B.K.MOHAMMED RAFI vs WILKINSON SWORD INDIA LTD.

THE facts involved in both the cases are common and the opposite parties (for short, the "O.Ps.") in both the cases are same. Hence, these two complaints are disposed of by this common order.

THE facts in these cases are as follows: THE complainant in Complaint No. 106/2002 and the complainant in Complaint No. 107/2002 have purchased "GEEP" Battery one each from M/s. Beauty Stationery Mart, Main Road, Gonikoppal, during the first week of July, 2000, when they were on tour to Nagarahole Game Sanctuary. While purchasing the said Batteries the complainants saw an Advertisement displayed on the front door of the said shop, wherein they found a Prize Winning Scheme called "Khul Jaye Kismat", under which certain numbers mentioned inside the cap of the 505 Batteries/Cells manufactured by the O.Ps. are entitled for certain prizes. As per the scheme, the purchaser is required to send the Battery Cap/Top Seal bearing Nos. 5 and 8 to M/s. Agrita, i.e., O.P. No. 2, by ordinary post. THE scheme also provided that purchasers who find Nos. 1, 2, 3 and 5 will get the corresponding prizes of Rs. 1, 5, 10 and 50, respectively. If the purchaser gets Nos. 6 and 8, he would get a prize amount of Rs. 10,000 and Rs. 10,00,000, respectively. THE complainants in order to test their luck, opened the Top Seal of the Batteries purchased by them and to their surprise, they got the Top Seals having Nos. 8 and 6 respectively. As per the Scheme, the complainant in Complaint No. 106/2002 is entitled for a prize of Rs. 10,00,000, whereas the complainant in Complaint No. 107/2002 is entitled for a prize of Rs. 10,000. The complainant in Complaint No. 107/2002 has claimed a prize money of Rs. 30,000 in his complaint. At the time of arguments, he filed a Memo restricting his claim for a sum of Rs. 10,000, as he is entitled to get only Rs. 10,000, provided he establishes that he is entitled to claim the same.

The complainants after having come to know that they have won the prizes had sent the Top Seals having Nos. 8 and 6, respectively, to O.P. No. 2 to hand over the cash prize. The said Top Seals were received and acknowledged by the O.P. on 30.7.2000. The complainants have produced the above said letter and the acknowledgements, which are marked as Exhibits ''C-2'' and ''C-3'' (which contains two acknowledgements). As O.P. No. 2 failed to respond and hand over the cash prizes to the complainants, the complainants have issued reminders to O.P. No. 2 on 16.9.2000 narrating the above said facts. A copy of the said reminder is marked as Exhibit ''C-4''. Since there was no response from O.P. No. 2 to the said letter, the complainants got issued a Legal Notice dated 12.2.2001 to O.P. No. 2. A copy of the said Notice is marked as Exhibit ''C-8''. Though the said Notice was served on O.P. No. 2, the said O.P. neither complied with the demand made in the Notice nor replied to the Notice. As there was no response from O.P. No. 2, the complainants have filed these two complaints praying for the Prize Money with interest and also for damages.

ON service of Notice issued by this Commission, the O.Ps. have filed their version. The stand taken by the O.Ps. in their version is that the complainants are not "Consumers" and, therefore, they are not entitled to any relief on their complaints. The O.Ps. have also contended that the complainants have not produced any documents to show that they have purchased the Batteries manufactured by O.P. No. 1 and, therefore, they cannot maintain the complaints before this Commission. According to the O.Ps., in the absence of any defect in the goods purchased by the complainants, they are not entitled for the Prize Money. In support of this contention, the O.Ps. relied upon certain decisions referred to in their version. The further case of the O.Ps. is that the complainants in their complaints have stated that they have purchased the Batteries called "Jeep", whereas O.P. No. 1 is the manufacturer of Batteries called "Geep" and, therefore, both the complaints are liable to be dismissed. At this stage, we wish to state that the complainants filed a Memo on 28.8.2003 seeking correction of the word "Jeep" as "Geep". We allowed the said Memo and the word "Jeep" was ordered to be read as "Geep". The O.Ps. in their version have also taken the contention that as per the Scheme issued by the O.Ps., the Top Seals sent by all the purchasers were examined by a Panel of experts and the winners have already been given the Prize Money. So far as the complainants are concerned, it is stated that the Top Seals sent by them were rejected for want of authenticity of the Battery Cap/Top Seal. In the version it is stated that O.P. No. 1, i.e., M/s. Wilkinson Sword India Limited was merged with M/s. Indian Shaving Products Limited on 20.11.2000 and by operation of law, M/s. Wilkinson Sword India Limited ceases to exist from the said date and subsequently with effect from 29.12.2000, M/s. Indian Shaving Products Limited has been named as "M/s. Gillette India Limited". The version and the affidavit in these two complaints are also filed by M/s. Gillette India Limited. In view of the said facts, if at all any direction is to be issued as against O.P. No. 1, it is to be issued only to M/s. Gillette India Limited.

BOTH the O.Ps. in support of their cases have filed affidavits by way of evidence. The complainants have also produced documents to show that they have sent the Top Seals of the Batteries to O.P. No. 2 claiming the prize money. The complainants have also produced the letters and the Legal Notice issued to O.P. No. 2 calling upon it to pay the prize money. The O.Ps. have not produced any documents in proof of their defence taken in the version except filing the version and the affidavits. The O.Ps. are not disputing the fact that they have issued a Scheme offering certain prizes as per Para 9 of the affidavits filed in both the cases. According to the Scheme, if a purchaser of a "GEEP" Battery finds No. 8 on the Top Seal of the Battery, he gets a sum of Rs. 10,00,000 as prize money. Similarly, if a purchaser gets No. 6 on the Top Seal as stated above, he gets a sum of Rs. 10,000 as prize money. The case of the complainant in complaint No. 106/2002 is that he got No. 8 on the Top Seal of the Battery which was purchased by him and he had sent the same to O.P. No. 2 as per the Advertisement issued by the O.Ps. The case of the complainant in Complaint No. 107/2002 is that he got No. 6 on the Top Seal and sent the same to O.P. No. 2 for payment of Prize Money. The letters along with the Top Seals sent to O.P. No. 2 were acknowledged by O.P. No. 2. The said documents were marked as Exhibits as referred to above. The complainants have also issued a Legal Notice and the same was acknowledged by O.P. No. 2. The said documents are also produced and marked as Exhibits as stated above. But the O.P. No. 2 has neither replied nor complied with the demand made by the complainants. When O.P. 2 has acknowledged the receipt of the letters and the Top Seals it cannot dispute the fact of receiving the Top Seals sent by the complainants to O.P. No. 2. The case of O.P. No. 2 is that the Top Seals sent by all the purchasers were examined by a Panel of Experts and on the basis of the results, the prizes were distributed. In support of this submission, the O.Ps. have not produced any material before this Commission to show that the Top Seals sent by the purchasers were examined by the Panel of Experts. If at all the Top Seals of all the winners including the Top Seals sent by the complainants were examined by the Panel of Experts, the decision taken by the Panel of Experts could have been produced before this Commission.

THE further case of the O.Ps. is that the Top Seals sent by the complainants were rejected on the ground of authenticity. From this statement it is seen that the O.Ps. admit the receipt of the Top Seals sent by the complainants. If at all the authenticity of the Top Seals sent by the complainants was doubted and found that they were not genuine, the Top Seals sent by the complainants could have been produced by the O.Ps. before this Commission. Since the O.Ps. have not produced either the Top Seals sent by the complainants or the decision of the Panel of Experts before this Commission, we are of the view that the complainants have sent the Top Seals found on the Batteries manufactured by O.P. No. 1. THE O.Ps. in our view, have unjustly denied the claim of the complainants without any reason whatsoever. Further, if really the complainants had not won the prizes as per the Scheme, the O.Ps. should have replied immediately on the receipt of the letters written by the complainants. THE O.Ps. have also not replied the Legal Notice issued on behalf of the complainants. THE conduct of the O.Ps. in not replying the letters and the Legal Notice makes us to draw an adverse inference and hold that the defence taken by the O.Ps. is unjust.

THE O.Ps. in their version have taken the plea that the complainants have not sent the Top Seals as per the terms and conditions incorporated in the Advertisement. THE terms and conditions read as follows: "(1) This offer is open to Indian nationals only. (2) For prize winning numbers 8, 7, 6 and 5 the Top Seal of the battery is to be sent to "Agrita Com. 59, Mandakini, Greater Kailash IV, New Delhi-110 019, by ordinary post to claim prize. (3) Consumer should ensure that his name and complete mailing address along with complete name and address of retailer from whom he has purchased the battery is mailed along with the Top Seal. (4) Cash redemption of Rs. 50 and below is to be done from the retailer from whom the battery has been bought. (5) THE last date for redeeming this offer is July 31, 2000. (6) THE cheque will be made out in the name mentioned and sent to the winner within a period of 6-8 weeks of receiving the top seal, with the prize winning number duly embossed. (7) All appropriate taxes will be borne by the winners. (8) Entries will be screened by an independent panel of judges. (9) THE decision on prizes and prize winners remains solely with Wilkinson Sword India Limited, 34, Okhla Industrial Estate, New Delhi-110 020. (10) Wilkinson Sword India Limited will not be responsible for any postal delays/loss. (11) No misrepresentation in this regard will be entertained by the Company. (12) Employees and relatives of Wilkinson Sword India Limited, McCann Erickson, Agrita Co. and their family members are not permitted."

As per the terms and conditions, the complainants were required to send the Top Seals to O.P. No. 2. From the letters and the acknowledgements produced by the complainants, it is seen that the complainants have sent the Top Seals to the above said address and the same were acknowledged by O.P. No. 2. As per the terms and conditions, the last date for redeeming the offer was 31.7.2000. THE complainants had sent the Top Seals on 10.7.2000, i.e., well within the time. THE Advertisement further states that for a prize winner the amount will be sent by Cheque within a period of 6 to 8 weeks after receiving the Top Seal. In the instant case, though the O.Ps. have received the Top Seals as observed earlier, they have neither informed the complainants the decision of the Panel of Experts nor taken any steps to send the prize money to the complainants. The O.Ps. in their defence have taken a contention that the complainants are not "Consumers" within the meaning of the term "Consumer" as defined under the Consumer Protection Act, 1986 (for short, the "Act") and, therefore, they cannot maintain the complaints under the Act. In support of this contention, the O.Ps. have relied upon the observations made by the National Commission in the case of Byford v. S.S. Srivastava, reported in II (1993) CPJ 155 (NC). The O.Ps. have also relied upon the decision of the National Commission in Unit Trust of India v. Smt. Sabitri Devi Agarwal, II (2000) CPJ 4 (NC), (Revision Petition No. 55/1997). In addition to this, the O.Ps. have also relied upon certain decisions of this Commission.

The further case of the O.Ps. is that the complainants having not pointed out any defect in the Battery purchased by them, cannot maintain a complaint under the Act. It is further contended that whatever the prize money offered is not intrinsic part of the contract and, therefore, the complainants cannot be considered as "Consumers" as defined under the Act.

IN the decisions referred to above, there is no reference to the definition of the term "Unfair Trade Practice". The term "Unfair Tade Practice" has been defined as follows: " ''Unfair Trade Practice'' means a trade price which, for the purpose of promoting the sale, use or supply of any goods or for the provisions of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely...."

Section 2(r)(3) reads as follows: "(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, games of chance or skill, for the purpose of promoting, directly or indirectly, the sale or use or supply of any product or any business interest;"

Section 2(r)(3A) reads as follows : "(3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme. Explanation-For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time published, prominently in the same newspapers in which the scheme was originally advertised."

Sub-Clause (3A) of Section 2(r) referred to above was inserted vide Consumer Protection (Amendment) Act, 2002. From a reading of the above definition, it is clear that 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, comes within the definition of the term "Unfair Trade Practice". In the instant case, the Advertisement has been issued by the O.Ps. offering certain prizes. The amount paid as prizes is to be realized by the sale of their products to the purchasers. If that is so, whatever prize money that is offered will be realized by the sale of products manufacutred by the O.Ps. Therefore, whatever prize offered is included in the sale price. If that is so, withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme amounts to Unfair Trade Practice as defined under the Act. Sub-section (3A) is in the nature of an explanation to Section 2(r) of the Act.

THEREFORE, we are of the view that the complainants have proved that they are the winners of the prizes under the scheme as stated supra and withholding of such prize money by the O.Ps. amounts to "Unfair Trade Practice." It is not in dispute that the O.Ps. have formulated a scheme and published the same offering certain prizes to the purchasers of Geep Battery, who are prize winners as per the scheme for consideration. From this it is seen that the O.Ps. have undertaken to render service of paying certain amount to prize winners. In the instant case, the O.Ps. have failed to render the service offered to the prize winners. This, in our view, amounts to "deficiency in service" on the part of the O.Ps. Therefore, we hold that the complainants are "Consumers" as defined under the Act, as they have established deficiency in service on the part of the O.Ps. If that is so, the District Forum, State Commission and the National Commission constituted under the Act are conferred with the power to grant refief to the complainants under the Act, if the complainants are the victims of Unfair Trade Practice practised by the O.Ps.

FROM the version and in the affidavits of the O.Ps. it is seen that now M/s. Gillette India Limited has taken over the assets and liabilities of O.P. No. 1. Therefore, a direction is to be issued to M/s. Gillette India Limited directing to settle the claims of the complainants treating that the complainants are the prize winners as per the scheme published by O.P. No. 1.

IN the result, we pass the following order: (1) The complainants are allowed. (2) M/s. Gillette INdia Limited represented by Mr. Pradeep Kumar, son of Mr. R.C. Pillai, Global Business Park Tower ''A'', Mehrauli Road, Gurgaon-120 002, which is in place of O.P. No. 1, is directed: (a) to pay Rs. 10,00,000 with interest at 6% per annum from the date of the complaint till realization to the complainant in Complaint No. 106/2002; and (b) to pay Rs. 10,000 with interest at 6% per annum from the date of the complaint till realization to the complainant in Complaint No. 107/2002; (3) The aforesaid O.P. is also directed to pay Rs. 10,000 and Rs. 5,000 as costs to the complainants in Complaint No. 106/2002 and Complaint No. 107/2002, respectively.

Complaints allowed.