State Consumer Disputes Redressal Commission
Zed Ahmed vs Coca Cola India on 6 August, 2007
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 06.08.2007 Complaint No.C-168/2000 1. Shri Zed Ahmed, . . . Complainant National Enterprises, through Mr. R. Grover, 3605, Bara Hindu Rao, advocate. Delhi-1100 06. Versus 1. M/s Coca Cola India, . Opposite Party Post Box No.4396, Kalkaji, through Mr. R. Sudhinder New Delhi -110019. with R.S. Ahluwalia, Advocate 2nd address 2. M/s Coca Cola India, Enkey Towers, Udyog Vihar-V, Gurgaon - 122106 (Haryana) CORAM: Justice J.D. Kapoor, President Ms. Rumnita Mittal, . Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral) Through this complaint, allegations of unfair trade practice have been made against the OP in denying the prize under schemes floated for promotion of its business. The complainant has claimed compensation of Rs. 8,52,237/- plus 24% interest p.a. and Rs. 2,00,000/- as damages for mental agony.
2. Case of the complainant is that the OP launched a Prize Scheme in the name and style of Coca Cola Diwali Karishma Promotion in September, 1998. The above said scheme was related with crown metal caps of Coca Cola bottles having yellow band and under the scheme, the following prizes were offered:-
1) One Flat in Mumbai
2) 5 Honda City Cars
3) 100 Domestic air tickets
4) 200 Walkmans
5) 1500 Oxemberg Zeans
6) 500 Cameras
7) Coffeebite
3. The complainant under this Scheme had purchased Coca Cola bottle after paying the price of the same and had drawn Coca Cola crown having yellow band which has a visual of car printed in it. As per condition No.6 of the Scheme, the complainant was entitled to a Honda City Car of the value of Rs. 8,52,237/-. Winners were required to send the liner on or before October 28, 1998. The complainant sent the liner having visual of car printed in it by means of UPC dated 07.10.1998 and retained the metal cap with him.
4. The complainant contacted the OP several times personally at their company-office at Gurgaon and claimed the delivery of Honda City Car to which he was entitled as per the Scheme, but the complainant was not given any response. Hence, this complaint.
5. Conduct of the OP would clearly amount to unfair trade practice.
6. Refuting the allegations of unfair trade practice, the OP has raised the following objections:-
(i) The complainant is not a consumer as defined under Section 2(1)(d) of the C.P. Act vis--vis OP, as he has neither purchased any goods against consideration which were found to be defective nor had hired or availed any service of the OPs for consideration.
(ii) The Prize Scheme, which is subject matter of the present complaint, does not come under unfair trade practice, as held by the Honble MRTP Commission in the case of H.M.M. 1998 CPJ MRTP Commission that schemes of this nature do not come under Section 2 (1) (r) of the Consumer Protection Act and, therefore, such a scheme cannot be termed as unfair trade practice.
(iii) The OP launched Coca-Cola in returnable glass bottles with specially designed crowns having a yellow band on the outside of the crown. These crowns had a picture of an object, printed on the liner inside the crown.
(iv) Only entries received up to October 26, 1998 were eligible for award of prizes.
(v) The total number of prize Crowns for each prize printed on the crowns were many times larger than the Prizes offered. These Prize crowns were mixed by the Auditors, with the other crowns meant for the Bottler, so that even the Bottler had no way of identifying the Prize crowns.
(vi) The entries were opened and prizes given in accordance with the terms and conditions.
(vii) It is emphatically denied that the complainant under this Scheme had drawn Coca-Cola crown having yellow band which had a visual of car printed on the liner of the cap, in the first week of October, 1998. No Cash Memo has been produced by the complainant relating to sale and purchase of Coca-Cola bottle for a price. It is denied that the complainant mailed the printed liner on 7th October, 1998. It is stated that no liner/entry allegedly sent by the complainant on 7th October, 1998 Under Postal Certificate was received at the address being Post Box No. 4396, Kalkaji, New Delhi till 26.10.1998.
(viii) Since the alleged entry sent by the complainant was not received at all by the OP, there is no question of the complainant being entitled to participate in the said Scheme and/or prize of Honda City car.
(ix) 5 prizes of Honda City cars were awarded to the winner on first-come-first-served basis.
Following 5 persons were given Honda City Car, namely:-
1. Sh. Ajay Joshi, 28, South Patel Nagar, New Delhi-110008.
Entry No.158, Entry Date 05.10.1998.
2. Sh. Harish Chander Rohilla, 32, Kucha Sita Ram, Bara Bazaar, Bareilly.
Entry No.183, Entry Date 06.10.1998.
3. N. Pravallika, D/o M. Lakshmi Devi, DNo. 4-460-A, IV Road Anathpur( PO), Pin 515004, Entry Number 264 Entry Date 07.10.1998
4. Joginder Kaur Chawla, AC1/131 A, Shalimar Bagh, Delhi 110052.
Entry Number 288 Entry Date 07.10.1998.
5. Priya Kala, B Block, 4/402, Lok Milan Housing Complex, Chandiwale, Near Chandiwale Studio, Andheri(East), Mumbai.
Entry Number 308 Entry Date 08.10.1998
(x) In respect of the List of Winners published in the Times of India on 18.12.1998 which has been filed by the complainant with its present complaint as Annexure P-3 (colly), the said list set out the name of the winners who belonged to the State of Delhi, Haryana, J&K and Rajasthan only and not the name of all the winners under the said Scheme which spread all over the country. That since the said List filed by the complainant as Annexure P-3 (colly) covered the winners of only four States, namely, Delhi, Haryana, J&K and Rajasthan, the name of only two winners of Honda City Car (namely, Ajoy Joshi, New Delhi and Joginder Kaur Chawla, New Delhi) were mentioned therein. That there is no contradiction between the List of Winners filed by the OP with its reply as Annexure C, as it covered all the five winners of Honda City car prizes spread all over the country while the List of Winners filed by the complainant as Annexure P-3 (colly) covered the winners of only four States namely, Delhi, Haryana, J&K and Rajasthan.
7. While justifying the practice of offering prizes or other items for promoting sale of its goods, the learned counsel for OP has relied upon the following observations of MRTPC:-
MRTP Commission in the case of Devyani Beverages Ltd. Vs. Coca Cola India and Others has held that this does not amount to unfair trade practice:-
(i) It is difficult to agree with the submissions urged before us by learned counsel Shri Gopal Subramanium to the effect that the scheme in each case is a lottery or a game of chance within the meaning of Section 36A(3B)(b) of the MRTP Act in as much as it is launched for the obvious purpose of promoting the sale of the product in question. It cannot be gainsaid that the scheme in each case is a part of the sales promotion drive of the product in question by and on behalf of the contesting respondents.
That by itself would not amount to unfair trade practice unless it is tainted with a lottery or a game of chance or skill as envisaged by the aforesaid statutory provision.
(ii) As rightly submitted by learned counsel Sh. Ashok Desai for the contesting respondents, the case is concluded in favour of the contesting respondents by the binding ruling of the Supreme Court in the case of HMM Ltd. Vs. Director General reported in 1998 CTJ 249 (SC) (MRTP). In that case, the appellant had introduced the scheme styled as Hidden Wealth Prize Offer sometime in September, 1985. It was given wide publicity by means of newspaper advertisements. In that scheme, coupons were inserted in some bottles of Horlicks (a product of the appellant in that case) in various pack sizes. Some of these coupons indicated that the purchase of bottles in which they were placed would get prizes. The prizes offered were five Hotline Colour TVs, 10 gift vouchers of Rs. 2,000/- each for Hotline Appliances and 1400 prizes of Rs. 100/-, Rs. 50/- and Rs. 20/- each. The scheme was available only to buyers in the city of Delhi and they were required to claim their prizes by 15th January, 1986.
The Director General (Investigation & Registration) (the DG) approached the Commission by charging the appellant in that case with adoption of and/or indulgence in unfair trade practices within the meaning of Section 36A(3)(b) of the MRTP Act. The Commission gave a finding against the appellant in that case. Upturning that order of this Commission recording such finding, the Supreme Court in that context held as under:-
There is no material that indicates that there was a draw of lots or that a price was charged for participation in the draw. The fact that some bottles of Horlicks contained a slip of paper which entitled the buyer to a prize is not a lottery in that ordinary sense of the word.
8. It thus appears that the Supreme Court has held the scheme introduced and launched by the appellant in that case in September, 1985 not to be a lottery for the purpose of Section 36A(3)(b) of the MRTP Act.
9. MRTP Commission has dealt with this scheme in a very limited aspect. So far as the C.P. Act is concerned, Section 2(1) (r) defines unfair trade practice as under:-
(i) However, at the outset, it may be mentioned that no cash memo was produced by the complainant for the purchase of coca-cola bottle nor had he proved the mailing of the printed liner with yellow crown.
So far as the charge of unfair trade practice is concerned, such a practice has been defined as under by Section 2(1):-
2[(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,
(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 sponsorship 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 :
Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
(viii) makes to the public a representation in a form that purports to be
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another person.
Explanation.For the purposes of clause (1), a statement that is
(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or
(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained.
10. Section 3 of C.P. Act has been introduced to prevent the unscrupulous traders to float such scheme with a view to exploit the poor consumers and to promote their business. Section 3 provides additional and independent remedy under this Act and is not in derogation of any other law for the time being in force. Section 3 provides as under:-
3. Act not in derogation of any other law.-- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
11. The instant case is not the case in which the practice adopted by the OP for promoting its sale and business interest has been placed on the pedestal of context of lottery, game of chance or skill. The instant case is of offering goods, prizes or other items with the intention of not providing them as offered or creating an impression that something is given free of charge when it is fully or partly covered by the amount for the transaction as a whole.
12. Now the question arises as to what was the transaction which was to be transacted by the OP vis--vis lakhs of consumers by selling bottle of Coca Cola and offering Honda City car. There cannot be a worst unfair trade practice than this that out of crores of people who might have purchased their product only 10 or 15 were given the prizes. The allurement was of such high magnitude that even those who do not drink Coca Cola or any other product started purchasing Coca Cola for getting Honda City Car or some other prizes. This practice is uncouth practice played upon the gullible people.
13. It is beyond comprehension that the cost of Honda City Car which at that time was more than 8.00 lakhs was partly or fully covered by the amount charged by them for the sale of Coca Cola Bottle.
14. Here is a practice which is highly abominable because rich and mighty traders shell out few lakhs whereas they earn hundred of crores of rupees by selling their products under the garb of such a practice.
15. As is apparent from the definition itself offering of goods prices and other items or creating an impression that something is given is offered free of charge when it is fully or partly covered in the charge of the transaction as a whole. There was not such transaction between the parties giving an impression that something was being given or offered free of charge whereas it was fully or partly covered by the charge for the transaction. However, to offer such gifts of such huge value running into lakhs against a sale price of only Rs.10/- per bottle having a particular crown, say a yellow band, itself is unfair trade practice as it lures lakhs of consumers and promotes sale of goods in illegal manner.
16. Since the OP has committed an offence of unfair trade practice, it has to be punished for that and given the direction to discontinue such a practice and not repeat it in future. We impose punitive damage of Rs. 1.00 lakh which shall be deposited in favour of State Consumer Welfare Fund (Legal Aid).
17. As regards the objection that complainant is not a consumer, it has no force. Consumer has been defined by 2(1)(d) of the Consumer Protection Act as under:-
Consumer means any person who
(i) Any person who 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 for any commercial purpose].
18. Complainant had purchased the bottles may be many bottles with a view to try his luck to possess Honda City Car. Had he not done so, he would not have sent the liner having visual of car printed in it.
19. Further, we pass the following order:-
(i) OP shall pay compensation of Rs.
25,000/- to the complainant for having duped him and having offered prizes or other items which were neither partly nor fully covered by the amount charged for the transaction as a whole and creating an impression that something was given or offered free of charge.
20. Payment and deposit shall be made within one month from the date of receipt of this order.
21. Complaint is disposed of in aforesaid terms.
22. Copy of order, as per statutory requirement, be forwarded to the parties and to the concerned District Forum and thereafter file be consigned to record room.
23. FDR/Bank Guarantee, if any, be released under proper receipt.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member HK