DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Navdeep Monga aged 30 years, resident of House No.2460, Sector 40-C, Chandigarh.

                                                 ---Complainant

V E R S U S

Nando’s, Sukhmani Enterprises, SCO No. 339-340, Sector 35-B, Chandigarh, through Branch Manager.

--- Opposite Party.

BEFORE:          SH.LAKSHMAN SHARMA               PRESIDENT

MRS.MADHU MUTNEJA                        MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:    Sh. Harmanjit Singh, Adv for Complainant.

Sh. Ashim Gupta, Adv. proxy for Sh. Jaswinder Singh, Adv. for OP.

PER MADHU MUTNEJA, MEMBER

1.           The instant complaint relates to alleged over charging for drinking water on the printed price on the bottle cover.

              Briefly stated, the Complainant had gone to eat out at the outlet of the Opposite Party. When the meal was ordered the Complainant also asked for water. He was supplied one bottle of packaged drinking water of one litre of Kinley brand. The Complainant has alleged that though the MRP of Rs.15/- was printed on the bottle but the Complainant was charged Rs.30/- for the said bottle as per the bill at Annexure C-1. A VAT of 12.5% was also charged which was already part of the MRP. The bottle of water thus costed the Complainant Rs.37/-. Alleging that this over charging amounts to unfair trade practice, the Complainant has filed the present complaint claiming for damages for harassment and financial loss.

2.           After admission of the complaint, notice was sent to the Opposite Party.

3.           Opposite Party in reply has stated that if a person goes to a Hotel/ Restaurant, then he is going for luxury and enjoyment. The Hotel/ Restaurant spends huge amount every month on rent, salary of staff, taxes, maintenance, furniture, utensils and crockery etc. regularly. The customer was provided a menu card containing the price list of all items offered. Further, the customer is already provided with R.O. drinking water also. In case the customer chooses to order package drinking water the staff is not supposed to remind the customer about the price of the items ordered by him. VAT and Service Tax are charged as per the statutory requirements. Opposite Party has therefore prayed for dismissal of the complaint.  

4.           Parties led evidence in support of their contentions.

5.           We have heard the learned counsel for the parties and have perused the record.

6.           The allegations of the Complainant are with regard to over charging by the Opposite Party for a bottle of packaged water ordered by him at the time of taking his meals at the outlet of the Opposite Party. In reply the Opposite Party has stated that a price list is provided in advance to the customer and the customer is at liberty to choose the items he wishes to order by considering the price list thereof. There was no compulsion for the customer to buy packaged drinking water as R.O. drinking water was available at the outlet free of charge.

7.           The customer has purchased the bottle of water after considering the price at which it was offered on the menu card. In case State of Himachal Pradesh & Ors. Vs. M/s Associated Hotels of India Ltd., reported as AIR 1972 Supreme Court 1131, the Hon’ble Apex Court held as under:-

“The transaction between a hotelier and a visitor to his hotel whereby the former receives the latter by lodging in his hotel is essentially a contract of service and where in the performance of the service and as part of the amenities incidental to that service the hotelier serves meals at stated hours, the transaction is not sale.”

“….The bill which the customer pays is for the various food items which he consumes or at a definite rate for the fixed menu, as the case may be, which presumably takes into account service and other related amenities.”

              Further, in case The Federation of Hotels & Restaurants Association of India & Ors. Vs. Union of India & Ors., reported as AIR 2007 Delhi 137, a similar question arose before the Hon’ble Supreme Court, wherein it has held as under:-

“Supply of articles of mineral water/ soft drink in hotel/ restaurants do not constitute sale or transfer of commodity – charging any price above MRP mentioned on packaging, by hotelier/ restaurateur – permissible, not violative of SWM Act – Person enters hotel to enjoy ambience available therein and not to purchase such commodity.”

“16. In the above analysis I hold 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 SWM Act as this does not constitute a sale or transfer of these commodities by the hotelier or Restaurateur to its customers. 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 enjoying the ambience available therein and incidentally to the ordering of any article for consumption. Can there by 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. Although the vires of Rule 23 have been assailed, I do not find it necessary to answer that challenge since the provision relates to sale between dealers and neither the hotels and restaurants of the one part and customers of the other falls within this categorization.  

              Similarly, in case Delhi Gymkhana Club Limited Vs. Union of India, reported as III(2009)CPJ 244,the Hon’ble High Court of Delhi while referring to the Federation of Hotels & Restaurants Association of India & Ors. Vs. Union of India & Ors., [supra] has held as under:-

“51. In view of the binding principles laid down in this pronouncement, it has to be held that consumption of any refreshments or beverages by a member or a guest at a club would not bring him within the definition of consumer and is defined in sub-section (d) of Section 2 of the Consumer Protection Act, 1986. The Consumer Disputes Redressal Forum would therefore have no jurisdiction in respect of such consumption and any intervention by them would be clearly without statutory authority and legal jurisdiction.

52. In view of the above discussion, it is apparent that the complaint filed by the Respondent No.3 under the provisions of the Consumer Protection Act is not maintainable. The Consumer Forum has no jurisdiction to take cognizance thereof or to proceed in the matter. 

8.           It is, thus, evident that at the time the hotel/ eating outlet is charging in excess for the price of drinking water beyond the MRP, it is not only providing the water, but also providing the place to sit, clean utensils, cutlery, air conditioning, ambience etc. along with the water. Hence the averments by the Complainant about over charging do not stand in the light of the aforesaid judgments, especially when has not been forced to purchase the water and an alternate was available to him, free of charge but he has chosen to ignore the alternate R.O. water and ordered the packaged drinking water as per the price offered on the menu card.   Further, we cannot comment upon excess charging of taxes like VAT etc. The Complainant can take this grievance to an appropriate Court for redressal of this grievance.

9.          Considering the entire material placed on record and the binding principles laid down in the authoritative pronouncements, referred to above, it is quite clear that the Complainant has no case at all and his complaint deserves rejection. We, therefore, dismiss the present complaint. However, respective parties shall bear their own costs.

10.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

06^th January, 2012.                                                       

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER