Chandigarh

DF-I

CC/792/2021

Sunil Kumar - Complainant(s)

Versus

PVR Cinemas Limited - Opp.Party(s)

In Person

01 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/792/2021
Date of Institution	:	16/11/2021
Date of Decision	:	01/03/2023

 

 

Sunil Kumar aged about 40 years son of Jagdish Rai, resident of #2-C,
GH-10, MDC Sector 5, Panchkula-134114.

… Complainant

V E R S U S

PVR Cinemas Limited, through Ajay Bijli Chairman – cum – Managing Director of PVR Cinemas Ltd., Plot No.178A, 3^rd Floor, Elante Mall, Industrial Area, Phase-I, Chandigarh 160002.

… Opposite Party

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Complainant in person.
	:	Sh. Nirdesh Kumar, Duty Manager/Representative of OP

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sh.Sunil Kumar, complainant against the opposite party (hereinafter referred to as the OP).  The brief facts of the case are as under:-

1. It transpires from the allegations as projected in the consumer complaint that on 21.12.2019 the complainant alongwith his friend went to the PVR cinema (hereinafter referred to as “OP Cinema”) to watch a movie where he purchased two cans of cold drinks cum energy drinks of Red Bull (hereinafter referred to as “energy drinks”) vide invoice dated 21.12.2019 (Annexure C-3) for ₹320/-. After purchasing the aforesaid energy drinks, when the complainant checked the same, he was shocked to know that the MRP of the same was embossed as ₹140/- per can and the total cost of the two cans came to ₹280/- whereas the OP had charged ₹320/- for the same from him and thereby charged ₹40/- in excess than the MRP.  The complainant asked the OP to return the excess amount immediately, but, the vendor refused to refund the same.  Earlier, the complainant had purchased the same product and same quantity from the OP vide invoice dated 6.6.2019 (Annexure C-5) for ₹280/- and at that time the OP had charged as per the MRP.  Despite of repeated requests of the complainant, as the OP had not returned the excess amount charged by it, complainant has suffered great mental agony and undue harassment and humiliation and this act of the OP amounts to unfair trade practice on its part.  The complainant also sent legal notice dated 25.10.2021 (Annexure C-6) to the OP, but, to no avail. OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability and concealment of facts.  It is also alleged that in fact the Department of Revenue, Ministry of Finance, Govt. of India vide its notification dated 30.9.2019 (Annexure R-1) has levied the compensation cess for the category of caffeinated beverages @ 12% w.e.f. 1.9.2019.  It is further alleged that as per Rule 18 (3) of the Legal Metrology (Packaged Commodities) Rules, 2011, the price of such packages were revised provided that publication in any newspaper of such revised prices be made.  As the OP had charged the aforesaid amount from the complainant as per the Act, the consumer complaint of the complainant is not maintainable.  On merits, the facts as stated in the preliminary objections have been re-asserted. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. The complainant chose not to file rejoinder to rebut the stand of the OP.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the complainant in person, representative of the OP and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that on 21.12.2019 the complainant had visited the OP cinema in order to view a movie with his friend and on the same day he had purchased two cans of energy drinks from the OP by paying an amount of ₹320/- vide bill (Annexure
      C-3), the case is reduced to a narrow compass as it is to be determined if the OP had charged ₹20/- per can of energy drink in excess of the MRP, which amounts to unfair trade practice on its part, and the complainant is entitled for the reliefs prayed for in the consumer complaint or if the OP had charged the aforesaid amount from the complainant as per law and rules and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed.
   2. As it is evident from the notification dated 30.9.2019 (Annexure R-2) issued by the Govt. of India, Ministry of Finance (Department of Revenue) that vide Sr.No.4A, compensation cess @ 12% has been levied on the category of caffeinated beverages w.e.f. 1.10.2019, which the OP had charged from the complainant under the said notification, it is unsafe to hold that act of charging the compensation cess from the complainant on the purchase of caffeinated beverages @ 12% amounts to unfair trade practice on the part of the OP, especially when it is an admitted case of the parties that the said cans were purchased by the complainant on 21.12.2019 i.e. after the aforesaid amendment in the notification (Annexure
      R-2) issued by the Govt. of India.
   3. Moreover, since it is an admitted case of the parties that the complainant had taken/enjoyed the energy drinks inside the OP cinema, it is clear that the OP had provided services to the complainant and his friend, who had enjoyed the ambience while sitting inside.  In such scenario, it is to be determined if the case of the complainant is covered under the Standards of Weights and Measures Act, 1976 (hereinafter referred to as “SWM Act”) on account of excess price charged by the OP cinema for the cans of energy drinks served upon the complainant and his friend on the relevant day. 
   4. In this regard, reliance can be placed on the judgment of Hon’ble Delhi High Court in the case of The Federation of Hotels and Restaurants Association of India & Ors. Etc. Vs. Union of India & Ors., 2007 AIR (Delhi) 137 in which it was held as under :-

“A.   Constitution of India, 1950 — Article 366 (29A), Schedule 1, List 3, Entry 34 - Standards of Weights and Measures Act, 1976 Sections 2(5) and 83 Standards of Weights and Measures (Packaged Commodities) Rules, 1977, Rule 23 (2) - Charging prices for mineral water/soft drink in excess of MRP printed on packages during the service of customers in hotels and restaurants does not violate any provisions of SWM Act as the persons enters hotels and restaurants to enjoy ambience available therein – Because this does not constitute sale or transfer of these commodities.

B. Consumer Protection Act, 1986 Section 2(d) Consumer Protection Act does not apply to eatables and drinks ordered and supplied in a Hotel or restaurant on the principle that such are not sale but only service and falls under the rate of caveat emptor – Hence persons enjoying eatables and drink in a hotel or restaurant is not a consumer case defined in the Consumer Protection Act.”

 

5. Further, the Hon’ble Delhi High Court in the case of Delhi Gymkhana Club Limited Vs. Union of India, 2009 (3) CPJ 244 held as under :-

“A. Standard of Weights and Measures Act, 1976 Sections 2(b), 2(c) & 83 Standards of Weights and Measures (Packaged Commodities) Rules, 1977, Rules 1(3), 2(d), 2(o), 2(w), 2(v), 23 — Finance Act, 2005 — Section 65(25a) — Consumer Protection Act, 1986 Sections 13 & 2(1)(d) Food and Beverages — Sale of Beverages and Food in Clubs above maximum retail price - Provisions of 1977 rules not applicable — Held that a person consuming refreshment in club does not fall within the definition of consumer — therefore, the Consumer Disputes Redressal Forum has no jurisdiction to decide the dispute — Petitioner sought to be restrained from the practice of charging in excess of maximum retail price written on cold drink bottles — No case made out to grant relief — Members of club enter and use its premises, not to make simple purchases of commodities — Purpose of creation of club is to create place of activity for members which they can use either gratuitously or for a payment — Club do not provide the article in same condition in which it has purchased them to its members or guests — Service rendered by club in making available to its members for their convenience and consumption in comfortable atmosphere provided at the premises of club cannot be treated as a sale for applicability of consumer for a legislations  within the definition of consumer as defined in Section 2(1)(d) of Consumer Protection Act — Proceedings before Consumer Disputes Redressal Forum are without jurisdiction and not maintainable, therefore, quashed.

B. Words & Phrases – “Club” – “Association” – Meaning of – A club is not constituted or created for the purposes of sale or trade or commercial activities in any goods or services – It is a forum where a group of persons having common interest are able to get together to share, develop or indulge in the same.”

 

6. Further reliance can also be placed on the judgment of the Hon’ble Apex Court in the case of Federation of Hotel and Restaurant Associations of India Vs. Union of India & Ors., 2018 AIR (SC) 73 in which it was held as under :-

“No prohibition on sale of packaged mineral water in hotel at prices above MRP.

Legal Metrology Act, 2009, Section 2(r) - Standards Weights and Measures Act, 1976, Section 2 (v) – Indivisible agreement to supply – Sale at price above MRP -  when sale of food and drinks takes place in hotels and restaurants - There is one indivisible contract of service coupled incidentally with sale of food and drinks — Since it is not possible to divide service element from sale element - Composite indivisible agreements for supply of services and food and drinks not within purview of either enactment — Neither of Acts to apply so as to interdict sales of mineral water in hotels and restaurants at prices above MRP.”

 

7. In the light of the ratio laid down in the aforesaid judgments, as it is an admitted case of the complainant that he had ordered the energy drinks from the OP, which were supplied to him and his friend inside the OP cinema, the same cannot be treated as a sale for applicability of consumer for a legislation within the definition of consumer as defined under the Consumer Protection Act. Moreover, charging price for energy drinks in excess of MRP printed on the packaging, during service of customer in cinemas, would not violate any provision of SWM Act as the complainant and his friend had also entered the OP cinema to enjoy its ambience available therein.
8. In view of the foregoing discussion neither the SWM Act read with enactment of 1985 nor the Legal Metrology Act, 2009 would apply so as to interdict the sale of mineral water/drinks in hotels, restaurants or cinemas at prices above the MRP.  Hence, the complainant has failed to prove any deficiency in service or unfair trade practice on the part of the OP and the present consumer complaint deserves to fail.

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 01/03/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Suresh Kumar Sardana] Member