The complainant’s case, in short, is that he along with his friend visited the OP on 03.12.2017 for having their dinner and accordingly he placed order for food items, beverages and a bottle of packaged drinking water. After having their dinner, the OP raised a bill being No. 01398, containing among other items, 01 (one) kg of Coca-Cola amounting of Rs.60/- and 01 (one) literof Drinking water amounting Rs.30/-.
The complainant saw that the invoice portrayed that the complainant ordered for 01 (one) kg of Coca-Cola, whereas, the complainant and served a 750ml capped/sealed bottle of Coca-Cola. Moreover, the OP has charged Rs. 60/- for one capped bottle of aerated drink (Coca-Cola), whereas, the MRP (inclusive of all taxes) printed thereon was Rs.40/- the complainant further noticed that the Op had charged Rs.30/- for a packaged drinking water (Kinley) whereas the MRP (inclusive of all taxes) printed thereon was Rs.19/-.
The complainant asked the OP why the excess charge of Rs.(60-40)= 20/- on the sealed bottle of aerated drink (Coca-Cola) and excess charge of Rs.(30-19)=11/- on the bottle of packaged
Contd…..P/2.
-:2:-
drinking water, on the printed MRP (inclusive of all taxes) has been billed and urged the manager/staff to furnish him an invoice of Exact price. But instead of getting a proper response, the complainant was asked by the OP to pay the total bill value of Rs.655/-.
After paying the amount in full, the complainant re-enquired at the billing counter about the charge in excess of MRP (inclusive of all taxes), the OP failed to provide any valid and lawful reason and told that this is the general/usual practice and they charge alike from all its customers and that the complainant is not an exception.
The manager and staff of the OP humiliated the complainant and his friend in front of other customers and became very adamant. Having felt their reputation to be at stake, the complainant was compelled to pay the total bill of Rs.655/- which included, among other things Rs.60/- for one bottle (750ml) of aerated Coca-Cola in place of printed MRP(inclusive of all taxes) of Rs.40/- and Rs.30/- for one bottle (01 liter) of Kinley Drinking water in place of printed MRP (inclusive of all taxes) of Rs.19/-.
The complainant alleges that the OP is not entitled to impose and demand such amount of RS. (20+11)= 31/- as per provision of the legal metrology (packaged commodity) Rules 2011 and thereby committed unfair trade practice, and did not render service in conformity with his faith for the OP.
A legal notice dt. 07.12.2017 was served upon the OP by the Ld. Advocate of the complainant intimating the OP of its unfair trade practice. On 15.02.2017 at around 04.00p.m., the Ld. Advocate of the complainant received a call from one Suraj (Mob. No. 9933399920) claiming himself to be the representative of the OP and rebuked disrespect-fully the Ld. Advocate for following the due process of law.
The OP entered appearance and contested the case by filing written version. It was averted, inter alia, that the billing software used by the OP was limited to its entries and hence did not have any provision as to the quantitative measurement of beverages and hence the invoice-stated the 750ml of aerated drink was printed as “1KGSCOKE” but there was no discrepancy as to the price.The OP further stated that they have a printed menu card which clearly
Contd…..P/3.
-:3:-
mentions the price of every item which is sold in the restaurant and submitted that the OP provide consolidated service which includes personal attendance and service by waiters, air conditioning, parking and toilet facilities.
The OP further argued that it does not sell any of the packaged items printed in its menu card at the market retail price. The menu card specifically and clearly mentions all the items (prepared or packaged) along with the selling price. All the items along with their selling price in the menu (card) are fed into the billing machine and Bills/invoices are generated accordingly.
The OP submitted that they have been in the restaurant business for a number of years and understand that without its customers’ patronage it will not be profitable as business and hence take extra care to ensure customers’ pleasant experience. The OP’s menu (card) does not and never has listed the MRP of any packaged product sold by the OP.And they have charged the complainant with respect to the items ordered by him in accordance to the price listed in the menu.
Thus the OP has not violated any of the provision of the Consumer Protection Act or any other statutory provision/rules and regulation. It has never carried on any unfair trade practice or had any deficiency of service to the complainant-customer. The complainant has not complained even once about the deficiency of service of the OP. In fact, the complainant started shouting at the Manager and the Staff and created a ruckus in the restaurant. He has filed this complaint with a mala fide intention in order to extract a quick buck from the OP and hence it should be dismissed with a cost towards litigation payable by the complainant to the OP.
To prove his case, the complainant filed following documentary evidences along with the complaint:-
- Invoice being No. 01398 dated 03.12.2017.
- Legal notice dated 07.12.2017.
- Postal receipt.
- Postal tracking report.
POINTS FOR DETERMINATIONS
Upon pleadings of both the sides, the following points come up for determination:-
Contd…..P/4.
-:4:-
- Whether the complainant is consumer or not?
- Whether the OP has committed any unfair trade practice or deficiency in service?
- Whether the complainant is entitled to any relief sough for?
DECISION WITH REASONS
Point No. 1.
The complainant had his dinner at the OP-restaurant on 03.12.2017 and received a bill for the same from the counter of the said OP being invoice No. 01398. The said bill consist of 01 kg of Coca-Cola amounting to Rs. 60/-, 01 kg of smoked chicken amounting to Rs. 325/-, 01 plate of cheese Omelette amounting to Rs. 80/-, 01 plate of classic Panini amounting to Rs. 160/- and 01 litre of drinking water amounting to Rs. 30/-.
As per Section 2(d)(1) of the C.P. Act, a consumer is a person who buys a goods or hires a service for a consideration and also includes user of such goods and also a person availing such service. Hence in the instant case, the complainant bought the foodstaff from the OP, had his dinner taking the service of the OP-restaurant and lastly paid the charge as per the bill/invoice in full. Viewed from this aspect, the complainant is a consumer of the OP.
Point No. 2.
The complainant alleged that the OP charged Rs. 60/-(sixty rupees) for one sealed bottle of aerated drink (Coca-Cola), whereas, the MRP (inclusive of all taxes) printed thereon has Rs. 40/- and thus collected from him an excess amount of Rs. (60-40)= 20/- from the complainant. It was further alleged that the Op had charged Rs. 30/- for the packaged drinking water (Kinley), whereas, the MRP (inclusive of all taxes) printed thereon was Rs. 19/- and thus the OP collected from the complainant an excess amount of Rs. (30-19)= 11/-.
The OP, however, admitted such contention of the complaint in his written versionand added that the restaurant provides food and beverages to its customers and has a printed menu which clearly mentions the price of every item which is sold in the restaurant. It was further submitted that the OP provides
Contd…..P/5.
-:5:-
consolidated service which includes personal attendance and service by waiters, an environment for its patrons, air-conditioning, parking and toilet facilities.
In his evidence on affidavit, the complainant opines that in the name of providing consolidated services, the OP is unlawfully charging an amount excessive of MRP. Extra charges imposed to meet the expenses of providing consolidated services is clear evasion of law. The complainant further stated that the OP in their reply dt. 18.01.2018 to the legal notice dt. 07.12.2017 admitted that the excessive charge was made on MRP is entirely of the nature of service charge. The OP is not entitled to charge or impose service charge as per the circular No. J-21/9/2014-CPU (pt.) issued by the Ministry of Consumer Affairs, Food & Public Distribution, Dept. of Consumer Affairs, Govt. of India, dtd. 21.04.2017.
Point No. 3
The OP restaurant argues that like all other restaurants, the OP has an in-house printed menu card which lists and mentions the description and price of every item which is sold in the restaurant either prepared or pre-packaged. The menu card does not and never has listed the MRPof any of the pre-packed products sold by the OP. It is further argued that placing of the order by the complainant after scrutinizing and selecting from the menu amounts to acceptance of the offer of the OP as listed on the menu (card) and constitute a legal and binding Contact between the complainant and the OP.
The complainant relied on a circular NO. J-24/9/2014-CPU(pt) dt. 21.04.2017 of the Deptt. of Consumer Affairs, Ministry of Consumer Affairs, Food & Public Distribution, Govt. of India, which prescribes payment of tips/gratuities to the waiters/boys and of amounts towards service charge as purely voluntary in nature and subject to express consent of the customer. It is purely at the discretion of the customer to decide whether and or to pay tip/gratuity or service charge and if so, how much.
Making the said circular a shield the OP argued that pricing of the product covers both goods and component of service as the
Contd…..P/6.
-:6:-
latter is inherent in provision of food and beverages. Placing of an order by a customer amounts to his/her agreement to pay the prices displayed on the menu card along with applicable taxes.
The Ld. Advocate for the OP cited an order of the Delhi High Court (single judge bench) in “Federation of Hotel & Restaurant Association of India – Vs – Union of India &ors. 139 (2007) DLT7.”, seeking a declaration in 2003 that the provisions of standard of weights & Measure (SWM) Act, 1976, SWM (Enforcement) Act, 1985 and SWM (Packaged Commodities) Rules 1977 are not applicable to services refunded in the premises of Hotels & Restaurants. Having allowed the said W/P, the single judge of Delhi High Court held that charging prices for mineral water in excess of MRP printed on the packaging, during the service of the customer in Hotel and restaurants does not violate any of the provision of SWM Act as this does not constitute a sale or transfer of these commodities by the Hotelier or restaurateur to its customers.
But in 2009, the above mentioned Acts & rule were repealed and legal metrology Act, 2009 and the legal Metrology (packaged commodities) Rule 2011 came into existence In 2015, the earlier judgment of single judge of Delhi High Court was challenged in a Letters Patent Appeal filed before a Division Bench of Delhi High Court which by its judgment dtd. 11.02.20015 held that the judgment of the Ld. Single Judge shall not come in the way of the appellant enforcing the provision of new Act and there is no need to set aside or affirm the said judgment of the Ld. Single judge owing to the change of law. The appellant shall not be entitled to initiate any proceeding/prosecution for the violation of the old law in this respect. By this judgment the Division Bench of the Delhi High Court thus upheld the Govt.’s authority to initiate prosecution under 2009 Act.
Against the above judgment of the Division Bench, an appeal was filed in 2017 before the Supreme Court of India which upheld the judgment of the single judge of Delhi High Court. The Apex Court held that the position qua “sale” remains exactly the same as that in the 1976 Act (now repealed) and the definition of “sale” contained both in the 1976 Act (now repealed) and in the 2009 Act (New Act) would go to show that composite indivisible agreements
Contd….P/7
-:7:-
for supply of services and food and drinks would not come within the purview of the either enactment in as much as the very object of these enactments is to seeand ensure that quantities and MRP are mentioned on the package and hence neither the SWM Act 1976/1985 NORLegal Metrology act, 2009 would apply to interdict the sale of mineral water in hotels and restaurants at prices which are above the MRP.
Having in mind the maintenance of parity with the kind order dt. 12.12.2017 of the Hon’ble Apex Court of India in Civil Appeal No. 21790 of 2017 (Federation of Hotel and Restaurant of India -Vs- Union of India and others) shown as precedent, we are of the considered view that what has been alleged to have been done by the OP cannot be said to be a unfair trade practice or restrictive nor doesthe act of the OP fall within the definition of deficiency of service. In the result, the case does not succeed.
Hence, it is,
O R D E R E D
That the Consumer Case No. 107/S/2017 be and the same is dismissed on contest against the OPs. without costs.
Let a copy of this order be supplied to the concerned parties free of cost.
