DIRECTOR GENERAL OF INVESTIGATION And REGISTRATION vs Agra Beverages Corporation Ltd.

A complaint was received by the Commission from the Uttar Pradesh Distributors Association, having its office at Aligarh, alleging therein that the respondent-Agra Beverages Corporation Ltd. had announced a scheme of "Bumper Dhamaka" offering more than 1,000 gifts to all those who purchased Pepsi and other cold drinks bottled by the respondent during the period from 26th June, 1996 to 8th July, 1996. The salient features of the scheme was that on each purchase of these drinks one coupon of Rs. 5/- and one counter-foil were given and the coupon was redeemable from 9th July, 1996 to 26th August, 1996. While a discount of Rs. 5/- could be claimed on redemption, the counter-foil which was to be handed over to the distributors, agents or salesmen of the respondent, entitled the consumer to participate in two lucky draws to be held at the end of July and August respectively. The main allegation in the complaint is that although more than a thousand gifts were offered (680 in first draw and 599 in the second draw), 229 were actually distributed (124 and 105 respectively, in the two draws.

ON receipt of the above complaint, the Director General of Investigation and Registration (the DG for short), was asked to investigate and submit his Preliminary Investigation Report (PIR). The DG after investigation, came to the conclusion that the respondent had adopted and indulged in unfair trade practices within the meaning of Section 36A(3)(a) and (b) of the Monopolies and Restrictive Trade Practices Act, 1969 (the Act for short). Based on the DG''s PIR a Notice of Enquiry (NOE) dated 9th October, 1997 was issued to the respondent. The respondent was represented before the Commission on two occasions i.e., 3rd November, 1998 and 11th January, 1999 by its Advocate but thereafter, neither the Advocate appeared nor a reply to the NOE was filed by and on behalf of the respondent.

As the respondent did not appear either through the Advocate or through an Authorised Representative after 11th January, 1999 despite several opportunities, it was set ex-parte. Thus, there is no rebuttal of the allegations contained in the complaint and no reply also was filed to the NOE.

IT may be mentioned here that no affidavit of evidence has filed on behalf of the DG. Only certain documents such as handbills, announcing the gift scheme "Bumper Dhamaka", specimen gift, coupons, counter-foils and the results showing numbers of lucky winners in the two draws, held by the respondent, were tendered in support of the above allegations. On a careful scrutiny of the gift scheme and the documentary evidence available on the file, we find that the ingredients of Section 36A(3)(a) and (b) of the Act are not complete as the respondent can''t be said to have offered gifts, prizes etc. with the intention of not providing them or creating an impression that something is being offered free of charge when the cost of gifts is being recovered fully or partly. There is no such allegation in the complaint and no evidence has also been led in this behalf. The coupon entitled the consumer to a discount of Rs. 5/- on the purchase of the cold drinks bottled by the respondent. It is not being alleged that the discount of Rs. 5/- was not given or the coupon was not redeemed as was envisaged under the scheme. It is also not being alleged that the consumers who redeemed the coupon and gave the counter-foil were not allowed to participate in the lucky draw. In fact, the results of the two draws show that the draws were held and the winners were also given the prizes.

WHILE the provisions of Section 36A(r,)(a) have been considered above, it is concluded that the gift scheme in question, does not fall foul of the same. As regards Sub-clause (b) of Clause (3) of Section 36A, the essential ingredient of conduct of any contest, lottery, game of chance on skill is also not found in this gift scheme. The consumer of the cold drinks bottled by the respondent was entitled to a coupon of Rs. 5/ - and a counter-foil. The coupon was redeemable and the counter-foil enables him to participate in the draw. There is no contest or game of chance or skill involved in the present scheme as the consumer was not required to try his luck or to participate in any game of skill. Moreover, all the consumers were entitled to discount coupon of Rs. 5/- and participation in the draw. It is not the DCs case that the prices of the cold drinks were enhanced to recover the cost of the gifts proposed to be given by the respondent. It is also not proved by any documentary or oral evidence that the coupons offered under the scheme were not actually redeemed. In fact, it transpires that the lucky draw was held twice as announced by the respondent and gifts were offered. There is no complaint from any consumer that he purchased a cold drink and participated in the draw but was not offered the gift promised by the respondent even though he was successful. We are, therefore, of the view that the charge of adoption of and indulgence in unfair trade practices by and on behalf of the respondent has not been established as no loss or injury has been caused to the consumers and no prejudice has been shown to have been caused to the consumers generally. In any case, the gifts and prizes were in addition to the cold drinks and no extra charge was levied on the consumers for participation in the draws. Accordingly, the complaint is dismissed and the Notice of Enquiry dated 9th October, 1997 is discharged. NOE discharged.