Punjab

Sangrur

CC/516/2018

Harbans Singh - Complainant(s)

Versus

Chefs Food - Opp.Party(s)

Sh.Kuldeep Kumar Jain

29 Nov 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .

                                                                        Complaint No. 516

 Instituted on:   17.12.2018

                                                                         Decided on:     29.11.2021

Harbans Singh son of S. Gurcharan Singh R/O #103, Delhi Mandir Wali Gali, Nabha Gate, Ward No.4, Sangrur, Tehsil and District Sangrur.

                                                          …. Complainant.     

                                                 Versus

Chef’s Food, Opp. Raj High School, Patiala Road, Sangrur through its Prop/Partner.

             ….Opposite party

For the complainant  : Shri Kukldeep Jain, Adv.              

For OP                     : Shri Devi Lal, Adv.

 

Quorum                                          

S.P. Sood, President

Vinod Kumar Gulati, Member

Sarita Garg, Member

 

ORDER BY:     

Vinod Kumar Gulati, Member.

1.             Complainant Shri Harbans Singh (hereinafter to be referred  as ‘complainant’) has filed this complaint alleging inter-alia that on 19.11.2018 he along with one of his associate Shri Nirmal Singh visited the restaurant of the OP for taking lunch.  After they have finished with the same OP issued them bill number 4525 of the even date for Rs.430/- which they paid in cash and this is how complainant happens to be a consumer of the OP. However, during the lunch the employees of the OP served them with a bisleri mineral water bottle and despite the Maximum Retail Price (MRP) mentioned on the said bottle of Rs.20/-, OP charged them as Rs.25/- in the said bill. Some how or the other when complainant drew  attention of employees of the OP towards the MRP mentioned on the said bottle being Rs.20/- and instead their having charged him Rs.25/- then they felt bad and in fact went to an extent of using rough language against him. Continuing further, complainant also alleged that as a matter of fact Bisleri water bottle is being priced at Rs.20/- everywhere and sold at its above said MRP so therefore, Ops should have charged him the same price of the said product but when they charged over and above the said MRP, they were clearly deficient in their services and were found to be indulging in unfair trade practice, as such, finding all this and especially when OP and its employees failed to listen to his repeated requests to desist from the above said conduct and rude behaviour then complainant was having no other option except to file the present complaint.

2.             Upon notice, OP appeared through its Manager Shri Ajay Kumar and contested the complaint on the grounds of cause of action and also complainant having approached this Commission by concealing material facts. Besides these legal objections while answering various averments of the complaint, Manager of the OP did admit that complainant took lunch with the OP on 19.11.2018 but some how or the other denied of theirhaving charged excess price for Bisleri water bottle.  Likewise, contention putforth by the complainant regarding employees of the OP having misbehaved with them were also controverted.  Further it was also averred that complainant had visited the restaurant maintained by the OP to have its lunch and had ordered some food articles along with water bottle after consulting the menue in which the price of Bisleri water bottle  was clearly depicted as Rs.25/-.  As such, when complainant ordered some food articles alongwith water bottle, so he clearly consented to the OP having charged accordingly.  That being so, OP was neither deficient in service nor was it responsible for any unfair trade practice on its part.  Besides these, averments of the complaint were also denied and ultimately prayed for dismissal of the complaint.  

3.             After completion of the pleadings both the parties were called upon to lead their evidence and during this process complainant relied upon Photostat copy of the bill issued by the OP bearing number 4525 of 19.11.2018 Ex.C-1 followed by his sworn affidavit Ex.C-2 and another affidavit duly sworn by his associate Shri Nirmal Singh as Ex.C-3. Besides above said documents tendered by the complainant in affirmative, complainant also placed on record original bill/invoice issued by some another eating joint i.e. Ratna Resorts bearing number 806 dated 4.5.2019 as Ex.C-6 showing of the above said resort having charged for serving two mineral water bottles each for Rs.20/- only despite the fact that no document as Ex.C-4 and Ex.C-5 are there on record.

4.             On the other hand, OP also submitted affidavit of its Manager Shri Ajay Kumar Ex.OP-1 and menue card of Chef Restaurant Ex.OP-2 and closed its evidence vide statement of its counsel in this regard.  

5.             During the course of arguments, learned counsel for the complainant also relied upon the observations of the Hon’ble National Commission in Revision Petition No.2038 of 2015 titled Big Cinemas and another versus Manoj Kumar 2016(2) CPR 84: 2016(4) CPJ 246 and another observations of Hon’ble Delhi State Commission in Appeal No.A-512 of 2006 titled Zaika Bazar versus Hemant Goel, another decision again of Hon’ble National Commission, New Delhi in Revision Petition No.4090 of 2012 titled D.K.Chopra versus Snack Bar reported in 2014(2) CPJ 493: 2014(2) CPC 418 :2014(43) RCR (Civil) 264.

6.             On the other hand, the learned counsel for the OP also relied upon what was observed by Hon’ble Supreme Court of India in Civil Appeal No.21790 of 2017 arising out of SLP ( C) No. 28685 of 2015 titled  Federation of Hotels and Restaurants Association of India  versus Union of India and others alongwith Civil Appeal No.21791 of 2017, another observation of Hon’ble Gujarat State Consumer Disputes Redressal Commission while dealing with Appeal No.23 of 2017 titled Rohit Jayantilal Patel versus Crown Plaza and lastly decision of Hon’ble Delhi State Consumer Commission, New Delhi in Appeal No.08 of 460 titled PVR Limited versus Ekta Jindal.

7.             While opening the arguments, the learned counsel for the complainant emphasized that complainant along with his associate Shri Nirmal Singh had lunch from eating joint of the OP on 19.11.2018 and the bill raised by them depicted of the OP having charged them with Rs.25/- for Bisleri mineral water bottlewhereas the MRP mentioned on the said bottle was Rs.20/-. However, to add insult to the injury when complainant pointed out this anomaly of the over charging for the water bottle, employees of the OP became rude and offensive, which irked  him the most and perhaps that is why he decided to file this complaint. Copy of the bill proves the contention raised by the complainant whereas sworn affidavit of the complainant as well as his associate Shri Nirmal Singh as Ex.C-2 and Ex.C-3 proves his assertion to the hilt.  Before concluding, the learned counsel for the complainant drew attention of the Commission to another bill issued by Ratna Resorts, wherein the price of the mineral water bottle  was charged Rs.20/- which was in accordance with the maximum retail price mentioned thereon.  Above said conduct attributed of the OP amounts to deficiency in service and also of their indulging in unfair trade practice, so the complaint be allowed.

8.             On the other hand, learned counsel for the OP also emphasized that before serving anything after complainant arrived in his restaurant for taking food menue was also shown to him, in which the price of the mineral water bottle was clearly depicted as Rs.25/- and similarly price of other dishes and connected articles was also shown therein.  It was only after accepting the above said price structure, the complainant had placed the order which was served to them in due course.  Continuing further, the learned counsel for the OP also argued that the above said prices quoted by the OP included the service charges as well, so they were well within their right to charge something extra over and above printed on the water bottle, as such, OP was never deficient in services or resorting to unfair trade practice, as such this complaint deserves dismissal right away.

9.             At the very outset, if we peruse the observations recorded by various Hon’ble Commissions as relied upon by the complainant mentioned above,  in all these cases, the factum of OP having charged more than the maximum retail price mentioned on the mineral water bottle or some other consumable drinks was found to be the malpractices adopted by the parties concerned and were penalized for the same.  Referring to each one of the observations in a case titled  Big Cinemas versus Manoj Kumar, concept of two maximum retail prices was contested that one for the ordinary shops where its Maximum retail price is Rs.16/- for bottle of Aquafina and another one for the cinema halls etc. where for the same water bottle of Aquafina is being sold for Rs.30/-.  However, no evidence was found in this aspect and it was upheld that there cannot be two maximum retail prices in accordance with law, therefore, maximum retail price of the Aquafina water bottle of Rs.30/- by the OPs has been its own make which of course was in contravention of the manufacturer, as such the orders passed by the learned Fora below was found to be proper and further costs of a sum of Rs.5.00 Lacs was imposed on the petitioner (Big Cinemas and another) because of their having made illegal enrichment by charging/extorting money from their customers and this is how the complaint filed by Shri Manoj Kumar along with its appeal, which was dismissed by the Hon’ble State Commission, were again dismissed by the Hon’ble National Commission. Likewise, in another order passed by Hon’ble Delhi State Commission in Appeal No. A-512 of 2006 titled Zaika Bazar versus Hemant Goel again, learned District forum has held the complaint and even appeal allowed as the Op had charged three times of the maximum retail price of the mineral water bottle, the same was served in glasses in dinner and even appeal against the said order using plea by the OP that de-sealing of the bottle entitles him to charge any amount was also rejected holding that the practice of charging more than the maximum retail price are core of price tag and prescribes maximum limit of price.  While dismissing this appeal, punitive damages of Rs.50,000/- were imposed to be deposited in the Consumer Welfare Fund.  In the same fashion, complaint alleging deficiency in service and unfair trade practice filed by the complainant was dismissed, however, appeal against the said order before the Hon’ble State Commission also did not find favour with it and this is how in revision filed by the said complainant Shri D.K. Chopra before Hon’ble National Commission wherein an observation was made that it was only to protect the consumers from excessive prices charged by traders, that state made provision for declaring rates for purchase and sale of marketable commodities to hotel consumers from exploitation by traders, therefore, airport authority cannot disturb the MRP rates in case a person who purchases ‘redbull’ energy drink while standing is not obliged to pay the fees which is prescribed for restaurant.  As such, OP cannot misappropriate money and directed OP to deposit Rs.50,00,000/- with Consumer Welfare Fund.

10.           Likewise, what was observed by Delhi State Consumer commission, where appellant/OP charged Rs.40/- inspite of its printed price was Rs.12/- only, the Hon’ble Commission held that hotels/restaurants/or Cinemaplex  cannot charge more than the price and the act of the appellant clearly amounts to deficiency in service as appellant adopted unfair trade practice and directed OP to pay punitive damages to the tune of Rs.50,000/- in common welfare fund in addition of Rs.5000/- to the complainant/respondent Shri Mark Paul.

11.           Learned counsel for the complainant taking shelter of all these above said pronouncements of the Hon’ble Commissions wanted that in the case in hand since the OP charged Rs.5/- extra over and above the printed price on the bottle, so the excess amount charged should be refunded and exemplary compensation should also be awarded or could be directed to transfer in the Consumer Welfare Fund.     

12.           However, before proceeding further if we look into what was observed by the Hon’ble Apex Court of India in Civil Appeal No.21790 of 2017 titled  Federation of Hotels and Restaurants Association of India  versus Union of India and others, we find that the question which fell for decision before the Hon’ble Apex Court was that the Controller of Weights and Measures was to proceed against the hotels and restaurants for charging price higher than the printed maximum retail price for supply of packaged water bottles during services provided to their customers in the hotels and restaurants.  However, Hon’ble Supreme Court of India concluded that whenever sale of foods and drinking water took place in hotels and restaurants, there happens to be an indivisible contract of services coupled with incidental charges for food, drinks etc. Since it is not possible to divide service element from sale element, therefore, the composite indivisible agreements for supply of services, food and drinks does not fall within the purview of either of Standard Weights and Measures Act, 1976 and the Standard of Weights and Measures (Packaged Commodities) Rules, 1977, as such neither of the above said Act applies to the sale of mineral water bottles in the hotels and restaurants at prices above MRP.  It was also on the similar lines that Hon’ble Gujarat State Commission had observed while deciding appeal No.23 of 2017 titled Rohit Jayantilal Patel versus Crown Plaza. In the above noted complaint, the contention raised by the complainant did not find favour with the learned District Commission leading thereby complainant to assail the same before the Hon’ble Gujarat State Consumer Commission, but again unsuccessfully. Likewise, if we look into the order passed by Hon’ble Delhi State Commission in Appeal No.08 of 460 titled PVR Limited versus Ekta Jindal, again finding the OP having  resorted to unfair trade practice after complainant was over charged more than the MRP for the juice and chocolates from the shop in cinema hall during interval, her complaint was allowed. However, the OP having challenged the said decision before the Hon’ble Delhi State Commission, the above said conclusions arrived at by the District Commission were set aside for the precise reasons that cinema counter can charge more than the price printed on the article, if it is running the restaurant or a hotel.  In fact, the OP cinema hall had an eating house license to run a counter. Likewise counter over which the sales of articles are made in the cinema halls fall within the category of a restaurant, even if the same may not be a regular restaurant with all the usual restaurant’s paraphernalia, but has basic image of a restaurant and ultimately as stated supra the appeal was allowed.  Now, what all has been observed by the Hon’ble Commissions, it has been settled to rest by the Hon’ble Apex Court of India while issuing the declarations that charging prices for mineral water in excess of MRP printed on the packaging during the service of customers in hotels and restaurants does not violate any of the provisions of the Standard of Weights and Measures Act and likewise it also does not apply to eatables and drinks ordered and supplied in a hotel or restaurant on the principle that such are not sale only but service as well which falls under the rate of caveat emptor, as such a persons enjoying eatables and drinks are not the consumers as strictly defined in the Consumer Protection Act.  This is also primarily for the reason that a person going to hotel and restaurant and placing an order for food and water, does not go there to buy such things rather if he consumes all these things while sitting in the hotel or restaurant he not only consumes articles as ordered by him but also enjoys ambience and other infrastructure  setup there by the owner. So, for these reasons, the hotel or restaurant owners are not found to be violating any such provisions even if they happen to charge over and above the MRP. So in view of Hon’ble Supreme Court of India having settled this controversy to rest, all the observations in the pronouncements relied upon by complainant pale into insignificance.  Now taking all these observations and applying the same on  the instant case, complainant had in fact his lunch along with his associate on 19.11.2018 with the OP restaurant where he was charged of Rs.25/- for a Bisleri water bottle carrying MRP of Rs.20/- only, therefore, since OP had also provided services to complainant and his associate, therefore, the OP had also provided services to complainant and his associate, so OP was well within its right to charge extra for the said water bottle so there was no unfair trade practice on its part.

13.           So far as the allegation of the  complainant that the employees of the OP having misbehaved with the complainant is concerned, there is no proof produced on record by the complainant and their above said contention has  been duly repelled by the OP. So for all these reasons as the order passed by the Hon’ble Apex Court of India will definitely prevail in  views and opinions expressed by various other Commissions as relied upon by the complainant, as such, present complaint is found to be devoid of any merit and the same is dismissed, leaving the parties to bear their own costs. 

14.           A certified copy of this order be issued to the parties free of cost as per rules. File be consigned to records.

                                Pronounced.

 

                                November 29, 2021.

 

                                                                                   (Sarita Garg)  (Vinod Kumar Gulati)     (S.P. Sood)

                                                                   Member              Member                President