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PepsiCo India Holdings Pvt. Ltd. & Another v/s Sanjay Prasad Kushwaha

    REVISION PETITION NO. 674 OF 2007

    Decided On, 24 August 2012

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.B. GUPTA PRESIDING MEMBER & THE HONOURABLE MR. ANUPAM DASGUPTA MEMBER

    For the Petitioners : Rajeev Virmani, Senior Advocate, Ms. Rashmi Virmani, Ashish Kothari, Advocates. For the Respondent : S. Deep Aggarwal, Advocate and Respondent in Person.



Judgment Text

ANUPAM DASGUPTA

This revision petition challenges the order dated 28.09.2006 read with that dated 08.01.2007 of the Bihar State Consumer Disputes Redressal Commission, Patna (in short, ‘the State Commission’) in first appeal No. 732 of 2006 and revision petition no. 94 of 2006 respectively. By the first order, the State Commission dismissed the aforesaid appeal on the ground of delay, which was not condoned for want of sufficient cause. The petitioners then filed a revision petition before the State Commission, seeking reconsideration of its own order dated 28.09.2006. By the second order (dated 08.01.2007), the State Commission dismissed the revision petition on the ground that it did not have the statutory power to review its own order.

2 (i) The respondent in this petition was the complainant before the District Consumer Disputes Redressal Forum, Bettiah (in short, ‘the District Forum’) in complaint case no. 46 of 2002 and the predecessors - in– interest of the petitioners were the opposite parties (OPs). The complainant alleged that the OPs were guilty of deficiency in service and unfair trade practice because they refused to deliver the prize of a car that they had announced for promotion of the sale of their products, including Uncle Chips though the complainant had bought a packet of Uncle Chips in which he found the requisite prize coupon entitling him to the prize of an Opel Corsa car. The complainant, therefore, prayed that OPs be directed to give him the declared prize, i.e., the aforesaid car.

(ii) The complaint was contested by the OPs on the preliminary ground that the value of an Opel Corsa car being Rs. 6.5 lakh, the complaint was beyond the pecuniary jurisdiction of the District Forum, which was upto Rs.5 lakh only at the relevant time. In addition to some other preliminary objections, the OPs pointed out that the complainant had not followed the terms and conditions of the prize scheme published by the OPs and had not been able to establish that he had actually got the lucky coupon, which alone would have entitled him to the prize of a car. The complainant also did not furnish the second half of the counter foil of the lucky coupon if at all he had received one.

(iii) However, on consideration of the matter and hearing the parties, the District Forum allowed the complaint and directed the OPs to deliver one car for which the complainant had found the prize coupon in the Uncle Chips packet that he bought, within two months from the date of communication of the order. In addition, the District Forum directed the OPs to pay cost of Rs.2,000/- to the complainant. It was this order that was challenged by the OPs before the State Commission, with the result summarised above.

3. We have heard Mr. Rajeev Virmani, learned senior counsel for the petitioners and Mr. S. Deep Aggarwal, learned counsel for the respondent as well as the respondent who was also present in person.

4. Before proceeding further, we may read the District Forum’s order, which is as under:

'This is the case for claim of 7 Opel Corsa Car first prize. This case of the complainant in brief is that he purchased Uncle Chips weighing 33 grams worth Rs. 12/- batch no. N- 106/A under Inami Yojana in which he got Inami coupon according to which he was to get 7 Opel Corsa Car first prize so he contacted with the OPs through correspondence and talked with local shop-keepers in this regard but he got no reply so being compelled he filed the present case. The further case is that the said company cheated the consumers by enticing and impressing for the sake of sale of products of the company.

The case of the OPs in brief is that the complainant has not attached any proof of purchase with the complainant and that the OPs have announced, scheme called ‘Wheelz’ from 7th June 2001 to 15th January 2002 and under the scheme which was applicable on certain packs of Lays, Uncle Chips, Kurkure and Cheetos the following prizes were offered on first come first basis. There were 7 first prizes of Opel Corsa 1.4 GI besides other prizes such as FX 3D cards and Wheelz FX games. For the purpose of monitoring and supervising the said promotion and to ensure that no unscrupulous elements take advantage of the situation, the OP had engaged the services of M/s KPMG, a renowned firm of auditors.

The further case is that on announcement of the scheme the consumer was required to look for the lucky coupon inside the said packs of Lays, Uncle Chips, Kurkure and Cheetos and on finding the lucky coupon the consumer was required to send second part of counter foil of the lucky coupon to Frito Lay India, IVth Floor, Tower – A, Global Business Park, Gurgaon – 122 002, Haryana and retain the first half of call of consumer service manager at no. 9810508090 (within Delhi) and 09810508090 outside Delhi and in order to be eligible to claim the prize, the prize winner shall have to furnish acceptable proof of identity and residence within the time failing which such person shall forfeit his right to the prize and that the complainant has not exercised the diligence and proper care in following the terms and conditions. The further case is that it is not clear from the complaint whether the complainant has got an FX card in the packs of Uncle Chips or the lucky coupon and the complainant admittedly only spoke to the retailer from whom he had allegedly purchased Uncle Chips but did not sent the counter-foil of luck coupon to the OPs nor called up OPs as per terms and condition.

Now, the point for consideration arises whether the complainant is under the lucky draw scheme.

It is, therefore, ordered that the complaint petition is allowed and the OPs are directed to deliver the said car under the lucky draw scheme for which the Inami coupon was found by the complainant, purchaser of spice to the complainant within two months from the date of communication of the order but according to the condition and terms attached with the W/S the prize winner the complainant shall be liable to pay income-tax simultaneously with the award of the prize. The OPs are further directed to pay Rs.2,000/- towards cost of litigation to the complainant also.'

5. It is obvious that there is no discussion of any evidence or findings of fact in the order of the District Forum. On the other hand, the State Commission’s order dated 28.09.2006 has not gone into the merits of the case and dismissed the first appeal of the petitioners entirely on the ground that there was a delay of 120 days in its filing for which, according to the State Commission, the petitioners/appellants were unable to show sufficient cause under section 24A of the Consumer Protection Act, 1986 (in short, ‘the Act’).

6(i) It is not in dispute that the complainant bought a packet of Uncle Chips during the 'Wheelz Prize Scheme' period (07.06.2001 – 15.01.2002) launched by the petitioners. The Scheme announced 7 first prizes of Opel Corsa car and several other prizes such as FX 3D Cards and Wheelz FX Games, all to be given on ‘first-come-first-served’ basis. A consumer buying any one of the (potato-based snack) products (Lays, Uncle Chips, Kurkure and Cheetos) during the Scheme period was required to look for the lucky coupon inside the packet of the product. On finding the coupon, the consumer was required to send the second half of the counter foil to the given address of the petitioners, as detailed in the newspaper advertisements. The consumer was also required to call up the Consumer Service Manager on one of the telephone numbers which were mentioned in the newspaper advertisements.’

(ii) There is no evidence that the respondent/complainant actually sent to the petitioners the second part of the counterfoil of the lucky coupon that he claimed to have received inside the packet of Uncle Chips that he bought. The complainant also did not call up the assigned telephone/cell phone number to intimate the Customer Service Manager. The prizes were to be awarded on ‘first-come-first-served’ basis. Since the complainant did not follow the stipulated terms and conditions, the petitioners claimed that he was not entitled to the prize mentioned in his complaint.

7(i) It was pointed out by the learned senior counsel for the petitioners that at the time of the first hearing of the petition, the petitioners’ counsel had offered that if the respondent/complainant produced the counterfoil of the lucky coupon that he claimed to have received, the petitioners

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would readily give him the prize of an Opel Corsa car. The respondent/complainant claimed that he did possess the lucky coupon. (ii) During the hearing before us, the complainant produced what he thought to be a lucky coupon (samples of which were printed in the newspaper advertisements) but it turned out to be one of the FX 3D Cards which was certainly not a lucky coupon that could have entitled him to one of the 7 first prizes. 8. It is, therefore, obvious that it was a misconceived complaint and the District Forum passed a perverse order without any consideration of the evidence or the OPs’ objection that it did not have the pecuniary jurisdiction to entertain the complaint. 9. In view of the foregoing, we allow the revision petition and set aside the order dated 28.09.2006 of the State Commission as well as that dated 28.04.2006 of the District Forum and dismiss the complaint. Parties are left to bear their own cost.
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