O R D E R

Sri. George Baby (President):

                        The complainant has filed this petition u/s.12 of the C.P. Act 1986 for getting a relief from the opposite parties.

                    2. The complainant case in brief as follows:-  That the complainant had purchased a Huawei mobile hand set in the category of Honour Bee 2 which bearing No. 86443303020278 from the 1^st opposite party’s shop on 17/08/2017 by paying Rs.7,400/-.  The said purchase was during the Onam period and there was an offer of lucky draw.  Within a few days intimation was passed by the 1^st opposite party that the complaint has won the lucky draw and directed him to give a photo of the complainant.  Accordingly the complainant had sent his photograph through the whatsApp to the number 9745233365 from which the complainant received a call with the introduction that he is an authorized distributor of the Huawei Company in Ernakulum District.  There after another call from the said phone received by the complainant and on that occasion it was directed to reach at the 1^st opposite party’s shop for the purpose of enabling the handing over of the key of the scooter, which the complainant got it through lucky draw and on such direction the complainant had reached the 1^st opposite party’s shop.  From there one person who introduced himself as the representative of the Huawei Company took the photograph of the ceremony of handing over the key of the scooter to the complainant and made to believe the complainant that the vehicle will be delivered to the complainant on or before 20/10/2017.  The 1^st opposite party made vide publicity in this matter through the flex board which installed nearby to the KSRTC Bus station at Adoor, and also advertised the same through the social Medias.  Many of the friends and relatives enquired the matter to the complainant and through them he came to know the fact that the 1^st opposite party had advertised the incident through social media and the flex board.  The 1^st opposite party done all these matters without the consent or knowledge of the complainant and the said opposite party did this only for the purpose of improving his business.  The 1^st opposite party has not delivered the scooter to the complainant till this time and the same amount to the deficiency in service of the 1^st opposite party.  The complainant had earlier filed in CC 167/2017 before this Forum with regard to the said incident and the same was dismissed for default.  Hence this complaint is for getting compensation of Rs.50,000/ and also for getting scooter with to all records from the 1^st opposite party.

                   3.  This Forum entertained the complaint and issued notice to the 1^st opposite party.  The 1^st opposite party appeared before this Forum and filed version and their main contentions are as follows:- That the complaint is not maintainable either in law or on facts.  The complainant has not purchased any good from the 1^st opposite party or the 1^st opposite party has not provided any service to the complainant on payment of charge.  The complaint is with regard to the lucky draw and non-releasing of prized article to the complainant and hence the complainant is not a consumer of the opposite parties.  The complaint had purchased a mobile handset from the 1^st opposite party’s shop manufactured by the Huawei Company on payment of Rs.7,400/.  The 1^st opposite party is only the dealer of Huawei company and the said opposite party had not called the complainant for and on behalf of company.  The said opposite party is only a dealer and he is not responsible for the lucky draw.  The first opposite party has not committed any deficiency in service or unfair trade practice.  The complainant had earlier filed in CC 167/17 for the same  and the said case was dismissed and hence complainant has no right to file the present complaint.  The lucky draw was conducted by Huawei Company and they are necessary parties in the complaint.  The complainant has impleaded the 1^st opposite party without any sufficient reason.  The complaint has not cause of action against the contesting opposite party. 

                   4. On the basis of the written version filed by the contesting opposite party, the complainant had filed impleading petition as IA No. 17/2019 for impleading the company as the additional 2^nd opposite party in the case.  The IA 17/2019 was allowed and issued notice to additional 2^nd opposite party.  But the said additional 2^nd opposite party had not come forward to contest the matter and hence additional 2^nd opposite party declared ex parte on 11/10/2019.     

                   5. The Forum perused the complaint, version available records before us and we framed the following issues for determination. 

     1. Whether the complaint is maintainable before this Forum?

     2. Whether the opposite parties have committed any deficiency in

service and unfair trade practice towards the complainant ? 

     3. Whether the complainant is entitled to get compensation and

cost from the opposite parties?

     6. The evidence in this case consists of oral testimony of PW1 who is the complainant and documentary evidence of Exhibit A1 to A4.  PW1 has filed proof affidavit in lieu of his chief examination and the produced document were marked through PW1 respectively as Exhibit A1 to A4.  Exhibit A1 is the bill dated 17/08/2017 issued by the 1^st opposite party in favour of the complainant.  Exhibit A2 is the lucky draw coupon.  Exhibit A3 is the photos of the ceremony of handing over of key to the complainant in front of the 1^st opposite party’s shop.  Exhibit A4 is the copy of the complaint in CC 167/2017.  The opposite parties had not adduced any oral evidence or documentary evidence in this case or even cross examined PW1.  After the closure of evidence we heard both parties.       

                             7.  Point No.1: The complainant’s case is that he had purchased a Huawei mobile headset from the 1^st opposite party’s shop on 17/08/2017 on payment of Rs.7,400/.  The purchase was during the Onam period and as part of sale promotion the 1^st opposite party had issued a lucky draw coupon to the complainant and later informed that he won the lucky draw and he would get a scooter as prize.  The opposite parties were conducted the ceremony of handing over of key to the complainant at the premise of 1^st opposite party’s shop and their after installed flex boards near to the KSRTC Bus station with the effect that the complainant had won the lucky draw.  The 1^st opposite party’s main contention is that the complainant is not maintainable on two grounds.  The 1^st one is that the complainant is not a consumer and the matter with regard to lucky draw is not come within the preview of Consumer Pretention Act 1986.  The second challenge is that the complainant had already agitated the same matter before this Forum through CC 167/2017.  It is the admitted case of both parties that the complainant had purchased a Huawei mobile hand set from the 1^st opposite party’s shop on payment of Rs.7,400/ and the purchase was during the Onam period and as part of the sale promotion the 1^st opposite party had issued a lucky draw coupon to the complainant.  These facts were revealed from Exhibit A1 and A2.  Exhibit A3 photographs also proved that the ceremony of handing over of key of the vehicle to the complainant was conducted in the premise of 1^st opposite party’s shop.  From the Exhibit A3 photographs it is crystal clear that the opposite parties had advertised that the complainant had won the lucky draw and he would get a scooter.  The 1^st opposite party had not challenged Exhibit A3 photographs even at a moment.  The complainant’s contention that the scooter has not delivered to him till this time is not refuted by the 1^st opposite party through any convincing evidence.  It is also admitted case of both parties that the lucky draw coupon was issued as part of sale promotion of Huawei Company and the particular coupon was issued to the complainant at the time of purchase of a mobile hand set worth Rs. 7,400/.  It is pertinent to note that the complainant had not purchased lucky draw coupon alone from the 1^st opposite party.  If that be so, the opposite party’s contention has some force that the complaint is not maintainable.  Here the circumstance is entirely different.  The complainant had got the lucky draw coupon at the time of purchase of mobile hand set worth Rs. 7,400/ as part of sale promotion.  The complainant had not purchased any lucky draw coupon directly from the opposite party.  It had given to the complainant as part of the purchase of mobile hand set that too on payment of Rs. 7,400/.  The Hon’ble National Commission in Director Command, Area and 3 othere V/s Nemichand Guptain first appeal No. 889/2016 it is stated that “The Complainant by participating in lucky draw and being declared successful in the same, does fall under the category of ‘consumer”.  Then the case on hand, definitely the complainant is a consumer and he can maintain a consumer complainant.  The other challenge on the opposite party is that the complainant had already filed CC 167/2017 for the same relief and hence he has no right to file the present complaint.  It is true that the complainant had preferred CC 167/2017 earlier to the institution of this petition.  But that was dismissed for default.  The subject matter in CC.167/2017 was not decided on merits.  If the cause of action survives then the complainant can very well maintain a second complaint, the dismissal of the earlier one is not a bar in preferring another complaint.  In this case the cause of action continues against the opposite parties and in the said circumstances the present complaint is not hit with any provisions of law.  On the basis of the fore going discussions we found that the complaint is perfectly maintainable before this Forum and Point No. 1 found in favour of complainant.

                             8. Point No.2:-That the complainant’s specific contention is that even though he had won the lucky draw and the same was published by the opposite parties widely through social medias and Flex boards, the opposite parties had till this time not delivered the prized article i.e. a scooter to the complainant. It is a clear case of deception and we can easily inferred that the opposite parties had committed clear deficiency in service and unfair trade practice towards the complainant and accordingly point No. 2 is also found in favour of complainant. 

                             9. Point No. 3:- As we already found that the opposite parties had committed deficiency in service and unfair trade practice towards the complainant deficiently he is entitled to get compensation and cost from the opposite parties.  Point No. 3 also found in favour of the complainant.     

10. In the result we pass the following order.

1. The opposite parties are directed to deliver the prized article i.e. a scooter to the complainant along with all its records which are necessary for registration within 30 days from the date of receipt of this order failing which the opposite parties are liable to pay compensation of Rs. 50,000/ (Rupees Fifty Thousand Only) for his mental agony and distress with 10% interest from the date of order own wards. 

2. The opposite parties are directed to pay Rs.5,000/- (Rupees Five Thousand Only) as cost of proceedings towards the complainant with 10% interest from the  date of Order onwards. 

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 27^thday of December, 2019.

                                                                                          (Sd/-)

                                                                                       George Baby,

                                                                                         (President)

Smt. N. ShajithaBeevi (Member-I)   :  (Sd/-)

Sri.NishadThankappan (Member-II): (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1:Mohan.K

Exhibits marked on the side of the complainant:

A1:Bill dated 17/08/2017 issued by the 1^st opposite party in favour of the

complainant.

A2:Lucky draw coupon. 

A3: Photos of the ceremony of handling over of key to the complainant in front of

the 1^st opposite party’s shop.

A4: Copy of the complaint in CC 167/2017. 

Witness examined on the side of the opposite parties:Nil.

Exhibits marked on the side of the opposite parties:Nil.

                   Copy to:-

                   1.K.Mohan,

ArunBhanvan,Idamali, Parakkara.P.O.,Thattayil.

                             2. The Manager,

                             Xperia Mobiles,Near Geetham Auditorium,

                             Aisha Complex, Adoor.

                             3. The General Manager,

                    Royal Penta Traders & Distributor Pvt., Ltd.

                    Door No. 40/1819 C2,Alliance Residency, 2^nd floor,

                   Shanmugham Road Ernakulam   682 031.

                   4. The Stock File.