Tamil Nadu

South Chennai

CC/449/2015

M/s.Willam Angelo - Complainant(s)

Versus

Buhari Hotels & Restaurant - Opp.Party(s)

M/s.V.S.Associates

12 Dec 2019

ORDER

                                                                             Date of filing      : 23.11.2015

                                                                               Date of Disposal : 12.12.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.449/2015

DATED THIS THURSDAY THE 12^TH DAY OF DECEMBER 2019

                                 

William Angelo,

S/o. Mr. Don Bosco,

No.24 A, 5^th Avenue,

Banu Nagar,

Pudur,

Ambattur,

Chennai – 600 053.                                                        .. Complainant.      

                                                                                                  ..Versus..

 

1. Buhari Hotels & Restaurant,

Represented by its Authorised Person/Incharge,

Mount Road,

Chennai – 600 001.  

 

2. The Manager,

Buhari Restaurant,

100 FT Tharamani Link Road,

Chennai – 600 042.

 

3. The Manager,

Buhari Hotel,

No.125, GST Road,

Chrompet,

Chennai – 600 044.                                                ..  Opposite parties.

 

Counsel for the complainant                 : M/s. V.S. Associates

Counsel for the opposite parties 1 & 2 : M/s. M. Abdul Nazeer

3^rd opposite party                                  : Ex-parte

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 to 3 under section 12 of the Consumer Protection Act, 1986 prays to pay of a sum of Rs.50,000/- towards compensation for unfair trade practice with interest at the rate of 15% p.a. with cost of Rs.10,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that on 25.06.2015, he visited the 3^rd opposite party hotel along with his friends and had purchased parcel food along with the packaged 1 litre of mineral drinking water wherein, the MRP price is Rs.22/-.  But the 3^rd opposite party collected 2% of service tax 5.60% amounting to Rs.27/-.  The complainant submits that the 3^rd opposite party issued a fresh bill for food and other eatables and collected service taxes and VAT.   The complainant enquired about the details of the bill to the waiter and met the Manager of the 3^rd opposite party who is totally irresponsible regarding the bills.   The complainant submits that the opposite party collected VAT and service tax against the MRP printed in the products is unfair trade practice.  The Manager of the 3^rd opposite party also behaved arrogantly which caused great inconvenience and mental agony.  Hence, the complainant issued notice dated:26.06.2015 for which, the opposite parties 1 & 3 has not sent any reply.  The 2^nd opposite party’s reply is very vague.  The act of the opposite parties amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by 1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.  The 1^st opposite party states that he is not controlling or administering or managing the opposite parties 2 & 3.  They are independent and they have no connection with the 1^st opposite party.  The 1^st opposite party states that he is not necessary party to this Consumer Complaint.   Misjoinder of parties vitiates the entire proceedings.  It is a speculative proceedings initiated by the complainant with an ulterior motive.  He is not a bonafide consumer.  He wants to make unjust enrichment by abusing the process of law.   Hence, the above complaint may be dismissed with exemplary cost.

3.      The brief averments in the written version filed by 2^nd opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The 2^nd opposite party states that they are not under the control and management of the 1^st opposite party.   They are independent.  They have no connection with the opposite parties 1 or 3.   The bill produced along with the complaint clearly shows that they have not consumed the food in the restaurant.  On the other hand, they took parcel from their restaurant.   The bill clearly says that it was parcel bill and the token Number is 44.   Therefore, it is seen that the complainant has not taken any food at the restaurant.   The restaurant is serving food and beverages and they are paying VAT and Service Tax to the authorities concerned.   The complainant has not stated what was the packaged drinking water that was purchased by him whether any maximum retail price has been printed in the said packaged drinking water, which was alleged to have been purchased by him.  He should have gone to a super market or departmental store for getting any goods muchless, water that they may be sold as per the MRP printed rate or below the MRP printed rate.  He cannot expect to serve the same by an establishment  with many facilities for their customers – a toilet / restroom /sitting table, sofas with air conditioner.  The 2^nd opposite party states that the complainant purchased packaged drinking water namely; Aquafina which is being sold at the maximum retail price of Rs.22/- inclusive of all taxes.  The maximum retail price is applicable only to shops and store which sells the goods.  It can never apply to any place where they provide Air conditioned seating giving many comforts for their customers.   This can never be termed as unfair trade practice.  The 2^nd opposite party states that the complainant has not produced the Aquafina bottle with M.R.P. rate while filing the above complaint which is alleged to have been purchased from the 2^nd opposite party.  Therefore, there is no deficiency in service on the part of the 2^nd opposite party and hence, the complaint is liable to be dismissed.

4.     The 3^rd opposite party after due service of notice entered appearance through Mr. R. Vigneshwaran, Advocate who filed Vakalath for the 3^rd opposite party but subsequently failed to file written version within the stipulated time and hence, the 3^rd opposite party was set ex-parte. 

5.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A6 are marked.  The opposite parties 1 & 2 after filing their written version has not come forward to file any proof affidavit to prove the contentions raised in the written version and hence, proof affidavit of the opposite parties 1 & 2 is ‘Closed’.

6.      The point for consideration is:-

Whether the complainant is entitled to a sum of Rs.50,000/- towards compensation for unfair trade practice with cost of Rs.10,000/- as prayed for?

7.      On point:-

The 3^rd opposite party after receipt of notice entered appearance through Advocate, Mr. R. Vigneshwaran and has not filed any written version and set ex-parte.  The opposite parties 1 & 2 after filing written version has not come forward to file any proof affidavit to prove the contentions raised in the written version.  The complainant has not filed any written argument and not turned up to advance any oral argument also.  Perused the records namely; the complaint, written version of opposite parties 1 & 2, proof affidavit of complainant, documents.  The complainant pleaded and contended that on 25.06.2015, he visited the 3^rd opposite party hotel along with his friends and had purchased parcel food for a sum of Rs.27/-, Rs.219/- and Rs.263/-.  Ex.A1 to Ex.A3 are the copy of bills and invoices.  Further the contention of the complainant is that he purchased packaged 1 litre of mineral drinking water wherein, the MRP price is Rs.22/-.  But the 3^rd opposite party collected 2% of service tax 5.60% amounting to Rs.27/- Ex.A1 is the bill showing the details of all the products. 

8.     Further the contention of the complainant is that the 3^rd opposite party issued a fresh bill for food and other eatables and collected service taxes and VAT as per Ex.A2 & Ex.A3.   The complainant enquired about the details of the bill to the waiter and met the Manager of the 3^rd opposite party who is totally irresponsible regarding the bills.  Further the contention of the complainant is that the opposite party collected VAT and service tax against the MRP printed in the products is unfair trade practice.  The Manager of the 3^rd opposite party also behave arrogantly which caused great inconvenience and mental agony.  Hence, the complainant issued notice dated:26.06.2015 as per Ex.A4 for which, the opposite parties 1 & 3 has not sent any reply.  The 2^nd opposite party’s reply is very vague.  Hence, the complainant is constrained to file this complaint claiming compensation and cost.  Eventhough the 3^rd opposite party remained ex-parte and the opposite parties 1 & 2 has not come forward to prove the contentions raised in the written version by way of proof affidavit this Forum wants to dispose the case on merits with the available records. The letter of the Deputy Secretary to the Government of India, Ministry of Consumer Affairs, Food & Public Distribution (Department of Consumer Affairs) in D.No.J-24/9/2014-CPU(Pt), Dated:14.12.2016 reads as follows:

“The ‘Service Charges’ are discretionary / voluntarily and a consumer dissatisfied with the services can have it waived off”.

9.     Considering the facts and circumstances of the case, the opposite parties 1 to 3 are jointly and severally shall pay the collection of service charges is voluntary and not compulsory hence, this Forum is of the considered view that the opposite parties 1 to 3 are jointly and severally liable to refund the service charges of Rs.13.94/- and to pay a sum of Rs.10,000/- towards compensation for mental agony with cost of Rs.5,000/-.

In the result, this complaint is allowed in part.   The opposite parties 1 to 3 are jointly and severally liable to refund a sum of Rs.14/- (Rupees Fourteen only) being service charges and to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 12^th day of December 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	25.06.2015	Copy of bill No.103
Ex.A2	25.06.2015	Copy of bill No.104
Ex.A3	25.06.2015	Copy of Tax invoice No.PA/58
Ex.A4	26.06.2015	Copy of legal notice of the complainant’s Counsel to the opposite parties 1 & 2
Ex.A5	29.06.2016	Copy of acknowledgement of the 1st opposite party for the legal notice dated:29.06.2015
Ex.A6	29.06.2015	Copy of returned cover from the 2nd opposite party

 

OPPOSITE PARTIES 1 & 2 SIDE DOCUMENTS:-  Proof Affidavit - Closed

 

 

MEMBER                                                                                                                                                                                              PRESIDENT