Chandigarh

DF-I

CC/341/2021

Harsh Vasu Gupta - Complainant(s)

Versus

Drinkery 51 - Opp.Party(s)

In Person

23 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                            

         

Consumer Complaint No.	:	CC/341/2021
Date of Institution	:	24/05/2021
Date of Decision	:	23/02/2023

 

Harsh Vasu Gupta s/o Rakesh Kumar Gupta, aged 21 years old r/o Flat No.2003/E, Sector 63, Chandigarh 160047.

… Complainant

V E R S U S

Drinkery 51, SCO No.28, Back side, Sector 26, Chandigarh 160019.

… Opposite Party

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Complainant in person
	:	Sh. Sahil Garg, Counsel for OP

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sh.Harsh Vasu Gupta, complainant against the opposite party (hereinafter referred to as the OP).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that on 4.4.2021 the complainant and his friends alongwith his family had visited the OP hotel/restaurant and ordered about 20 items including two bottles of mineral water, each worth ₹20/-.  After finishing food, OP had raised bill (Annexure P-1) which included the price of each bottle as ₹99/-.  Even the complainant was not satisfied with the food and services of the OP and the feedback (Annexure P-2) of the same was submitted on Zomato.  In this manner, OP had charged approximately four times more than the MRP of each bottle which was printed as ₹20/- whereas the OP had charged ₹99/- for each bottle.  The said sale of water bottles by the OP is in contravention of the provisions of Consumer Protection Act and amounts to unfair trade practice. Besides it, the same also contravenes Section 36 of the Legal Metrology Act, 2009 which specifically provides penalty for selling etc. of non-standard packages. It was also held in various orders passed by the Hon’ble State Commission and Hon’ble National Commission that overcharging extra VAT from the consumers when the MRP was inclusive of all taxes, amounts to unfair trade practice on the part of the seller.  In this manner, the said act of the OP amounts to deficiency in service and unfair trade practice.  OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, non-joinder of necessary party, and concealment of facts and also that the provisions of Legal Metrology Act, 2009 do not prohibit the hotels and restaurants to charge above the MRP of mineral water bottle.  On merits, admitted that on the relevant date, complainant and his friends had ordered around 20 food items, including two bottles of mineral water, after going through the menu where the price of each item, including mineral water, was clearly mentioned and accordingly all the items were served upon them.  It is further alleged that no complaint was made by the complainant or his friends about the quality of food and service to the answering OP after finishing their food.  Even the feedback submitted on Zomato was never shared either by the complainant or by the said Zomato.  It has also been held by the Hon’ble Apex Court in various judgments that the Legal Metrology Act 2009 does not prohibit to charge above the MRP of mineral water bottle.  The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the complainant in person, learned counsel for the OP and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant alongwith his friends had enjoyed the food items inside the OP hotel/restaurant and it had raised the bill (Annexure P-1) of ₹9,834/-, inclusive of ₹99/- each for two bottles of mineral water whereas the actual price was embossed on each bottle as ₹20/-, the case is reduced to a narrow compass as it is to be determined if the said act of the OP amounts to deficiency in service and unfair trade practice and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OP.
   2. As it is an admitted case of the parties that the complainant had taken/enjoyed the food inside the OP hotel/restaurant, it is clear that the OP had provided services to the complainant and his friends who had enjoyed the ambience while sitting inside.  In such scenario, it is to be determined if the case of the complainant is covered under the Standards of Weights and Measures Act, 1976 (hereinafter referred to as “SWM Act”) on account of excess price charged by the OP Hotel for the bottles of mineral water served upon the complainant and his friends on the relevant day. 
   3. The learned counsel for the OP has relied upon the judgment of Hon’ble Delhi High Court in the case of The Federation of Hotels and Restaurants Association of India & Ors. Etc. Vs. Union of India & Ors., 2007 AIR (Delhi) 137 in which it was held as under :-

“A.    Constitution of India, 1950 — Article 366 (29A), Schedule 1, List 3, Entry 34 - Standards of Weights and Measures Act, 1976 Sections 2(5) and 83 Standards of Weights and Measures (Packaged Commodities) Rules, 1977, Rule 23 (2) - Charging prices for mineral water/soft drink in excess of MRP printed on packages during the service of customers in hotels and restaurants does not violate any provisions of SWM Act as the persons enters hotels and restaurants to enjoy ambience available therein – Because this does not constitute sale or transfer of these commodities.

B. Consumer Protection Act, 1986 Section 2(d) Consumer Protection Act does not apply to eatables and drinks ordered and supplied in a Hotel or restaurant on the principle that such are not sale but only service and falls under the rate of caveat emptor – Hence persons enjoying eatables and drink in a hotel or restaurant is not a consumer case defined in the Consumer Protection Act.”

4. The learned counsel for the OP further relied upon the judgment of the Hon’ble Delhi High Court in the case of Delhi Gymkhana Club Limited Vs. Union of India, 2009 (3) CPJ 244 in which it was held as under :-

“A. Standard of Weights and Measures Act, 1976 Sections 2(b), 2(c) & 83 Standards of Weights and Measures (Packaged Commodities) Rules, 1977, Rules 1(3), 2(d), 2(o), 2(w), 2(v), 23 — Finance Act, 2005 — Section 65(25a) — Consumer Protection Act, 1986 Sections 13 & 2(1)(d) Food and Beverages — Sale of Beverages and Food in Clubs above maximum retail price - Provisions of 1977 rules not applicable — Held that a person consuming refreshment in club does not fall within the definition of consumer — therefore, the Consumer Disputes Redressal Forum has no jurisdiction to decide the dispute — Petitioner sought to be restrained from the practice of charging in excess of maximum retail price written on cold drink bottles — No case made out to grant relief — Members of club enter and use its premises, not to make simple purchases of commodities — Purpose of creation of club is to create place of activity for members which they can use either gratuitously or for a payment — Club do not provide the article in same condition in which it has purchased them to its members or guests — Service rendered by club in making available to its members for their convenience and consumption in comfortable atmosphere provided at the premises of club cannot be treated as a sale for applicability of consumer for a legislations  within the definition of consumer as defined in Section 2(1)(d) of Consumer Protection Act — Proceedings before Consumer Disputes Redressal Forum are without jurisdiction and not maintainable, therefore, quashed.

B. Words & Phrases – “Club” – “Association” – Meaning of – A club is not constituted or created for the purposes of sale or trade or commercial activities in any goods or services – It is a forum where a group of persons having common interest are able to get together to share, develop or indulge in the same.”

5. The learned counsel for the OP further relied upon the judgment of the Hon’ble Apex Court in the case of Federation of Hotel and Restaurant Associations of India Vs. Union of India & Ors., 2018 AIR (SC) 73 in which it was held as under :-

“No prohibition on sale of packaged mineral water in hotel at prices above MRP.

Legal Metrology Act, 2009, Section 2(r) - Standards Weights and Measures Act, 1976, Section 2 (v) – Indivisible agreement to supply – Sale at price above MRP -  when sale of food and drinks takes place in hotels and restaurants - There is one indivisible contract of service coupled incidentally with sale of food and drinks — Since it is not possible to divide service element from sale element - Composite indivisible agreements for supply of services and food and drinks not within purview of either enactment — Neither of Acts to apply so as to interdict sales of mineral water in hotels and restaurants at prices above MRP.”

 

6. In the light of the ratio laid down in the aforesaid judgments, as it is an admitted case of the complainant that he had ordered the food, including water bottles, from the OP which were supplied to him and his friends inside the OP hotel/restaurant, the same cannot be treated as a sale for applicability of consumer for a legislation within the definition of consumer as defined under the Consumer Protection Act. Moreover, charging price for water bottles in excess of MRP embossed on the packaging, during service of customer in hotels and restaurants, would not violate any provision of SWM Act as the complainant and his friends had entered the OP hotel/restaurant to enjoy its ambience available therein and the same does not constitute sale or transfer of the aforesaid commodity.
7. In view of the foregoing discussion neither the SWM Act read with enactment of 1985 nor the Legal Metrology Act, 2009 would apply so as to interdict the sale of mineral water/drinks in hotels and restaurant at prices above the MRP.  Hence, the complainant has failed to prove any deficiency in service or unfair trade practice on the part of the OP and the present consumer complaint deserves to fail.

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 23/02/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Suresh Kumar Sardana] Member