State Consumer Disputes Redressal Commission
Jayaram Soni vs Play Games 24 X 7 on 29 July, 2022
Cause Title/Judgement-Entry IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION ODISHA, CUTTACK First Appeal No. A/420/2017 ( Date of Filing : 21 Aug 2017 ) (Arisen out of Order Dated 25/07/2017 in Case No. Complaint Case No. CC/63/2016 of District Dhenkanal) 1. Jayaram Soni S/o- Late Shri Jaychand Soni, Shri Ram Mandap Lane, Dhakhinakali Road, Dhenkanal. ...........Appellant(s) Versus 1. Play Games 24 x 7 Through its Director/CEO Trivikraman Thampy, 4th Floor, Indiqube, alpha Building, 19/4 & 27, Junction Village, Varthut Hobli Outer Ring Road, Kadu Be Sahalli, Panathur, Bengaluru, Karnataka -560103 2. Play Games 24 X 7 Private Limited. Office at 301, 3rd Floor, Palm Spring , Malad Link Road, Malad, West-599, Maharastra. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE Dr. D.P. Choudhury PRESIDENT HON'BLE MR. Pramode Kumar Prusty. MEMBER HON'BLE MS. Sudihralaxmi Pattnaik MEMBER PRESENT: M/s. R.K. Pattnaik & Assoc., Advocate for the Appellant 1 M/s. S. Swain & Assoc., Advocate for the Respondent 1 M/s. S. Kar & Assoc., Advocate for the Respondent 1 Dated : 29 Jul 2022 Final Order / Judgement
Heard the learned counsel for both the parties.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The unfolded story of the complainant is that the OP had opened a website regarding sale of game on internet and the complainant after going through the advertisement became desirous to participate with the game. It is alleged inter-alia that on 14.08.2015 the complainant purchased Chips (virtual goods) for Rs.1500/- by transferring from his credit card through Google Play store and received the receipt in his mail I.D. It is alleged that the purpose of game is to win games to create/gain chips (virtual goods points ) by purchasing the chips for consideration and by getting bonus etc.
4. It is alleged by complainant that there is physical money transaction in this game or any illegality in this. It is just like other internet games for entertainment and subscribed by paying money . It is alleged by the complainant that the complainant has created new IDs in the name of his family member's relatives and friends by purchasing Google Play Store.
5. It is alleged that the OP made an opportunity to the complainant to make him a V.I.P. customer if he invest more and brings new members to the OP-Company and he will get huge bonus by way of chips. It is alleged that the complainant all total invested Rs.7,62,000/- through credit card and spent nearly Rs.50,000/- in internet and mobile bills in these ten months. It is alleged that on 17.06.2016 the complainant was in possession of nearly 50,00,000 crores of chips in his own ID and IDs created by him in the name of his family members and in the name of his friends and relatives out of which 20.77 laks crores of chips were in his personal IDs created by the complainant and rest were in the IDs of friends and relatives. It is also alleged that all the chips were gained by winning games, purchasing and availing free bonus rewards.
6. It is further alleged that the complainant came to know at 11.00 PM on 17.06.2016 that chips of sum 49.7 lacs crores were removed by the OP Company from his IDs and the IDs of his friends and relatives unauthorisedly and unlawfully without assigning or intimating the petitioner. The OP had removed chips like 8 to 10 times and after protest and lodging complaint the OP-Company has to rectify their mistakes by referring the chips. The complainant complained to the OP about the removal of chips and expected the restoration of the same but the OP did not respond to the complaint. The complainant having aggrieved had made correspondence but OP sent message through e.mail on 11.7.2016 that the complainant had fraudulently used the game without the knowledge for which it was removed. The complainant having sustained financial loss suffered from mental agony. Since, the OP violated the terms and conditions, the complainant filed the complaint for deficiency in service and adoption of unfair trade practice on the part of the OP.
7. The OP filed written version stating that the complaint is not maintainable U/S-11(2) of the Act. There is no cause of action in the district of Dhenkanal and the OP has no branch office within the territorial jurisdiction of learned District Forum,Dhenkanal. It is also stated by the OP that the intention of the complainant is to do business and accordingly he has invested the money and purchased the chips for their friends and relatives. Therefore, the complainant had purchased the game for commercial purpose and as such it is not covered under the provision of the Act. Further the OP has the plea that the complainant has created about 70 IDs and the complainant has not disclosed the names and addresses of all the 70 relatives and friends in whose names he has created the IDs. The complainant is involved in Benami purchases in the name of several persons. Not only this but also the complainant admitted to have purchased the chips for commercial purpose for which he is not entitled entitled to any relief under the Act. The complainant has not come with clean hand because complainant purchased some chips of Rs.7,52,000/- through credit card and spent nearly Rs.50,000/- in internet and mobile bills which are removed by best efforts made by the Ops. Since, the complainant was involved with fraud business and suppression of material facts, the appellant prays for dismissal of the complaint.
8. After hearing both the parties, learned District Forum passed the following order:-
" The consumer complaint filed by the complainant stands dismissed being not maintainable without cost with a liberty to the complainant to approach appropriate Forum for Redressal of his grievance, if he so desire."
9. Learned counsel for the appellant submitted that learned District Forum committed error in law by not going through the complaint and evidence affidavit filed by the complainant. Learned District Forum, without addressing the problem of the complainant has dismissed the complaint. It is clearly mentioned in the complaint that the complainant has started purchase of the chips from the OP for entertainment and the complainant has actually purchased the chips on payment of consideration. No evidence has been discussed by the learned District Forum to come to a conclusion that the complainant is involved with commercial transaction. Unless there is discussion of facts how it would be commercial. The conclusion arrived by learned District Forum is very wrong and illegal.
10. Learned counsel for appellant further urged that learned District Forum has not applied judicial mind to the provisions of law but simply dismissed the complaint by observing that the detail evidence is required to dispose of the matter. According to him, the written version of the OP is clear to show that the complainant has not used the chips for commercial purpose. But all the facts and law have been overlooked by the learned District Forum and passed the order on the ground that issue involved requires detailed evidence to be led. He submitted that the appeal should be allowed and remanded to the learned District Commission to dispose of the matter.
11. Learned counsel for the respondent submitted that the transfer of chips to different relatives by complainants are nothing but engaged himself in commercial business. Therefore, the complainant has purchased the chips for commercial purpose and same finding have been done by the learned District Forum rightly. He further submitted that the observations of the learned District Forum in last part of the order that the matter is complicated involving fact and law and required to answer them by discussing in detail which is not possible before the Consumer Court because it should be decided in the Civil Court. In support of his submission,he cited the decision of Hon'ble Supreme Court of India in 2004(13) 656 Trai Foods Ltd.-Vrs- National Insurance Co. and another and in 2006 (7) SCC 655 Oriental Insurnce Co.Ltd.-Vrs- Munimahesh Patel.
12. Considered the submission of respective counsels, perused the DFR and impugned order.
13. It is admitted fact that the complainant has purchased the virtual chips on internet from the OP on payment of Rs.1500/- through credit card and he further transferred same by using his credit card and Google Play store and received the receipt in his mail I.D. It is not in dispute that the complainant has also played games for the relatives, friends etc. by investing more money. The OP had supplied the chips from time to time. It is the sole contention of the OP that the complainant is engaged in business or purchased the chips for commercial purpose. Learned District Forum has also observed in their impugned order that the very purpose of the complainant is commercial one. But at the same time they have observed in the last part of the order in the following manner:-
" On the above rival contentions of the respective parties as discussed above and after going through the documents in volume available on record we further find that the case at hands involves complicated facts and laws for which elaborate evidence is required to come to a conclusion which is not permissible under the Consumer Protection Act which is very summary in nature. Therefore, we are of the view that the case at hand is not maintainable before this Forum in view of the above discussions. Accordingly, this issue is answered in negative and against the complainant."
14. The above observations of the learned District Forum create doubt in mind how the complainant engaged in commercial purpose when the learned District Forum had got a limited jurisdiction to decide same because the procedure adopted by the learned District Forum is in summary nature as per its own observation.
15. Apart from this learned District Forum has not discussed any evidence on record although there is evidence affidavit filed by both the parties to decide the issue.
16. Hon'ble Supreme Court in the decision reported in Oriental Insurance Co.Ltd (Supra) held that when Consumer Fora is created for speed remedy and as such the procedure is summary in nature for the disposal of the case. In Trai Food Ltd.(Supra) Hon'ble Apex Court took same view but further held in para-6 that the only question to be decided is, when should this jurisdiction be exercised by the Commission. In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted both in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter ought to be decided by the civil courts in the regular course. In this context with due regard to the decision, we are of the conscious view that the learned District Forum committed error to send the dispute outside Consumer Fora without discussing any material available on record. Learned District Forum has not given any cogent finding in this regard.
17. Moreover, Section-13(2)(b)(i) of Act is clear to show that learned District Forum has to evaluate the evidence filed by both the parties into consideration upon which the finding will be rendered by the learned District Forum. When the word evidence is used by statue, it must be remembered that learned District Forum has frame issues framed to be answered basing on the evidence led by both the parties. It is true that the intricacies of Indian Evidence Act will not be used in detail but the principle of evidence would be used to decide issue between the parties. Learned District Forum has fraud issues but never answered one by one but left the matter to be decided by Civil Court. Therefore we do not agree to the manner of the disposal of the case by learned District Forum.
18. In view of discussion, we hereby allow the appeal by remanding the matter to answer all the issues framed by discussing the evidence in detail led by both parties and further evidence if led by both the parties. Therefore, the appeal is allowed by remanding the matter to the learned District Commission with a direction to allow both the parties to produce evidence if any and to dispose of the matter in accordance with law basing on the materials placed before it within 45 days from the date of receipt of this order. Both parties are directed to appear before the learned District Commission on 23.08.2022 to take further instruction.
Appeal is disposed of accordingly. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith. [HON'BLE MR. JUSTICE Dr. D.P. Choudhury] PRESIDENT [HON'BLE MR. Pramode Kumar Prusty.] MEMBER [HON'BLE MS. Sudihralaxmi Pattnaik] MEMBER