IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 AS.No. 645 of 1997() -------------------- OS.515/1991 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/2ND DEFENDANT: ----------------- THE DIRECTOR, INSTITUTE OF PUBLIC ASSISTANCE (PROVEDORIA), PANAJI, GOA. BY ADV. SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE RESPONDENTS/PLAINTIFF & IST DEFENDANT: --------------------- 1. K.M. MOHAMMED, S/O.ABDUL RAHIMAN, AGED 55 YEARS, 8/203, JAINIMEDU, VADAKKANTHARA AMSOM, PALAKKAD TALUK. 2. THE GOVERNMENT OF GOA, PANAJI, GOA, REPRESENTED BY THE CHIEF SECRETRARY. BY ADV. SRI.R.SREERAJ SRI.A.R.GENGADAS SMT.ANJU GOVIND SRI.T.M.SUNIL SMT.S.CHITHRA THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 6/1/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.4710/97 IN A.S.NO.645/97 ------------- Dismissed 6/1/2010 Sd/- Harun-Ul-Rashid, Judge. True Copy HARUN-UL-RASHID,J. -------------------------- A.S.NO.645 OF 1997 -------------------------- DATED THIS THE 6TH DAY OF JANUARY, 2010 JUDGMENT The 2nd defendant in O.S.No.515/91 on the file of the Sub Court, Palakkad is the appellant. The suit was filed for a direction to the defendants to pay the plaintiff the prize amount of Rs.1,00,000/- covered by the lottery ticket with interest at 18% per annum. The court below decreed the suit allowing the plaintiff to recover an amount of Rs.1,00,000/- with future interest at the rate of 6% per annum from the date of suit till realisation and cost from the lst defendant, namely, State of Goa. The 2nd defendant is the Director, Institute of Public Assistance (Prevedevia), Panaji Goa. Aggrieved by the decree and judgment, the 2nd defendant preferred this appeal. The parties hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. The short facts leading to the filing of the suit is as -2- A.S.No.645/97 follows: The plaintiff is a tea shop owner doing his business on the road side in Palakkad Municipality. The plaintiff also used to sell lottery tickets purchased from the Agents of various lotteries. Plaintiffs had purchased few tickets of the “Sree Ganapathy” weekly lottery conducted and run by the Government of Goa for the 99th draw held on 7/11/1988. Ticket No.GPT.239623 purchased by the plaintiff won the first prize of Rs.1,00,000/-. According to the plaintiff, he surrendered his prize winning ticket to the 2nd defendant through Union Bank of India, Palakkad Branch on 18/11//1988. The request to disburse the prize amount was turned down by the 2nd defendant stating that the ticket is torn and multilated. Plaintiff received a communication from the 2nd defendant informing him that the claim will be settled on or before 31/10/1989. Later he was informed that his claim was rejected on the ground that the ticket is multilated. It is also averred that no rival claim has been put -3- A.S.No.645/97 forward by any other party for the prize winning ticket. 3. The 2nd defendant in the written statement contended inter alia that the court below has no territorial jurisdiction to try the suit, that the ticket in dispute was multilated and torn into 5 pieces and therefore it did not form one single ticket. It is averred that these five pieces were joint together by the plaintiff with cellotape in order to make it appear as if it was one piece. It is admitted in the written statement that the ticket surrendered by the plaintiff secured the first prize in the draw. According to the 2nd defendant, the condition No.7 printed on the backside of the ticket stipulated that torn/multilated/tampered ticket shall not be entertained and therefore the 2nd defendant had rightly rejected the claim of the plaintiff. It is also averred that non-receipt of any rival claim does not automatically entitle the plaintiff to get the first prize. 4. Plaintiff was examined as PW1. He has produced Exts.A1 to A8 documents. No oral evidence was adduced on the -4- A.S.No.645/97 side of the defendants. Exts.B1 and B2 were produced on their side. The following facts are not in dispute. 5. Ext.A1 ticket was surrendered by the plaintiff in time, which was the first prize winning ticket of the 99th draw. Immediately on realising the fact that Ext.A1 ticket is the prize winning ticket, the plaintiff submitted the claim for prize money as per Ext.A2 letter through the Nationalised Bank in the prescribed form. Ext.A3 is the notice issued by the 2nd defendant directing the plaintiff to offer an explanation for not rejecting the claim on the ground that the ticket is multilated and torn. Ext.A4 is the reply sent by the plaintiff. Ext.A6 is the letter issued by the 2nd defendant informing his decision to the plaintiff about the the reason for rejecting the claim. 6. The court below examined the claim of the plaintiff on the basis of the oral and documentary evidence. The trial court found that Ext.A1 ticket at the time of surrender was admittedly torn into five pieces and joined together with cellotape. The 2nd -5- A.S.No.645/97 defendant rejected the plaintiff's claim only for the reason that condition No.7 printed on the backside of the ticket is squarely applicable and therefore, the plaintiff is not entitled to claim the prize amount. The court below examined the oral evidence tendered by PW1. The court below appreciated the explanation and the circumstances narrated by the plaintiff, which leads to the tearing of the ticket. The court below accepted PW-1's version that Ext.A1 ticket happened to be torn inadvertently by her minor daughter in his absence. The court below perused the ticket closely and found that though the ticket was torn into different pieces, its identity is not lost especially with reference to its number without giving room for any suspicion. The court below also noted the undisputed fact that nobodyelse has come forward with a claim. The court below also observed that the custody and surrender of the ticket by the plaintiff is also not in dispute from any person. 7. The plaintiff admittedly hails from a poor family. -6- A.S.No.645/97 The court below rightly observed that it is obvious that condition No.7 is incorporated to safeguard the real identity of the prize winning ticket and prevent payment of prize to bogus claim amounts. The evidence and attendant circumstances proved in this case do not justify an inference either that Ext.A1 is not a real ticket or the claim is bogus. For all these reasons, the court below held that the plaintiff is entitled to claim the prize amount and the contentions raised by the defendants cannot be sustained. Attention is invited to Sub Clause 9 of Clause 8 of Ext.B1 Rules, which reads reads as follows: “A ticket which is torn or multilated, will not ordinarily be entitled for any prize. The Director shall however, use his discretion in certain cases based on merits.” 8. The above cited clause reveals that torn or multilated ticket as a rule will not ordinarily be entitled for any prize. A power is conferred on the Director to use his discretion in certain cases. The court below rightly observed that the -7- A.S.No.645/97 evidence and the attendant circumstances in this case do not justify an inference either that Ext.A1 is not a genuine ticket or the claim is bogus. Therefore, it cannot be said that the torn or multilated ticket cannot be entertained in view of the stipulation on the reverse side of Ext.A1 ticket. The Director has got the discretion to decide whether a torn or multiated ticket can be accepted or not. For the reasons stated by the court below and after giving credence to the evidence and attendant circumstances this Court hold that that there is every reason to justify the claim of the plaintiff and the Director could have exercised the jurisdiction in favour of the plaintiff. The decision of the Director is subject to judicial review. This Court, after considering the relevant clause in Ext.B1, the facts and attendant circumstances, is of the view that this is a fit case for exercising the discretion conferred on the Director. 9. The learned counsel for the appellant brought to this Court's attention the decision reported in Peter v. State of -8- A.S.No.645/97 Kerala (2007 (2) KLT 532), in which this Court held that the lotteries run by the State are gambling in nature and that the agreement for payment of a prize on a lottery ticket, even if the lottery is conducted by the State, continues to be a wager, to which the provisions of Section 30 of the contract Act would be applicable and therefore, a suit for recovery of the prize money would not lie. According to the learned counsel for the appellant, the right of a person who buys a lottery ticket is only a right to participate in the lottery, i.e. in a gambling, which is not forbidden by law and nothing more and that the legal right of a person participating in a lottery do not get a better flair, merely because of the enactment of the Lotteries Act. The said matter relates to the Lotteries (Regulation) Act 1998. The quoted decision was rendered based on the provisions in the Paper Lotteries (Regulation) Rules, 2005, (Kerala) read with Rule 9, this Court held that State cannot guarantee performance of an agreement by way of wager. The case at hand relates to a prize -9- A.S.No.645/97 winning ticket of the year 1988. The decision which was cited by the learned counsel was rendered by this Court leading Lotteries (Regulation) Act, 1998 and Paper Lotteries (Regulation) Rules, 2005 read with Section 30 of the Indian Contract Act. Moreover, the lottery ticket was purchased in the year 1988 long prior to the Lotteries (Regulation) Act 1988 and Paper Lotteries (Regulation) Rules, 2005 (Kerala). The terms and conditions for claiming the prize ticket is governed by the Rules published in the gazette notification issued by the Government of Goa, Daman and diu, which is marked as Ext.B1. I have referred to Sub Clause 9 of Clause 8 of Ext.B1. The only reasons for rejection of the ticket stated is that the ticket is torn or multilated. Even in a case where the ticket is torn or multilated, the Director is empowered to exercise his discretion based on the merits of each case. In my view, this is a fit case for the Director to exercise his discretion on merits. Since the Director did not take into account the facts and attendant circumstances before -10- A.S.No.645/97 rejecting the claim of the plaintiff, I do not find any reason to interfere with the judgment and decree passed by the trial court after recording the reasons for accepting the plaintiff's claim. In the result, the appeal fails and accordingly dismissed. There will be no order as to costs. HARUN-UL-RASHID, JUDGE kcv. -11- A.S.No.645/97 HARUN-UL-RASHID,J. -------------------------- A.S.NO.645 OF 1997 -------------------------- JUDGMENT 6TH JANUARY, 2010