State Consumer Disputes Redressal Commission
Vijay P. Ahire vs Living Media India Ltd. on 29 July, 2022
FA - 319/2019 VIJAY P. AHIRE V. LIVING MEDIA INDIA LTD. D.O.D.: 29.07.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 20.05.2019
Date of hearing: 05.07.2022
Date of Decision: 29.07.2022
FIRSTAPPEAL NO.319/2019
IN THE MATTER OF
VIJAY P. AHIRE,
R/O 10, KOYANA
NEW TIFR STAFF QUARTERS, SION,
TROMBAY ROAD, MANDALA MANKHURD,
MUMBAI- 400088.
(Through: Rajesh K. Pandit & Co.)
...APPELLANT
VERSUS
LIVING MEDIA INDIA LTD.
OFFICE AT: B-47, INDIRA ENCLAVE,
NEB SARAI, NEW DELHI -110068.
ALSO AT:
1-A, HAMILTON HOUSE,
CONNAUGHT PLACE,
NEW DELHI -110001.
ALSO AT:
9, K-BLOCK,
CONNAUGHT PLACE,
NEW DELHI -110001
ALSO AT:
BLOCK A-1, INDIRA ENCLAVE,
SAINIK FARM, NEW DELHI -110068.
(Through: Mr. Shahrukh Ejaz, Advocate)
...RESPONDENT
DISMISSED PAGE 1 OF 11
FA - 319/2019 VIJAY P. AHIRE V. LIVING MEDIA INDIA LTD. D.O.D.: 29.07.2022
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the Parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"The complainant, Vijay Ahire was enticed and offered cash and other prizes on the purchase of products sold by Living Media India Ltd. hereinafter referred to as OP. The complainant believing the offers made by the OP's representative to be genuine fell prey and accepted the membership of India Today Book Club (ITBC).
It is averred that in the first week of March, 2010 complainant on the assurance of OP's representative that on the purchase of mobile phone costing Rs.13,998/-, he would get a reward of Rs.10,000/-. The complainant agreed to purchase the same and made payment through his ICICI Bank credit card and was provided the booking ID. On asking, the complainant was informed that he would receive a call confirming the prize amount but then the complainant received a call confirming that he was rewarded sum of Rs.10,000/-. The complainant asked how the payment would be made, OP's representative said that the same would be informed later.
It is further averred that at regular intervals on OP's provocation the complainant purchased several products such as Samsung Mobile Phones, Blackberry Mobile Phones, Whirlpool Water Purifiers, Whirlpool Microwave Oven, Aptech and Samsung Camera Recorder, Philips Home Theater and Microsoft Gaming Console etc. amounting to Rs.2,10,153/- from 4th March till 13th June, 2010 from OP.
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It is next averred that the complainant was informed by OP's representative that various prizes would be given in the form of cash and after purchase of products worth Rs.2,10,153/- the cash rewards would total upto Rs.10,21,000/-. Further to the surprise of the complainant all the said orders were accompanied with Reebok free gifts. It is next alleged that besides not receiving the cash prizes all the products that the complainant received were alongwith the invoice cum delivery note but most of them did not have any octroi slip which shows that OP have not paid any Maharashtra octroi duty on those products. It was also discovered by the complainant that the products in question were without any warranty/guarantee, as all the warranty cards were unstamped. It is next alleged that both the Blackberry handsets delivered to the complainant had AT & T tag i.e. the set could not be sold in India legally but only in USA but the OP had got it unlocked and was trying to sell locally in India illegally. The box also seemed to be tampered with, as to its price. Further the complainant was doubtful about the prices of few products and the false representation made by the OP that the Samsung and Aptech cameracoder were of 12 & 10 megapixel respectively but on receiving it was found that they were 1.9 MP and SVGA camera respectively.
It is next averred that on asking of the OP's representative to pay the taxes amounting to Rs.34,978/- in two installments, the complainant would get details of the cheque amounting to Rs.10,21,000/-. The complainant paid the so-called tax amount but he received two Microsoft X-Box 360 Arcade Gaming console products worth Rs.17,489/- each. It is alleged that lot of false promises and misrepresentations were made by the OP but on 21.06.2011 the complainant was shocked to receive an email from the OP stating that he was not entitled to any cash prize.
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Later on 05.10.10 the complainant was again offered a gold box cash worth Rs.1,10,000/- and was confirmed that if he pays Rs.29,992/- in two installments the complainant will get confirmed Rs.1,10,000/- in his bank account directly within two hours. The complainant states that he was in urgent need of money to pay up the loans and agreed to give another try and paid Rs14,996/- in two installments on 5th October. After waiting and not receiving any cash prize the complainant threatened OP and the amount paid was refunded. On a similar occasion the complainant in December, 2010 had told OP to return the products as there was mis-commitment on behalf of the OP. In return the OP compensated the complainant by giving him Samsung 22" LCD television worth Rs.18,000/-. It is further averred that all the products sold to the complainant by the OP were as a result of fraud and unfair trade practices and finally on realizing that he was not going to receive any prize money in cash or otherwise the complainant had to sell off most of the products for less than 50% of the purchase price to the friends and relatives. It is next averred that he was forced to take up the loan from his Provident Fund and Employees Society to pay up credit card bills. The complainant took a loan of Rs.1,59,233/- from Tata Institute of Fundamental Research Institutes Employees Credit Society and Rs.72,000/- from Provident Fund loan annexed as Annexure -
10. Alleging that the OP who is a leading Media House in India has been indulging in unfair trade practice and is also liable for deficiency in service. The complainant seeks directions to the OP to give him the cash price of Rs.10.21 lakhs alongwith interest, Rs.9.5 lakhs by way of compensation for cheating, harassment and Rs.25,000/- as litigation costs."
2. The District Commission after taking into consideration the material available on record passed the order dated 16.04.2019, whereby it held as under:
"Going through the pleadings it is observed that no prudent person would purchase 2-3 mobile phones or 2 washing DISMISSED PAGE 4 OF 11 FA - 319/2019 VIJAY P. AHIRE V. LIVING MEDIA INDIA LTD. D.O.D.: 29.07.2022 machines or 2 water purifiers or 2 home theaters for himself and later on sell the same products to his friends and relatives at half the price just to pay up the credit card bills. Therefore since the complainant purchased the goods from the OP and sold them further the complainant ceases to be a 'consumer' as per the Consumer Protection Act, 1986. However, the complaint being very old we would decide it on merits as well.
It is noticed that the complainant purchased products through ITBC from 04.03.10 and continued to purchase till 13.06.10 under the presumption that he will get a cash prizes in return. No documentary evidence is placed on record which proves the averment that the complainant was promised cash prizes by OP. We have heard the C.D. and gone through the transcript provided by the complainant but did not find any credible evidence regarding the same. Further admittedly all the said products/ orders were accompanied with Reebok free gifts which were accepted by the complainant without any complaint or objection. We wonder that despite receiving the free gifts the complainant still expected that a cash reward upto Rs.10,21,000/- and voucher worth of Rs.70,000/- will be provided to him on the purchase of products of Rs.2,10,153/-?
It is not just hard to believe but very difficult to conceive that somebody who seems to be well informed and educated can be that naive to think that on purchasing of the products worth Rs.2,10,153/- he would receive the cash prize of five times the amount paid for the products. Further the allegations as regards octroi and other taxes the complainant had no reason to be concerned with these aspects lest he was interested in the re-sale of those products/any form of commercial dealing of the goods purchased.
We further wonder as to why someone who was doubting the credibility of OP, genuineness of the products sold by OP, products without guarantee/warranty would again burn his fingers and purchase products from OP after a gap of 4-5 DISMISSED PAGE 5 OF 11 FA - 319/2019 VIJAY P. AHIRE V. LIVING MEDIA INDIA LTD. D.O.D.: 29.07.2022 months. The complainant had realized in the month of June that the OP was misrepresenting and making false promises. Despite having that knowledge he still went ahead and purchased products in October. Further an application for medium term loan annexed as A-103 with the evidence shows that the complainant has made false averment regarding the medium term loan taken by him from TIFR Employees Co- operative Society Ltd. which was specifically taken for his parents house repairing work and not to pay the credit card bills as averred.
In view of the above discussion, the complaint is dismissed being false and misconceived with no order as to costs."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant/Complainant has filed the present appeal contending that District Commission, inter-alia, failed to appreciate that the Appellant does fall under definition of 'Consumer'. Further, Appellant contended that the District Commission failed to consider the documents produced before them. Pressing the aforesaid contentions, the Appellant prayed for setting aside the order of the District Commission.
4. The Respondent, on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was properly scrutinized before passing the said order.
5. We have perused the Appeal, Reply of the Respondent and Impugned Order.
6. The First question for consideration before us is whether Appellant falls under the definition of Consumer as defined under the Consumer Protection Act, 1986.
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7. To answer this issue, we deem it appropriate to refer Section 2(1)(d) of the Consumer Protection Act, 1986, which defines 'consumer' as follows:
"2 (d) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; but does not include a person who avails of such services of any commercial purpose;
Explanation. -For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
8. A perusal of the above statutory provision specifically reflects that any person, who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, is a consumer.
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9. Further, it is well settled law that it is upon the Opposite Party/ Respondent to prove that the items purchased by the Appellant were for commercial purpose, by way of some documentary proof. Mere bald statement is not sufficient to raise adverse inference against the Appellant.
10. In the present case, the Respondent has merely made a statement that the Appellant has purchased the products for resale. However, on perusal of the record, we fail to find any material which shows that the Appellant is engaged in the business of purchasing and selling products on a regular basis, solely with a view to make profit.
11. In view of the above, the Appellant squarely falls within the category of 'consumer' provided under Section 2(1)(d) of the Consumer Protection Act, 1986. However, the Ld. District Commission has rendered finding that Appellant ceases to be a 'consumer' and the finding of the Ld. District Commission needs to be modified and the same is done accordingly.
12. The next issue which arises for adjudication is whether the Respondent is deficient in providing its services to the Appellant and is guilty of unfair trade practice.
13. To deal with this issue, we deem it appropriate to refer to Section 2(1)(r) of the Consumer Protection Act, 1986, which defines 'unfair trade practice' as follows:
2(1)(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;--
(1) the practice of making any statement, whether orally or in writing or by visible representation which,--
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FA - 319/2019 VIJAY P. AHIRE V. LIVING MEDIA INDIA LTD. D.O.D.: 29.07.2022
(i) falsely represents that the goods are of a particular
standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii)falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
(iv)represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a spon-
sorship or approval or affiliation which such seller or supplier does not have;
(vi)makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(vii)gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof; ............
.............
(3) permits--
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
(Emphasis supplied)
14. In the instant case, the allegation of Appellant is that the Respondent provoked him to purchase products with an offer of cash prize/free gift in return and in pursuance thereof, Appellant purchased several DISMISSED PAGE 9 OF 11 FA - 319/2019 VIJAY P. AHIRE V. LIVING MEDIA INDIA LTD. D.O.D.: 29.07.2022 items from the Respondent and for that purpose, Appellant also availed loan facility from his employer. However, Respondent failed to provide any cash prize/free gifts to him.
15. We have perused the invoices, filed on record by the Appellant, which clearly show that the Appellant has received free product with every purchase, that has been accepted by the Appellant without raising any objection. The invoices further provide as under:
"Claim your free gift by logging on to www.bookstoday.in/promos.htrh within 60 days of the invoice date. You will need your invoice for the same. For Further assistance calls at 011-40502424 or email us at [email protected]"
16. A perusal of the invoices shows that in every invoice, the Appellant has been provided with a unique number to claim the special offer. The email communication between the parties, do not show any confirmation with regard to cash prize of Rs. 10.21 Lakh by the Respondent. On the contrary, an email dated 21.06.2010 is on record, which reads as under:
"With reference to your mail we would like to inform you there is no such confirmation you won this cash prize. It's a lucky draw contest in the name of sweep stakes. If you become the lucky winner you may win the same."
17. Further, Appellant has totally failed to discharge the onus by any cogent believable evidence to establish that there was any assurance by the Respondent with regard to cash prize that too five times more than the amount spent by the Appellant in purchasing the items from the Respondent.
18. In our view, the District Commission has rightly observed that no prudent person would purchase the products worth Rs.2,10,153/- so that he could receive the cash prize of five times the amount paid for the products and on the other hand the Appellant was doubting the DISMISSED PAGE 10 OF 11 FA - 319/2019 VIJAY P. AHIRE V. LIVING MEDIA INDIA LTD. D.O.D.: 29.07.2022 credibility and genuineness of the products sold by Respondent, even then he continued to purchase the products from the Respondent in lieu of the free gifts which were duly claimed and accepted by the Appellant.
19. In view of the foregoing, the judgment dated 16.04.2019 passed by the District Consumer Disputes Redressal Forum-II is partly upheld and modified to the extent that Appellant is a Consumer as defined under Consumer Protection Act, 1986.
20. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
21. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
22. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
29.07.2022 DISMISSED PAGE 11 OF 11