Coca -Cola India Pvt. Ltd. vs Sachidanandan G. And Ors.

THIS appeal has been filed by the appellant against the order dated 23.4.2009 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ''the State Commission'') in OP No. 144/1999 - Sri Sachidanandan G. v. Coca Cola & Ors. by which, complaint was allowed.

BRIEF facts of the case are that complainant/respondent No. 1 was running a Cool Bar in Ernakulam District. The opposite parties/Petitioner & Respondent No. 2 & 3 are the manufacturers, distributors and suppliers of different soft drinks in the names of "Thumps Up", "Coca Cola", "Limca" and so on. The opposite parties advertised in the media in December, 1998 that several prizes will be awarded to persons who collected the liner attached to the cap of the Thums Up bottles which contained all the alphabets in the name "Thums Up" and also liners attached to the cap which contained the pictures of a car, (mentioned as four wheels) woodland jacket, waist pouch, thunder jeans, woodland T -shirt, woodland shoes, etc. According to the opposite parties advertisements any person who collected liners contained in the cap with the alphabets - T, H, U, M, S, U, P, plus the liner containing the picture of a car would be awarded a Tata Safari Car as prize. The said offer was valid from 15 December, 1998 to 15 February, 1999 and that prizes will be awarded on "first come first basis". This offer was later extended to 28 February 1999. The complainant collected the caps and liners of Thums Up bottles containing the alphabets "Thums Up", and also collected the picture of a car printed on a liner contained in the Thums Up and as required by the opposite parties, he sent the liners to the address given in the said advertisements. As per the rules, the caps which contained the said liners were to be retained by the person sending the concerned liners. The said liners were sent by the complainant to the opposite parties on 15.2.1999 by speed post and the same was received by the opposite parties on 16.2.1999. Inspite of several reminders; Tata Safari Car was not awarded to complainant. Alleging deficiency on the part of OPs, complainant filed complaint before State commission. OP No. 1, 2 & 3 resisted complaint and submitted that complainant is not a consumer and no cash memo has been produced by him for alleged purchase of Thums -Up bottle. It was further pleaded that as complainant was running a Cool Bar and had collected cap/crown of Thums Up bottles while selling the Thums Up bottles to his customers and as he purchased Thums Up bottles for resale and for commercial purpose, he does not fall within purview of consumer. It was further pleaded that complainant sent the liners by speed post whereas as per prize scheme, entry received by ordinary post were eligible for award of prizes on a ''first come first served'' basis. It was further submitted that OP No. 2 & 3 were impleaded with ulterior motive and prayed for dismissal of complaint. OP No. 4 resisted complaint and also prayed for dismissal of complaint, as prize scheme was promoted by OP No. 1. Learned State Commission after hearing parties directed OP No. 1, 2 & 3 to deliver Tata Safari Car to the complainant and in the alternative to pay Rs. 8,00,000/ - and further directed to pay cost of Rs. 1,000/ - against which, this appeal has been filed. None appeared for Respondent No. 2 & 3 and they were proceeded ex -parte.

HEARD learned Counsel for the parties and perused record.

LEARNED Counsel for the appellant submitted that inspite of no proof that complainant was consumer within purview of Consumer Protection Act and inspite of proof that liners was not sent by ordinary post as per terms and conditions of prize scheme, learned State Commission committed error in allowing complaint; hence, appeal be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent No. 1 submitted that had liners been sent by ordinary post, OP might have denied receipt and learned State Commission rightly observed that complainant was consumer and order passed by learned State Commission is in accordance with law; hence, appeal be dismissed. First of all, it is to be seen whether complainant was consumer within Consumer Protection Act. Section 2(d)(i) defines consumer as under:

"(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;

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;"

Thus, it becomes clear that a person can be said to be consumer only when he buys any goods for consideration, but does not include a person, who obtains such goods for resale or for any commercial purposes. Complainant in the complaint has simply stated that he was running a Cool Bar and complainant collected cap/crown of Thums Up bottles containing the alphabets "Thums Up" and picture of a car printed on a liner which were sent by him to OP. He has nowhere pleaded that he purchased bottle of Thums Up for consideration. OP specifically pleaded that no cash memo has been produced by the complainant for purchase of aforesaid bottle. Admittedly, complainant has not produced any cash memo for purchase of bottle. In such circumstances, in the absence of any pleading or proof that complainant purchased Thumps Up for consideration for his own use; complainant does not fall within purview of consumer. Learned State Commission observed that nobody ask for cash memo for purchase of soft drinks and seller or retailer does not give cash memo for sale of such soft drinks and on account of non -production of cash memo, it cannot be held that complainant has not purchased Thums Up for his consumption. This observation is not based on any law or fact and it cannot be accepted because as per provision of the Act, complainant has to establish himself a consumer falling within purview of Consumer Protection Act and in such circumstances, it becomes clear that complainant failed to prove that he falls within purview of consumer. It appears that complainant while running Cool Bar collected caps and liners of Thums Up bottle which were sold by him to the customers and in such circumstances, he does not fall within purview of consumer as goods were purchased by him for resale and were not purchased by him for his own use.

IT is not disputed that as per scheme for all prizes except Drum Beat and Kinley Soda the printed liners should be removed from the crown and the consumers must mail the completed liner series of THUMS UP and a visual of the prize to P.O. Box 13, Kalkaji, New Delhi - 110 019 ''by ordinary post only'' along with full name and address of the sender in a sealed envelope. It is also not disputed that complainant sent alphabets and liners on 15.2.1999 by speed post. As per scheme, only entry received by ordinary post were to be considered and entry sent by speed post was not permissible under the scheme because as per condition No. 7, award of prize was ''first come first served'' basis. If two persons get same alphabets liners and one send by ordinary post and the other send by speed post in ordinary course of nature, speed post will reach before ordinary post and in such circumstances, a person sending envelope by speed post will get preference which is not permissible. In such circumstances, contravention of Condition No. 5 of the scheme was not permissible and envelope sent by speed post was not eligible for consideration. Learned State Commission has wrongly observed that they do not find any fault in sending entry by speed post instead of sending the same by ordinary post because entry sent by speed post would get preference over entry sent by ordinary post which is in contravention of scheme.

LEARNED Counsel for the appellant placed reliance on judgment of this Commission in : 3(2006) CPJ 193 (NC) - Kovilakam Chits and Financial Service Ltd. & ors. v. K.L. Benny in which this Commission observed that name of Mr. Benny respondent who was defaulter in payment of 9, 10th & 11th instalments of ''Kuri'' was not entitled for including in draw of lots in terms of conditions of ''Variola''. It was further observed that conditions of ''Variola'' were one sided, but as they were accepted by all the subscribers, they were binding. In the case in hand, complainant was claiming prize under the scheme, he was bound to follow terms and conditions of the scheme and had no right to deviate condition No. 5 by sending envelope by speed post instead of ordinary post as required by the scheme. OP has not committed any deficiency in not considering alphabets and liners sent by complainant by speed post in contravention to conditions of the scheme. In the light of aforesaid discussion it becomes clear that learned State Commission has committed error in allowing complaint inspite of the fact that complainant was not consumer and has not followed terms and conditions of the prize scheme and appeal is to be allowed.

CONSEQUENTLY , appeal filed by the appellant is allowed and order dated 23.4.2009 passed by the learned State Commission in OP No. 144/1999 - Sri Sachidanandan G. v. Coca Cola & Ors. is set aside and complaint stands dismissed with no order as to costs.