Delhi

New Delhi

CC/1066/2013

Akhil Sharma & Anr. - Complainant(s)

Versus

M/S. D'S Biryani Corner - Opp.Party(s)

11 Apr 2022

ORDER

 

 

CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC. 1066/2013                                

In the matter of:

 

1.    SH. AKHIL SHARMA

   S/O MR. VEDPRAKASH SHARMA

   B-57, PANDARA ROAD

   NEW DELHI-110003                                             COMPLAINANT NO. 1

2.    MS. SAKSHISAINI

            D/O MR. N.K. SAINI

             25 CENTRAL ROAD JANGPURA

              BHOGAL NEW DELHI-110014                                COMPLAINANT NO. 2

3.    MR. SHIVANGRAWAT

             S/O MR. M.S. RAWAT

             D-5,519, HAMDARD NAGAR

             NEW DELHI-110062COMPLAINANT NO. 3

 

Versus

 

            D’S BIRYANI CORNER

            M-13 PUNJ HOUSE ANNEXE

            CONNAUGHT PLACE

            NEW DELHI-110001                                              ……..OPPOSITE PARTY

QUORUM:

MS. POONAM CHAUDHRY, PRESIDENT

          SHRI BARIQ AHMAD, MEMBER

          MS. ADARSH NAIN, MEMBER

                                                                         Date of Institution      : 03.12.2013                                                                                                                                                                     Date of Order             : 11.04.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint filed under Section 12(a) of the Consumer Protection Act, 1986, briefly stated the facts of the case are on 29/11/2013, all the three complainants went to the restaurant of opposite party and ordered for 1 Deez veg. Biryani and 3 Diet coke cans. The opposite party charged Rs. 429 for Deez veg Biryani as per the rate in menu list whereas opposite party charged Rs. 45 for 1 Diet coke as against MRP of Rs. 25. It is alleged The opposite party charged Rs. 135 for 3 Diet coke cans which exceeds the total price by Rs. 60. The opposite party did not mention Diet coke can in their menu list and hence price was unknown to complainant.

Details of bill was reproduced as under:

Bill no.- 50884.

Tin no.-07360125307

S. Tax No.- AVIPS7939PS0003.

2. It is alleged that the complainant asked the opposite party for refund of excess money which opposite party charged above MRP. The opposite party refused to do so and managing staff told that the complainants that the price charged was valid as per their terms and conditions.
3. It is further alleged that the complainant tried to report the matter on the two customer helpline numbers viz. 9716442222 and 9212410618 which were displayed on notice board but none of the number was attended by anyone.
4. It is also alleged that the cause of action arose when the opposite party charged excess price over and above MRP of Diet Coke can. The cause of action is a continuing one as opposite party refused to return the excess money charged on bill.
5. It is also alleged that the restaurant of opposite party is situated in Delhi and cause of action also arose in Delhi hence this District Consumer Disputes Redressal Forum has jurisdiction to adjudicate upon this complaint. The disputed amount in the present complaint is below 20 lakh, therefore this forum also have pecuniary jurisdiction. The present complaint is with the limitation period as provided under section 24A of Consumer Protection Act, 1986. It is prayed OP be directed to refund Rs. 60 with an interest @ 18% from 29.11.2013 till date of realization and Rs. 15,00,000/- as punitive compensation for mental agony, inconvenience and hardship caused.
6. OP contested the case reply was filed taking preliminary objections that the service rendered in restaurant does not fall in the ambit of Consumer Protection Act. It is also stated the present complaint was liable to be dismissed as not maintainable in view of the provisions of The Standards of Weights and Measures Act, 1976 and rules framed there under (Substituted by Legal Meteorology Act, 2009) as the supply or services of the food-stuffs/eatables, and drinks in the hotels and restaurant are not sale. It was also alleged that the complaint was not maintainable in view of the fact that the charges of all the products were prominently mentioned in the rate list which was displayed in the restaurant in question and the Complainants had availed the products/ services after being acquainted about the same.
7. On merits it was denied that the Complainants were not informed about the rates of the ‘diet coke’. It was alleged in fact it was duly informed at the time of the purchase also and even otherwise the complainants were at liberty to return the said products even at the time when the said products were being offered and served to them with the due intimation of the ‘rates’ of the said products. It was denied that any cause of action has accrued in favor of the Complainants. It was denied that this Forum has the jurisdiction to entertain and adjudicate this case. It is prayed that the present complaint be dismissed being devoid of merits.
8. Complainant filed replication denying the allegations made in written statement and affirming the submissions made in the complaint. Both parties filed their evidences by affidavit. Ld. Counsel for complainant placed reliance on a decision of Hon’ble National Commission passed in case titled Hotel Nyay Mandir Vs. Ishwar Lal Jinabhai Desai, Revision Petition no. 550/2006 decided on 14.12.2010 wherein it was held that OP will refund the excess amount charged towards the cold drink served to the complainant and also pay compensation.
9. On the other hand Ld. Counsel for OP has placed reliance on decision of Hon’ble High Court of Delhi in case titled Federation of Hotels and Restaurants Association of India and Ors. Vs. Union of Indian and Ors. 139(2007) DLT 7 wherein it was held that “Consumer Protection Act, 1986 Section 2(d) charging price for mineral water in excess of MRP printed on packaging, during service of customers in hotels and restaurants does not violate any provisions of standards of weights and measures Act. This does not constitute sale or transfer of these commodities by hotelier or restaurateur to its customers-consumption of articles of food or drink in hotels and restaurants do not constitute sale.”
10. We have heard the Ld. Counsel for parties and perused the record.
11.  It is to be noted that appeal filed by Federation of Hotel and restaurant association of India Vs. Union of India and others before Hon’ble Supreme Court being civil appeal no. 21790 of 2017 Hon’ble Supreme Court held ,as under::-
12.  

Thus in view of the judgement of Hon’ble Supreme Court the complaint is dismissed.

No order as to costs.

A copy of the order be supplied to all parties free of cost.

The order be uploaded on the website of this Commission.

File be consigned to record room.

 

 

 

POONAM CHAUDHRY

                                                                                                  (PRESIDENT)

BARIQ AHMAD                                                                                              ADARSH NAIN

(MEMBER)                                                                                                            (MEMBER)