State Consumer Disputes Redressal Commission
Connaught Plaza Resturant Ltd. vs Kapil Mitra on 15 June, 2016
IN THE STATE COMMISSION: DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986)
Date of Decision: 15.06.2016
First Appeal No. 352/2012
(Arising out of the order dated 08.02.2012 passed in Complaint Case No. 774/2009 by the District
Consumer Disputes Redressal Forum (North) Tis Hazari, Delhi-54)
In the matter of:
M/s Connaught Plaza Restaurant Limited
through its Company Secretary
Mr. Devinder Jain representing
McDonald's Family Restaurant
UB-33/34, Jawhar Nagar
New Delhi-110007 .........Appellant
Versus
Sh. Kapil Mitra
2860, Hamilton Road
New Delhi-110006 ..........Respondent
CORAM
N P KAUSHIK - Member (Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
N P KAUSHIK - MEMBER (JUDICIAL)
JUDGEMENT
1) Present appeal is directed against the orders dated 08.02.2012 passed by the Ld. District Forum (North) Tis Hazari Delhi. Vide impugned orders, Ld. District Forum directed the OP (Appellant herein) to pay to the Complainant (respondent herein) an amount of Rs. 10,000/- towards compensation for 'deficiency in service'. An amount of Rs. 2000/- was awarded as costs.
2) Parties hereinafter shall be referred to by their status in the District Forum.
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3) Complainant Sh. Kapil Mitra participated in a business promotion scheme known as 'Mcdonald me khao her baar prize le jao'. Promotional scheme was given publicity through leaflets, newspapers, TV and Radio advertisements. Complainant visited one of the restaurants of the OP at UB 33-34 Jawahar Nagar Delhi. He placed two separate orders. He was given two coupons and one receipt. The said orders were for an amount of Rs. 81/-. On opening the coupons, the complainant found the following text in a designer pattern:
"Congratulations LUCKY! To get luck 1) Open the slot below 2) Get the sure shot prize 3) SMS the Sab Lucky Code to win exciting prizes! Sure-Shot Prize! * Fries=Small French Fries Limit one offer per coupon. Congratulations! Exchange this coupon for FREE * FRENCH FRIES on your next purchase of above Rs. 20 at Mcdonald's (before 30 th Sept. 2005). You stand to win Panasonic Mobiles Phones every hour, iPods every day and a Chevrolet Optra as Bumper Prize. Retain this coupon to claim your prize. SL 3418668. SMS the code to 8888 and you stand to win Sab Lucky Bumper Jackpot, daily and hourly prizes. (c) 2005 Mcdonald's Corporation. *Fries=Small French Fries Limit one offer per coupon. Terms and conditions apply. Refer to restaurant's notice board for details".
4) On the other side of the coupon, the following text was printed with pictures of Optra, iPod and Mobile Phone:
"JACKPOT Chevrolet Optra, EVERYDAY Apple iPod, EVERY HOUR Panasonic Mobile Phone".2
5) Complainant inspected the premises of the OP but failed to find any terms and conditions or any notice board. He rather found a leaflet with another scheme called, 'Mcdonald's Ghar Bulao Sab Lucky Ban Jao'. Complainant met the Manager of the OP and discussed the details of the scheme. On the advice of the Manager, the complainant sent two SMSes on No. 8888. Rs. 3/- each were charged for sending these SMSes. Grievance of the complainant was that he neither received any prize nor any information from the OP. Contention of the complainant is that the entire process of participation and declaration of results was done in a clandestinemanner. Participants were under obligation to make further purchases of minimum Rs. 20/- for getting sure shot prize of free french fries. On the basis of the aforesaid averments, the complainant sought a declaration that the OP was deficient in service and indulged inunfair trade practice. The directions were also sought for disclosing the details of participation process and results. Complainant also sought for the refund of his money and the money spent by the participants in sending SMSes. A prayer for punitive damages under section 14(1)(hb) of the Consumer Protection Act 1986 was also made.
6) OP submitted that the scheme in question was launched from 18.08.2005 to 16.09.2005. OP submitted that the slogans, a) Mcdonald's me khao her bar prize le jao. b) Mcdonald's ghar bulao sab lucky ban jao, pertained to one and the same scheme. 3
7) Next submission of the OP is that the terms and conditions of the scheme were put up on the notice board of each and every restaurant of the OP. In the category of offer, a customer was entitled to either small french fries or small coke and softy served with toppings at the time of next purchase worth Rs. 20/- atleast. The category of lucky draw prizes comprised of panasonic mobile phone, Apple iPod and Chevrolet Optra Car which was a jackpot prize. Winners were randomly chosenfrom amongst the participants through a lucky draw generated by the server. Participants were required to SMS the lucky code printed on the coupon. Winners were intimated of the prizes won by them through SMS by indiatime.com. OP denied having made any profit out of sending of SMSes. Complainant did not win any prize. He was entitled to only a sure voucher which could be redeemed on subsequent purchase of atleast Rs. 20/-. The slogan 'Mcdonald's Me Khao Her Bar Prize Le Jao' was made for customers dining at the restaurant. For a customer availing home delivery, the slogan 'Mcdonald's Ghar Bulao Sab Lucky Ban Jao' was relevant.
8) Ld. District Forum observed that the offer of small French fries or small coke or one small softy served with toppings at the time of next purchase (worth atleast Rs. 20/-) could not be stated to be strictly a 'prize'. It was only a 'concession' as it offered goods at subsidized rate. Offer of mobile phone, iPod or Chevrolet Car were 'prizes'. Ld. District Forum opined that mobile phone, iPod or 4 Chevrolet Car were in the form of 'prizes'. Ld. District Forum also observed that the OP failed to prove that the terms and conditions were put up on the notice board or the complainant was apprised of them. Ld. District Forum also observed that the results of the lucky draw were not made public. Ld. District Forum also observed that the complainant failed to show if the OP hadany share in the proceeds of SMSes. It was on the basis of these reasons that the Ld. District Forum passed the orders which are impugned before this Commission.
9) Present appeal has been filed on the grounds inter alia that the complainant had participated in the scheme after discussing the same with the Manager of the OP. He participated in lucky prizes by sending SMSes. Next submission of the OP/appellant is that the results of the scheme were displayed on the notice board at its each and every restaurant. Customers were required to seethe notice board to know more details. On the purchase of the coupon, a customer had a constructive notice that he had read and understood the terms and conditions. Appellant/OP submitted that the results were communicated through SMSes to the winners. There was thus no 'deficiency in service'. Offer of french fries, was also a prizeeven if it had given a minimum benefit to the winner. Names of the winner used to be displayed at the restaurant everyday.
10) In reply to the appeal, complainant reiterated his averments made in the complaint. Complainant submitted that the amount of 5 compensation awarded was meagre whereas the gains of the OP were in crores. OP had the audacity to launch the same scheme again in December 2012. No penalty was imposed on the OP by the Ld. District Forum.
11) I have heard the arguments addressed by the counsel for the OP and the complainant who argued in person.
12) Nothing has been placed on record by the OP to show that in each and every restaurant of it, it had a notice board and the terms and conditions were displayed thereon. For getting a lucky prize by the customers ordering food at their residence, it is not clear as to how they could see the terms and conditions which were allegedly put up on the notice board. Section 2(3)(3A) of the Consumer Protection Act provides that the final results of the scheme are required to be published in the same newspaper in which the scheme was originally advertised. The relevant portion is reproduced below:
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[(3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme.
Explanation. For the purposes of this sub- clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time published, prominently in the same newspapers in which the scheme was originally advertised;] 6
13) Admittedly the final results of the scheme in question were not published in any newspaper though it is admitted that the scheme itself was published in the newspaper. Clearly, the OP is guilty of 'deficiency in service'.
14) OP has admitted that more than 4 lacs customers had participated in the scheme (para 9 of the affidavit). It goes to show that a huge amount of profit was earned by the OP by way of promoting sales.
15) During the course of arguments, complainant submitted that the rate of sending SMSes in the scheme was much higher than the prevailing rates of the sending routine SMSes. Plea has not been refuted by the OP. It is a matter of common knowledge that a company organising such contests earns huge profits out of SMSes.
Higher rates of SMSes give a direct or indirect profit to the Company promoting sales. Grievance of the complainant on that count,therefore, is not misplaced. OP in the present case admittedly has got business from more than 4 lacs customers.There has been no transparency in declaring the results of the genuine winners. Not only the complainant but the public at large has been duped by holding that the contest in a clandestine manner. I,therefore, modify the impugned orders as under:
a) OP/appellant is directed to pay to the complainant compensation to the tune of Rs. 2 lacs for deficiency in service within a period of 7 sixty days from today failing which it shall carry interest @ 9% p.a. till the date of its realisation.
b) OP/appellant is directed to deposit an amount of Rs. 10 lacs in Consumer Welfare Fund of the State maintained by this Commission in terms of Section 14(1)(hb) for the injury suffered by those consumers who are not identifiable conveniently. In the event of failure to deposit the said amount within the stipulated period, it will carry interest @ 9% p.a. till the date of its realisation.
16) Appeal is accordingly disposed of. 17) Copy of the orders be made available to the parties free of costs
as per rules and thereafter the file be consigned to Records.
18) FDR, if any, deposited by the appellant be released as per rules.
(N P KAUSHIK) MEMBER (JUDICIAL)
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