiency of service on the part of O.P. for non delivering prize of Honda City Car under lucky draw.

          The matter is for admission hearing and maintainability of the complaint as to whether the complainant is the consumer as per C.P. Act?

          The brief fact of the complaint, as alleged by the complainant is that, the complainant  belongs to agriculture family and to help the family financially complainant searched self employment and to earn livelihood for his family, in the year 2008 the complainant appointed as adviser to the opponent insurance company. The opponent issued insurance advisory card No. 990079678 which is valid till 12/5/2016. The complainant further alleged that during the period 1/1/2013 to 31/1/2013 the opponent declared a scheme of discover India which is a contest of 25^th premium, will get lucky draw ticket and complainant participated in the scheme and got 8 lucky draw ticket at National level and secured 1^st lucky prize that is Honda City Car. The complainant alleged that he intimated immediately opponent sales Manager of Belagavi, and also approached personally and requested for delivery Honda City Car. The complainant further alleged that one Sri. Shivaji V. who is the Divisional Sales Manager on 10/10/2013 intimated the complainant stating that the Honda City Car was sent to Dealer Javali Motors Hubli and promise to get the said prize Car in a function. The complainant waited for the same and got issued notice to the Chairman of the opponent on 30/9/2014 and the chairman replied from the office of the opponent on 29/10/2014 that car will delivered within 15 days and never acted according to the reply. The complainant further alleged that the said prize was declared in the news paper but the prize was not delivered due to which the complainants prestige was lost in the public causing hardship and mental tension etc., The complainant further alleged that he got SMS on 31/5/2015 from the opponent office that they are going to act on the grievances and action will be taken. But even after SMS there was no action for the prize and the complainant on 20/8/2015 got issued legal notice through the counsel to opponent No.1 and 3 to take immediate action but though the notice was served on 22/8/2015 and 24/8/2015 there was no response from the opponents. Hence the complainant filed this complaint praying to direct the opponents to deliver the prize of the Honda City Car to the complainant and if failed to make payment of Rs. 19,00,000/- the price of the car and also compensatory cost and other relief.

          Before coming to the conclusion that the complainant is not a consumer and complaint is maintainable before the forum as per the provision of the C.P.Act. It is to glance to the provisions with reference to the definition provided under section 2 (d) reads as under;

2 (d)  "consumer" means any person who—

(i)    buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)   hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment; 

 

          As the definition reads any goods or services shall be for consideration paid from or promised or partly paid and partly promised…..., In the present case on hand as per the allegations and contents of the complaint the complainant is advisory to the S.B.I. Life Insurance and the complainant as alleged got a prize under a scheme provided by the O.P. wherein as per the allegation the complainant entered into contest and one the prize under a lottery scheme that is Honda City Car.

          To be consumer under the Act and as per the definition one who availed the service or purchase the goods there should be a consideration paid by the purchaser or the service availer. In this case the complainant has not paid any consideration to avail the services from the opponents but under a target and scheme the complainant has won the car as mentioned supra. It is not the case of the complainant is that before entering to the contest he has paid consideration to participate but it was the target which made into win the lottery prize, which does not fall under the definition of C.P. Act. Hence the complainant is not a consumer.

          At the time of hearing the complainant relied on the provision u/s. 3 (b) which reads as under;

(3)   permits—

(a)     the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;

(b)     the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;

 

And argued that the complainant is a consumer and as per this section the complaint has entered into contest and won the lottery. By reading this provision sub clause (b) of above section reads that the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;

          For promoting, directly or indirect sale, use or supply or any product or any business interest. Under the such circumstances if the contested in the form of lottery is won then definitely the complainant would have come under the per-view of the act but here there was no sale or any supply of product for which there was a lottery system, but in the present case it was the offer given by the opponent to promote the scheme and accordingly the complainant succeeded. Hence the complainant does not fall even under this definition to consider him as a consumer.

          The complainant relied on the ruling reported in 2000 (3) C.P.R. 240 of Hon’ble State Commission, Bhopal wherein the Hon’ble Commission held;

          Consumer Protection Act, 1986-Section 15, 2(i) (g) and 2 (1) (r)-Appellant advertised gift of fifteen gms. 24 carat Tanishq gold coin to its customers purchasing Maruti 800 standard car – During November-December, 1998 – Car delivered to complainant – Gold coins not given – Complaint – District Forum allowed complaint – Not giving gift at time of delivery of car act of cheating – Amounted to unfair trade practices – Appeal – Deficiency in service – Respondent entitled to gold coins – Or its equivalent value of Rs.7,000/- Respondent not entitled to any compensation as he has not suffered any loss for alleged unfair trade practice or deficiency in service.

          In the relevant decision supra the opponent in the said case purchased a car for which there was a gold coin offer and same was not given to respondent. Hence the Hon’ble state Commission supra came to the conclusion that it was unfair trade practice. But in the present case on hand the very word “purchase” or “availed service” is absent and there is no consideration between the opponent and the complainant and it is very important to be noted that if any consumer purchases goods for which there is any offer given by the seller or a lottery to be won by the consumers but the same was not given even after the lottery is won or gift are won by the consumer then in that case the consumers come under the definition of as per the provision of the Act.

          Therefore he citation relied by the complainant in the case is not applicable. Hence the complainant failed to prove the case and is not a consumer as per the provision of C.P. Act and same is not maintainable. We pass the following;

 

: ORDER :

        The complaint is dismissed as not maintainable. No order as to cost.

MEMBER                   MEMBER                   PRESIDENT