Order-13.

Date-08/03/2018.

AUTHOR. SRI RABIDEB MUKHOPADHYAY, MEMBER

            The Complainant’s case, in brief, is that Complainant used to visit different restaurants of his local area with his friends and family members frequently for lunch or dinner. The Complainant also used to visit Arsalan, OP of the instant case, along with his friends and also with other wishers. On 06.05.2017 the Complainant went to above named OP restaurant and after having the OP’s bill amounting to Rs.1,695/- he noticed that 01 Liter mineral water of Kinley amounted to Rs.30/-, the OP charged Rs 1,255/- and thereafter by adding Tax amount and Service Tax amount the OP has charged for total payable amount of Rs.1,695/-.

The Complainant asked the OP why 1 litre mineral water of Kinley was charged Rs.30/- instead of MRP print on the bottle as Rs.20/- but OP remained mum. Complainant reported the matter to the higher authority and they misbehaved by saying him  rudely that  being uneducated person he should not have come to Arsalan for lunch or dinner and told not to raise any question in regard to the price of the  mineral water bottle bill dated 22.06.2017. Complainant further visited Arsalan with his wife on 29.06.2017 and ordered for food and also after having dinner he also took a one litre mineral water of Kinley. The OP submitted bill of Rs.1,029/- and this time also charged 1 litre mineral bottle of Kinley Rs.30/- instead of printed price of Rs.20/-

             In view of the unfair trade practice of the restaurant Complainant drew attention of the Hon’ble Forum on the following issues.

1. Whether the restaurant authority can charge more money over the original MRP of 1 litre bottle mineral water of Kinley at Rs.20/-?
2. Whether the manufacturer of the said water bottle is lawfully entitled to entrust their agent their agent to collect extra money over the printed price?
3. Whether the bona fide customer is liable to pay extra amount as demanded by the said restaurant?

The Complainant was very much shocked for such unfair trade practice adopted by the OP since long for which not only the petitioner has suffered a lot but other bona fide consumers are also suffering day by day and for this the Complainant is suffering from mental agony and also suffered financial loss. Complainant is a consumer within the definition as given in C.P. Act. The conduct of the OP amounts to the deficiency in services and intentional harassment by unfair trade practice for making wrongful, illegal gain and profit and for the above sufferings Complainant claimed compensation of Rs.7,00,000/- .

Written Version

OP filed its written version and denied and disputed all the allegations of the Complainant, save and except those which are matters of record and stated and submitted that the Complainant has no cause of action as mentioned the dates 06.05.2017, 22.06.2017 and 29.06.2017.In this regard OP stated that it is a well settled principle of law that one cause of action cannot arise on same issues on multiple dates.

Case of the Complainant suffers from Non-Representative Character of the suit/case. The Complainant statedat para-2 of the petition that the Complainant used to visit differentrestaurants with the friends and family members of the Complainant. So, while filing the instant case, the Complainant has neither taken up any Letter of Authority/ Power of Attorney from the friends and family members to ascertain the Representative Character of the case, none has taken up any other person other than the Complainant as party to the instant case. As such, the instant suit suffers from Representative Character of the suit and /or misjoinder / non-joinder of the parties. So, Complainant cannot agitate on behalf of anyone who are not parties/ authorities to the case and have cause of action on 06.05.2017, 29,.06.2017 and 29.06.2017.

The complainant has no solid base to agitate before your honour. The OP stated that the Complainant time and again visited the work place of OP and after taking meals & hospitality of your OP, the Complainant used to threaten OP not to take up bills or minimize the bills as equivalent to no payment by hook or by crook and when such type of illegal tactics failed, Complainant threatened your OP to move Consumer Forum to demand Great Ransom in the disguise of compensation and this Consumer Forum has been reduced to mere extortion centre by the Complainant. The OP states that there are several other authorities established by law for agitations of complainant for complaints such as the instant case but Complainant has availed of no such authority. Hence, the complaint is vexatious and frivolous character.

The OP further stated and submitted that the Complainant agitated mainly on overcharging of prices, whereas the truth is that prices have not been charged over the prices of Menucard/price list which is available on the work place of OP and agreeing to those menu card/price list, OP had been ordered by the Complainant to avoid the services. So, Complainant is bound by the price list terms & conditions of OP. The agitation of the Complainant is that as to why the OP has charged Rs.30/- in excess of Rs.20/- per bottle. In this regard OP states that in terms of case Law decided by Hon’ble Delhi High Court in Delhi GymkhanaClub-Vs-U.O.I.it has been clearlyheld that over charging of prices more than printed price does not come under the purview of consumer complaint case before the Consumer Forums. Hence, the complaint case be dismissed in limine.

Points for Decision

1. Whether the case is maintainable and the complainant is a consumer;
2. Whether the O.P. suffers from deficiency in service and unfair trade practice;
3. Whether the complainant is entitled to get the relief as prayed for.

Decision with Reasons

1. We have perused the copies of stated bills filed by the complainant as well as two copies of judgement of Hon’ble High Court, filed by OP and some copies of judgements of Hon’ble N.C., Govt. of India directive dated 04/8/2016 and an expert article from Consumer Resources on overcharging for packaged water.
2. It appears from WV para-2 (and partly WV para-3) that the OP questionsthe different dates of cause of action, in response to complaint para-15, stating that cause of action cannot arise on multiple dates.

It is to be considered in this connection that the fact against which the complaint is lodged is the overcharging on packaged mineral water of one litre. What’s the wrong if we consider the first date i.e.06/5/2017? Cause of action is given importance to determine the limitation of two years. If we consider any of two other dates of purchase, i.e.22/6/2017 and 29/6/2017, the period of limitation does not hamper. However, for the sake of law, we consider that cause of action has arisen on 06/5/2017.

3. The OP questioned the Non-Representative character of the complaint at WVpara-3 in response to complaint para-2. 

It is again to be mentioned that the complainant nowhere mentioned in the complaint that he lodged the complaint on behalf other persons or friends. So, how does arise the question of Representative character? He even did not file any other bill except his own purchases on 06/5/17, 22/6/17 and 29/6/17. The complainant tried to assert that the OP Restaurant has the practice of overcharging price in case of purchase of 1 litre packaged mineral water, i.e. charging Rs 30/- for a one litre bottle of mineral of Kinley brand having MRP of Rs 20/- only, Rs 10/- in excess.

4. It remains the fact that the complainant did not file any label of printed price of Rs 20/- for 1 litre packaged mineral water. But it also remains the fact that the OP did not deny in the WV such printed price of Rs 20/- for the product in question. The complainant affirmed such printed price by Evidence on Affidavit at para-4, 5 and 7. It is also true that anybody can verify such price by way of purchasing 1 litre bottle of mineral water of Kinley brand.
5. The OP filed a copy of judgement of Hon’ble Delhi High Court in Delhi Gymkhana Club Ltd.-Vs-UOI decided on 15^th April, 2009 which after clarification concluded at para-55 which reads as ‘In view of the above, it is held that the provisions of the Standards of Weight and Measures (Packaged Commodities) Rules, 1977 are not applicable to provision of refreshments and beverages by the petitioner no. 1 to its guests. It is further held that the proceedings before the Consumer Disputes Redressal Forum-VI(New Delhi) are without jurisdiction and are not maintainable.’
6. At para-54 of the above judgement, it is mentioned that ‘I find that in the judgement dated 5^th of March, 2007 in Federation of Hotels & Restaurants Association of India& Ors.V.UOI(supra), the court placed reliance on the pronouncement of the Supreme Court of India in State of H.P.vs. Associated Hotels of India AIR 1972 SC 1131 and Northern India Caterers India Ltd. v. Lt. Governor of Delhi 1979 1 SCR 557 to hold that consumption of articles of food or drinks in hotels and restaurants do not constitute a sale (para-4) and further no prohibition has been imposed by the statute to sell any commodity in excess of the price stated on its package. The statute merely required the price of the commodity to be stated on the package.’
7. The complainant filed a copy of judgement of Hon’ble National Commission (RP No. 2038 of 2015), circulated by the Govt. of India, Ministry of Consumer Affairs, Food & Public Distribution, Deptt. of Consumer Affairs to all the States , in 1. BIG CINEMAS & ANR, JAIPUR, 2. RELIANCE MEDIA-WORKS LTD, MUMBAI-VS- MANOJ KUMAR, JAIPUR, decided on 01 Feb, 2016. This is also a case of overcharging of Rs 14/-, taking Rs 30/- where the MRP of ‘Aquafina-Pepsico Company’ I litre packaged water, where the District Forum allowed return of the excess price of Rs 14/- with cost of Rs 5000/- and compensation of Rs 1500/- within one month from the date of the order and on non-compliance within time, 12 percent interest would be charged from the date of filing the complaint. The Hon’ble State Commission dismissed the Appeal. Hence the RP.
8. At para-11, Hon’ble NC clarified that facts of the case in Delhi Gymkhana Club-Vs- UOI are different. It was held that consumption of any refreshments or beverages by a Member or a Guest at a club would not bring him within the definition of ‘consumer’. But in the case at hand, there is relationship between the ‘consumer’ and the ‘service provider’. At para-12, Hon’ble NC, inter alia, said that the ‘There is no principle of law or legal proposition to have different MRPs for sale of a product inside an establishment and outside it. The Central Government has admitted that there is no bar also, under the Legal Metrology Act, 2009 or the Rules framed there to have different MRPs.’
9. At para16 and 17, Hon’ble stated that the Affidavit filed by the Director of Legal Metrology had mentioned of many case references, including the case of Hon’ble Delhi High Court in UOI-vs- Federation of Hotels & National Restaurants Associations wherein the court held that packaged water cannot be sold over MRP. At para-22, Hon’ble NC affirmed the order passed by the Fora below and imposed further cost of Rs 500000/- on the petitioners because they must have made illegal enrichment by charging/extorting money from their customers.
10. The complainant filed a copy of judgement of CDRF-1, Hyderabad in cc case no.399/2016 between Sri Vijay Gopal and Inox Multiplex, disposed on 04/04/2017. in this case the water bottle inside the cafeteria had MRP but was charged Rs 50/-.The case was allowed and order inter alia, was given in favour of complainant imposing cost of Rs 5000/-  as compensation and Rs 1000/- as cost with other directives.
11. The complainant also filed an expert opinion from Consumer Resources under the head line ‘Cinema hall told to pay Rs 5L for over charging for packaged water’with the Impact. Overchargingconsumers is not permissible. Earlier, in another case, the Maharashtra State Commission had ruled dual pricing would constitute an unfair trade practice.
12. But all our observations towards overcharging got frustrated when we perused the latest judgement of Hon’ble Supreme Court, filed by the OP, in Civil Appeal No.21790 of 2017(Arising out of SLP(C) No. 28685/2015, in Federation of Hotel And Restaurant Associations of India (Appellant)-VS-Union of India And Ors.(Respondents).The case alsodealt Civil Appeal No. 21791 of 2017(Arising out of SLP(C) No. 27629/2015.

We have no scope to discuss in detail on the said judgement of the Hon’ble Supreme Court except some observations which may determine the fate of this case.

13. The judgement mainly focused into the provisions of the Standards of Weights & Measures Act, 1976 vis-à-vis the new Legal Metrology Act of 2009, including, inter alia, definition of Sale. At para-10, page 10 of the said judgement, it is stated, ‘As has been stated in the trilogy of judgements in M/s Associated Hotels of India Ltd.(supra) and two Northern India Caterers (India) Ltd.(supra), it is clear that when ‘sale’ of food and drinks takes place in hotels and restaurants, there is really one indivisible contract of service coupled incidentally with sale of food and drinks. Since it is not possible to divide the ‘service element’, which is the dominant element, from the ‘sale element’, it is clear that such composite contracts cannot be the subject-matter of sales tax legislation, as was held in those judgements.’
14. Para-15 of the judgement discussed at page 14 on the ‘3. Applicability of the Chapter’ and in the middle of para-16 (page 15), Hon’ble Supreme Court said, inter alia,’ First and foremost, a reading of the opening of Rule 3 would show that the provisions of the Chapter would not apply to packaged commodities meant for institutional consumers such as hotels. Also, the Rules cannot take us very much further when it has already been held by us that the Act itself would not apply for the reasons given hereinabove.’
15. Penultimate para-17 at page 15, Hon’ble Supreme Court stated, ‘ We are, therefore, of the view that neither the Standards of Weights and Measures Act, 1976 read with enactment of 1985, or the Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices which are above the MRP.

This is the latest order as we find in this type of dispute and that too, from the Apex Court of India, which is binding on all courts. Therefore, very clearly, the complaint is not maintainable at this Forum, irrespective of what have been discussed at the beginning of our Analysis. We are, therefore, constrained to pass

ORDER

That the complaint be and the same is dismissed, being not maintainable at this Forum.  

              No order as to costs. Parties be given copies of the order when asked for.