PRESIDENT, THE BANGALORE TRADES ASSOCIATION vs Amit Chatterjee

THIS appeal is directed against the order passed by the First Addl. District Forum, Bangalore Rural and Urban District, directing the opposite party-2 - The President, Bangalore Traders Association to deliver to the complainant the Maruthi Omni or its value as on 13.11.1994 on the basis of the winning gift-coupon issued to the complainant. The facts of the case sufficient for the disposal of this appeal are as follows.

THE appellant had organised a sales promotion programme on the occasion of Diwali called ''Diwali Fantasy 94'' in order to promote the sales of the products of their members. In this scheme, the purchasers of goods from the shops of the constituent members were issued gift-coupons with promise of various prizes to the winners in the lucky draw. THE complainant who purchased some goods from one Ameen Lakhani during the currency of ''Diwali Fantasy 94'' was issued gift-coupons under the scheme. THE draw was held on 13.11.1994 as scheduled and immediately thereafter a telegram was sent to the complainant informing that he had won the Lucky Draw and that he should collect his prize, producing the winning coupon. It is the case of the complainant that he had somehow lost the winning coupon about which he had filed a complaint before Bistapur Police. When he approached opposite party-2 claiming the prize, it is alleged, opposite party-2 refused to entertain the claim on the premises that the original coupon has not been produced. When entreaties failed to convince opposite party-2, the complainant approached the District Forum for the redressal of his grievance. This is the long and short of the case of the complainant as set out in his complaint.

Both the parties have filed their affidavit evidence before the District Forum.

WE have heard Mr. N.P. Kumar, learned Counsel for the appellant and Mr. K.S. Chengappa, learned Counsel for the respondent. Mr. N.P. Kumar contended emphatically that the complainant is not a consumer within the meaning of that expression under the Consumer Protection Act, 1986 (for short ''the Act'') and hence he has no credentials to file a complaint. The learned Counsel submitted that the gift scheme involved in this transaction is nothing but legalised wagering and hence it cannot be a service under the Act. Once when the scheme falls outside the ambit of a service, the availer of such a service loses the profile of a consumer under the Act. The learned Counsel also submitted that in the complaint filed before the police, the complainant had alleged loss of a wallet containing Rs. 150/- without any reference to the gift-coupon which only showed that the complainant had come up with a cooked-up story to sustain a counterfeit claim. The learned Counsel relied on the following decisions to buttress his contention that the complainant is not a consumer : (a) III (1993) CPJ 1702, Haryana SC (b) II (1995) CPJ 132, Haryana SC (c) III (1997) CPJ 248, Karnataka SC (d) III (2000) CPJ 91, Punjab SC.

Mr. K.S. Chengappa, learned Counsel for the complainant-respondent however contended that the complainant has paid for the shoes he has bought and as an incentive he was given of gift coupon. Since this is a gift scheme to promote sales on the occasion of Diwali, the coupons issued to customers as an incentive do not partake the nature of a lottery ticket. The learned Counsel, therefore, contended that all the rulings cited by the learned Counsel for the appellant in which the dispute related to lottery tickets have no applicability in the instant case since gift-coupons have no generic comparability with a lottery ticket. The learned Counsel also submitted that there was no binding contract between parties to release the prize only on production of the winning coupon. When the complainant''s name was available with the opposite party in the coupon-counterfoil and as the opposite party has no dispute with regard to the issue of the coupon to the complainant, the opposite party was not justified in refusing to entertain the claim of the complainant. The learned Counsel fervently appealed that the prize which was legitimately due to the complainant may be ordered to be released to him in the interest of justice.

WE have given due consideration to the rival contentions and have also gone through the records in minute detail. The learned Counsel for the appellant has not come up with an argument that what was issued to the complainant when he bought goods from opposite party-1 was a lottery ticket and not a gift-coupon. In fact a part of para 3 of the Appeal Memo reads as follows : "The appellant had organised ''Diwali Fantasy 94'' for the promotion of sales of the product of their members. Purchasers of goods from the shops during the said period were issued gift coupons and prizes were given to winners of the Lucky Draw on production of gift coupons."

The learned Counsel for the complainant has argued that a gift-coupon has hardly any attributes of a lottery ticket. To consider as to what extent he is right, it is relevant to know what is a ''Lottery'' in the first instance. Murray''s Dictionary defines ''Lottery'' as follows : "An arrangement for distribution of prizes by chance among persons purchasing tickets." It is significant that unlike in a lottery, coupons in the instant case are not bought by customers in ''Diwali Fantasy 94''. The complainant purchased utility item like shoes paying consideration and as a sales promotion package gift-coupons were given to him along with the goods. In such a scheme there is no arrangement of a customer buying only a coupon like buying a lottery ticket, but the coupon went with the goods purchased, thereby making it an item acquired for a part of the consideration paid. In the result, the benefit accruing from the goods purchased will include the benefit which may enure if a coupon comes out a winner in the lucky draw. Such arrangement is alien in a lottery where the purchase of a ticket is not linked to any buying of goods or availing of services, but it is a straight payment of consideration for indulging in legalised wager by buying a ticket. This distinction is material in the instant case to establish that a gift-coupon does not have generic characteristic of a lottery ticket.

THE logical corollary to such a conclusion is that a person who is given a gift-coupon while buying articles does not acquire the same complexion as a person who buys a lottery ticket. Hence, as rightly pointed out by the learned Counsel for the respondent, the decisions cited by the learned Counsel for the appellant do not come to his aid since all the decisions relate to buying of lottery tickets. In fact in M. Mahadev v. THE Director, Nagaland State Lotteries & Anr., reported in III (1997) CPJ 248, this Commission has held that purchasing a lottery ticket does not amount to ''service'' under the Act. This decision evidently has no applicability in the instant case in view of the distinction between a gift-coupon and a lottery ticket.

IN this view of the matter it has to be held that the recipient of a gift-coupon as a package to promote sales has the true profile of a consumer under the Act and hence the complainant is entitled to institute a complaint. Having come to this conclusion what remains to be seen is whether the District Forum was right in holding that the opposite party has rendered deficient service to the complainant. The appellant has not disputed that a gift-coupon has not been issued to the complainant. There is also no dispute regarding the identity of the complainant as the person to whom that gift-coupon was issued. There is also no dispute that the coupon issued to the complainant has won the prize, namely a Maruti Omni in the draw held on 13.11.1994. In fact, there are no denials in this case except the denial to hand over the prize since the claimant has not produced the original coupon to substantiate his claim. It is true and in fact the appellant themselves have stated in the Appeal Memo that a communication was sent to the complainant to come and collect the prize. However they cried a halt when the complainant pleaded his inability to produce the coupon since he had lost it. What is to be seen in this context is that there was no rival claimant for the prize, nor the identity of the complainant was shrouded in doubt. In such a situation, there was no impediment for the opposite party to obtain an affidavit from the complainant containing an averment of loss of ticket, with an undertaking to indemnify the opposite party in case any genuine claim comes up later. Loss of a coupon may sometimes be due to reasons beyond the control of a person which need not necessarily deprive him of a benefit accrued. The opposite party, in the facts and circumstances had an obligation to hand over the prize to the complainant, particularly when they are aware that a finder of the coupon cannot claim the prize as easily as in a lottery, since the coupon-counterfoil contains the name of the customer to whom it was issued and the identity is easy to establish. The only inference that can be drawn from the stand taken by the opposite party is that they intended to cash it on the helplessness of a person to whom one of their members had issued a coupon which had come to win a prize in a draw. Taking into account the attitude, we are inclined to agree with the District Forum that such an attitude constitutes a shortcoming in the nature and manner of performance of the opposite party which is termed as deficiency of service under the Act.

If that be so, the order passed by the District Forum requires no intervention. Consequently it is liable to be confirmed. In the premises, we pass the following Order The appeal is dismissed. The order passed by the District Forum is confirmed Parties to bear their own costs. Appeal dismissed.