Punjab

Ludhiana

CC/22/101

Puneet Singh - Complainant(s)

Versus

M/s Te Wild Fire - Opp.Party(s)

Mohit Kalia

10 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 101 dated 16.03.2022.                                                        Date of decision: 10.05.2023. 

 

Puneet Singh, Advocate, Office no.3020, 3^rd Floor, New Judicial Court Complex, Part-II, Ludhiana-141001. Mobile No.9988663069.                                                                                                                  ..…Complainant

                                                Versus

M/s. The Wild Fire, F-39, IVth Floor, Opposite Pumpkin School, Sarabha Nagar, Ludhiana through its General Manager/Director/MD/Manager/ Authorized Signatory/Proprietor/Partner. Pin No.141001.

                                                                                       …..Opposite party 

Complaint Under Section 35 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Ms. Mandeep Kaur, Advocate

For OP                           :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant is a practicing Advocate whereas the opposite party deals in hospitality service and running a restaurant in the name and style of M/s. Wild Fire. The complainant stated that on recommendation of one of his associate, he made booking of 11 persons for the purpose of celebration of a small get together for 03.12.2021 on advance payment of Rs.8389/- with complimentary 11 soft drinks, snacks, food including dinner, complimentary cakes etc. The opposite party had received complete advance payment from the complainant in the morning at the time of making booking itself but the opposite party did not issue any receipt and assured that they will give proper bill after attending the get together party. Believing upon the opposite party, the complainant gave complete advance payment of 11 persons (7 non-veg buffet and 4 veg buffet). The complainant further stated that he and his guests reached the restaurant of opposite party as per settlement and ordered two bottles of whisky and during get together several times the complainant and his guests complaint the officials and staff members regarding poor service and poor quality of snacks served by restaurant chef.  The staff members of opposite party assured that the quality will be improved on next repetition of the snacks. When the complainant ordered complimentary cake before last order, the staff member of opposite party started misbehaving with guests of the complainant and did not serve the complimentary cakes as promised by his staff members to complainant along with the four complementary soft drinks. The complainant further stated that when he and his guests requested the staff member regarding this illegal behavior, they manhandled his guests. When the complainant requested for the bill of two liquor bottles then opposite party had taken hefty amount of Rs.5000/- from him i.e. Rs.2500/- per bottle which was above the MRP of the bottle i.e. Rs.1600/- per bottle (including taxes). On complaining to the Manager regarding misbehavior of the staff, he had forcefully with the help of gunda elements including staff members removed the complainant and his guests from the restaurant premises without serving dinner to them. However, before leaving, the complainant obtained two bill bearing No.B023172 and B023171 dated 03.12.2021 amounting to Rs.8389/- and Rs.5000/- respectively. The opposite party has not fulfilled its commitment regarding quality service and quality food and by not serving dinner to the complainant and his guests despite receiving complete advance payment from him and opposite party has misused its position  by misbehaving by its staff members. The complainant served a legal notice dated 09.12.2021 upon the opposite party through his counsel Sh. Mohit Kapila, Advocate but no reply was received. In the end, it has been prayed that direction be given to opposite party to refund Rs.13,389/- along with litigation expenses of Rs.55,000/- and compensation of Rs.1,50,000/-

2.                Notice was sent to the opposite party No.1 through registered post on 30.03.2022 but none appeared on behalf of the opposite party despite service and as such, the opposite party was proceeded against exparte vide order dated 05.07.2022.

3.                In exparte evidence, the complainant tendered his affidavit as Ex. CA and reiterated his averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of receipt dated 03.12.2021 of Rs.5000/-, Ex. C2 is the receipt dated 03.12.201 of Rs.8389/-, Ex. C3 is the legal notice dated 09.12.2021, Ex. C4 is the postal receipt and closed the evidence.

4.                We have heard the counsel for the complainant and also gone through the complaint, affidavit and documents annexed by the complainant.

5.                The complainant has raised a consumer dispute by stating in the complaint as well as in the affidavit that he made an advance booking for 11 persons and paid an amount of Rs.8389/- on 03.12.2021 in advance. The opposite party promised to provide them complimentary 11 soft drinks, snacks, food including dinner and complimentary cake etc. The first grievance raised by the complainant is that out of the promised complimentary food items, 4 soft drinks and cakes were not served to him and his guests. Section 2(42) of the Consumer Protection Act defines the expression “Service’ which reads as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

 

6.                Perusal of definition of “service” shows that it categorically excludes the rendering of any service free of charge or under a contract of personal service. Further in Usha Shriram (Manali) Hotel Pvt. Ltd. v/s Sri K.S. Santosh (2010) Online (NCDRC) 26, it was held that service provided to the complainant under a complimentary scheme is not a “service” under the Consumer Protection Act. So the complainant is debarred from raising a dispute with regard to service of above mentioned complementary food items.

7.                The complainant has stated that the opposite party has charged Rs.5000/- from him i.e. Rs.2500/- per bottle of liquor which was above the MRP of the bottle i.e. Rs.1600/- per bottle. The complainant has not adduced any documentary evidence to show that the actual price of the liquor was Rs.1600/- per bottle at that time. Moreover, when a customer enters a hotel or a restaurant, it is not simply to make a purchase of these commodities. His direct purpose for going there in is more than this. It is to enjoy ambience. So the grievance of overcharging by the opposite parties remains uncorroborated.

8.                The allegations in the complaint are bald and vague and the complainant has adduced two invoices i.e. invoice bearing No.B023172 Ex. C2 and invoice No.B023171 Ex. C1 which was generated at 22.37 Hours and 22.34 Hours respectively on 03.12.2021 and a legal notice Ex. C3. Perusal of invoice Ex. C2 shows that the complainant was charged for non-veg and veg buffet only and the assertion of the complainant that they were not served food is devoid of any merits. It is also self contradictory that on one hand the complainant shows that he and his guests were forcibly removed by the staff of the opposite party and on the other hand, the complainant says that the bills were issued to them at the time of leaving restaurant. The complainant has also a grievance that the food served was of poor quality. However, the complainant did not lodge any complaint in writing by way of email or otherwise to the management of the opposite party nor brought the matter with regard to the alleged unhygienic food to the officials of Food Safety and Standard Authority. Even legal notice was served after six days from the date of alleged incident and the present complaint has been filed after 4½ months from the date of incident. The initial burden to prove the deficiency in service was upon the complainant but the complainant has failed to discharge the same.

9.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.                  

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:10.05.2023.

Gobind Ram.

 

 

 

Puneet Singh Vs M/s. The Wild Fire                              CC/22/101

 

Present:       Ms. Mandeep Kaur, Advocate for complainant.

                   OP exparte.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.     

         

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:10.05.2023.

Gobind Ram.