Haryana

StateCommission

A/360/2021

VIJIT GUGLANI - Complainant(s)

Versus

BURGER KING - Opp.Party(s)

IN PERSON

28 Feb 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA

                                                       First Appeal No.360 of 2021

Date of Institution: 08.12.2021

                                                           Date of Decision: 28.02.2022

 

Vijit Guglani S/o Shri Manohar Lal Guglani, R/o House No.14, 1^st Floor, Dayal Singh Colony, Karnal, Haryana

….Appellant

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.

                                                   ……Respondents

First Appeal No.363 of 2021

Date of Institution: 13.12.2021

Date of Decision: 28.02.2022

 

1. Burger King India Pvt. Ltd. Mittal Commercia, Chimatpada, Hasanpada Road, Andheri East, Mumbai-400059.
2. Burger King Franchisee Located at Haveli, Karnal.

 

                                                   ……Appellants

Versus

Vijit Guglani S/o Shri Manohar Lal Guglani, R/o House No.14,  Dayal Singh Colony, Karnal.

                                                                           ……Respondent

 

CORAM:    Mr.A S Narang, Judicial Member.

                   Mr. Suresh Chander Kaushik, Member.

 

Present:-    Mr. Vijit Guglani, appellant in person in appeal No.360 of 2021 and respondent in 363 of 2021.

                   Mr. Rohit Kapoor, Advocate for the respondents in appeal No.360 of 2021 and appellants in appeal No.363 of 2021.

                     

                                      O R D E R

A.S. NARANG, JUDICIAL MEMBER:

                   (The matter has been heard through virtual hearing).

                   This order will dispose of two appeals titled Mr. Vijit Guglani (complainant-appellant) Vs. Burger King Franchisee and another (opposite parties-respondent) (First Appeal bearing No.360 of 2021) and the appeal titled Burger King India Pvt. Ltd. and another (opposite parties-appellants) Vs. Vijit Guglani (complainant-Respondent) (First Appeal bearing No.363 of 2021) against the order dated 27.10.2021, whereby the District Consumer Disputes Redressal Commission, Karnal (“DCDRC”) has allowed the complaint filed by Vijit Guglani against the Burger King Franchisee  & another.

2.                In brief, the complainant had filed the complaint before the DCDRC with the averments that on 11.05.2019 at 08.40 p.m., he alongwith his wife Mrs. Binu Guglani and son Master Nirmit Guglani had visited the restaurant of opposite parties. He had ordered one veg whopper burger and one juicy keema wrap. The juicy wrap was quite chewy.  He complained about this to the staff of the Opposite parties, who accepted the fault and replaced the juicy wrap.  The replaced juicy wrap was very hot.  It had been prepared fresh.  His son wanted to consume the same. Since juicy keema wrap was very hot, he opened the wrap. On opening the wrap he was shocked to see that there was a fly in it.  He reported the matter to the opposite parties, who accepted the fault. Opposite parties also refunded the price of the product. He also took the photographs of the incident and also recorded the video  with the help of mobile. Complainant alleged that there was deficiency in service on the part of opposite parties.  He claimed compensation and also requested that the license of the OPs be cancelled.

3.                Respondents in the written reply contested the complaint.  They alleged that they adopt all possible measures to ensure the safety, quality and hygiene of the products sold at the outlet.  They denied that juicy keema wrap was chewy.  They alleged that still considering the complaint of the complainant, they had replaced it.  They admitted that complainant had complained to them that there was a fly in the second juicy keema wrap.  They alleged that without raising any dispute and  only with a view to ensure the satisfaction of the complainant, they took back the second juicy keema wrap and refunded the full amount  of the juicy keema wrap.   Complainant accepted the refund in full and final settlement of the alleged claims without any protest.  They alleged that the relationship of consumer and service provider came to an end.  They denied that there was deficiency in service and prayed that the complaint be dismissed with compensatory costs.

4.                Whereas complainant tendered evidence his affidavit  Ex. CW1/A and also produced pendrive
Ex. C-2; on the contrary, the opposite parties tendered evidence affidavit of Mr. Rashmi Ranjan Sahoo Ex. OP2 and authority letter Ex. OP1.

5.                After hearing the parties and perusing the evidence on the record, vide impugned order dated 27.10.2021, the DCDRC, Karnal allowed the complaint  and directed the OPs to pay an amount of Rs.1,00,000/- (One lac only) as compensation. The DCDRC also ordered that out of total amount of Rs.1,00,000/-, 50% amount i.e. Rs.50,000/- be paid by the opposite parties to the complainant and remaining 50% amount be deposited by the opposite parties in the account of PGI, Hospital, Chandigarh for treatment of poor patients.   It also ordered that the order be complied within 45 days, failing which the opposite parties would be liable to pay interest @ 9% p.a. on the amount of compensation from the date of order till actual payment.

6.                Aggrieved by the order passed by the DCDRC, Karnal, both the parties have filed appeals. 

7.                Whereas in the appeal filed by the complainant, he has alleged that the District Commission has awarded very meagre compensation and also not passed any order for the cancellation of license of opposite parties; Opposite parties in the appeal filed by them has challenged the order of the District Commission and alleged that the same is not based on any evidence.

8.                We have heard Mr. Vijit Guglani, appellant in person and Mr. Rohit Kapoor, Advocate for the respondents.

9.                Assailing the impugned order, Mr. Vijit Guglani, appellant has submitted that District Commission has not awarded condign compensation. The OPs own a chain of restaurants. They sell their products at exorbitant prices. The customers pay exorbitant prices on the assumption that the OPs would maintain hygiene in their restaurants. It is not first time that such an incident has taken place.  In these circumstances, the District Commission should have awarded punitive damages and further the District Commission  should have cancelled the license of the OPs.  Mr.Vijit Guglani submitted that his appeal be allowed and the compensation be enhanced and the license of the OPs be cancelled.

10.              Per contra, Mr.Rohit Kapoor, Advocate for the respondents argued that impugned order is not sustainable in the eye of the law.  There was no credible evidence before the District commission to return the finding against the OPs.  He has submitted that the mobile recording, which is in the pen drive, is not admissible under section 65 B of the Evidence Act, 1872.  Mr. Rohit Kapoor, Advocate also argued that the District Commission has rightly not passed any order for cancellation of license of the OPs.  Mr. Rohit Kapoor further submitted that impugned order be set aside; appeal may be allowed and the complaint filed by the complainant be dismissed.

11.              We have considered the rival contentions. It is admitted on the record that on 11.05.2019 at 08.40 p.m.,  complainant alongwith his wife Mrs. Binu Guglani and son Master Nirmit Guglani had visited the restaurant of Opposite parties.  It is also admitted on the record that the complainant had placed the order for one juicy keema wrap, which on his request was replaced by the opposite parties.  As far as the fact as to whether there was a fly in the second juicy keema wrap supplied by the opposite parties to the complainant is concerned, whereas the complainant has strongly alleged that the fly was found; respondents have denied it.  However, from the reply of the opposite parties, one fact is admitted that opposite parties had refunded the price of second juicy keema wrap.  Had there not been any defect in the second juicy keema wrap, opposite parties would not have refunded the price.  The consumer court is not bound by the provisions of Evidence Act,1872. It decides the cases on the basis of balance of probabilities. The complainant’s evidence was supported by the pen drive.  We are of the considered view that the District Commission has appraised the evidence properly and rightly allowed the complaint.  We are also of the considered view that the District Commission has also allowed condign compensation.  There is no scope for enhancement of compensation and for cancellation of the license of the opposite parties.  The upshot of the entire discussion is that both the appeals are hereby dismissed with no order to costs.

12.    The Registrar of this commission is directed to remit the sum of Rs.50,000/- deposited  by M/s Burger King & Anr. at the time of filing of the present appeal  bearing No.363 of 2021 to the account of  “Director, PGI, Chandigarh (PPWF)” by cheque after the expiration of limitation for filing appeal/revision.

13.    The original order be attached with appeal No.360 of 2021 and certified copies be attached with appeal No.363 of 2021.

14.    A copy of this order be sent to the DCDRC, Karnal as well as to the parties.

Pronounced in open court.

February 28^th, 2022               Suresh Chander Kaushik                A S Narang                                                    Member                                             Judicial Member

                                               Addl. Bench                                      Addl. Bench   

S.K. (Pvt. Secy).