Coca Cola India Pvt. Ltd. & Anr vs Dinesh Kumar Muralidhar Lulla & Anr

Deepa Sharma, Presiding Member

The present Appeal has been filed against the order dated 30.09.2015 in complaint case no. CC No. 225 of 2002 by which the complaint was allowed.

The brief facts of the case are that complainant is a resident of Maharashtra, Akola.  His father was running hotel in the name of Hema Uphar Gruh and was selling cold drinks etc etc.  In the year 1998, the Coca Cola India Pvt. Ltd. (hereinafter referred to as Company) floated a scheme containing various prizes to be given to the persons who found lucky.  The theme of the scheme was simple; a bottle of coca cola was to be purchased and if under the crown of the bottle, a yellow band is found, then the person becomes eligible for lucky prize which was to be declared on first-cum-first serve basis.  As per the complainant he had purchased a coca cola bottle from his father’s shop on 13.10.1998 and when he opened the bottle, he found the yellow band below the crown and so he had become eligible for the lucky prize.  He had won a car.  It is alleged by the complainant that on the same very date, he had sent the telegram to the Company informing about the fact that he  had earned the prize.  He, however, did  not receive any reply and, thereafter, he sent one of his representative Mr. Ramesh Lahekar to Delhi.  Mr.Ramesh Lahekar met the representative of the Company on 16.10.1998 and he was informed that he needed to send the winning crown through post.  Accordingly, said representative on 18.10.1998 posted the crown from Delhi at the address provided by the Company in the scheme i.e. at the address P.O Box No. 4396 Kalkaji from Idgah Road, Delhi through UPC.  When after passing of considerable time, he did not receive any information from the Company, the complainant had allegedly sent a legal notice dated 01.02.1999 through his advocate to the Company.  The said notice also remained unreplied.  Thereafter, complaint was filed claiming Honda City Car as winner of second prize under the scheme Coca Cola Diwali Karishma and Piyo Coca Cola DekhoKarishma or pay Rs.9,00,000/- to the complainant as prize of the Honda City Car. Complainant also claimed cost of Rs.3,00,000/- with interest @ 18% p.a. and cost of Rs.11,000/-.

The claim was contested by the Company.  Each and every averment except floating of scheme had been denied.  A preliminary issue regarding maintainability of complaint was also raised.  It was alleged that complainant was not a consumer.  It was also contended that complainant had never purchased any coca cola bottle and had never won any prize and that as  per the terms and conditions, the prize was to be given to the participants on first-cum-first-basis and the Company had awarded and distributed prizes accordingly to the eligible participants. It was further contended that complainant had failed to comply with the terms and conditions of the said scheme and the complaint is liable to  be dismissed.

Initially the address of the company in the complaint was given as that of Post Box No. and Company was proceeded ex parte.  On Appeal, ex parte order was set aside and matter was remanded back to the State Commission to give opportunity to the Company to file their written version and decide the matter on merit. Thereafter, written version was filed by the Company.

Parties led their evidences and on the basis of evidences led by the parties and hearing the arguments of the counsel for the parties, complaint was allowed by the State Commission vide the impugned  order. This order of the State Commission is impugned before me on the ground that findings are based on surmises and conjectures and there are no evidences on record to prove the contentions of the complainant that he had ever complied with the terms and conditions of the scheme.  It is argued that as per the scheme, the printed liner was to be removed from the crown and mailed to the post office Post Box No.4396, Kalkaji by ordinary post along with full name and address of the sender in a sealed envelope.  It is argued that complainant has failed to produce any evidence on record that it had complied with terms and conditions of the scheme and had mailed the printed liner to the Company at the given address by ordinary post.  It is argued that there is no evidence on record that it was ever posted by the complainant.  It is submitted that complainant’s contentions and arguments on this point are self contradictory.  It is submitted that in the complaint, it is mentioned that winning crown was sent to the opponent on 18.10.1998 from Idgah Post Office by UPC by its representative Sh. Ramesh Lahekar.  The tickets of Ramesh Lahekar visiting Delhi and relied upon by the complainant itself shows that Mr.Lahekar was not in Delhi on 18.10.1998 as he had left Delhi on 16.10.1998 as per the copy of the railway ticket.  It is submitted that since he was not in Delhi, he could not have mailed the printed liner to the Company. It is further argued that except the testimony of the Mr.Lahekar to this effect that printed liner was mailed to the Company, there is no other evidence on record.  It is further argued that complainant has also not posted the printed liner as per the terms and conditions of the scheme because it was admittedly not sent by ordinary post but was sent by UPC. It is further alleged that complaint is fraught with contradictions  as complainant says that his father came to Delhi on 01.11.1998 and inquired from the opposite party’s office about the prize.  However, there are no tickets to prove this fact.  It is contended that tickets produced on record by which his father had allegedly travelled to Delhi clearly shows that his father left Akola to Bhuswal Junction on 31.10.1998 and from Bhuswal Junction he went to Kanpur Central and it was only on 03.11.1998 that he left Kanpur Central  for New Delhi and reached HazaratNizzamuddin on 03.11.1998.  If his father  had reached to Delhi on 03.11.1998, the contention of the complainant that his father inquired from the officials of the company about the prize on 01.11.1998 is nothing but a false statement.  It is further contended that complainant has not disclosed anywhere as to which office of the Company his representative or his father had visited because it is not disclosed in the complaint.  It is submitted that during the arguments, it is argued on behalf of the complainant that they had visited the address which is post box number of a post office and there  no office of Company is situated and no representative of the Company could be found.  It is argued that findings of the State Commission are thus perverse and liable to set aside.

It is argued on behalf of the complainant that findings of the State Commission are based on cogent evidences.  It is submitted that printed liner was despatched only on 16.10.1998 and date on receipt of UPC is 16.10.1998 and that the complainant has also brought the original of the UPC and can show it to this Commission. It is argued that contradictions which been pointed out by the counsel for the Company were never raised before the State Commission.  It is submitted that Appeal has no merit and is liable to be dismissed.

I have heard the arguments and perused the relevant record.  Admitted facts of the case are that Appellant had floated a scheme on 03.10.1998 and last entry was to be received by 28.10.1998.  Following were the terms and conditions of the said scheme:

“3.  The following prizes are offered ( 1) One flat in Mumbai (ii) 5 Honda City Cars (iii) 100 domestic air tickets (iv)  200 walkmans ( v) 1500 Oxemberg  Jeans ( vi) 500 cameras (vii) Coffy Bite

Every crown having a yellow bank is printed with visual of the aforesaid prizes.

For prizes (i) to (vi) printer liner which also has the visual of the prize, should be removed from the crown and mailed to P.O Box No. 4396, Kalkaji, New Delhi-110019 by ordinary post  only along with full name & address of the sender in a sealed envelope.

The participants should retain  the metal crown having a visual of the prize for verification in the event of their winning the prize.

Only entries received upto October 28, 1998 would be eligible for award of prizes on a first cum first served basis as follows.

The entries opened first up to requisite number of prizes to be given, would be declared prize winners for the respective prizes after verification with reference to the corresponding metal crown in possession of the participant.”

Case of the complainant is that he had purchased the bottle of coca cola and under the crown printed liner had the visual of Honda Car and, therefore, he had been a lucky winner and had earned Honda Car.  He as per the scheme was required to remove the printed liner and mail it to the post office box no. 4396 Kalkaji by ordinary post along with his full name and address.  As per the complainant, this activity was done by his representative Mr. Ramesh Lahekar who on his instructions alongwith letter of the dealer came to Delhi and posted it by UPC at the given address.  He in his affidavit  has clearly stated that he had posted the liner alongwith paper on which he wrote the name of the complainant in a sealed envelope on 16.10.1998.  No document to prove that liner along with paper was posted to the Company on 16.10.1998 had been filed by the complainant on record. The complainant, however, in  his complaint has alleged that Mr.Lahekar on  his instructions has posted the liner on 18.10.1998 by UPC.  It, therefore, is clear that there is a vast contradiction in the contention of the complainant and evidence of  his witness who had actually done the act of posting.  While in the complaint, the complainant has alleged that posting was done on 18.10.1998, however, the witness has deposed on oath that he did the posting on 16.10.1998.  If we accept the argument of the counsel that date of 16.10.1998 has  been wrongly mentioned in the  initial complaint ( as the same had  been corrected by the complainant as per the order in his MA No. 1020 of 2003 dated 08.08.2003), it would have been impossible for Mr.Lahekar to post the liner on 18.10.1998 because as per the returning ticket of  Mr.Lahekar, it is clear that he left Delhi on 16.10.1998.  When Mr.Lahekar was not in Delhi, he could  not have posted the liner to the Company on 18.10.1998.

During the course of arguments, counsel for the complainant has produced the original UPC and insisted that date actually is 16.10.1998 and not on 18.10.1998.  I have seen the original.  The original as well as photocopy of the UPC clearly carries the date 18.10.1998 and, therefore, argument on behalf of the complainant that UPC filed on record is of the date 16.10.1998 is contrary to the record filed by the complainant.  The complainant, therefore, has not only failed to prove that he had ever posted the printed liner to the Company as alleged by him.  He has also failed to comply terms and conditions of the scheme in toto.  According to the complainant himself, he had allegedly posted the liner via UPC while as per the scheme, he was required to post it by ordinary post.  Besides that, there were several contradictions.  While in the complaint, complainant has alleged that his representative had visited the office of the Company but address of the office is not given.  It is also not disclosed as to which employee of the Company his representative had met.  It is alleged that father of the complainant had visited Delhi on 01.11.1998 and made inquiries from the officials of the Company.  However, the name of the employee or address at which father had gone on 01.11.1998 has not been disclosed.  Moreover, his father was not even in Delhi on 01.11.1998 so could not have visited the office of the Company. In order to prove that father of the complainant had visited Delhi on 01.11.1998, the complainant had filed on record the tickets of his father, which clearly shows that till 03.11.1998 his father was in Kanpur and it was only on 03.11.1998 that he had left Kanpur by train and reached Nizamuddin on 03.11.1998.

From the above, it is clear that findings of the State Commission are based on conjectures and surmises. The cogent evidences which were on record and speaking the truth had been ignored and not taken into consideration by the State Commission.  The order of the State Commission being perverse is set aside.

The Appeal is allowed with no order as to costs.