FINAL ORDER / JUDGEMENT

Sri. Apurba Kr. Ghosh.........President.

The Complainants have filed the case against the O.Ps and praying for the following order/relief:

1. Direction against the OPs to returned back a sum of Rs. 30/- (Rupees Thirty) only for excessive cost taken by the Principal OPs for one plate aloo dum and also directed to returned back a sum of Rs. 16/-(Rupees Sixteen) Only taken by the principal OPs for one liter kinley mineral water.
2. Direction against the OPs to pay a sum of Rs 50,000/- (Rupees Fifty Thousand) only to the complainant on account of mental pain agony and harassment together with 18% interest accrued thereon with effect from 15.12.2017 till its realization.
3. Direction against the OPs to pay a sum of Rs. 25,000/- (Rupees Twenty Five Thousand) only to the complainants on account of punitive damages.
4. Direction against the OPs to pay a sum of Rs. 20,000/- (Rupees Twenty Thousand) only  to the Complainants on account of litigation cost.
5. Direction against the OPs to deposit a sum of Rs. 3,00,000/- (Rupees Three Lakh) only to Consumer Welfare Fund,  Siliguri for illegal and unfair trade practice and also for misappropriating the moneys of numerous consumers.
6. Direction against the OPs not to repeat unfair and illegal trade practice furthermore by charging exorbitant rate in above the Maximum Retail Price and menu card rate.
7. Direction against the OPs to pass further order/ relief which the Complainants are legally entitled. 

BRIEF FACT OF THE COMPLAINT

1. The Complainants have stated that they are peace loving and law abiding citizen of India, OP No 1 is a company having their business of restaurant cum bar in the territory of Siliguri and the OP No. 2 is the Managing Director of the OP No 1 and the OP No. 2 is liable / responsible for any day to day works, affairs and business of the OP 1 company.
2. That the OP No.  3 is a unit under the OP No. 1 and the OP No. 1 has been running/ promoting restaurant cum bar as  well as food section business under the name and style of spice garden restaurant cum bar i.e the OP No 3 and the OP No. 4 is Manager of OP No. 3 and as such the OP No. 2 & 3 jointly and severely liable and responsible  for the day to day works and affairs and business of OP No. 3.
3. That, O.P. No 5 is a company having their world wide business of manufacturing of special kind of soft drinks and they have the business of manufacturing, packaging and selling of mineral water popularly known as kinley.
4. That,  on 15.12.2017 the Complainants went to the restaurant cum bar of OP No. 1 i.e the OP No. 3 for taking foods and also hard drinks, they placed an order of 4 peg drinks along with one plate aloo  dum, 5 pcs. of chapatti and one bottle of mineral water of one liter. After giving that order of food and drink materials to the waiter they were waiting in table no. 18 on 15.12.2017, the service boy/ waiter / staff of the Principal OPs did not offered the ordered foods within the expected time, the Complainants have to wait for a long time for their such ordered foods/articles/ items, after several persuasions made by the Complainants the ordered food items/ articles were served to the Complainants but not in a proper manner.
5. That after consuming/ taking of the aforesaid food material the Complainants asked for providing the bill for the aforesaid food items and the hard drinks taken by them. The Principal OPs issued one bill or tax invoice showing a bill amount altogether a sum of Rs. 1301/- (Rupees One Thousand Three Hundred One) only  including GST where the rate of the food items and the hard drinks were clearly reflected.
6. That, after going through the said bill the Complainants have become stunt and surprised to see that though the menu card of Principal OPs is showing the cost of One plate aloo dum is Rs. 70/- (Rupees Seventy ) only but the Principal OPs issued the bill charging of Rs. 100/- for one plate aloo dum i.e excessive of Rs. 30/- as per the menu card. The Complainants thereafter requested the principal OPs to rectify the bills and also requesting for a fresh bill but the employees/staffs of the OPs without supplying the fresh bill started misbehaving with the Complainants by saying that Rs. 100/- for one plate aloo dum is rate of their restaurant cum bar and the said employees of the said OPs have forced the Complainants to pay the bill amount of Rs. 1301/-. Thereafter the Complainants discovered that the principal OPs are supplying in the name of mineral water which was/ is manufactured by the Pro OP No. 5 i.e. Kinley and after going through the neck of the said bottle Complainants have noticed that the MRP of the said one liter water was showing Rs. 19/- but the Principal OPs are charging a sum of Rs. 35/- instead of Rs. 19/- and the Principal OPs exorbitantly charging a sum of Rs. 16/- for one liter package kinley mineral water and the Complainants thereafter requested the employee of Principal OPs to correct the cost of the said one liter package kinley mineral water but they paid no heed.  Hearing the request of the Complainants for issuance of rectified bills the staffs and employees including the OP No. 4 became furious, started using abusive languages towards Complainants and due to such unwanted behavior of the staffs / employees of the Principal OPs a hot talk/ conversations was started in between them.
7. That subsequently hearing the request of the Complainants the Principal ops have provided another bill to the Complainants reducing the rate of one plate aloo dum from Rs. 100/- to Rs. 70/- showing a total bill amount Rs.1269/- including the GST charges but the Principal OPs did not reduce towards the charge of one liter package kinley mineral water.
8. That the staff /employees of the principal OPs including the OP No.  4 threatened the Complainants by saying that since the date of opening of their business they are charging Rs. 35 /- for costing of one liter package kinley mineral water from the customers and none have raised any objection and they challenged the Complainants to do anything else whatever the Complainants want to do against them but they will not reduce a single penny for the said kinley mineral water. The acts and conducts of principal OPs and their staffs it is proved that the Principal OPs had been charging an exorbitant excessive rate not only from the Complainants but also from the other unidentified customers and the Principal OPs had been misappropriating the hard earned money of the customers including the Complainants only for their illegal and unlawful gain which proves that the OPs are doing unfair trade practice with their customers including the complainants and it is also proved that there is deficiency in service on the part of the staffs/ employees of the Principal OPs which create mental pain, agony and harassments to the complainants and thereby the OPs are jointly and severely liable to compensate the complainants.
9. That, the cause of action for the case arose on and from 15.12.2017 when the exorbitant bill was issued by the Principal OPs and forced the Complainants to pay their exorbitant bill amount and thereafter each and every date and the same is still continuing.

To prove the case the Complainants have filed the following documents:

1. Photocopy of  menu card showing the charges of 1 liter of mineral water as Rs. 35/- .
2. Photocopy of tax invoice issued by the OPs showing total amount of Rs. 1301/- dated 15.12.2017.
3. Photocopy of Second tax invoice issued by the OPs showing total amount of Rs. 1269/-
4. Photocopy of  bill for one liter kinely mineral water issued by Kundu stores, Shiv Mandir Bazar. Shiv Mandir.

On receipt of notice POP No. 5 appeared before this Commission, filed their W/V. But despitereceiving the notice issued by this Commission the OP No. 1 to 4 did not turned up before this Commission to contest this case. Subsequently OP No 1 to 4 preferred revision application before the Hon’ble West Bengal State Consumer Disputes Redressal Commission, Circuit Bench, Siliguri where the Hon’ble State Commission was pleased to allow the OP No 1 to 4 to contest the instant case by filing Written Notes of Arguments along with by filing documentary evidence before this Commission. Subsequently the OP No. 1 to 4 filed written notes of argument and they did not file any documentary evidence before this Commission.

Having Heard the Ld. Advocate of the Complainants and on perusal of the written complaint, documents filed by the Complainants as well as W/V of the POP No. 5 the following points are taken up for consideration.

                                    Points for consideration                  

1. Whether the Complainants is a consumer?
2. Whether the case is maintainable under the C.P. Act ?
3. Whether there is any deficiency in service on the part of the Principal O.Ps. as alleged by the Complainants?
4. Is the Complainants are entitled to get any award and relief as prayed for as per the prayer of their Complaint?

Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

Complainants were given opportunity to prove its case by adducing evidence and by producing documents before this Commission. The Complainants have filed written evidence in the form of an affidavit as PW 1to PW 3 including evidence in the form of an affidavit by the Owner of Kundu Stores.

The Complainants have also filed their documents in support of their case. At the time of hearing of argument Ld. Advocate of the Complainants referred decisions reported in CPJ (2014) VOL II Page 493 & CPJ (2016) VIL IV Page 246& CPJ (2006) VOL IV page 2013 & CPJ (2020) VOL II Page 7. At the time of argument Ld. Advocate of the Complainants s submits that the Complainants have been able to prove their case against the Principal OPs not only through the evidence of the Complainants and another witness but also by producing documents before the Commission.

Ld. Advocate of the OP No. 1 to 4 in their written notes of argument have denied the material allegations of the Complainants and have stated that only to harass the OP No/. 1 to 4the Complainants have filed the case on some false allegations to extort compensation amount. They have also stated that on the part of OP No. 1 to 4 there was no deficiency in service and the case is liable to be dismissed on the grounds that the Complainants have failed to prove their case.

Ld. Advocate of Pro OP No. 5 in their W/V has stated that the POP No. 5 was not involved with any disputes of the Complainants and the OPs and neither any allegation had been made against the POP No. 5 and he praying for dismissal of the case against the POP No. 5.

Having heard the Ld. Advocate of the both side and on perusal of written notes of argument of the parties and other materials in record it is admitted fact that the Complainants have been able to prove their case to the effect that on 15.12.2017 the Complainants went to the OP No. 1 , ordered for food and drink articles/ items to the waiter. It is also not denied by the OP no. 1 to 4 that they did not serve food and drink items to the Complainants. It is also admitted fact that the Principal OPs also issued one bill/ tax invoice showing the bill amount Rs. 1301/- including GST. In support of its claim the Complainants have filed the bill cum tax invoice showing a sum of Rs. 1301/- charged by the principal OPs. The Complainants have also produced another tax invoice showing amount of Rs. 1269/- which was charged from the Complainants and the same was duly paid by them. It is also not denied by the Principal OPs that in the neck of the bottle of kinley mineral water the Maximum Retail Price of one liter water was not showing of Rs. 19/- instead of Rs. 35/- which was charged from the Complainants by the principal OPs. From the document which was filed on behalf of the Complainants issued by the Kundu Stores in respect of one liter kinley mineral water wherefrom it is found that the price of one liter kinley mineral water was of Rs. 19/-. From the Tax invoice which was issued by the Principal OPs in favour of Complainants it is clearly proves that they charged a sum of Rs. 35/- for one liter mineral water though its MRP was of Rs. 19/-. The OP No 1 to 4 have failed to explain as to why they charged extra amount of Rs. 16/- from the Complainants for supplying one liter kinley mineral water.

To falsify the evidence of the Complainants the OP No. 1 to 4 did not file any evidence on their behalf either oral or documentary. Even, the OP No. 1 to 4 also did not file any written version on their behalf despite receiving notice issued from this Commission. In absence of any counter affidavit by the OP’s No. 1 to 4 the case of the complainants presumes/stated proved.

Considering the unchallenged evidence of the complainants and considering the admitted documents of the complainants we are of the view that the complainants have been able to prove their case against the principal OPs being No. 1 to 4 and they are entitled to get relief.

It is needless to mention here that, according to the provisions of Sec 47 (I) of the Consumer Protection Act 2019 is clearly speaks fact that charging excess amount from the MRP definitely will come under the purview of unfair trade practice and in the instant case it is not denied by the OP No. 1 to 4 that they did not receive a sum of Rs. 35/- instead of Rs. Rs. 19/- for 1 liter Kinley mineral water from the complainants.

Hence it is therefore,

                                                                                    O r d e r e d                                

That, the instant Consumer Case Being No. 34/S/2018 is hereby allowed against the OP No. 1t o 4 on contest but in part. The OP No. 1 to 4 are strictly prohibited from charging excess amount in future from any Consumer of any items above the Maximum Retail Price mentioned in the item.

The O.P. No. 1 to 4 are directed to refund/ return back a sum of Rs. 16/- (Rupees Sixteen) only to the complainants towards the excess amount of the price taken for 1 liter package kinley mineral water. The OP No. 1 to 4 are also directed to pay a sum of Rs. 20,000/- (Rupees Twenty Thousand) only to the complainants for causing mental pain, agony, and harassment as well as for deficiency in service on the part of the OP No. 1 to 4 towards the complainants. The OP No. 1 to 4 are also directed to pay a sum of Rs. 5000/- (Rupees Five Thousand) only to the complainants towards the cost of legal proceedings. The OP No. 1 to 4 are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only in the Consumer Legal Aid Account of this Commission. The OPs are directed to pay the entire awarded amount within 45 days from this day, failing which they will have to pay interest @ 9% per annum with effect from this day till making payment of entire amount.   

                                    Let a copy of this order be given to the parties free of cost.