State Consumer Disputes Redressal Commission
Coca-Cola India Pvt.Ltd. vs Sheikh Mohd. Shafi Qureshi & Ors. on 13 April, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/14/299
Instituted on : 28.04.2014
Coca Cola India Pvt. Ltd.
Enkay Towers, Phase - V, Udhyog Vihar,
Gurgaon - 122001 ... Appellant.
Vs.
1. Sheikh Mohd. Shafi Qureshi,
Son of Late Shri S.N. Qureshi,
R/o : Y-A-06, Yash Vihar, Moti Nagar, Boria Road,
Raipur (Chhattisgarh)
2. Manager - Inox Cinema,
36, City Mall, Arang Road,
Raipur (Chhattisgarh)
3. General Manager,
One97 Communications Limited,
Plot No.197, B-121, Sector - 5,
Noida - 201301 (U.P.)
4. Manager,
Thomas Cook India Ltd.,
M.I.C.E. Department, 3rd Floor,
Plot No.520, Udyog Vihar, Phase - 3,
Gurgaon - 122016 Haryana ... Respondents
Appeal No.FA/14/300
Instituted on : 28.04.2014
Inox Leisure Limited,
36, City Mall, Arang Road,
Raipur (Chhattisgarh) ... Appellant.
Vs.
1. Sheikh Mohd. Shafi Qureshi,
Son of Late Shri S.N. Qureshi,
R/o : Y-A-06, Yash Vihar, Moti Nagar, Boria Road,
Raipur (Chhattisgarh)
//2 //
2. Coca-Cola India Pvt. Ltd.
Enkay Towers, Phase - V, Udhyog Vihar,
Gurgaon - 122001
3. General Manager,
One97 Communications Limited,
Plot No.197, B-121, Sector - 5,
Noida - 201301 (U.P.)
4. Manager,
Thomas Cook India Ltd.,
M.I.C.E. Department, 3rd Floor,
Plot No.520, Udyog Vihar, Phase - 3,
Gurgaon - 122016 Haryana ... Respondents
Appeal No.FA/14/323
Instituted on : 08.05.2014
General Manager,
One Communication Limited,
Plot No.197, B-121, Sector - 5,
Noida - 201301 (U.P.) ... Appellant.
Vs.
1. Sheikh Mohd. Shafi Qureshi, Age 60 years,
Son of Late Shri S.N. Qureshi,
R/o : Y-A-06, Yash Vihar, Moti Nagar, Boria Road,
Raipur (Chhattisgarh)
2. General Manager,
Coca Cola India Ltd.
Enkay Towers, Udyog Vihar - 5,
Gurgaon, Haryana - 122016
3. Manager - Inox Cinema,
36, City Mall, Arang Road,
Raipur (Chhattisgarh)
4. Manager, Thomas Cook India Ltd.,
M.I.C.E. Department, 3rd Floor,
Plot No.520, Udyog Vihar, Phase - 3,
Gurgaon, Haryana - 122016 ... Respondents
//3 //
Appeal No.FA/14/417
Instituted on : 18.06.2014
Manager, Thomas Cook India Ltd.,
M.I.C.E. Department, 3rd Floor,
Plot No.520, Udyog Vihar, Phase - 3,
Gurgaon, Haryana - 122016 ... Appellant.
Vs.
1. Sheikh Mohd. Shafi Qureshi, Age 60 years,
Son of Late Shri S.N. Qureshi,
R/o : Y-A/06, Yash Vihar, Moti Nagar, Boria Road,
Raipur (Chhattisgarh)
2. General Manager,
Coca Cola India Ltd.
Enkay Towers, Udyog Vihar - 5,
Gurgaon, Haryana - 122016
3. Manager - Inox Cinema,
36, City Mall, Arang Road,
Raipur (Chhattisgarh)
4. General Manager,
One Communication Limited,
Plot No.197, B-121, Sector - 5,
Noida - 201301 (U.P.) ... Respondents
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Laxman Singh Gurung, for the complainant Sheikh Mohd. Shafi
Qureshi.
Shri Ajay Kohli, for O.P.No.1, General Managr, Coca Cola India Limited,
Gurgaon, Haryana.
Shri R.K. Bhawnani, for O.P.No.2, Manager, Inox Cinema, Raipur (C.G.)
Shri Harshad Vyas, for O.P.No.3, General Manager, One Communication
Limited, Noida (U.P.).
Shri B.C. Mishra, for O.P.No.4, Manager, Thomas Cook India Limited,
Gurgaon, Haryana.
//4 //
ORDER
Dated : 13/04/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This order will govern disposal of Appeal No. FA/14/299, as well as Appeal No. FA/14/300, FA/14/317 and FA/14/423, which have been preferred respectively by the O.P.No.1, O.P.No.2, O.P.No.3 & O.P.No.4 of Complaint Case No.512/2012 against the order dated 29.03.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"). By the impugned order, the complaint of the complainant has been allowed and the District Forum has directed the OPs to jointly and severally pay within a month from the date of order a sum of Rs.15,734/- along with interest @ 12% p.a. from the date of filing of the complaint i.e. 12.12.2012 till realisation. The OPs have further been directed to pay a sum of Rs.2,00,000/- towards compensation for mental agony and a sum of Rs.5,000/- towards advocate fees and cost of litigation to the respondent No.1 (complainant).
2. The appellant (O.P.No.1) Coca Cola India Limited filed appeal No.FA/14/299, appellant (O.P.No.2) Inox Cinema filed appeal No.FA/14/300, appellant (O.P.No.3) One Communications Limited filed appeal No.FA/14/323 and appellant (O.P.No.4) Thomas Cook India Limited filed appeal No.FA/14/417, for setting aside the impugned order of the District Forum. For the purpose of convenience, hereinafter in this order, the parties will be referred as per their original nomenclature in the complaint case. The original of this order be //5 // retained in the file of Appeal No.FA/14/299 and its copy be placed in the file of Appeal No. FA/14/300, FA/14/317 and FA/14/423.
3. Briefly stated the facts of the case are that on 25.04.2012, the complainant Sheikh Mohd. Shafi Qureshi, along with his family members, went to see a movie at O.P.No.2 Picture Hall, where he bought combo pack consisting of one Coca-Cola and Popcorn. The O.P.No.1 and O.P.No.2 had organized a contest, whereby on the purchase of the combo pack, the purchaser gets a scratch card, which entitled him to participate in Lucky draw, which may eventually result in winning a trip to London for 4 days and 3 nights. The complainant obtained Scratch Card No.N-137986 and O.P.No.1 to 3 took out the Lucky Draw in respect of these scratch cards and the complainant won the contest. complainant received intimation regarding Lucky Draw form the O.P.No.3 in his mobile No.9039348287. The complainant sent the requisite documents to O.P.No.3 so that the O.P.No.4 could arrange for his visa and tickets. The O.P.No.4 informed the respondent No.1 complainant to send certain documents for obtaining visa for him to England. The complainant sent those documents on 04.07.2012. Vide 2 other Emails, the O.P.No.4 informed the complainant to appear before U.K. Visa Office situated at Mumbai on 10.07.2012 at 2.00 p.m., with all the requisite documents, failing which, his visa shall be rejected. The complainant reached Mumbai by train on 09.07.2012 and returned on 10.07.2012, for which he spent Rs.734/- and for staying and eating there, he spent Rs.5,000/-. On 10.07.2012, the complainant appeared before //6 // U.K. Visa Application Center, where all documents were taken from him and scrutinized. Vide SMS dated 10.07.2012, U.K. Application Center, informed the complainant that his application has been sent to British Embassy. Vide another SMS dated, 15.07.2012, the complainant was told that his application is under process. Vide email dated 24.07.2012, O.P.No.4 informed the complainant that his tickets from Delhi to London on 04.08.2012 and from London to Delhi on 06.08.2012 by British Airways vide Flight No.B.A. 256 and 257 respectively have been confirmed and complainant was provided with the details of his stay and hotel etc. for 3 days vide email dated 24.07.2012. On 02.08.2012, the complainant along with his son, left for Delhi by train so as to avail the opportunity to go and see Olympics and stay for 4 days and 3 nights for which he did purchasing worth Rs.10,000/-. When the complainant reached Katni, he receive a message from O.P.No.4 that his Visa has been rejected by the British Embassy, but to confirm the above facts, the employee of OP.No.4 assured that the above facts would be confirmed on 03.08.2012, because on 02.08.2012 there is holiday on the occasion of Rakshabandhan and their Mumbai office is closed. The complainant reached Delhi at about 10.00 A.M. along with his son and went to office of O.P.No.4 situated at Gurgaon where O.P.No.4 informed the complainant that his visa application has been rejected on 18.07.2012 by British Embassy. The reason for rejecting his visa application is that the O.P.No.1 to 3 did not submit the requisite documents along with application and did not inform the complainant earlier that his visa //7 // application was cancelled on 18.07.2012 by British Embassy. Due to negligence committed by the OPs, the complainant had to bear the expenses of his stay in Delhi till 05.08.2012 because O.P.No.1 to 3 did not provide the requisite documents to the British Embassy, whereby the complainant was declared the winner of the Lucky Draw and that all his expenses with regard to his stay, air tickets, meals, site seeing and watching Olympic games will be borne by them. Due to deficiency in service of the OPs, the complainant had to return from Delhi on 05.08.2012 without any cause. The complainant sent legal notice dated 19.10.2012 to the OPs, but the OPs did not give any response to it. Therefore, the complainant filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
4. The O.P.No.1 - Coca Cola India Limited, filed its written statement and averred that the Scheme of "Refreshing the Olympic Spirit Offer" wherein the complainant had participated was in fact launched, managed and run by a separate body corporate, that is Hindustan Coca- Cola Beverages Pvt. Ltd. and not by the O.P.No.1. Hindustan Coca-Cola Beverages Pvt. Ltd. is a subsidiary of The Coca-Cola Company and is a separate entity. The respondent No.1 complainant did not participate in the scheme as separately floated by the O.P.No.1. Hindustan Coca-Cola Beverages Pvt. Ltd. along with its key account partners including Inox Cinemas had floated, managed and run a scheme called the "Refreshing the Olympic Spirit Offer" whereunder the said entities offered on //8 // purchase of one Games Combo at the cinema of INOX that is O.P.No.2, a chance to win a London trip, subject to terms and conditions of the Scheme. In this regard, a "Scratch Card" was offered on such purchase which provided a seven digit alpha-numeric unique code, which entitled a participant to participate in lucky draw, which may eventually result in winning a trip to London for 4 days and 3 nights (London Trip). The terms and conditions of the said promotion/scheme so run and managed by Hindustan Coca-Cola Beverages Pvt. Ltd. (HCCBPL), were available on the Website so provided on the said Scratch Card. The true copy of the Terms and Conditions of the said "Refreshing the Olympic Spirit Offer" are annexed herewith and marked as Annexure A. The above Scheme/offer in which the complainant had participated was thus not run, managed or launched by the O.P.No.1 . The O.P.No.1 at the request of Hindustan Coca-Cola Beverages Pvt. Ltd. facilitated their winner in procuring visa for travel to London through "Thomas Cook", O.P.No.4. The O.P.No.1 had only facilitated the Hindustan Coca-Cola Beverages Pvt. Ltd. in the scheme/promotion, so launched, managed and run by them. Therefore, the present complaint is bad for mis-joinder of the O.P.No.1. The complainant is not a consumer under Section 2(1)(d) of the Consumer Protection act, 1986. The complainant has not bought any goods for a consideration from the O.P.No.1, therefore, the O.P.No.1, is not a service provider and the complainant is not a consumer. The complainant has not paid anything more than the price of the "beverage combo" and accordingly the complainant is not a //9 // consumer under the Consumer Protection Act, 1986 and his grievance, if any whatsoever cannot be entertained under the Consumer Protection Act, and complaint needs to be dismissed accordingly. The grievance of the complainant is with respect to rejection of Visa by the UK Embassy pursuant to the Refreshing the Olympic Spirit Offer Scheme, launched, managed and run by Hindustan Coca-Cola Beverages Pvt. Ltd. and Inox Cinemas. UK Embassy was not satisfied owing to insufficient evidence on the part of the complainant to demonstrate his personal and financial circumstances, therefore, UK Embassy rejected the Visa of the complainant. It was so stated in the Visa Application Form that the complainant has Rs.45,000/- available for the trip, when in fact, the copy of the Saving Account of the Uco Bank, of the complainant showed a closing balance of Rs.11,528/- as on 03.07.2012. The complainant has tried to mislead the District Forum and has abused the process of law by filing the complaint on incomplete and in correct facts by concealing the material facts, therefore, the complaint, is liable to be dismissed. The scheme in which the complainant had participated was in fact launched, run and managed by Hindustan Coca-Cola Beverages Pvt. Ltd. which is a separate legal entity and not by the O.P.No.1, the complainant has not intentionally impleaded the said entity Hindustan Coca-Cola Beverages Pvt. Ltd. The Hindustan Coca-Cola Beverages Pvt. Ltd. is a necessary party in the complaint. The respondent No.1 (complainant) has unnecessary arrayed the O.P.No.1 as //10 // party in the complaint, therefore, the compliant is not maintainable against the O.P.No.1 and the compliant is liable to be dismissed.
5. The O.P.No.2 - Inox Cinema, has filed written statement and averred that the Scheme of "Refreshing the Olympic Spirit Offer"
wherein the complainant had participated was in fact launched, managed and run by a separate body corporate, i.e. Hindustan Coca- Cola Beverages Pvt. Ltd. and not by the O.P.No.2. The Hindustan Coca- Cola Beverages Pvt. Ltd. had floated, managed and run a scheme called the "Refreshing the Olympic Spirit Offer" whereunder the said entities offered on purchase of one Games Combo at the cinema of O.P.No.2, a chance to win a London trip, subject to terms and conditions of the scheme. In this regard, a "scratch card" was offered on such purchase which provided a seven digit alpha-numeric unique code, which entitled a participant to participate in lucky draw, which may eventually result in winning a trip to London for 4 days and 3 nights (London Trip). The terms and conditions of the said promotion/scheme so run and managed by Hindustan Coca-Cola Beverages Pvt. Ltd., were available on the Website so provided on the said Scratch Card. It is only that the said scheme was carried out and run at the cinema complex of the O.P.No.2 being its key account partner. The above scheme/offer in which the complainant had participated was thus not run, managed launched by the O.P.No.2. Accordingly, the present complaint is bad for mis-joinder of the O.P.No.2 and non-joinder of the entity, that is, Hindustan Coca- Cola Beverages Pvt. Ltd. The complainant is not a consumer. In the //11 // instant case, the alleged complaint is for rejection of Visa by UK Embassy pursuant to the complainant being declared a trip winner as per the "Refreshing the Olympic Spirit Offer" Scheme managed, run and launched by a separate entity i.e. Hindustan Coca-Cola Beverages Pvt. Ltd. and therefore, admittedly the complainant has not bought anything for a consideration, which in the present case has not been paid as contemplated under Section 2(d)(iii) of the Consumer Protection Act, 1986. The grievance, if any sought to be raised by the complainant, is with respect to rejection of Visa by the UK Embassy pursuant to the "Refreshing the Olympic Spirit Offer Scheme", launched, managed and run by Hindustan Coca-Cola Beverages Pvt. Ltd. at the cinema of the O.P.No.2. In the notice of refusal of the Visa issued by the UK Embassy, it is apparent that the same has been rejected under "paragraph 41(i)(ii) of the HC 395 as amended whereunder the concerned officer at the UK Embassy was not satisfied owing to insufficient evidence n the part of the complainant to demonstrate his personal and financial circumstances. It was also stated in the Visa application form that the complainant has Rs.45,000/- available for the trip, when in fact, the copy of the Saving Account of the Uco Bank of the complainant, showed a closing balance of Rs.11,528 as on 03.07.2012. The complainant has intentionally not impleaded Coca-Cola Breverages Pvt. Ltd. as a party, which is necessary party in the ocmplaint.
6. O.P.No.3 - One Communications Limited, filed its written statement and averred that the O.P.No.3 never sold any product. On the //12 // basis of demand made by the O.P.No.1, the Scheme was floated and O.p.no.3 only provided servers, bandwidth and infrastructure to the O.P.no.1 and the liability of the O.P.No.3 is only to collect documents of the identity of the selected candidates i.e. PAN Card, photo ID etc and provide the same to the O.P.N.1. The O.P.No.3 performed its duty honestly and sincerely. The O.P.No.3 never sold any product to the complainant, therefore, the respondent No.1 (complainant) is not consumer of the O.P.no.3. The O.P.no.3 denied the allegations made by the respondent no.1 (complainant) in the complaint and prayed for dismissal of the complaint.
7. The O.P.no.4 - Thomas Cook India Limited, filed its written statement and averred that the complaint is not maintainable against the O.P.no.4. The O.P.No.4 did not commit any deficiency in service. The O.P.no.4 denied the allegations levelled by the complainant against it and prayed for dismissal of the complaint.
8. The complainant has filed documents. Annexure C/1 is Scratch Card, Annexure C/2 is email dated 03.07.2012, Annexure C-3 is courier receipt, copy of form, guidance notes, Annexure C-4 is email sent on 06.07.2012, Annexure C-5 is email sent on 06.07.2012, Annexure C-6 and Annexure C-7 are railway tickets, Annexure C-8 is Coca Cola 4th August Group Tour Itinerary , Annexure C-9 is railway ticket, Annexure C-10 is Refusal of Entry Clearance, Annexure C-11 to Annexure C-13 are railway tickets and postal receipts, Annexure C-14 is letter dated //13 // 19.10.2012 sent by the respondent No.1 (complainant) to The General Manager/Managing Director, Coca Cola India, The General Manager, INOX Leisure Ltd., and The General Manager, One Communication Ltd., Annexure C-15 is postal receipt.
9. The O.P.No.1 has also filed documents. Refreshing the Olympic Spirit Offer - Terms and condition, True Copy of Resolution Passed at the meeting of Board of Directors of the Company held on 03.03.2013 at Mumbai, Annexure A is copy of terms and conditions of the Refreshing the Olympic Spirit Offer and Board Resolution, Annexure B is the emails exchanged between the son of the complainant and O.P.No.4.
10. Shri Ajay Kohli, learned counsel appearing for the O.P.No.1 (appellant of appeal No.FA/14/299) has argued that the O.P.No.1 Coca Cola India Limited is a separate entity. The Scheme of "Refreshing the Olympic Spirit Offer" wherein the complainant had participated was in fact launched, managed and run by a separate body corporate i.e., Hindustan Coca-Cola Beverages Pvt. Ltd. The O.P.No.1 never floated the above scheme. The complainant did not array Hindustan Coca-Cola Beverages Pvt. Ltd. as O.P. The Hindustan Coca-Cola Beverages Pvt. Ltd., is a necessary party in the complaint and for want of the necessary party, the complaint is liable to be dismissed. He further argued that the complainant raised objection that the written statement of the O.P. No.1 & O.P.No.2, were not verified, therefore for want of verification, written statement be not taken into consideration. The above contention of the //14 // complainant is erroneous. Verification is merely procedural in nature. The O.P.No.1 filed affidavit of Shri U. Narendra Kini, General Manager & Company Secretary for O.P.No.1 and O.P.No.2 has filed affidavit of Shri Rohit Ghosh, Authorized Representative O.P. No.2, in support of their contentions, which are part of their written statements, therefore the contention of the complainant, is not acceptable. He placed reliance on judgement Delhi High Court in Merck Kgaa & Another vs. Bala Hegde and Dr. Hemnath Hegde, IRL (2007) Supp. (7) Delhi 162; judgement of Hon'ble Supreme Court in Vidyawati Gupta and Ors. vs. Bhakti Hari Nayak and Ors., AIR 2006 SC 1194, (2006) 2 SCC 777, HMM Ltd. vs. Director General, Monopolies & Restrictive Trade Practices Commission, (1998) 6 SCC 485, Bharti Knitting Co. vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1996) 4 SCC 704, judgment of Punjab and Haryana High Court in M.S. Shoes East Ltd. and Anr. vs. Modella Knitwear Ltd. and Anr., 1998 (2) ALT (Cri) 19, [2001] 103CompCase816(P&H), judgment of Hon'ble National Commission in M/s . Orissa Vegetable Oil Complex Ltd. vs. State of Orissa and Others, Original Petition No.156 of 1992 decided on 10th November, 1993.
11. Shri R.K. Bhawnani, learned counsel appearing for O.P.No.2 (appellant of Appeal No.FA/14/300) Shri Harshad Vyas, learned counsel appearing for O.P.No.3 (appellant of Appeal No.FA/14/323) and Shri B.C. Mishra, learned counsel appearing for the O.P.No.4 (appellant of Appeal No.FA/14/417) have also supported the arguments //15 // advanced by Shri Ajay Kohli, learned counsel for the O.P.No.1 (appellant of Appeal No.FA/14/299.
12. Shri Laxman Singh Gurung, learned counsel appearing for the complainant, has argued it is sweet will of the complainant to array any party. The Hindustan Coca-Cola Beverages Pvt. Ltd. is not a necessary party in the case. The Scheme of Refreshing the Olympic Spirit Offer, wherein the complainant had participated was launched, managed and run by the O.P.No.1 Coca Cola India Limited, therefore, the impugned order passed by the learned District Forum, is reasonable and does not call for any interference by this Commission. The Hindustan Coca-Cola Beverages Pvt. Ltd. is not a necessary party in the case. The written statement filed by the O.P.No.1 & O.P.No.2 were not verified, therefore, their written statements, cannot be taken on record, therefore, the learned District Forum, has not taken into consideration their written statements. The appeals filed by OPs are liable to be dismissed.
13. First of all we shall consider preliminary objections raised by the complainant that the written statement of the O.P.No.1 & O.P.No.2 were not verified. The objection of the complainant that the written statement of O.P.No.1 & O.P.No.2, have not been verified is correct but it is also noted that the O.P.No.1 has filed affidavit of Shri U. Narendra Kini, General Manager & Company Secretary for O.P.No.1 & the O.P.No.2 has filed affidavit of Shri Rahul Ghosh, Authorized Representative of O.P.No2, in support of their written statements and the affidavits have //16 // been verified by the deponents, hence the objection taken by the complainant that the written statement of the O.P.No.1 & No.2 have not been verified, remains only a technical objection.
14. In Disha Education Society v. M/s. Jai Mahakal Construction, 2010 (3) CPR 449, this Commission has observed thus :-
''6. First of all we will consider preliminary objections raised by the O.P. The objection regarding the complaint not being verified is correct but it is also noted that the complainant has filed affidavit of Shri Surendra Kumar Jain, President of the Society together with complaint itself and the contents of the complaint have been verified by the said affidavit hence the objection taken by the O.P. that the complaint has not been verified remains only a technical objection. Consumer Fora are not bound by rules of technicalities and complaints cannot be dismissed on technical ground, hence the objection is rejected."
15. In Merck Kgaa & Another vs. Bala Hegde and Dr. Hemnath Hegde (Supra), High Court of Delhi observed that "Code of Civil Procedure, 1908 - Section - 151 - Plaintiff sought to place on record a duly verified plaint in order to meet defendant's objection that plaint not verified in accordance with law - Affidavit of the plaintiffs filed along with the main plain reasserted different paragraphs - The averments in the plaint, were not verified properly. This is mere irregularity and curable; Held : Procedural law is intended to facilitate and not to obstruct the course of substantive justice and any defect or omission in verification would not render the plaint invalid."
//17 //
16. On the basis of above judgments, it appears that the written statement of the O.P.No.1 has been verified by the affidavit of Shri U. Narendra Kini, General Manager & Company Secretary for O.P.No.1 & written statement of the O.P.No.2 has been verified by the affidavit of Shri Rahul Ghosh, Authorized Representative of O.P.No.2, hence the objection taken by the complainant that the written statement of the O.P.No.1 & O.P.No.2 have not been verified remains only a technical objection. Consumer Fora are not bound by rules of technicalities and therefore, the written statement of the O.P.No.1 & O.P.No.2 cannot be discarded merely on the ground that their written statements were not verified, hence the objection raised by the complainant is rejected.
17. Now, we shall examine whether the Hindustan Coca-Cola Beverages Pvt. Ltd. is a necessary party in the complaint ?
18. A party is said to be necessary when without whose impleadment relief cannot be granted. In a suit in which a complete and effective relief cannot be passed against defendant then it is called a necessary party and generally if necessary party was not impleaded or added as a party, the Court will dismiss the suit if necessary parties are not impleaded. However, Court can permit the plaintiff to amend the suit by impleading necessary parties.
19. Learned District Forum in para 12 of the impugned order has observed that the written statements of the O.P.No.1 & 2 were not verified properly, therefore, it cannot be taken into consideration. It //18 // appears that the District Forum has not taken into consideration the written statement filed by the O.P.No.1 & 2 while deciding the complaint.
20. In the instant case, the O.P.No.1 & 2 have specifically pleaded that the Scheme of "Refreshing the Olympic Spirit Offer" wherein the complainant had participated was in fact launched, managed and run by a separate body corporate, that is Hindustan Coca-Cola Beverages Pvt. Ltd. and not by the O.P.No.1. Hindustan Coca-Cola Beverages Pvt. Ltd. is a subsidiary of The Coca-Cola Company and is a separate entity and different from the O.P.No.1, but learned District Forum without going through the written statements of the O.P.No.1 & O.P.No.2 held in the impugned order that the scheme was launched , managed and run by the O.P.No.1.
21. The learned District Forum, has not taken into consideration the written statements filed by the O.P.No.1 & 2 for want for verification. The District Forum has not decided whether the Coca Cola India Limited and Hindustan Coca Cola India Beverages Pvt. Ltd. are two different entities and the learned District Forum has not decided whether Hindustan Coca Cola Beverages Pvt. Ltd. is necessary party in the complaint and without deciding the above question fastened the liability on OPs.
22. Therefore, it is just and proper to remit back the case to the District Forum for deciding the matter afresh with a direction that the //19 // District Forum will take on record the written statement filed by the O.P.No.1 & O.P.No.2 before it and on the basis of their written statements, will decide whether the Coca Cola India Limited and Hindustan Coca Cola India Beverages Pvt. Ltd. are two different entities and whether Hindustan Coca Cola Beverages Pvt. Ltd. is necessary party in the complaint. The District Forum will also decide whether Scheme of "Refreshing the Olympic Spirit Offer" wherein the complainant had participated was in fact launched, managed and run by a separate body corporate, that is Hindustan Coca-Cola Beverages Pvt. Ltd. and not by the O.P.No.1. If it is found that the above scheme was launched, managed and run by Hindustan Coca-Cola Beverage Pvt. Ltd. then it will just and proper to array Hindustan Coca-Cola Beverage Pvt. Ltd. as a party in the complaint.
23. Therefore, the appeal No.FA/14/299 filed by the appellant (O.P.No.1) - Coca Cola India Limited, and appeal No.FA/14/300 filed by appellant (O.P.No.2) Inox Cinema, are allowed and the impugned order dated 29.03.2014, passed by the learned District Forum is set aside and the case is remitted back to the District Forum, with a direction to provide opportunity to O.P.No.1 & 2 to verify their written statements and thereafter their written statements be taken into consideration. On the basis of their written statement, the District Forum will decide whether the Coca Cola India Limited and Hindustan Coca Cola India Beverages Pvt. Ltd. are two different entities and whether Hindustan Coca Cola Beverages Pvt. Ltd., is necessary party in the complaint. The //20 // District Forum will also decide whether Scheme of "Refreshing the Olympic Spirit Offer" wherein the complainant had participated was in fact launched, managed and run by a separate body corporate, i.e. Hindustan Coca-Cola Beverages Pvt. Ltd. and not by the O.P.No.1. If it is found that the above scheme was launched, managed and run by Hindustan Coca-Cola Beverage Pvt. Ltd. then it will just and proper to direct the complainant to file necessary application for arraying Hindustan Coca Cola Beverages Pvt. Ltd. as O.P. in the complaint. If Hindustan Coca Cola Beverages Pvt. Ltd. is arrayed as O.P. in the complaint, then notice may be issued by the District Forum to Hindustan Coca Cola Beverages Pvt. Ltd. and after providing opportunity of filing written statement and documents to Hindustan Coca Cola Beverages Pvt. Ltd. in the case, the District Forum after providing opportunity of hearing to all the parties, will decide the matter afresh on its merits. Parties are directed to appear before the District Forum, on 06.05.2015. Office of this Commission, is directed to send the record of the case back to the District Forum, forthwith. No order as to the cost of these appeal.
24. The appeal No.FA/14/299 filed by the appellant (O.P.No.1) - Coca Cola India Limited, and appeal No.FA/14/300 filed by appellant (O.P.No.2) Inox Cinema, have been allowed and impugned order dated 29.03.2014, has been set aside and the matter has been remitted back to the District Forum, to decide the matter afresh, hence no separate order, is required to be passed in respect of appeal No.FA/14/323 filed by //21 // appellant (O.P.No.3) One Communication Limited and appeal No.FA/14/417 filed by appellant (O.P.No.4) - Thomas Cook India Limited.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) President Member Member /04/2015 /04/2015 /04/2015 .............................
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