Chandigarh

DF-I

CC/62/2024

ISHITA KHANNA - Complainant(s)

Versus

GHAZAL RESTAURANT - Opp.Party(s)

03 Dec 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/62/2024
Date of Institution	:	25.01.2024
Date of Decision	:	03.12.2024

 

 

Ishita Khanna  D/o Nitin Khanna, resident of 203, Omaxe Silver Birch New Chandigarh, Mullanpur, Punjab 160901

… Complainant

V E R S U S

Ghazal Restaurant, SCO No.1890-90-91, Sector 17-C, Chandigarh 160017 through its Manager.

… Opposite Party

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY

:

Complainant in person Sh.Rajesh Verma, Adv. for OP

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Ms.Ishita Khanna, complainant against the aforesaid 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 12.12.2023 at around 8.30 PM, the complainant visited the OP Restaurant and after having dinner, the complainant requested for the invoice and on seeing the invoice, she was shocked to see that the OP had charged an amount of Rs.55/- for the water bottle branded as Aquafina priced at Rs.20/- mentioned on the label of the bottle and the copy of the invoice is Ann.C-1.  In addition to that, the OP had also charged Goods and Service Tax on rs.55/- and in this manner the aforesasid act of the OP amounts to unfair trade practice and the OP had charged more than MRP quoted on the label of the water bottle and also charged Goods and Service Tax on the said bottle.  The OP was requested to admit the claim, hence the present. Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability and cause of action.  It is further alleged that there is no deficiency of service on the part of the OP since the OP restaurant is one of the oldest restaurant in the city of Chandigarh, fully air conditioned, having dining capacity of large number of persons and is known for its food quality, ambience and customer service. Even the Hon’ble Supreme Court of India has already ruled that the restaurants can sell the mineral water bottle above the MRP.  The people come and enjoy food and pays to the OP for its service.  On merits, the facts as stated in the preliminary objections have been re-asserted.   It is alleged that it is not a simple case of selling of mineral water, rather, the OP has been providing comfort and ambience to the customers and as such also incurred extra cost over the infrastructure. The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainants 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 learned counsel for the parties and also gone through the file carefully, including the written arguments.

(i)    At the very outset, it may be observed that when it is an admitted case of the parties that on the evening of 12.12.2023 at around 8.30 PM, the complainant had dinner in the OP Restaurant and the OP had charged an amount of Rs.55/- as the cost of mineral water bottle branded as Aquafina which also included taxes as is also evident  from Ann.C-1, the case is reduced to a narrow compass at it is to be determined if the OP is unjustified in charging an amount of Rs.55/- i.e. excess amount than the MRP of the water bottle and that the complainant is entitled for the relief as prayed for, as is the case of the complainant or if the OP is justified in charging the above amount from the complainant and the complaint of the complainant is liable to be dismissed as is the defence of the OP. 

(ii)   As it is evident from the notification dated 30.9.2019 (Annexure R-2) issued by the Govt. of India, Ministry of Finance (Department of Revenue) that vide Sr.No.4A, compensation cess @ 12% has been levied on the category of caffeinated beverages w.e.f. 1.10.2019, which the OP had charged from the complainant under the said notification, it is unsafe to hold that act of charging the compensation cess from the complainant on the purchase of caffeinated beverages @ 12% amounts to unfair trade practice on the part of the OP, especially when it is an admitted case of the parties that the said bottle was purchased by the complainant on 12.12.2023 i.e. after the aforesaid amendment in the notification (Annexure
R-2) issued by the Govt. of India.

(iii)  Moreover, since it is an admitted case of the parties that the complainant had taken/enjoyed the dinner inside the OP Restaurant, it is clear that the OP had provided service to the complainant, who had also enjoyed the ambiance while sitting inside the restaurant.  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 restaurant for the subject bottle served upon the complainant on the relevant day. 

(iv)  At the time of arguments, the ld.Counsel for the complainant relied on the order passed by the Hon’ble State Commission, UT, Chandigarh in the case titled as Harsh Vasu Gupta Vs. Drinkery, Appeal No.150/2023, decided on 01.01.2024, vide which it was held that there is no restriction on hotels  or restaurants to set the price at which they want to offer food or beverages to consumers by discussing the ratio laid down in the case of Federation of Hotel and Restaurant Associations of India Vs. Union of India & Ors., AIR 2018 SC 73.  However, with due respect to the said order passed by Hon’ble State Commission, UT, Chandigarh as it is clear that facts of the present complaint are fully covered by the various judgments passed by the Hon’ble Delhi High Court and Hon’ble Apex Court, detailed as under, which were not earlier discussed in detail by the Hon’ble State Commission in the order passed in the case Harsh Vasu Gupta (supra) case, the same is applicable in the present case.

(v) In this regard, reliance can be placed on 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.”

 

6. Further, the Hon’ble Delhi High Court in the case of Delhi Gymkhana Club Limited Vs. Union of India, 2009 (3) CPJ 244 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.”

(vii)          Further reliance can also be placed on 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.”

(viii)      In the light of the ratio laid down in the aforesaid judgments, as it is an admitted case of the complainant that she had taken/enjoyed the dinner inside the OP Restaurant and also enjoyed the ambiance while sitting inside the restaurant and ordered the mineral water from the OP, which was supplied to her inside the OP 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 mineral water bottle in excess of MRP printed on the packaging, during service of customer in Restaurant, would not violate any provision of SWM Act as the complainant entered the OP Restaurant to enjoy its ambience and comfort therein also.

(ix)  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, restaurants or cinemas 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.

              Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 03.12.2024 Om		Sd/- [Pawanjit Singh] President
		Sd/- [Surjeet Kaur] Member
		Sd/- [Suresh Kumar Sardana] Member