DEELIP KUMAR SHIRGAONKAR vs SARVAJANIK GANESH UTSAV MANDAL

THIS Appeal is directed against the order of the District Forum, North Goa, dated 28.6.1999, in Complaint No. 108/95 whereby the appellant''s complaint was dismissed.

THE case of the appellant is that he purchased a donation coupon book, comprising 100 coupons worth Rs. 2/- each, from the respondents for which he had paid to them Rs. 200/-. On 18.9.1994 the draw of these coupons was held by the respondents and the appellant had won the first prize for the coupon bearing No. 000391, which was in his possession. However, the respondents refused to deliver to him the prize of a Refrigerator on the ground that he did not approach them to collect the prize within 15 days and also because he was a Committee Member of the Association. The respondents denied that the appellant had purchased any coupon and contended that the coupon book has been handed over to a third party by name Rameshwar Harichandra Naik and that the appellant had at no time paid to them the cost of that coupon book. The further case of the respondents was that the appellant took possession of the coupon book from Rameshwar Naik and kept with him the unsold 10 coupons alongwith the counterfoils which were returned to the respondents only after the draw was declared. It was also their contention that the appellant could not be held as consumer under the Consumer Protection Act, 1986.

We have gone through the records and considered the submissions of their learned Counsel.

AT the very outset we are unable to support the stand taken by the learned Forum to the extent that it openly chose to disregard the finding given by this Commission holding, in Appeal against an earlier order passed by the Forum, the appellant as a consumer on the ground that he was not fitting within the definition of consumer as given in the Consumer Protection Act, 1984 (hereinafter called the Act), admittedly the Forum''s first order, dated 20.1.1997 has been set aside by this Commission on 12.4.1997 and in that order the Commission has clearly ruled that on the facts alleged by the complainant he was actually consumer and as such entitled to relief. The Commission thereupon remanded the case to the Forum to dispose of the complaint in accordance with law after giving to the parties opportunity to place any fresh material which they wished in order to enable the Forum to decide the case on merits. Being so judicial discipline demanded that the Forum should not overlook the directions of the Commission and refuse to strictly comply with an order passed by a Superior Tribunal. If the respondents were not satisfied with the Commission''s Order holding the appellant as a consumer within the definition of the Act, they were free to appeal to the National Commission and get the Commission''s finding struck and nullified. Being so and upon the respondents'' failure to take steps in this direction the learned Forum was bound to obey and respect such finding instead of frontally challenging the Commission''s directives. To that extent the Forum''s Order and the finding recorded on this count cannot be sustained. However, on merits, we are satisfied that the appellant has not been able to substantiate his claim that he had actually purchased the coupon, out of the coupon book which got the prize, from the respondents. On the contrary, the record suggests otherwise and the affidavit of Rameshwar Naik clearly points out to the fact that the coupon book comprising 100 coupons was given to him by the respondents to sell the coupons, out of which he sold 90 coupons to different persons and the remaining 10 coupons which were not sold were handed over to the appellant together with the counterfoils to be returned to the respondents alongwith the cash secured from the sale of 90 coupons. The said affidavit as well as the evidence brought on record by the respondents from the newspapers to substantiate their claim that, at the relevant time, the appellant was one of the Members of the Association''s Committee which fact, by itself, explains the circumstance of Rameshwar Naik having entrusted to him the cash collected from the sale of 90 tickets and also the remaining unsold 10 tickets with the counterfoils, are conclusive to give substantial credence to the respondents'' case. On the other hand we find that the appellant''s story with regard to the alleged purchase of coupons has not been consistent throughout so as to convince us about its truth and genuineness. We say so because while in the complaint he has stated that the entire coupon book, comprising 100 coupons and including the one which got the prize, was purchased by him from the respondents and for which he paid to them Rs. 200/- without, however, adducing reliable evidence in support, instead the letter, dated 9.12.1994, addressed by him to the President of the respondents gives a different version inconsistent with the original case to the extent that it shows that the donation coupon book, comprising 100 coupons, had been given to him to be sold, out of which he managed to dispose of only 90 coupons to different persons and retained the remaining 10 coupons after paying to the respondents from his own the cost of the whole book. Indeed we find difficult to harmoniously construct these two versions bearing in mind that admittedly the appellant returned to the respondents the corresponding counterfoils of the coupons sold only after the draw was declared, which by itself suggests that the 10 tickets which he retained with him had not been actually sold. Further the appellant has not been also able to prove that he refunded to the respondents the cost of these 10 tickets and the amount of the 90 coupons initially sold. We are, therefore, of the view that if the appellant had really purchased the entire donation coupons book against cash payment, out of which one coupon got the prize he could not have held in his possession the corresponding counterfoils which were to be returned to the respondents well before the declaration of the draw. The very fact that the counterfoils continued in his possession rules out any scope for us to believe the case of the purchase of coupon in respect whereof the appellant did not succeed to establish that he had paid to the respondents its price before the declaration of the draw. In this view of the matter we hold that, on this count alone, the appeal is bound to fail as we see no reason to interfere with that part of the judgment of the learned Forum dismissing the appellant''s complaint on merits. Thus the Appeal stands rejected with, however, no order as to costs. Order accordingly. Appeal dismissed.