IMPORTANT POINT
Complainant running cool bar, not consumer.

K.S. Chaudhari, Presiding Member—This appeal has been filed by the appellant against the order dated 23.4.2009 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ‘the State Commission’) in OP No. 144/1999 – Sri Sachidanandan G. Vs. Coca Cola & Ors. by which, complaint was allowed.

2. Brief facts of the case are that complainant/respondent no.1 was running a Cool Bar in Ernakulam District. The opposite parties /Petitioner & Respondent No. 2 & 3 are the manufacturers, distributors and suppliers of different soft drinks in the names of “Thumps Up”, “Coca Cola”, “Limca” and so on. The opposite parties advertised in the media in December, 1998 that several prizes will be awarded to persons who collected the liner attached to the cap of the Thums Up bottles which contained all the alphabets in the name “Thums Up” and also liners attached to the cap which contained the pictures of a car, (mentioned as four wheels) woodland jacket, waist pouch, thunder jeans, woodland T-shirt, woodland shoes, etc. According to the opposite parties advertisements any person who collected liners contained in the cap with the alphabets-T,H,U,M,S,U,P, plus the liner containing the picture of a car would be awarded a Tata Safari Car as prize. The said offer was valid from 15th December, 1998 to 15th February, 1999 and that prizes will be awarded on “first come first basis”. This offer was later extended to 28th February 1999. The complainant collected the caps and liners of Thums Up bottles containing the alphabets “Thums Up”, and also collected the picture of a car printed on a liner contained in the Thums Up and as required by the opposite parties, he sent the liners to the address given in the said advertisements. As per the rules, the caps which contained the said liners were to be retained by the person sending the concerned liners. The said liners were sent by the complainant to the opposite parties on 15.2.1999 by speed post and the same was received by the opposite parties on 16.2.1999. Inspite of several reminders; Tata Safari Car was not awarded to complainant. Alleging deficiency on the part of OPs, complainant filed complaint before State commission. OP No. 1, 2 & 3 resisted complaint and submitted that complainant is not a consumer and no cash memo has been produced by him for alleged purchase of Thums-Up bottle. It was further pleaded that as complainant was running a Cool Bar and had collected cap/crown of Thums Up bottles while selling the Thums Up bottles to his customers and as he purchased Thums Up bottles for resale and for commercial purpose, he does not fall within purview of consumer. It was further pleaded that complainant sent the liners by speed post whereas as per prize scheme, entry received by ordinary post were eligible for award of prizes on a ‘first come first served’ basis. It was further submitted that OP No. 2 & 3 were impleaded with ulterior motive and prayed for dismissal of complaint. OP No. 4 resisted complaint and also prayed for dismissal of complaint, as prize scheme was promoted by OP No. 1. Learned State Commission after hearing parties directed OP No. 1, 2 & 3 to deliver Tata Safari Car to the complainant and in the alternative to pay Rs.8,00,000/- and further directed to pay cost of Rs.1000/- against which, this appeal has been filed.

3. None appeared for Respondent No. 2 & 3 and they were proceeded ex-parte.

4. Heard learned Counsel for the parties and perused record.

5. Learned Counsel for the appellant submitted that inspite of no proof that complainant was consumer within purview of Consumer Protection Act and inspite of proof that liners was not sent by ordinary post as per terms and conditions of prize scheme, learned State Commission committed error in allowing complaint; hence, appeal be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent No. 1 submitted that had liners been sent by ordinary post, OP might have den