| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO.CC/105/18 Date of Institution:- 20.03.2018 Order Reserved on:- 02.08.2024 Date of Decision:- 24.10.2024 IN THE MATTER OF: Mr. Vikesh Talwar S/o Shri V. K. Talwar, R/o H. No. A1/138, Safdarjung Enclave, New Delhi - 110016 .….. Complainant VERSUS The Manager 305-306, 2nd Floor, DLF Promenade Mall Vasant Kunj, New Delhi - Azure Hospitality Pvt. Ltd.
Through its Managing Director, A 257, Pocket A, Okhla Phase I, Okhla Industrial Area New Delhi .…..Opposite Parties Per Dr. Harshali Kaur, Member - Briefly stated, the facts of the case are that the complainant visited the OP-1 restaurant at DLF Promenade Mall, Vasant Kunj. On 18.10.2017, for dinner with his family. After the dinner, the complainant was given a Bill No.DLF/IN/17189/1718, which, to his surprise,reflected a service charge of Rs.360/-.The complainant states that the amount levied was 10% of the basic amount, which was Rs.3600/- and GST was thus charged on Rs.3960/-. Hence, the total bill the complainant was to pay came out to be Rs.4673/-. The complainant alleges the service charge was unlawful and illegal and has annexed the copy of the Bill as Ex.CW1/A.
- The complainant explained to the waiter at OP-1 that he did not want to pay the service charge as the service charge per the government regulation is not mandatory but rather voluntary.He, therefore, asked the OP-1 employee to remove the charge and amend the bill amount. But the waiter refused to do so, and hence, the complainant's grievance was escalated to the Manager of OP-1, who pointed out to the board hanging on the wall which said that the OP-1 restaurant levied a service charge of @10%.
- The complainant told the Manager of OP-1 about the unambiguous guidelines via a notification issued by the Government of India through its Ministry of Consumer Affairs, Foods and Public Distribution on 21.04.2017. However, the Manager did not heed the complainant, and the complainant thus paid the bill amount to avoid further argument and embarrassment.
- Thereafter, the complainant sent a legal notice to OP-1 dated 31.10.2017, to which OP-1 replied on 18.11.2017. Dissatisfied with OP-1's reply, the complainant thus filed the present complaint under section 12 of the Consumer Protection Act, 1986, alleging deficiency in service and Unfair Trade Practice qua the OPs praying for a consolidated sum of Rs.2,00,425/- towards losses caused to the complainant along with pendiliteinterest @18% p.a. and Rs.11,000/- towards litigation expenses.
- On Notice, OP-1 and 2 filed a joint reply, wherein the OPs deniedany interaction between the complainant and the Manager of OP-1 on 18.10.2017 when the complainant visited OP-1 restaurant. Further, the OPs state that there is clear information affixed at prominent places in the OP-1 stating that OP-1 restaurant levies service charges for the information of the customers so that while paying the bill, they can make informed decisions whether or not to pay the service charge which the OPs also believe is payable at the option of the customer.
- The complainant was served specialities and delicious dishes by the staff, who took his feedback after the dinner, asking him if he was satisfied and willing to pay the service charge.Only when the complainant replied in the affirmative was the service charge included and, therefore,he willfully and without protest paid the service charges mentioned in the bill after the OP-1 staff had obtained his consent and satisfaction with the OP-1 service before providing him with the final bill.Hence, the present complaint is an afterthought filed with a malafide intention to extort money from the OPs as the complainant willfully and without any protest paid the service charges mentioned in the bill on his own after being impressed with the quality of food and services of OP-1 restaurant and thus should be rejected with cost.
- The complainant filed a rejoinder and his affidavit to be read as evidence and also proved all the documents on record reiterating the averments made in his complaint. The OP filed the affidavit of
Sh. Manoj Kumar Joshi, AR of the OP, who echoed the statements in the reply. - The contesting parties filed their written arguments, and we have heard the final oral arguments from the Ld. counsel of the complainant.Liberty was granted to the OPto address oral final arguments within ten days, but none appearedfor the OP to do the needful despite notice.
- We have perused the documents filed by the contesting parties to substantiate their testimonies and have carefully considered the facts and circumstances of the present complaint. We find that the complainant went to the OP-1 restaurant for dinner on 18.10.2017 with his family. He was given a bill after he had partaken dishes ordered by him amounting to Rs.3600/-.
- The complainant's grievance is that the OPs levied a service charge of Rs.360/- in the bill unilaterally without his consent.As stated in his written arguments, he was dissatisfied with OP-1's service and food. He thus did not wish to pay the service charge and asked the waiter to amend the bill as the service charge was an optional and voluntary payment by the customers. He has annexeda copy of the billreflecting the service charge as Ex.CW1/A. Taxes were charged on this amount of Rs.3960/-.
- The complainant stated that he repeatedly informed the staff of OP-1 that the service charge in the food bill was illegal in light of the guidelines of the notification dated 21.04.2017 issued by the Department of Consumer Affairs, Ministry of Consumer Affairs, Foods and Public Distribution, Government of India Notification No.J-24/9/2014-CPU(pt.) to no avail. The complainant's grievance was escalated to the Manager, but the OP-1's Manager only pointed to a board hanging on the wall, saying,"We levy a service charge @10%".Aggrieved, the complainant paid the total amount and later sent a legal notice to the OPs on 31.10.2017. The OPs replied to the legal notice denying any deficiency. Hence, the complaint.
- The OPs clarified that the OP staff always seeks their customer's satisfaction as they did for the complainant on 18.10.2017 when he had a meal at OP-1 restaurant. The final bill was generated only after the complainant agreed to pay the service charge.
- However, this statement of OPs that the information was placed at prominent places in OP-1, is falsified, as per their testimony in which the OP has stated that "We levy a service charge @10%" was written on a board on the wall. This statement nowhere clarifies or even alludes to service charges being optional or voluntary in nature.
- Further, the OPs were aware of the notification dated 21.04.2017 when the complainant went for dinner on 18.10.2017. Hence, the OP were aware that the notification no.J-24/9/2014-CPU(pt.) was clear regarding the fair and unfair trade practice with respect to service charges charged by hotels/restaurants as clarified below:-
- A component of service is inherent in provision of food and beverages ordered by a customer. Pricing of the product therefore is expected to cover both the goods and service components.
- Placing of an order by a customer amounts to his/her agreement to pay the prices displayed on the menu card along with the applicable taxes. Charging for anything other than the aforementioned, without express consent of the customer, would amount to unfair trade practice as defined under the Act.
- Tip or gratuity paid by a customer is towards hospitality received by him/her, beyond the basic minimum service already contracted between him/her and the hotel management. It is a separate transaction between the customer and the staff of the hotel or restaurant, which is entered into, at the customer's discretion.
- The point of time when a customer decides to give a tip/gratuity is not when he/she enters the hotel/restaurant and also not when he/she places his/her order. It is only after completing the meal that the customer is in a position to assess quality of service, and decide whether or not to pay a tip/gratuity and if so, how much. Therefore, if a hotel/restaurant considers that entry of a customer to a hotel/restaurant amounts to his/her implied consent to pay a fixed amount of service charge, it is not correct. Further, any restriction of entry based on this amounts to a trade practice which imposes an unjustified cost on the customer by way of forcing him/her to pay service charge as condition precedent to placing order of food and beverages, and as such it falls under restrictive trade practice as defined under section 2(1)(nnn) of the Act.
- In view of the above, the bill presented to the customer may clearly display that service charge is voluntary, and the service charge column of the bill may be left blank for the customer to fill up before making payment.
Clause 5 of the aforementioned notification is explicit regarding the display of the voluntary nature of the service charge and that the column of the bill was to be left blank for the customer to fill outbefore making payment. - A bare perusal of Ex.CW1/A, the copy of the invoice issued by
OP-1, a unit of OP-2 to the complainant, clarifies that OP-1 added the service charge before generating the bill in contravention of the guidelines of the competent authority.OP-1 levied a sum of Rs.360/- as a service charge on the bill and further charges CGST and SGST on the total amount of Rs.3960/- inclusive of the service charge.
- Hence, in our considered view, this act of OP-1 for which OP-2 is vicariouslyliable, OP-1 being a unit of OP-2, is tantamount to unfair trade practice and deficient service. We, therefore, allow the complaint and direct the OPs to jointly and severally pay the sum of Rs.10,000/- to the complainant towards mental agony, harassment and pain suffered by him, inclusive of litigation costs.
- A copy of this order is to be sent to all the parties as per rule.
- File be consigned to record room.
- Announced in the open court on 24.10.2024.
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