Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint under section 12 of C.P. Act, 1986 was initially filed against the Opposite Party (O.P.)- Gladly Bangali alias Rollstar, 37, Dr. Haren Mukherjee Road, Hakim Para, Siliguri, P.O. & P.S. - Siliguri, Dist.: Darjeeling, Pin Code- 734001who contested the case by filing Written Version (W.V.).

          The case of the complainant as per his complaint is as follows-

          The complainant along with his two friends visited the O.P. on 26.11.2017 for having a light meal and after reaching there, they placed an order for some food items, beverages and a bottle of 01 liter of packaged drinking water (‘Bisleri’ brand). After having their meal, they received a bill being No. 1845 for the same from the O.P. The total bill amount was of Rs. 430/- (Rupees Four Hundred and Thirty) only which was consisted of 01 quantity of bottled water big amounting to Rs. 30/- (Rupees Thirty) only, 01 quantity of Gondhoraj Chicken amounting to Rs. 160/- (Rupees One Hundred and Sixty) only, 03 quantity of Fresh Lime amounting to Rs. 90/- (Ninety) only, 02 quantity of Dimer Devil amounting to Rs. 100/- (Rupees One Hundred) only and 01 quantity of Daal Peyaji amounting to Rs.50/- (Rupees Fifty) only. The complainant surprised to see that the O.P. had charged Rs. 30/- (Rupees Thirty) only on the bottle of packaged drinking water (‘Bisleri’ brand) of 01 liter whereas the M.R.P. (inclusive of all taxes) printed on the said packaged bottle of drinking water was Rs. 19/- (Rupees Nineteen) only. Moreover, the complainant found that the O.P. had charged Service Charge @5% on the total bill amount of Rs. 430/- (Rupees Four Hundred and Thirty) only. The complainant and his friends enquired of charging excess charge on a bottle of packaged commodity with a printed M.R.P. (inclusive of all taxes) and imposing of Service Charge on total bill amount @ 5% but the O.P. failed to provide valid and lawful reason regarding this issue though the complainant finally paid the total bill amount of Rs. 430/- (Rupees Four Hundred and Thirty) only to the O.P. in cash. The O.P. had committed unfair trade practice by unlawfully and illegally charging an excess amount of Rs. 32.50/- (Rupees Thirty Two and Fifty paisa) only when he is not entitled to charge or impose Service Charge as per Circular No. J-24/9/2014-CPU (pt.) issued by the Ministry of Consumer Affairs, Food and Food Product Distribution, Department of Consumer Affairs, Govt. of India, dated 21.04.2017.

            The prayers of complainant are as follows: -

1. To pass an order directing the O.P. to pay the sum of Rs. 11/- (Rupees Eleven) only being the monetary value of the excess charge against the M.R,.P. (inclusive of all taxes) of packaged bottle of drinking water, levied on complainant.
2. To pass an order directing the O.P. to pay a sum of Rs. 21.50/- (Rupees Twenty One and Fifty paisa) only being the monetary value of Service Charge, levied on the complainant.
3. To pass an order directing the O.P. to pay a sum of Rs. 01, 00, 000/- (Rupes One Lakh) only on account of unfair trade practice, deficiency in service, mental pain, agony and harassment suffered by the complainant.
4. Interest and pendilite interest @12% on the aforesaid amount, till payment.
5. Cost of the proceedings.
6. Any other order/ or orders or reliefs to which Your Honour may deem fit and proper.

                    List of Documents filed by the complainant:

1. Copy of Bill (including original copy) being No. 1845, dated 26.11.2017. (Annex. - A)
2. Copy of Bill (including original copy) being No. 1307, dated 02.11.2017. (Annex. - B)
3. Photographs (two in numbers). (Annex. - C)
4. Copy of Menu Card, downloaded from the official Face book Page of the O.P. (Annex. - D)
5. Copy of Circular No. J-24/9/2014-CPU (pt.) issued by the Ministry of Consumer Affairs, Food and Food Product Distribution, Department of Consumer Affairs, Govt. of India, dated 21.04.2017. (Annex.- E)
6. Copy of Final Order/ Judgment delivered by D.C.D.R.C., Jalpaiguri (Complaint Case No.- C.C./30/2017)
7. Copy of ORDER of 2014 SCC ONLINE NCDRC 313.
8. Copy of Guideline of CCPA (F. No. J-25/57/2022-CCPA), dated 4^th July, 2022.
9.  Copy of Final Order/ Judgment delivered by D.C.D.R.C., Kolkata Unit- II (CENTRAL) (Complaint Case No.- CC/391/2019)
10. Copy of ORDER passed by S.C.D.R.C., Dehradun (First Appeal No. 199/ 2022)

          Regarding this instant case, the Opposite Party- Gladly Bangali alias Rollstar, 37, Dr. Haren Mukherjee Road, Hakim Para, Siliguri, P.O. & P.S. - Siliguri, Dist.: Darjeeling, Pin Code- 734001 contested the case by filing Written Version (W.V.).

          The case of the O.P. as per his Written Version (W.V.) is as follows-

          The first allegation of the complainant was the M.R.P. of a packaged drinking water (Bisleri Brand) is Rs. 19/- (Rupees Nineteen) only whereas the O.P. had charged the complainant Rs. 30/- (Rupees Thirty) only which is totally baseless. Recently the Hon’ble Supreme Court of India, in Civil Appeal No. 21790 OF 2017 (Arising out of S.L.P. (C) No. 28685/2015) that Hotels/ Restaurants can sell ‘Packaged Water Bottles’ above M.R.P. The Hon’ble Supreme Court of India observed that hotels and restaurant can continue to sell packaged mineral water bottles above ‘M.R.P.’ rates and no prevailing law prevents such a sale.

          A bench of Justice RF Nariman and Justice Navin Sinha observed that neither the Standards of Weights and Measures Act, 1976, read with the Standards of Weights and Measures (Enforcement) Act, 1985, nor the Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at price which are above the M.R.P.

          The Hon’ble Supreme Court upheld a Delhi High Court single bench judgment which had held that charging prices for mineral water in excess of MRP printed on the packaging during the service of customers in hotels and restaurants does not violate any of the provisions of the Standards of Weights and Measures Act, as this does not constitute a sale or transfer of these commodities by the hotelier or restaurateur to its customers.

          The single bench, allowing the writ petition filed by the Federation of Hotel and Restaurant Association of India, had observed: “The customers does not enter a hotel or a restaurant to make a simple purchase of these commodities. It may well be that a client would order nothing beyond a bottle of water or a beverage, but his direct purpose in doing so would clearly travel to enjoy the ambiance available therein and incidentally to the ordering of any article for consumption. Can there be any justifiable reason for the Court or Commission to interdict the sale of bottled mineral water other than at a certain price, and ignore the relatively exorbitant charge for a cup of tea or coffee. The response to this rhetorical query cannot but be in the negative.”

          Thus, the first allegation of the complainant based on impose of excess charges on packaged drinking water is totally baseless and not tenable in law.

          The second allegation of the complainant was that the O.P. had charged @5% service charge on the total amount of Rs. 430/- (Rupees Four Hundred and Thirty) only i.e. Rs. 21.50/- (Rupees Twenty One and Fifty paisa) only to the complainant but the same was never objected by the customer and shall be treated as a voluntary payment of the Service Charge by the customer. The complainant tried to highlight the fact that with the effect of GST being applicable, there were no other indirect taxes applicable on any goods or services. This allegation was also totally baseless. All indirect taxes were abolished and the Goods and Service Taxes (GST) was implemented with effect from the 1^st day of July, 2017. At the time of implementation of GST, the taxes on food items in restaurants was a total of 18% which included 9% of Central GST and another 9% of State GST.

          However, almost all the rates of taxes were modified with effect from the 15^th day of November, 2017 and biogas and notification dated 14^th day of November, 2017the taxes applicable on food items in a restaurant was modified from a total of 18% total of 5% which include 9% of Central GST and another 9% of State GST. The billing was done on 26.11.2017 and the applicable tax was 5%. This was the same tax that had been charged from the complainant though there was a printing error due to the pre-fed data. Instead of ‘GST’ the bill displayed the charging of ‘Service Tax’ but the percentage that was charged was 5%.

          Thus, the second allegation of the complainant was also totally baseless and illogical. The fact remains that the complainant had paid a tax of 5% up on food items which is the law of the land. Just, because of a typing error, the O.P. cannot be made liable in any manner whatsoever.

          List of documents filed by the O.P.:

1. Copy of FEDERATION OF HOTEL AND RESTAURANT ASSOCIATIONS OF INDIA –V- UNION OF INDIA AND OTHERS… HON’BLE SUPREME COURT OF INDIA, (2018) 2 SUPREME COURT CASE 97.

2. Copy of Guideline of CCPA (F. No. J-25/57/2022-CCPA), dated 4^th July, 2022.

3. National Restaurant Association of India and Others –V- Union of India and Another… Hon’ble DELHI HIGH COURT, 2022 SCC ONLIN DEL 2172, Order Dated July 20, 2022.

4. National Restaurant Association of India and Others –V- Union of India and Another… Hon’ble DELHI HIGH COURT, 2023 SCC ONLIN DEL 2214, Order Dated April 18, 2023.

5. National Restaurant Association of India and Others –V- Union of India and Another… Hon’ble DELHI HIGH COURT, 2023 SCC ONLIN DEL 5540, Order Dated September 5, 2023.  

Having heard, the Ld. Advocate of the complainant and on perusal of the complaint and documents filed by the complainant the following points are taken to be decided by this Commission.

Points for consideration

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

Decision with reason:-

          All the points are taken up together for consideration and decision.

Seen and perused the complaint petition filed by the complainant supported by affidavit and also documents filed by the parties. We are also heard arguments of the parties in full length.

The complainant resides in, Siliguri, Dist.- Darjeeling and the O.P. also carries his business in Siliguri of Darjeeling districts. Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act- 1986 and Consumer Protection Act- 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.

At the time of argument, Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P.s not only through his Written Deposition but also by producing documents.

          As per evidences and documents filed by the complainant it is clear that the complainant visited the O.P. on 26.11.2017 for having a light meal and after reaching there, they placed an order for some food items, beverages and a bottle of 01 liter of packaged drinking water (‘Bisleri’ brand). After having their meal, they received a bill being No. 1845 for the same from the O.P. The total bill amount was of Rs. 430/- (Rupees Four Hundred and Thirty) only where 01 quantity of bottled water big amounting to Rs. 30/- (Rupees Thirty) only was added in the said bill. The complainant surprised to see that the O.P. had charged Rs. 30/- (Rupees Thirty) only on the bottle of packaged drinking water (‘Bisleri’ brand) of 01 liter whereas the M.R.P. (inclusive of all taxes) printed on the said packaged bottle of drinking water was Rs. 19/- (Rupees Nineteen) only. Moreover, the complainant found that the O.P. had charged Service Charge @5% on the total bill amount of Rs. 430/- (Rupees Four Hundred and Thirty) only. The complainant enquired of charging excess charge on a bottle of packaged commodity with a printed M.R.P. (inclusive of all taxes) and imposing of Service Charge on total bill amount @ 5% but the O.P. failed to provide valid and lawful reason regarding this issue though the complainant finally paid the total bill amount of Rs. 430/- (Rupees Four Hundred and Thirty) only to the O.P. in cash. To establish his statements the complainant referred some judgments of Hon’ble Higher Courts as well as other District Consumer Dispute Redressal Commissions.

          Regarding this instant case, the Opposite Party- Gladly Bangali alias Rollstar, 37, Dr. Haren Mukherjee Road, Hakim Para, Siliguri, P.O. & P.S. - Siliguri, Dist.: Darjeeling, Pin Code- 734001 contested the case by filing Written Version (W.V.).

          In support of his defense, the O.P. paid focus on two allegations of the complainant. The first allegation was the M.R.P. of a packaged drinking water (Bisleri Brand) is Rs. 19/- (Rupees Nineteen) only whereas the O.P. had charged the complainant Rs. 30/- (Rupees Thirty) only which is totally baseless as mentioned by the O.P.

          The second allegation of the complainant was that the O.P. had charged @5% service charge on the total amount of Rs. 430/- (Rupees Four Hundred and Thirty) only i.e. Rs. 21.50/- (Rupees Twenty One and Fifty paisa) only to the complainant but the same was never objected by the customer and shall be treated as a voluntary payment of the Service Charge by the customer. The complainant tried to highlight the fact that with the effect of GST being applicable, there were no other indirect taxes applicable on any goods or services. This allegation was also totally baseless. All indirect taxes were abolished and the Goods and Service Taxes (GST) was implemented with effect from the 1^st day of July, 2017. At the time of implementation of GST, the taxes on food items in restaurants was a total of 18% which included 9% of Central GST and another 9% of State GST.

          However, almost all the rates of taxes were modified with effect from the 15^th day of November, 2017 and biogas and notification dated 14^th day of November, 2017the taxes applicable on food items in a restaurant was modified from a total of 18% total of 5% which include 9% of Central GST and another 9% of State GST. The billing was done on 26.11.2017 and the applicable tax was 5%. This was the same tax that had been charged from the complainant though there was a printing error due to the pre-fed data. Instead of ‘GST’ the bill displayed the charging of ‘Service Tax’ but the percentage that was charged was 5%. Thus, the second allegation of the complainant was also totally baseless and illogical. The fact remains that the complainant had paid a tax of 5% up on food items which is the law of the land. Just, because of a typing error, the O.P. cannot be made liable in any manner whatsoever. To establish his statements the O.P. referred some judgments of Hon’ble Higher Courts.

In this case, it is clear from the documents and evidences that as per Menu Card the price of a Bottled Water Big is Rs. 25/- (Rupees Twenty Five) only and the price of a Bottled Water Small is Rs. 15/- (Rupees Fifteen) only and as per complaint the price of the Bottled Water Big was Rs. 19/- (Rupees Nineteen) only. But in the bill being No. 1845, dated 26.11.2017 the O.P. had charged Rs. 30/- (Rupees Thirty) only for 01 (one) Big Bottle Water. The M.R.P. of the said mineral water bottle was not categorically mentioned in the bill which was issued by the O.P. to the complainant.

It is fact that a Hotel or Restaurant has every right to charge extra amount upon the M.R.P. on account of service charge, levy or in the head of any other charges but it should be categorically mentioned in the bill.

All the Hon’ble Higher Courts have a view that a Hotel or Restaurant can charge extra amount of levy or service charge upon M.R.P. This Commission is also bound to follow the decision of the Hon’ble Higher Courts but in this instant case, the fact is defers from the decision referred by the O.P. In this instant case, the O.P. did not categorically mentioned the M.R.P. of the said packaged mineral water bottle and how much extra amount of money he charged from the complainant as levy or in the head of any other charges. A customer has every right to know the actual price (M.R.P.) of any purchased product and how much he is paying extra and on what account. Thus this Commission is of the view that there was a deficiency of service occurred from the part of the O.P. as the O.P. failed to mention the M.R.P. of the said packaged mineral water bottle and how much extra amount of money he charged from the complainant as levy or in the head of any other charges . 

So, as per the above discussion Commission has no doubt that there was an unfair trade practice from the part of O.P.s. In this instance case, the O.P. is liable.

Hence, it is, therefore,

ORDERED

That the Consumer Case No. 93/2017 be and same is allowed on contest against the O.P (Gladly Bangali alias Rollstar) with cost. In this instance case, the O.P. is liable.

The O.P.s are directed to refund the extra amount of Rs. 11/- (Rupees Eleven) only by an Account Payee cheque in favour of the complainant within 45 (Forty Five) days from the date of this order, i.e., from 05.12.2024. The O.P. is also directed to pay Rs. 4,000/- (Rupees One Thousand) only to the complainant for mental pain, agony, harassment and Rs. 4,000/- (Rupees One Thousand) only to the complainant for litigation cost. The O.P. is also directed to deposit Rs. 2,000/- (Rupees Two Thousand) only to Consumer Legal Aid Account of this Commission within 45 (Forty Five) days from the date of this order, i.e., from 05.12.2024. The O.P. shall pay the entire amount through an account payee cheque within 45 (Forty Five) days from the date of this order, i.e., from 05.12.2024, in default the complainant will be at liberty to execute the award as per law.

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.