Punjab

Ludhiana

CC/14/767

Munish Kumar - Complainant(s)

Versus

Connaught Plaa Restaurant Pvt Ltd - Opp.Party(s)

Hari Om Jindal

21 Mar 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 767 of 12.11.2014

Date of Decision            :   21.03.2016 

 

Munish Kumar son of Shri Ram Chander resident of 966/45, Street No.9, Harbanspura, Ludhiana. 

….. Complainant

                                                         Versus

1.Connaught Plaza Restaurants Pvt. Ltd., Regd. Office 15^th Floor, Mohandev, 13, Tolstoy Marg, New Delhi-110001.

2.Connaught Plaza Restaurants Pvt. Ltd., Westend Mall, Plot No.2 & 3, Ferozepur Road, Ludhiana.

3. Hindustan Coca-Cola Beverages Private Limited, 13 Abul Fazal Road, Bengali Market, New Delhi-110001.

4.Ludhiana Beverage Private Limited, Unit II, Village Jaspalon, Near Doraha, Tehsil Khanna, District Ludhiana.

…Opposite parties

 

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

                                                                                                                                                                                

COUNSEL FOR THE PARTIES:

For complainant                      :          Sh.Hari Om Jindal, Advocate.

For OP1 to OP3             :         Ex-parte.

For OP4                         :          Sh.M.S.Sethi, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complaint under Section 12 of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) filed by complainant Sh.Munish Kumar against Ops by alleging that he  purchased one water bottle                        of Kinley make of 500 ml during his visit to Westend Mall, Ferozepur Road, Ludhiana on 3.10.2014 against price of Rs.30/- from Op2. Op1 is engaged in the business of restaurant and doing the business under the name of Mcdonald. OP2 is the branch of OP1 at Ludhiana. OP3 is engaged in the business of sale of mineral water in India, manufactured under Kinley brand by Op4. The said packet of water bottle was purchased through invoice dated 3.10.2014. MRP printed on the neck of the bottle also mentioned Rs.30/- as price,but the bottle with same brand, ingredients and composition with MRP of Rs.20/- duly printed on the neck of bottle can be purchased from any shop or store. It is claimed that by charging Rs.30/- as price, Ops adopted unfair trade practice. It is claimed that as per Consumer Goods(Mandatory Printing of Cost of Production and Maximum Retail Price) Act, 2006, guidelines, the maximum price printed on the goods alone can be charged from the consumer. This MRP shall include all taxes. Branch Kinley is the brand of Coca Cola Company(OP3), which is a USA based company. OP1 and OP2 in connivance with OP3 and OP4 are earning profit by printing the higher amount of price on their products. Due to charging of excess amount, complainant suffered mental harassment and agony and as such, this complaint with directions to Ops to stop the unfair trade practice of charging the excess rate. Rs.50,000/- on account of mental harassment and inconvenience, but Rs.11,000/- as litigation expenses claimed.

2.                OP1 to OP3 are ex-parte in this case.

3.                OP4 filed the written statement by claiming that the complaint is not maintainable because no unfair trade practice adopted by Op4. It is claimed that as per Section 2(r)(ix) of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’), printed price can be charged. As MRP specified on the bottle was of Rs.30/- and as such, the same price charged by OP2. In view of Section 2(r)(ix) of the Act, claim of the complainant alleged to be not sustainable. Besides, it is claimed that the complainant is not a consumer of OP4 because nothing was purchased by the complainant from OP4. There was no privity of contract between the complainant and OP4 and as such, complaint alleged to be bad for mis-joinder of OP4, but non joinder of Coca Cola India Pvt. Ltd.,Gurgaon and Director, Legal Metrology as parties. It is claimed that this Forum has no jurisdiction because the Westend Mall, Ferozepur Road, Ludhiana area, from where the bottle purchased from OP2 is in different location which is apart from other areas of city. It is claimed that Op is competent to fix the MRP for different locations , because notification No.49/2008 Central Excise(N.T.) issued by the Government of India (Ministry of Finance) provides that mineral water/Aerated water to be sold on MRP basis and manufacturer can opt for different MRP’s for different area/location. Further, it is claimed that the complainant is not a consumer because in case refreshment or beverage purchased from a club or restaurant, a customer will not be a consumer. Fixing of the price is not under the purview of the Act and as such, this Forum has no jurisdiction. Allegations of cheating and fraud levelled, which requires elaborate evidence and as such, this Forum has no jurisdiction. Admittedly, the purchased kinley water bottle of 500 Ml was having printed MRP of Rs.30/-, but it is denied that OP4 is selling kinley water bottle at printed MRP of Rs.20/- in the area of Ludhiana. Allegations of selling of same quality of water with same ingredients and compositions on different rates in the same market at Ludhiana by printing different price are specifically denied. It is claimed that premises of OP1 and OP2 are not in the same market or same location as compared to other location.It is claimed that manufacturers can fix the price of its goods for particular location/area and in such situation, they are liable to pay the excise duty as per notification dated 24.12.2008 of Ministry of Finance. Complainant alleged to have mis-represented the facts and as such, prayer made for dismissal of the complaint.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex. C1 to Ex. C4 and thereafter, his counsel closed the evidence.

5.                On the other hand, counsel for Op4 tendered in evidence affidavit Ex.RW1 of Sh.S.D.Chhabra, Chief Executive Officer working with OP4 and then closed the evidence.

6.                Written arguments have not been submitted by any of the parties, but only oral arguments were addressed and heard. Records gone through carefully.

7.                Complainant in course of evidence has produced two bottles i.e. Ex.C3 and Ex.C4 of Kinley brand for establishing that though the contents of water of this bottle is 500 ML and ingredients of water are same, but Rs.20/- as MRP printed on one of the bottle, but  Rs.30/-  printed  as MRP on the other bottle for the purpose of sale on special outlet. So, if Rs.30/- has been mentioned as MRP for sale of 500 Ml of Kinley brand in special outlet, then Ops have to establish that the outlet, from which, the complainant purchased the bottle for Rs.30/- through bill Ex.C2 is the special outlet. Certainly, Section 2(r)(ix) of the Act provides that in case, MRP on the sold product is specified, then the same is chargeable at the special outlet. What extra facilities provided in outlet of OP2, from where, the bottle of water purchased for Rs.30/-, qua that, no evidence adduced. As per law laid down in case Delhi Gymkhana Club Ltd., vs. Union of India-III(2009)CPJ-244(Delhi High Court),  consumption of any refreshments or beverages by member or a guest at a club would not bring him within the definition of consumer as per Section 2(1)(d) of the Act. By relying upon the ratio of this case, it is vehemently contended by the counsel for OP4 that as outlet of Op2 is a special outlet in Westend Mall and as such, practice of charging of excess MRP after inscribing the same on the product is a due practice because the same is permissible by the provisions of Standards Weights and Measures (Packaged Commodities) Rules. After going through the ratio of this case, it is made out that club is not constituted or created for the purposes of sale or trade or commercial activities in any goods or services. Rather club is a forum where a group of persons having common interest are able to get together to share, develop or indulge in the same. The members of the club may decide and  provide for additional facilities and special ambience, which may include refreshments, meals, beverages, etc, for the duration of the time spent in pursuit of such activity at the club. In view of special activities carried out for the club and keeping in view  the objects for which club created, it was held in the reported case that charging of excess amount on supply of food and beverages in the club premises is not an unfair trade practice. Likewise in case of residential hotel, charging of excess MRP is permissible is also  the ratio of said case. Residential hotel in fact consists of premises used for the reception of the guests and travellers desirous of dwelling or sleeping therein. In view of providing of these facilities of dwelling and sleeping in the residential hotel, the charging of excess MRP held to be valid in the reported case. However, in case, the sale of packed water bottle in a particular hotel at price of Rs.25/- takes place in circumstance that the sale of the same packed  bottle with the same ingredients, quality, quantity and purity takes place elsewhere at Rs.15/-, then in view of the  stamping for particular hotel alone, the inference of adoption of unfair trade practice is draw able. In holding this view, we are fortified by law laid down in case titled as Kamat Hotels vs. Pralhad N.Padalikar and another-2012(5)AIIMR(JS)51(Maharashtra State Consumer Disputes Redressal Commission), Hon’ble Maharashtra State Consumer Disputes Redressal Commission in the  later  mentioned case,  held that in case, the bottle                 sold at higher MRP in a particular hotel has no distinguishable feature except the printing of the different MRP, then charging of excessive MRP is an unfair trade practice, particularly when the hotel does not provide any extra service to the customer as a part of pricing component. In the case before us also, it is not at all mentioned by OP4 as to what extra facilities provided by OP2 for charging excessive MRP and nor it is established that printing of Rs.30/- as MRP for sale through special outlet of produced bottle Ex.C4 actually inscribed for covering the sale through OP2 and as such, benefit of ratio of case of Delhi Gymkhana Club Ltd(Supra) is not available to OP4. As complainant as a routine visitor to OP2 purchased the bottle with higher mentioned MRP of Rs.30/-, despite the fact that the same quality, quantity and purity of water bottle sold at MRP of Rs.20/- in other locality and as such, unfair trade practice certainly is adopted by OP2 in connivance with remaining OPs, who are the manufacturer or agents of the manufacturer. Mere stamping of charging of excessive MRP of Rs.30/- in comparison of Rs.20/- qua the same product will not render the action of OPs justifiable, especially when it is not proved as to what extra facilities provided in premises of Westend Mall as compared to the facilities where the same product of Kinley water bottle is sold for MRP of Rs.20/- only.

8.                In view of charging of excess amount of Rs.10/- as MRP by Ops, directions need  be issued to the OPs to refund the excessive charged amount and even pay Rs.1000/- as compensation and Rs.1000/- as litigation expenses to the complainant on account of mental pain and physical harassment suffered by him.

9.                Therefore, as a sequel to the above discussion, complaint allowed in terms that Ops will refund excess charged amount of Rs.10/- within 30 days from the date of receipt of copy of order. Compensation of Rs.1000/- and litigation expenses of Rs.1000/- more allowed in favour of the complainant and against OPs. That payment be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules.

10.                        File be indexed and consigned to record room.

 

                   (Sat Paul Garg)                         (G.K. Dhir)

            Member                                   President

Announced in Open Forum

Dated:21.03.2016

Gurpreet Sharma.