DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                            Consumer Complaint No.766  of 2016

                                  Date of institution:   15.11.2016                                  Date of decision  :  20.11.2017 

Dr. Narinder Kanwal, resident of House No.1076, Sector 91, Mohali, Punjab.

……..Complainant

Versus

1.     Alpine Pubs Pvt. Ltd., S-01, Second Floor, The North Country Mall, NH-21, Mohali Kharar Road, District SAS Nagar, Punjab 160018 through its concerned Manager.  

2.     A&A Hospitalities, SCO 656-657, Sector 70, Mohali,.

…..Opposite Parties

Complaint under Section 12 of  

Consumer Protection Act, 1986.

Quorum

Shri Ajit Pal Singh Rajput, President

Shri Amrinder Singh Sidhu, Member

Mrs. Natasha Chopra, Member

Present :           Shri Sahil Khunger, cl. for the complainant.

                None for OP No.1

                OP No.2 ex-parte.

ORDER

By Ajit Pal Singh Rajput, President.

                Complainant Dr. Narinder Kanwal has filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.            On 06.08.2016 the complainant and his friend visited OP No.1 and had taken dinner there. In the bill dated 06.08.2016 the OP No.1  had charged total amount of Rs.1738/- which included Rs.1334/- for Food & Beverages; Rs.270.80 as Tax + Service charges Rs.133.40. The tax amount of Rs.270.80 was including VAT Food @ 14.3% for Rs.190.76 and service tax @ 6%  for Rs.80.04. The complainant asked the Manager of the OP No.1 that the service charges cannot be charged but he refused to deduct the service charges from the bill on the ground that the management of OP No.1 has authorised them to charge service charges. The complainant made the payment of bill of Rs.1738/- under protest through cash. Thereafter, the complainant on 12.08.2016 visited OP No.2 for dinner and OP No.2 had charged VAT, surcharge on VAT and service.  However, the complainant was informed by OP No.2 that under the Excise Policy of the State Govt., the restaurants/hotels are not entitled to charge service charge from the consumers.  Thus, charging of service tax by OP No.1 is unfair trade practice.  Hence, the complainant has sought direction to the OP No.1 hence forth not to levy any service charges on the billed amount;  to refund him Rs.133.40; to pay him Rs.75,000/- as compensation for deficiency in service and unfair trade practice  and Rs.20,000/- as litigation expenses.

3.             Notice sent by this Forum was delivered upon OP No.2 on 15.12.2016 but none appeared on its behalf. Hence OP No.2 was proceeded against ex-parte vide order dated 12.01.2017. Shri Rajat Rai, authorised representative appeared for OP No.1 on 12.01.2017 and sought time for reply.  But thereafter neither anybody appeared on behalf of OP No.1 nor reply was  filed within the period as stipulated in the decision of Hon’ble Supreme Court dated 04.12.2015 titled as New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., thus the right of filing of written version by OP No.2 was struck off vide order dated 03.03.2017.

4.             In order to prove his case the counsel tendered in evidence affidavit of the complainant Ex. CW1/1; copies of bills dated 06.08.2016 and 12.08.2016 Ex.C-1 & C-2 respectively.

5.             The learned counsel for the complainant has argued that the Manager of OP No.1 could not show any notification issued by the State Govt. vide which they were authorised to charge service tax on the billed amount. Learned counsel has further argued that on the other hand OP No.2 has informed the complainant that under the Excise Policy of the State Govt., the restaurants/hotels are not entitled to charge service charge from the consumers. Learned counsel has thus argued that the OP No.1 has illegally charged service tax on the billed amount and the complaint may be allowed against OP No.1.

6.            After hearing the learned counsel for the complainant and going through the pleadings, evidence and the written as well as oral submissions, it is established from the material placed on record i.e. bill dated 06.08.2016 Ex.C-1 that the OP No.1 had charged Rs.133.40 as service charges for which OP No.1 could not show any notification of the State Govt. which authorizes it to charge service charges on the billed amount.  In response to the notice issued by this Forum, Shri Rajat Rai authorised representative of OP No.1 appeared once in this Forum on 12.01.2017 but thereafter none appeared for it and even no reply/evidence has been filed by OP No.1 to rebut the averments of the complaint.   This conduct of OP No.1 shows that it has nothing to say as regard to the averments of the complainant. The whole purpose of pleadings is to give fair notice to each party of what the opponent’s case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence.  Learned counsel for the complainant has not sought any relief against OP No.2. Accordingly, complaint against OP No.2 is dismissed.

8.             Accordingly, in view of our aforesaid discussion, we find that charging of service tax by OP No.1 is unfair trade practice and deficiency in service.   Hence we direct OP No.1 to refund to the complainant Rs.133.40 (Rs. One hundred Thirty Three and Paise Forty only) and to pay him a lump sum amount of Rs.5,000/- (Rs. Five Thousand only) for mental agony, harassment and costs of litigation. The present complaint stands allowed accordingly.

                The OP No.1 is further directed to comply with the order of this Forum within 30 days from the date of receipt of this order failing which the amount of compensation shall carry interest @ 12% per annum from the date of decision till actual payment.

                The arguments on the complaint were heard and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 20.11.2017

                                         (A.P.S.Rajput)           

President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member