GLOBAL TELE SYSTEM LTD. vs UNIQUE SALES AGENCY

THIS appeal is directed against order dated 2.2.1998 passed by Calcutta District Forum, Unit-I, whereby the complaint petition was allowed with a direction to the opposite party to deliver one Maruti 800 car to the complainant/Unit Sales Agency within a month from the date of the order. There has been a further order for payment of compensation to the tune of Rs. 5,000/-.

THE facts involved in this case are very short and simple. THE complainant is one of the authorised dealers of M/s. Global Tele System Ltd. On 15.4.1996 the opposite party floated Lucky Bird Contest for its dealers and a public advertisement was issued thereafter. THE complainant received the Circular in this regard on 6.5.1996. In the advertisement the dealers were urged to purchase 15 Fax Machines for one Coupon between 20.4.1996 and 30.5.1996. This was one of the conditions to become eligible and qualified to be a participant in the Draw to be held thereafter. THE decision to declare the winner in the Draw rested solely upon the opposite party. It was inter alia assured that one Maruti 800 car will be given to the owner on the spot or within the next three months thereafter. THE petitioner and other dealers of the opposite party responded to the said advertisement and purchased the required 15 Fax Machines within the stipulated period. On or about 6.5.1996 the complainant was informed that he had qualifed for the said contest to be held at Ooty on or about 15.6.1996. THE complainant was given 1st Class Railway Ticket for journey to Ooty and back and other perquisites for attending the said contest on the ground that he was adjudged eligible by the opposite party. THE petitioner attended the said contest alongwith 34 other eligible participants and 100 non-participating dealers. THE petitioner emerged as the only winner and was declared so after the Draw. It was announced that due to non-delivery of Maruti 800 car from the car dealer, the same could not be delivered at the venue of Draw as promised earlier. THE opposite party promised to deliver the same within a short period to the winner, viz. the present complainant at Calcutta. On return to Calcutta the complainant waited in vain for delivery of the said car. Ultimately, he called upon the opposite party to deliver the said car to him. But the latter having failed to oblige him, he brought this action against him. The case was contested by opposite party by filing a written version wherein various objections including lack of jurisdiction of the Forum were taken. The Forum rejected all the objections and directed the opposite party to make delivery of the said car to the petitioner within a month from the date of the order.

Aggrieved by the order of the Forum, the opposite party has preferred this appeal.

IT is noticed that one of the grounds of objection was lack of jurisdiction of the Forum to try and determine the present dispute. The Forum noticed that the opposite party has its office at 181/1, A.J.C. Bose Road, Calcutta. The Forum was, therefore, right in concluding that the opposite party having its Branch Office within its jurisdiction, it did not lack jurisdiction. Likewise, the Forum was right in over-ruling the objection to the effect that the purchase of Fax Machine was for commercial purpose. The present dispute arose not over the sale of Fax Machines but the dispute centres round the refusal of the opposite party to adhere to the announcement made regarding a contest amongst the dealers for delivery of a Maruti 800 car to the winner.

THE substantive defence of the opposite party is that the complainant was required to make payment against purchase of 15 Fax Machines within 12.00 noon on 31.5.1996. It is not disputed that the petitioner purchased the required number of machines and made the payment by cheque on 30.5.1996. THE cheque, however, bounced and the payment was made later on 10.6.1996. THE objection of the opposite party is that the payment having not been made within the stipulated period, i.e. 31.5.1996 the complainant was not eligible to participate in the contest. Undisputedly the contest was held on 15.6.1996 and the complainant was declared the winner in the said contest. THE complainant was provided with railway tickets and other perquisites as per the advertisement. He was allowed to participate in the contest and was declared a winner. It appears from Annexure ''C'' that the Finance Manager of the opposite party declared that the complainant had won Lucky Bird Contest and had been awarded a Maruti 800 car. It is ofcourse true that the payment was not made within the stipulated dated, i.e. 31.5.1996 but the fact remains that the payment was made a few days thereafter. Despite this fact the complainant was considered an eligible candidate for the contest and allowed to participate in the said contest. He was declared a winner and awarded a Maruti 800 car as the prize. THErefore, the opposite party cannot, in our opinion, turn round and deny the delivery of the said car to the complainant. We have considered the judgment of the Forum and find nothing wrong in it. It seems that the matter was rightly decided and no interference is required. THE appeal is without any substance and is dismissed on contest. Mr. D. Karforma, Member-A dissenting order is given as hereunder : 1. THE facts in this case have already been stated elaborately in the above order and hence I am not going to repeat the same here. My dissent is primarily in regard to the maintainability of the case under the Consumer Protection Act. THE complainant is one of the authorised dealers of M/s. Global Tele System Ltd. and alongwith other dealers, he participated in the "Lucky Bird" Contest floated by the opposite party, namely Global Tele System Ltd. In order to fulfil the eligibility criteria for participation in the contest, the complainant was required to purchase 15 Fax Machines between 20.4.1996 and 30.5.1996. It may be noted here that the complainant purchased the fax machines for commercial purpose and not for its own use. THErefore, on this count the complainant cannot be called a consumer in respect of the fax machines and admittedly the present dispute did not arise over the sale of fax machines. 2. In the impugned order dated 2.2.1998 it has been held that holding of the contest can be considered to be unfair trade practice and therefore, from that stand point the case is very much maintainable. It may be noted here that the term "unfair trade practice" has been defined both in the MRTP Act, 1969 and C.P. Act, 1986 and the said term as defined in Section 36A of the MRTP Act has been reproduced in Section 2(1)(r) of the Consumer Protection Act. In several cases the Hon''ble Supreme Court and the MRTP Commission vide H.M.M. Limited v. THE Director General (Investigation and Registration), reported in VI (1998) SLT 621=AIR 1998 Supreme Court at p. 2691, and Director General (Investigation and Registration) v. National Panasonic India Pvt. Ltd., I (2000) CPJ 14 (MRTP), have held that a prize scheme like the present one would not fall within the purview of Section 36A(3)(b) of the MRTP Act for the simple reason that the purchaser of an item with which the prize scheme is attached gets his money''s worth and he gets additional benefit of participating in the prize scheme in question. It has also been held that in order to win prize in a contest or in a game of change or in a lottery one has to pay a price. On the basis of the aforesaid it was held that such a prize scheme/contest would not fall within the purview of the provisions contained in Section 36A(3)(b) of the MRTP Act. According to me the present case is similar to those in which the above observations were made by the Hon''ble Supreme Court and the MRTP Commission. THE dealer while purchasing 15 Fax Machines for the purpose of sale got his money''s worth and also got the additional benefit of participating in the "Lucky Bird" Contest and for such participation he did not pay any separate price. THErefore, the present case is not maintainable under the C.P. Act, 1986 even on the point of unfair trade practice. 3. Ofcourse, purely in regard to the merit of the case I agree that the complainant has a fairly good case. THE only ground on which the declared prize item, i.e. one Maruti car could be denied to the complainant is that the price of the 15 Fax Machines was not paid within the scheduled date, i.e. 30.5.1996. However, despite late receipt of the amount, the complainant was permitted to participate in the contest and subsequently was declared as winner. THErefore, the ground that the amount was received late is not tenable. Thus the complainant has a fairly good case going purely by the merit of the case. But for redress, he has to approach the appropriate Forum and not the Consumer Forum. 4. In view of what has been stated above the appeal is allowed and the impugned order is set aside. THE complainant may approach the proper Forum, if so advised and if not otherwise barred. Appeal dismissed.