Punjab

Ludhiana

CC/15/506

Gaurav Kumar - Complainant(s)

Versus

Flavour Foods - Opp.Party(s)

Devan Verma Adv.

30 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

 

Consumer Complaint No.506 of 26.05.2015

Date of Decision        :  30.11.2016

 

Gaurav Kumar aged about 27 years son of Late Sh.Ashok Kumar, resident of back side Jama Masjid, Chotti Bara Dari, Nusrat Khani Mohalla, Malerkotla, District Sangrur.

….. Complainant

Versus 

 

1.Flavour Foods (Fast Food & Restaurant) 2516, Ghumar Mandi, Ludhiana through its Proprietor/Partner/Managing Director.

2.Manager, Flavour Foods (Fast Food & Restaurant) 2516, Ghumar Mandi, Ludhiana.

..…Opposite parties

 

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

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                     :         Sh.Devan Verma, Advocate

For Ops                         :         Sh.H.S.Narang, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant visited the premises of OP1 with his friends and ordered eatables consisting of Matar Malai Methi, Manchurian with Gravi, Channa Amritsari, Butter Roti, Tandoori, Masala Papad, Butter Scotch, Pine Suntech and mineral water. The packed drinking water bottle of brand  Aquafine 1 liter was having MRP of Rs.20/- inscribed thereon, but Op1 and OP2 charged Rs.25/- for the same. Bill No.64126 of 17.3.2015 issued by OP1 even shows charging of Rs.25/- for one mineral water bottle. Ops are supposed to provide proper drinking water facilities in their premises, but they failed to provide the same and charged excess MRP, resulting in violation of Rule 18(2) of the Legal Meteorology (Package Commodity) Rules 2011. In view of charging of excess amount than the printed MRP, Ops have adopted unfair trade practice and as such, prayer made for directing Ops to refund the excess charged amount and even pay compensation for mental harassment, tension, agony and harassment of Rs.50,000/-. Litigation expenses of Rs.5500/- even claimed through this complaint.

2.                In joint written statement filed by OP1 and OP2 together, it is pleaded interalia as if the complaint is not maintainable; complaint is false and frivolous being filed for extorting money and that is why, there is no deficiency in service or adoption of unfair trade practice on the part of Ops. It is further pleaded that Ops are running their restaurant under the name and style of Flavour Foods at 2516, Ghumar Mandi, Ludhiana. Ops obtained license from the Municipal Corporation, Ludhiana for running restaurant on payment of license fee. The restaurant provides all the facilities, congenial food and other eatables. The restaurant kept neat and clean by incurring huge expenses by way of payment of salary to the employees, expenses on lighting system, accommodation and travel charges etc. Even the premises of Ops are fully air-conditioned. The customers enjoying the ambience and facilities available in the restaurant. On account of providing of these extra facilities, Ops are charging very nominal charges from the customers. Even Ops have right to charge beyond MRP printed on the goods legally because of providing of abovesaid facilities. List of price is placed before every customer before getting order. After going through the list of price, the complainant accepted the price mentioned in the list and placed the order. Premises of Ops are equipped with R.O. System meant for providing mineral water to the customers. No customer is under any compulsion to purchase the bottle of mineral water by paying the price, mentioned in the list. Every customer has right to use this facility of mineral water of R.O. available in the premises of Ops without any cost, but the complainant instead of availing that facility, placed order qua bottle of mineral water after going through price list and agreed for the payment of the same. So, complainant is estopped by his act and conduct from filing this complaint. Each and every other averment of the complaint denied.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 & Ex.MO1 and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Daljinder Singh, Proprietor of OP1 along with document Ex.R1 and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of the parties. Oral arguments heard and addressed. Records gone through minutely. 

6.                After going through bill Ex.C1, it is made out that the complainant visited the premises of OP1 on 17.3.2015 and purchased mineral water bottle for Rs.25/- along with other 8 eatables items consisting of Matar Malai Methi, Manchurian with Gravy, Channa Amritsari, Butter Roti etc. In view of purchase of this large number of items, it is obvious that complainant enjoyed these eatables along with purchased mineral water bottle by sitting in the premises of OP1.

7.                Certainly on Ex.MO1, it is mentioned that MRP of purchased  bottle is Rs.20/-,but OP1 charged Rs.25/- for supply of this mineral water bottle. Even if this excess amount of Rs.5/- charged, but despite that the act of Ops does not fall in the domain of unfair trade practice or of providing deficient service because price list Ex.R1 placed on record shows that Rs.25/- chargeable for mineral water bottle in the family restaurant of OP1. As and when services in any restaurant availed, then charging of price for mineral water/soft water in excess of printed MRP on the packages does not render the restaurant authorities liable under the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’). In holding this view, we are fortified by law laid down by the Hon’ble Delhi High Court in case titled as The Federation of Hotels and Restaurants Association of India and others vs. Union of India and others-2007 AIR (Delhi) 137. After going through para no.15 of this cited case, it is made out that when person goes to a hotel and consumes eatable commodities, then he does not fall within the definition of consumer as contained in Section 2(d) of the Act. This analogy laid by keeping in view the proposition of law laid down by the Hon’ble Apex Court of the country in case titled as Northern India Caterers(India) Ltd. vs. Lt.Governor of Delhi(1979) 1 SCR-557. As in the restaurant of Ops, facility of free R.O.water provided and besides, the facility of sitting for enjoying the purchased eatables provided along with that of air conditioner and as such, certainly the complainant does not fall within the definition of Consumer at all. So, submission advanced by counsel for the Ops has force that consumer complaint is not maintainable.

8.                Even in case titled as PVR Limited vs. Ekta Jindal-I(2010)CPJ-98(Delhi State Consumer Disputes Redressal Commission, New Delhi), it has been laid down that precincts of Cinema hall falls in the category of a restaurant because the same give basic image of a restaurant. In this reported case also, it was held that in case proprietor charges more than that of price printed on the articles claimed on counter of such restaurant, then the same is permissible in view of law laid down in above cited case of The Federation of Hotels and Restaurants Association of India and others(Supra). Ratio of this case fully applicable to this case in view of providing of extra facilities of free drinking R.O. water; of sitting arrangements; rendering premises fully air-       conditioner and of keeping the restaurant neat and clean.

9.                Sh.Devan Verma, Advocate representing complainant vehemently contends that in view of the orders passed in case titled as Big Cinemas and another vs. Manjo Kumar by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 01.02.2016 in Revision Petition No.2038 of 2015, on charging of price in excess of MRP, the dealer concerned liable in action under the Consumer Protection Act. However, after going through para no.21 of this unreported case, it is made out that though there cannot be two MRPs, but the same is permissible in accordance with law only. As above referred law laid down by the Hon’ble Delhi High Court and Hon’ble Supreme Court provides that where extra facilities in a restaurant to consumer are provided, then charge of excess price beyond MRP is permissible and as such, charging of Rs.25/- as price of supplied mineral water bottle is in accordance with price list Ex.R1. That is appropriate. However, charging of price in excess of MRP is inappropriate in case of serving of mineral water after unsealing the bottle and supplying same in loose glasses. This in fact is the ratio of case Zaika Bazar vs. Hemant Goel-2007(2)CPJ-96(Delhi State Consumer Disputes Redressal Commission, New Delhi). Present is not a case of serving the mineral water bottle in loose glasses, but it is case, in which, Rs.5/- charged extra than MRP because of providing of extra  facilities and services. Para no.9 of this cited  case provides that if customer wants to take advantage of extra kind of service or facilities like Ac restaurant, three stars, four stars or five stars hotels, then the owner or management or authorities of that hotel/ restaurant may be free to charge extra for these referred services/facilities. Same is the position in the case before us because here, OP1 concern is a restaurant providing extra facilities.

10.              Case of Satyam Cineplexes vs. Mark Paul-2006(3)CPJ-12 decided by Hon’ble Delhi State Consumer Disputes Redressal Commission, New Delhi decided on 3.3.2006, but case of The Federation of Hotels and Restaurants Association of India and others vs. Union of India and others-2007 AIR (Delhi) 137, decided by the Hon’ble Delhi High Court on 5.3.2007 and later law laid down by the Hon’ble Delhi High Court based on law laid by Supreme Court to prevail, particularly when the law laid down by the Hon’ble Apex Court of country in case of Northern India Caterers(India) Ltd.(ibid) taken note of in case of The Federation of Hotels and Restaurants Association of India and others(supra). In case of Hotel Navtara vs. Kishore Mandrekar-2013(3)CPJ-113(Goa State Consumer Disputes Redressal Commission, Panaji), it was found that purchase receipt produced by the complainant does not reveal that the complainant had purchased or consumed any other item of food or beverage except packed drinking water bottle and that is why, it was held that no extra facility provided to the complainant like that of     arrangement for sitting on tables and chairs etc.  In view of this, it was held that charging of price in excess of MRP is unfair trade practice. However, in the case before us, complainant purchased number of eatables along with mineral water bottle as discussed above and as such, complainant availed the extra facilities of sitting in air-conditioned restaurant, due to which, his case stands on different footing than that of above quoted case by the counsel for the complainant.

11.              In view of factual and legal position discussed above, there is no escape from the conclusion that as the complainant availed extra facilities of sitting in air-conditioned restaurant and enjoyed the purchased eatables by sitting there and as such, the complainant is not a consumer.

12.              Therefore, as a sequel of the above discussion, the complaint dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules.

13.                        File be indexed and consigned to record room.

 

                                      (Vinod Bala)                                (G.K.Dhir)

                               Member                                       President

Announced in Open Forum

Dated:30.11.2016

Gobind Sharma.