Haryana

Karnal

CC/312/2019

Vijay Guglani - Complainant(s)

Versus

Burger King Franchisee - Opp.Party(s)

27 Oct 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                         Complaint No. 312 of 2019

                                                          Date of instt.29.05.2019

                                                          Date of Decision 27.10.2021

 

VijitGuglani son of ShriManoharLalGuglani, resident of 14, Dyal Singh Colony Karnal.

                                                …….Complainant.

 

                                      Versus

 

1. Burger King franchisee located at Haveli, Karnal.

2. Burger King India Pvt. Ltd. Mittal Commercia, Chimatpada, HasanPada Road, Andheri East, Mumbai-400059, near Marol Naka.

 

                                                        …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. VineetKaushik…….Member

 

Argued by: Complainant in person.

                   Shri Satpal Chopra, counsel for OPs.

 

                    (Jaswant Singh President)

ORDER:

 

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (as after amendment under Section 35 of Consumer Protection Act, 2019) against the opposite parties (hereinafter referred to as ‘OP’) on the averments that complainant had visited the OP no.2 on 11.05.2019 alongwith his wife Mrs.BinuGuglani and son master NirmitGuglaniin evening at around 8.40 p.m. The complainant had ordered one veg. whopper burger and one juicy keema Wrap for himself and his family. The juicy Keema wrap was quite chewy and same was informed to the staff of the OPs and they accepted the fault and proposed to change the same. The complainant found the changed juicy keema wrap very hot after having a bite of it, since it was prepared fresh, the complainant’s son wanted to have a bite of the same so complainant opened the wrap to let the steam go, complainant and his family shocked to see a fly inside the juicy keema wrap. The complainant reported the same to the OPs’ staff and they accepted their fault. The amount paid by the complainant has been refunded to the complainant by the staff of OPs. The complainant took the photographs of the incident and also recorded the video from his mobile of the incident. There is deficiency in service and unfair trade practice on the part of the OPs. Further, complainant prayed to this Commissionto penalize the OPs by directing the concerned authority to cancel the license of the OPs, so nobody else should suffer the same and OPs should not be allowed to play with other’s life and any other penalty to which this Commission, deems fit for proper may also be imposed to OPs, in the interest of justice to common people.

2.             On notice, OPs appeared and filed written version, stating therein that OPs have been adopting all possible measures to ensure the safety, quality and hygiene of the products sold at the outlet in question. It is denied that the juicy keema wrap served to the complainant was chewy, only on the satisfaction of the complainant the second juicy keema wrap was prepared fresh after replacing it in lieu of the first wrap returned by the complainant. The complainant approached the staff of the OPs with the complaint that they have found a fly inside the second juicy keema wrap. The staff of the OPs once again without raising any dispute and only with a view to ensure the satisfaction of the complainant took back the second juicy keema wrap and on the asking of the complainant refunded the full amount of the juicy keema wrap, the veg. whopper and the Chicken Tandoor Grill. OPs refunded the amount of even those food articles which had already been consumed by the complainant. Complainant has accepted the refund of the amount as full and final settlement of all his ‘alleged claims’ without any protest. In the circumstances, the relationship of consumer and service provider has already come to an end and thus present complaint is not maintainable before this Commission. It is further denied that there was defect in the keema wrap served to the complainant. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             The parties then led their respective evidence.

4.             Complainant tendered into evidence his affidavit Ex.CW1/A and pen drive Ex.C2 and closed the evidence on 03.12.2019 by suffering separate statement.

5.             On the other hand, OP tendered into evidence affidavit of Mr. RashmiRanjanSahoo Ex.OP2 and authority letter Ex.OP1 and closed the evidence on 13.01.2021 by suffering separate statement.

6.             We have heard the complainant, learned counsel for the OPsand have also gone through record available on the file and the evidence led by the parties carefully.

7.             Complainant while reiterating the contents of the complaint, has vehemently submitted that complainant visited at Burger King (OP No.1) which is franchisee of OP No.2 on 11.05.2019 alongwith his family and ordered one veg whopper burger and one juicy keema wrap. Juicy keema wrap was quite chewy, when the same was brought to the notice of OP No.1, they accepted the fault and proposed to change the same. The changed juicy keema wrap was very hot, the complainant opened the wrap, to let the steam go. On opening, the wrap, the complainant shocked to see a fly inside the keema wrap. The complainant reported the same to the staff of OPs and they accepted the fault and refunded the full amount of bill to the complainant without his consent. He further submitted that in the interest of common public, the OPs should be penalized while directing the concerned authority to cancel the licence of the OPs, so that nobody else should suffer the same and that any other penalty to which this Commission deems fit and proper may also be imposed upon OPs. He further submitted that he has not sought any amount as compensation from the OPs for himself.He lastly, prayed for allowing the complaint.

8.             Per-contra, learned counsel for OPs, while reiterating the contents of written version, has vehemently argued that the complainant has already accepted the refund of amount paid for all the food articles, including the food articles that had already been consumed. In the circumstances, the relationship of consumer and service provider has already come to an end and thus, the complainant does not fall under the definition of consumer. Hence, the present complaint is not maintainable and prayed for dismissal of complaint with heavy costs.

9.             Admittedly, the complainant has placed order for two items with the OP No.1 and one out of them was having fly and hence, the amount paid by the complainant has been refunded to the complainant by the OP No.1.

10.           With regard to the objection taken by learned counsel for OPs that complainant is not a “Consumer” as defined under Section 2 (7) of the Consumer Protection Act, 2019 is concerned, we found no substance in the contention of learned counsel for OPs. The Hon’ble National Consumer Disputes Redressal Commission in its recent decision passed in the similar case of Aashna Roy Valley View Estate Versus YogeshDeveshwar&anr. C.C. No.1619 of 2018 decided on 21.9.2021 has held as under:-

20.     With regard to the Preliminary Objection taken by the Opposite Parties that the Complainant is not a "Consumer" as defined u/s 2 (1)(d) of the Act since  no consideration was paid for hair cutting and treatment, we do not find any substance in the said contention. It cannot be believed that the Opposite Party No.2 which is established for profit motive would provide free services with huge infrastructure, trained staff and management. As stated above, the Complainant has made the payment of Rs.1,770/- from the Card issued by the Master Card, however, the said payment was declined. Exhibit RW-3/1 is the copy of invoice dated 12.04.2018 when the Complainant visited to Salon for hair cutting and Exhibit RW-3/2 is the transaction slip declining the transaction of Rs.1,770/-.  As such, it is manifestly clear that the Complainant was asked by the Opposite Party No.2 to pay a sum of Rs.1,770/- as the charges for the hair cutting and accordingly invoice was generated.  However, while paying the said consideration through a Master Card, the transaction was failed. But still, the Opposite Party No.2 chose to provide her hair cutting service since the Complainant used to come to the Salon since 2004 and the payment might have been paid by her later on. But as the complainant complained of about the wrong hair cutting and for which the Opposite Party No.2 had tendered apology in WhatsApp, the Opposite Party No.2 did not insist to the Complainant for making the said payment. Even, from the WhatsAppChat dated 15.04.18, it can be seen that Ms. Christine was suspended for three days. There is no doubt that realizing the mistake done by its staff, the Opposite Party No.2 offered the free hair treatment to the Complainant and Complainant was not attended to for a gesture. Hence, we are of the considered view that the Complainant is a Consumer.”

11.           The above said authority is fully applicable to the facts and circumstances of the present case. In the present case also, the complainant made payment for above said food items in advance thereafter, food items i.e. burger and Keema wrap were served to the complainant and his family and the complainant became consumer of the OPs after payment i.e. for valid consideration and also availed the services of Restaurant of OPs for valid consideration. But when the first bite of said Keema wrap was eaten by complainant and then they opened the keema wrap, then they found fly in the Keema wrap and OPs admitted its fault and made refund of the amount to the complainant. No doubt, the OPs have refunded the price of the item to the complainant but by making refund of the amount only, the OPs cannot absolve from its liability for supply of keema wrap with an insect/fly. The OPs cannot absolve from its liability for supply of a contaminated food item to its valuable customer. The consumption of contaminated keema wrap by complainant and the son of complainant would have been hazardous for their health. The OP no.1 is running its shop at such a famous place like Haveli at Karnal, therefore, it cannot be expected from OP no.1 which is running a shop in such a crowded place where number of persons collect daily that it will serve contaminated food to the public. Rather in the present case, the OPs are also to be penalized with exemplary heavy cost besides payment of compensation to the complainant for serving contaminated food to the customer like complainant at such a famous and crowded place where maintaining of hygiene is essential. The public at large go to such expensive places with the hope that they will be served with better quality of food and they spend much amount for getting hygienic atmosphere. The complainant and his family have suffered mental agony due to act of OPs. Thus, the act of the OPs amounts to deficiency in service and unfair trade practice.

12.           Now, we come to the relief sought by complainant. In relief para, the complainant has sought that in the interest of common public, the OPs should be penalized directing the concerned authority to cancel the licence of the OPs, so that nobody else should suffer the same and OPs should not be allowed to play with other’s life and that any other penalty to which this Commission deems fit and proper may also be imposed upon OPs. No doubt, the emotions of the complainant have been broken due to the act and conduct of OPs to the extent that complainant is claiming cancellation of the licence of the OPs, but said relief sought by the complainant does not come under the purview of this Commission and the complainant can only be compensated from the OPs due to their act and conduct. Though, complainant has not sought any amount as compensation from the OPs for himself but however, we are of the considered opinion that end of justice would be met, if OPs are burdened with exemplary costs for serving contemplated food to its valuable customer and for not maintaining proper hygiene as such highly expensive place where people pay extra amount for getting best quality of food and cleanliness. This will also heal the sentiments of the complainant to some extent having been shattered by ops due to their act and conduct and as complainant is fighting against the ops in the interest of public also, to our mind, complainant is also entitled to damages. We are of the view that direction to the ops to pay an amount of Rs. One Lac will be exemplary and punitive one so that in future they ensure that what quality which they claim is also practiced by them and no food containing foreign material is served to its customers. This view is also supported from the decision of the Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh in case of Sameer Bhardwaj (Dr.) Versus Aradhana Soft Drinks Company &Ors. II (2010) CPJ 47 and another decision of Hon’ble Delhi State Consumer Disputes Redressal Commissionin the case of Moon Beverages Ltd. Versus Vinod Gupta &Ors. II (2010) CPJ 7.

13.           In view of our above discussion, we allow the present complaint and direct the OPs to pay an amount of Rs.1,00,000/- (one lac only) as compensationand out of total amount of Rs.1,00,000/-, 50% amount i.e. Rs.50,000/- will be paid by the ops to the complainant and remaining 50% amount should be deposited by the ops in the account of PGI Hospital, Chandigarh for treatment of economic weaker section patients. This order should be complied with by the ops within a period of 45 days from the date of receipt of copy of this order, failing which the ops will be liable to pay the interest @ 9% per annum on the amount of compensation from the date of order till actual payment. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 27.10.2021

                                                                       

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

 

 (Vineet Kaushik)              

      Member