State Consumer Disputes Redressal Commission
Ramjan Mohammad vs M/S Best Of Luck Enterprises on 29 January, 2020
1st Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.08 of 2018
Date of Institution : 05.01.2018
Date of Decision : 29.01.2020
Ramjan Mohemmad s/o Sh. Mohd. Sadiq, r/o Ward No.3,
Amloh, Tehsil Amloh, District Fatehgarh Sahib.
.....Appellant/complainant
Versus
1. M/s Best of Luck Enterprises, Post Office Road, Opp.
Corporation Bank, Near Maghi College, Amloh District
Fatehgarh Sahib, through its owner/incharge Niazi Khan.
2. Niazi Khan S/o Mohd. Suleman, owner/incharge of M/s
Best of Luck Enterprises, Post Office Road, Opp.
Corporation Bank, Near Maghi College, Amloh District
Fatehgarh Sahib.
Residential Address:
Niazi Khan S/o Mohd. Suleman, r/o Village Sounti, Tehsil
Amloh, District Fatehgarh Sahib.
.....Respondents/opposite parties
First Appeal against order dated
17.11.2017 passed by the District
Consumer Disputes Redressal
Forum, Fatehgarh Sahib.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Ms. Kiran Sibal, Member Present:-
For the appellant : None For the respondents : None ............................................ Kiran Sibal, Member:
This appeal has been preferred by the appellant against the order dated 17.11.2017 passed by District Consumer Disputes Redressal Forum, Fatehgarh Sahib (in First Appeal no.08 of 2018 2 short, "the District Forum"), whereby the complaint filed by complainant/respondent, under Section 12 of the Consumer Protection Act, 1986, was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. Brief facts, as averred in the complaint are that complainant was the member of scheme floated by the OPs in the year 2015. He paid 12 instalments of Rs.800/- each to OPs as per the said scheme in cash. As per the terms and condition no.13 of the said scheme, a member who failed to be a lucky winner of either monthly draw or final draw was to be paid Rs.12,000/- in cash. At the end of said scheme, in February 2016, a group draw was held and he remained unsuccessful in the same. As such he was entitled for Rs.12,000/- in cash from the OPs as per the said term and condition of the scheme, but the OPs failed to make the said payment to him till date. He alleged deficiency in service and unfair trade practice on their part. He also served a legal notice upon OPs, but to no effect. The complainant prayed that OPs be directed to pay Rs.12,000/- along with interest, Rs.12,000/- as compensation for pain and sufferings by the complainant and Rs.15,000/- as costs.
First Appeal no.08 of 2018 3Defence of the Opposite Parties
4. Upon notice, OPs filed joint written reply raising preliminary objections that complaint is not maintainable in its present form. The complainant has suppressed true and material facts from this Forum and he himself violated the terms and conditions of the said scheme. OPs stated that he paid all the instalments of the scheme and got 12 prize i.e. Diwan Bed with Foam, as mentioned at registration No.449 of the entry register. But the complainant did not collect his prize despite repeated requests from the OPs. The complainant demanded Rs.12,000/- in cash from the OPs in lieu of the prize won by him. The OPs were ready to hand over the prize won by him, which has been lying with the OPs. OPs controverted the other averments of complainant and denied any deficiency in service and unfair trade practice on their part. OPs prayed for dismissal of the complaint.
Evidence of the parties and finding of the District Forum
5. The complainant tendered in evidence copy of legal notice Ex. C-1, postal receipts Ex. C-2 & C-3, payment receipts Ex.C-4 to C-15, copy of terms and conditions of the scheme Ex.C-16 and his affidavit Ex.C-17.
6. On the other hand, OPs tendered in evidence affidavit of Niaji Khan Ex.OP-1, true copies of terms and conditions Ex.OP-2, copy of entry register Ex.OP-3, copy of First Appeal no.08 of 2018 4 winning entry register Ex.OP-4 and copy of prize photo Ex.OP-5.
7. The District Forum, after going through the record and hearing learned counsel on their behalf, dismissed the complaint, vide impugned order. Hence, this appeal. Consideration
8. No one has appeared for the parties on the last two dates of hearing for arguments for this appeal. Today again, none has appeared on behalf of both the parties, at the time of arguments. However, we have carefully gone through the record of the case. In the grounds of appeal, the appellant has taken the stand that order of the District Forum is based on surmises and conjectures and is not the speaking order and the same is liable to be set aside. The respondents/OPs stated that the member of the scheme can get the item in draw and in case, no draw comes to a member, he would be paid Rs.12,000/- in cash, as per condition no.13 of the scheme. The complainant deposited the instalments under the said scheme, as fully detailed in the complaint, but the District Forum has not appreciated these facts and dismissed the complaint only on the point that the appellant/complainant did not collect his prize despite repeated requests of OPs. It is the specific plea of the complainant that if no draw came to him, he was to get an amount in cash, which was denied by OPs. He further took stand that the District Forum has wrongly come to the First Appeal no.08 of 2018 5 conclusion that at registration no.449 of the alleged entry register, a draw of 'diwan bed' came to the appellant, but the District Forum has failed to take the note of the fact that the said entry has not been signed by the appellant or any other member present. Moreover the register is not authenticated from any authority, as such he can forge the same at any time and get the signatures of the members, favouring him, who had earlier got their items of draw.
9. The main grievance of complainant in this case is that he was entitled to Rs.12,000/- in cash, as per term no.13 of above said scheme, as he remained unsuccessful in the lucky draw since the inception of the scheme till the end and District Forum has ignored this point while dismissing his complaint. We have perused the record and order of the District Forum. In para no.7 of the impugned order, the District Forum has held as under:-
"7. We have gone through the record thoroughly and heard the learned counsel for the parties. It is an admitted case that under clause 13 of the terms and conditions of the scheme (Ex.C-16), a person who does not win any monthly draw or final draw shall be entitled to Rs.12,000/-, whereas in the present case it is established from entry register at Sr.No.499 (Ex.OP-3) and prize winners entries (Ex.OP-4) that complainant had won Diwan Bed with foam but he did not come forward to collect the same. The complainant has First Appeal no.08 of 2018 6 failed to place on record any cogent evidence in support of his pleadings."
The plea of OPs before the District Forum was to the effect that complainant was allotted registration no.499 in the winning prize details and as per the terms and conditions of the scheme, any person, who failed to get any prize till end, he would be awarded Rs.12,000/-. From perusal of Ex.OP-5, it is established that there were total 2396 prizes in the scheme i.e. "One Alto- 800 (base model), One Alto-Astar (base model), 501 box bed (without form), 101 rani haar (silver), 790 simple double bed (without form), 501 diwan bed with form and 501 sofa set." Although, the OPs have not placed on record, the list of total members, but from perusal of Ex.OP-4, it reveals the counting upto 814 members. The complainant/appellant remained unsuccessful in 12 lucky draw schemes held by OPs and in the last complainant got 12th prize (Diwan Bed with foam) alongwith many other members who also got 12th prize in above scheme. As per above discussion, it is presumed that quantity of prizes were more than the members, who joined the scheme, as such the remaining prizes were distributed by the OPs to the unsuccessful members as 12th prize at the end of the above Scheme, who were part of the scheme. The appellant/complainant neither produced on record any evidence that the number of members of the scheme were more than the prizes, as displayed by the OPs in prize list Ex.OP-5 nor he had First Appeal no.08 of 2018 7 filed any affidavit of any other member to this effect that OPs wrongly distributed the 12th prize to complainant and other members. This is not the case of complainant that OPs had given cash prizes to other members, except complainant. This is also not the case of complainant that OPs misguided him and did not show any list of prizes. The onus is on the appellant/complainant to prove that the members were more than the quantity of prizes and as such he was entitled to cash prize of Rs.12,000/- in the last, but he failed to produce on record any such evidence, as discussed.
10. As a result of our above discussion, we are in agreement with the findings of the District Forum and we find no flaw in the order of the District Forum. There is no merit in the appeal of the appellant and the same is hereby dismissed and uphold the order of the District Forum. The appellant/complainant is at liberty to collect his prize from OPs.
11. The appeal could not be decided due to heavy pendency of work and less staff.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER January 29, 2020.
MM