SISHIR KUMAR NAYAK vs WING STONE ELECTRONICS

NOT being able to exercise restraint by avoiding to acquire a coloured Television set free whose cost is Rs. 9,000/-, complainant, a college student fell victim to an advertisement given by Opposite Party took part in a puzzle competition conducted by Opposite Party. Having solved the puzzle, Management Committee of Opposite Party intimated complainant that he has been declared as the 1st prize winner of popularity contest in kind of colour T.V. He was further intimated that foil cost of the set would be borne by the Opposite Party but other expenses as packing forwarding railway fare would be borne by complainant. This would be Rs. 8000/- which is not to be sent in advance but is to be paid to the postman while taking delivery of V.P. letter and Rs. 40/- is to be paid as V.P. charges to the postal department. Complainant was requested to send Rs. 100/- by postal order or money order for V.P. letter and forwarding expenses. Complainant sent Rs. 100/-. Receiving the Money Order Opposite Party intimated as follows : We are in receipt of your consignment for and very gladly to inform you that we have accepted your Money Order and are sending our coloured Television set by Railway as per our previous letter. Because the parcel of television if very big size and weight of parcel is very heavy so it cannot be booked by post parcel. So we are sending that pa reel through Railway and are sending the builty by post as per rules. For immediate despatch we are sending you television sets VPL we have despatched the V.P.L. for Rs. 800/- (rupees eight hundred only) to Cover the miscellaneous expenses. You have to pay Rs.40/- extra towards V.P.O. fees to Post and Telegrams Department. Total amount you have to pay is Rs. 840/- NO MORE MONEY TO PAY EXCEPT Rs. 840/-. The Television is guaranteed for one year. The guarantee card is also sent with the parcel. We are also sending a order book with the parcel. You can earn Rs. 3000/- to Rs. 5000/- every month for booking the order for our new model colour Television sets. Because this model is very attractive and beautiful and when your friends and neighbours will see the television set they must give you the order. We shall give you Rs. 200/- per television booking. Kindly honour the V.P.L. which is despatched already pay Rs. 840/- to your postman and get delivery of the V.P.L. and get your television set from Railway after the builty within very short period. NO MORE MONEY TO PAY EXCEPT Rs. 40/- We are offering this prize only to popularize our product in all over India. Our product is quite popular is North already. This is given to you for the compary mutual benefit sales plan only by showing this set to your Near and Dear and ones please also book order for the same and get handsome commission too. Once we get the quick number of customers from your station we will open show room plus service station for the convenience of our valued customer.

IN the VPL there are RR documents and a scheme only. Not a colour T.V. After realizing VPL you will get colour T.V. within very short period. Thereafter came the V.P. letter containing some form, rules and other instruction but no builty to receive the T.V. Not being able to receive the T.V. set, this complaint has been filed. 2. Notice of the complaint with copy of the same was sent to opposite party by Registered post on 24.2.1992. When acknowledgment was not received back-even after the registration of the letter containing notice and copy of complaint, it was treated as sufficient as provided in Code of Civil Procedure. Despite valid service, Opposite Party has not stated its case. Case of complainant is supported by correspondences of opposite party. On such a case proved it is to be examined : (i) Whether complainant is a Consumer. (ii) Whether there is defect in goods or deficiency in service. (iii) Whether Opposite Party is responsible for such defect or deficiency. (iv) Whether complainant has suffered and (v) What direction is to be given.

Complainant is of Orissa. Opposite Party is a company registered under the Companies Act, 1956 having registered office at Ghaziabad in State of Uttar Pradesh. Normally under Section 11(2)(a) and (b) of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") redressal agency in State of Uttar Pradesh shall have jurisdiction. Where however, wholly or in part arises in Orissa, this Commission would have jurisdiction as provided in Section 11(2)(c) of the Act.

CAUSE of action arises in this case in Orissa when such advertisement was communicated to complainant in Orissa. Television set is to be delivered to complainant in Orissa. Thus cause of action begins in Orissa and culminates in Orissa. Accordingly, this Commission has jurisdiction in spite of the fact that opposite party is of Uttar Pradesh. For being entitled to the Television set complainant is not a Consumer since he has not paid for it. It is a prize for correct answer. Correct answer is not a consideration of the contract. Television set is a gift to complainant. Gift is not a service for hire. Gifted goods is not a purchased goods. Therefore, complainant is not a Consumer so far as acquiring the television set. Since Opposite Party has intimated that complainant has become owner of a coloured Television set which is in its custody, it was duty of Opposite Party to render the service of delivering the same to complainant. Opposite Party has called upon the complainant to pay Rs. 100/- for rendering such service by preparing and despatching V.P. letter and forwarding the Television. On payment of Rs. 100/- sent by money order, complainant becomes a Consumer not in respect of the television but in respect of the service of despatch of the television to him by the Opposite Party.

OPPOSITE Party in the extracted letter communicated to the complainant has undertakes to send the V.P. letter containing the builty for receipt of the Television either from the Railway or transporter. For sending both it has received consideration. No doubt it sent a V.P. letter and complainant released the same on payment of Rs. 840/-. If the builty for receipt of television from either railway or transporter would have been sent question would have been different. In place of it some other documents of the money circulation scheme were sent. There was no condition at the time of advertisement that such conditions are to be satisfied by complainant before receiving television. In these circumstances nondespatch of the builty and the television is a deficiency in service since OPPOSITE Party has not performed its part of the obligation as given out in the extracted letter in spite of receipt of consideration amount of Rs. 100/-. Complainant is a college student. A television set for a college student is not a necessity for development in his education. A student should learn to acquire assets by his swet and blood. Temptation to acquire assets cheaply affects moral character of students. Advertisements alleging innocent students to be tempted is a cause of spoiling their character. This loss of character it becomes permanent affects society and becomes cause for destruction of future of the nation. Apart from being deprived of the television set acquired which is not contrary to law, he has also damaged his character for which Opposite Party is responsible. Therefore, Opposite Party is liable. On our finding, we direct the Opposite Party to send the coloured television set to complainant within one month of receipt of the order or by 31st December, 1992 whichever is earlier or in lieu thereof pay Rs. 9,000/- with interest at 18% per annum from April 1991 till the date of payment.

IN result complaint is allowed with the aforesaid direction. Complaint allowed.