BATRA ELECTRONIC STORE vs VIJAY PAL

THIS appeal has been filed by Batra Electronic Store, Sriganganagar against the order of the District Forum, Sriganganagar dated 2.11.1996 whereby the complaint filed by the respondent Vijay Pal has been decreed and the appellant has been directed to pay to the complainant an amount of Rs. 8,400/- deposited by him against the fridge along with interest @ 12% p.a. and litigation costs of Rs. 500/-.

FACTS relevant for disposal of this appeal in brief are that the complainant Vijay Pal obtained a membership in the name of his two minor sons of a Sales Promotion Scheme entitled "Kelvinator (Fridge) Sales Promotion Scheme" run by the appellant. According to this scheme every member was to pay an amount of Rs. 600/- per month on the basis of which a draw was to be held once in every month. This scheme also laid down that as soon as a draw is opened in the name of a particular member, he would be delivered a Kelvinator refrigerator immediately and that he was not required to pay the subsequent instalments and in case if any member remains unsuccessful in the draw after receipt of all the instalments he would be delivered a fridge or would be refunded total amount deposited under the scheme along with interest. The complainant approached the District Forum with a grievance that although he has deposited an amount of Rs. 8,400/- under the aforesaid scheme between the parties 8.1.1993 to 31.1.1994 and the scheme has come to an end yet the appellant has neither delivered to him the fridge or has refunded the amount as propounded by the appellant. The appellant resisted the claim alleging that the complainant has been delivered a Kelvinator fridge on 1.5.1993 and that this complaint has been filed against him merely to harass him and to cause him unnecessary loss. The District Forum on the basis of evidence tendered before it has decree the claim as stated above and hence the appellant has filed the present appeal to quash the order of the District Forum dated 2.11.1996.

We heard the learned Counsel for the parties at great length and have examined the record carefully.

IT has been vehemently argued by the learned Counsel for the appellant that the District Forum has committed an error of jurisdiction in entertaining and decreeing the claim against the appellant since the matters pertaining to Sales Promotion Scheme does not fall within the purview of consumer dispute under the C.P. Act, 1986. In support of this argument the learned Counsel for the appellant has mainly relied upon an order of this Commission in Harish Chand Agarwal v. Sanjay Garg, 1995 (3) CPR 512; Randheer Singh v. Kartar Singh, II (1995) CPJ 132; Harish Chand Agarwal v. Vijay, 1993 (1) CPR 260, and decision of Hon''ble the National Commission in Devashish Mitra v. The Managing Director, Lakshmi Varsha Co. & Anr., I (1992) CPJ 30 (NC), as also the order of the Tamilnadu State Commission in M/s. Selvam Chit Funds v. Alagu Sundaram, II (1996) CPJ 437, and has urged that the appeal be allowed and the order of the District Forum be quashed. As against it, it has been argued by the learned Counsel for the respondent that the decisions cited by the learned Counsel for the appellant have no application and that the order of the District Forum dated 2.11.1996 does to suffer from any infirmity. We have given due thought and consideration to this matter. It may be stated at the outset that this Commission has been consistently of the view that in matters of Sales Promotion Schemes there is no hiring of services by the members and that such member of Sales Promotion Scheme is not a consumer within the domain of C.P. Act, 1986. This has been so held by this Commission in the case of Harish Chand Agarwal v. Sanjay Garg (supra), Harish Chand Agarwal v. Vijay (supra). Besides the Tamilnadu State Commission in the case of Selvam Chit Funds v. Alagu Sundaram has also been on the view that the dispute in respect of chit transaction (Chit Fund Scheme) which comes under Section 64 of the Chit Funds Act, 1986 is a dispute which does not come under the purview of Consumer Forum because the Consumer Protection Act is a general Act as has been held by Hon''ble the Supreme Court in the decision of Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council, I (1995) CPJ 3 (SC)=(1995) 2 SCC 479. Not only this Hon''ble the National Commission has also held that a person enrolled as a member of Lakshmi Varsha Co. and entitled to certain services viz. information about the investment opportunities has also to participate in another welfare scheme which required a short term investment of Rs. 100/- whereby a member could earn an amount of Rs. 1.50 lakhs, held that a member enrolled in such a Company could not be deemed to be a hirer of the services to be rendered by a hiree but was entitled to the services as being its members as per enrolment form. In our words it has been held by Hon''ble the National Commission that unless a person can claim himself to be a consumer under the C.P. Act, 1986 he has to establish that he had paid any consideration by way of hire charges to the establishment (Company) of which he is a member. This is exactly what has happened in the instant case before us. The complainant herein has obtained a membership under the Sales Promotion Scheme promulgated by the firm and every member of it was required to pay a monthly instalment of Rs. 600/-. It meant that even if a member of such a Sales Promotion Scheme is successful in the draw after the payment of his first instalment, he would be entitled for the delivery of a Kelvinator fridge. From the facts as have appeared before this Commission it is apparent that the transactions which have cropped up under the aforesaid Sales Promotion Scheme run by the appellant fall under the category of a wagering transaction and that a person who is a member of such Sales Promotion Scheme could be a successful winner of the lucky draw held every month by the appellant. Such a scheme is definitely based entirely on luck and gamble. In any view of the matter it cannot be held that the members of the aforesaid Sales Promotion Scheme; the complainant-respondent in this Sales Promotion Scheme cannot be categorised as a consumer there being absence of the element of hiring of the services by the appellant on payment of monthly instalment of Rs. 600/-.

BE that as it may we are of the firm view that the District Forum has not been able to appreciate the law on this nature of dispute and as has been held by the Hon''ble National Commission in the case of Devashish Mitra (supra), and also by this Commission repeatedly in the case of Harish Chand Agarwal v. Sanjay Garg (supra) and Harish Chand Agarwal v. Vijay (supra), and also by the Tamilnadu State Commission in the case of Selvam Chit Funds (supra), the order of the District Forum dated 2.11.1996 is not sustainable in the eye of law and is hereby quashed. For all the aforesaid reasons the appeal succeeds and the order of the District Forum dated 2.11.1996 is hereby quashed. Both the parties to bear their own costs. Appeal allowed.