BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.326 of 2019

      Date of Instt. 14.08.2019

      Date of Decision: 19.05.2023

Harpreet Singh Sandhu S/o Sh. Baljinder Singh, Resident of House No.210, Chotti Baradari Part II, Jalandhar City-144001.

..........Complainant

Versus

1.       PVR Cinemas, Curo High Street, 66 Feet Road, Near Dulhan Palace, Jalandhar-144022 through its Authorized Representative.

2.       Book My Show, Bigtree Entertainment Private Ltd., Ground   Floor, Wajeda House, Gulmohar Cross Road No.7, Juhu Scheme,          Mumbai, Maharashtra through its Authorized Representative.

3.       Ministry of Electronics and Information Technology, Electronics       Niketan, 6, CGO Complex, Lodhi Road, New Delhi-110003.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       None for the Complainant.

                   Sh. Puneet Sareen, Adv. Counsel for OP No.1.

                   Sh. Ajay Kaushik, Adv. Counsel for OP No.2.

                   Sh. G. P. S. Rana, Adv. Counsel for OP No.3.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainants, wherein it is alleged that the complainant purchased a Movie Tickets from the OPs vide Booking ID WMH3PML Dated: 26.07.2019, Amount Paid Rs.383.92/- The total Price of the Movie Tickets was shown to be Rs.330/-which was sold to the complainant and the price of the Movie Tickets was inclusive of all taxes. However, OPs charged an amount of Rs.51.52/- as Internet Handling Fee and Rs.2 Other Items i.e. Total Charged price from the complainant is Rs.383.59/- (Rs.330 Movie Tickets + Rs.51.92 Internet Handling Fee + Rs.2 Other Items). The payment of the said item was paid by the complainant through online. The OPs charged extra Internet Handling Fee Rs.51.92/- is illegal and not authorized by the government or the Reserve Bank of India. According to the IT Act 6A (3) section, digital service providers are not allowed to charge such a fee without permission. If service provider to collect, retain and appropriate service charges from the Customer then firstly they need permission from the RBI. Moreover, the Ministry of Electronics and Information Technology has also not given any permission to charge customers over and above the ticket rates so ‘Online portals aren't supposed to charge anything other than the ticket fare,’ As per RBI's merchant discount rate (MDR) policy does not allow Internet handling fees to be passed on to the customer. RBI states that ‘merchants are required to pay this fee to the banks for online transactions.’ The RBI's also said that the internet usage fee was a violation of the RBI's Merchant Discount Rate (MDR) regulations. MDR is a payment gateway fee paid by the merchant to the bank for accepting customer payments via debit or credit cards. The RBI said that the fee has to be paid to banks by merchants for online transactions. The Book My Show is levying internet charging fees on it's users which is completely baseless and unnecessary for the user to pay as it the duty of the merchant to pay to the bank against every transaction made by customers using a credit or debit card as per MDR regulations. It is a gross violation of the central bank's Merchant Discount Rate (MDR) regulations. The Price of any article/Services always include all taxes including GST so a retailer cannot charge the price over and above the same but OPs has charged an excessive amount to the tune of Rs.51.92/-as Internet Handling Fees from the complainant in an illegal manner. That the complainant resisted to the above after seeing the bill but the OPs said that one's bill been made then complainant has to pay the net payable amount. The OP has charged the excessive amount on the pretext of ‘Internet Handling Fees’ not only from the complainant but the said charges are also being levied from all the customers illegally and the same amounts to unfair trade practice and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of Internet Handling Fees illegally charged i.e. Rs.51.92/- along with interest @12% per annum from the date of payment till the date of realization. Further, OPs be directed to pay a compensation of Rs.10,00,000/- for causing mental tension and harassment to the complainant and Rs.33,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the OP Company is a company incorporated under the Companies Act, 1956, having its registered office at 61, Basant Lok, Vasant Vihar, New Delhi 110057. OP Company is inter alia engaged in the business of providing the films to its patrons and has acquired a very good reputation in its field of business on account of extremely high quality and standard of services being provided by it. In context of the Complaint, OP No 1 operates a multiplex cinema on the 4th Floor of MBD Neopolis Mall at Jalandhar, hereinafter referred to as ‘Opposite Party 1’. It is further averred that at the very outset, the OPs crave leave of this Commission that each and every averment/allegation is considered to be ‘specifically denied’ until any para or averment is not specifically accepted thereto. It is further averred that the complaint initiated/filed by the complainant cannot be entertained as the Complainant is not coming across with clean hands in accordance with the procedure laid down under the Consumer Protection Act, 1986 (hereinafter called "the said Act") and Consumer Protection Rules 1987. In the absence of proper facts and circumstances of the case, the complaint is not sustainable and cannot be proceeded bor further and is liable to be dismissed. Under Section 12 of the said Act, it is made mandatory that the procedure laid down under this section shall be followed only on admission of complaint. In other words, a complaint, which has sustainability, can be admitted for hearing and in case the complaint is untenable, frivolous or vexatious can be brushed aside by taking recourse of Section 26 of the said Act. It is evident that the present complaint under reply is untenable on the face of it is and is not a fit case for admission. Hence no recourse of Section 12 of the said Act could be resorted to in the present case. It is further averred that the complaint is malafide, vexatious and frivolous as such liable to be dismissed under Section 26 of the Act. The OP No 1 craves indulgence of the Forum to submit the true and correct facts before this Forum for proper, just and objective appreciation of the issues involved in the complaint. The OP No.1 is law abiding company and has not violated any statutory or other provisions and is discharging all statutory obligations in public law. The best Quality services are provided by OP No.1. Requirements of statutes are extremely stringent and there area large number of checks on the trade. Without prejudice to the above, the Complaint contains only bare allegations of unfair trade practice against OP No 1 and the Complainant has not discharged the burden of proving the same. The allegations of unfair trade practice are hopelessly unsubstantiated, vague and purposively designed to mislead the Commission. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the OP No.2, through website "bookmyshow.com", which is an entertainment ticketing portal owned and operated by Big Tree Entertainment Pvt. Ltd., a private limited Company incorporated under the Companies Act 1956. The OP No.2 is inter alia engaged in the business of reservation and sale of tickets for cinemas, plays, concerts, sports events, festivals, etc, through their online computerized system. The OP No.2 is one of the largest online portals in India having presence in over 600 cities. It is further averred that at the outset, the OP No. 2 denies all and every allegation made in the Complaint against OP No. 2. Nothing should be deemed to be admitted unless specifically admitted by the OP No.2 hereinafter. It is further averred that the instant Complaint has been preferred on the misconceived notion that the fee charged by the OP No.2 (internet handling fees) is an unfair trade practice under Section 2 (r) of the Consumer protection Act, 1986 ("CP Act"). It is submitted that the complaint lacks basic particulars and details required to substantiate the allegations made therein. In the instant case, the Complainant has admitted availing of the services provided by the OP No.2 but evidently lacks the willingness to pay for the same. It is further averred that the other allegation of the Complainant of the said charge being made by the Opposite party No.2 without the authorization of the reserve Bank of India (hereinafter referred to as "RBI") and Ministry of Electronics and information Technology (hereinafter referred to as "MEIT") is equally erroneous and frivolous. This is demonstrated from the documents filed by the Complainant itself. Before adverting to the contents of the Complaint in seriatim, it is reiterated that the contents of the said complaint are devoid of any merits, frivolous and have no basis either in fact or law. Therefore, the instant Complaint deserves to be dismissed.

4.                OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the OP No.3 MeitY (Ministry of Electronics and Information Technology), Government of India is the custodian of the information Technology Act 2000 and the rules framed thereunder. The complaint relates to excessive charges levied by the e-commerce platform i.c.Book My Show (Opposite Party No.2 herein) in the form of "Internet Usage Charges" in addition to ticket charges and PVR cinemas seems to shift their operating cost to consumers. At the outset the complaint is not maintainable against the answering OP since the answering OP No.3 (MeitY) is not a necessary nor a proper party to the case for the following among other grounds:

i.                 It is submitted that such charges levied by such e-commerce platforms may depend upon various factors such as nature and different kind of services provided by them, different stakeholders involved such as merchants, banks etc. in the ecosystem for provision of specific services.

ii.                It is submitted that the Government of India in the Union Budget for 2017-18 had announced setting up of Digital Mission to promote Digital Payments across the country. Accordingly, Digidhan Mission has been setup in MeitY. Since Meity is working with various stake holders like Banks, Central Ministries/Departments and States, to promote digital payments ecosystem across the country, within the guidelines set by various organizations and departments such as RBI (Reserve Bank of India), DFS (Department of Financial Services), NPCI(National Payments Corporation of India).

iii.               It is submitted that on a similar cause, a consumer complaint case no CC/70 of 2019 titled as "Vijay Gopal v. The BookMyShow and others" is sub- judice before the Hon'ble Consumer Dispute Redressal Forum III at Hyderabad. MeitY has submitted an affidavit on similar lines before the Hon'ble Forum at Hyderabad stating that MeitY does not prescribe any charges for any of the digital payment modes and is neither a necessary nor a proper party to be adjudicated.

                   In the view of above facts, it is submitted that MeitY is neither a necessary nor a proper party to be adjudicated in this complaint and lastly prayed that this Commission may relieve the OP No.3 from the array of parties in the interest of justice.

5.                Rejoinder not filed by the complainant.

6.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

7.                We have heard the learned counsel for the OPs only as none has appeared on behalf of the complainant and have also gone through the case file as well as written arguments submitted by counsel for the OP No.2 and OP No.3 very minutely.  

8.                The complainant has alleged that he had purchased a Movie Tickets from the OP vide Booking ID WMH3PML amount paid was Rs.383.92/-. He has alleged that the OP has charged amount of Rs.330/- and the amount of Rs.51.92 was charged as Internet Handling Fee and Rs.2/- other items i.e. Total charged price from the complainant was Rs.383.92/-. He has alleged that the OPs cannot charge extra internet handling fee of Rs.51.92 and he has referred in his complaint the provision of IT Act Section 6A (3), which provides the digital service providers are not allowed to charge such a fee without permission. He has also referred the RBI Guidelines. He has proved on record the ticket Ex.C-1 which show that the amount of Rs.383.92 were charged.

9.                The OPs on the other hand denied the illegality and unfair trade practice on the part of the OP. It has been alleged by the OPs that the OPs are charging the internet handling fee, which are permissible as these are for any voluntary availing of service by any person interested to avail of the service. There is no compulsion or forcible enforcement of such availing of service. The OPs have relied upon the observation of the Hon’ble Bombay High Court, in which the Hon’ble Bombay High Court declared the online computerized system as a legitimate business activity. Similarly, the OPs have relied upon the observation of Hon’ble Hyderabad High Court. The OPs have also alleged that the MDR (Merchant Discount Rates) charge as alleged by complainant and the handling fee are not the same thing rather these are different thing. It has further been alleged by the OPs that the Govt. of India has announced setting up of Digital Mission to promote Digital Payments across the country. Accordingly, Digidhan Mission has been setup in MeitY and MeitY is working with various stake holders. OP No.3 has nothing to do with the present complaint and there is no deficiency in service on their part.

10.              It is not disputed that the OP No.3 is the custodian of the Information Technology Act, 2000. The present complaint is relating to the excessive charges levied by the e-Commerce platform i.e. OP No.2 as an internet handling fee in addition to tickets charges and the OP No.1 is a company, which is engaged in the business of providing the films to its pattern and it operates as a Multiplex Cinema. The main grouse of the complainant is against the OP No.2, who has charged Rs.51.92/- as internet handling fee. It is not disputed that the OP No.2 has not forced the complainant to avail the services of OP No.2 for booking the tickets through ecommerce. It is also not disputed that the OP No.2 is the service provider and services can be availed only if one pays the consideration/fee for their services. The OP No.3 has produced on record the documents to show that the Ministry of Electronics and Information Technology is promoting the digital payments and is looking into digital payments ecosystem in the country, so, as to create the enabling environment for promoting the digital payments. Section-2 (R) of Consumer Protection Act, 1986 deals with the unfair trade practice, which is to be proved by the complainant. It says that for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, one adopts any unfair method or unfair or deceptive trade practice i.e. unfair trade practice. The e-commerce platform, which has been adopted by the OP No.2, nowhere shows the unfair trade practice. It was the will of the complainant to avail the advantageous services offered by the OP No.2 for their own convenience. The complainant has not produced on record any guidelines of the RBI nor has produced on record the MDR regulations which have been relied upon by the complainant in para No.7 of his complaint. There are guidelines and there is no order to show that internet handling charges cannot be charged by the OP No.2 or the same is violative of any guidelines. It has been observed by the Hon’ble Bombay High Court in a case titled as ‘Big Tree Entertainment Pvt. Ltd and another Vs. State of Maharashtra and other’ alongwith other petitions that the sale of cinema ticket by an online computerized system is a legitimate business, activity carried out by the OP No.2. The Hon’ble Bombay High Court had stayed the Govt. order directing against the levy of additional charges for online computerized ticket sale. This order has been proved by the OP No.2 as Ex.OP2/1. Similarly, the Hon’ble Hyderabad High Court has suspended the action taken by the State Govt. of Andhra Pradesh and Telangana for a compulsory provision of online ticketing service by one entity at a fixed specified rate. This order has been proved as Ex.OP2/2. The complainant has not produced on record any order of the Hon'ble High Court or Hon’ble Supreme Court or Hon'ble National Commission vide which the order passed by the Govt. has been declared valid or the Pb. Govt. has put any restriction or levied any restriction on the levying of additional charges for online computerized ticket sale. Thus, the complainant has failed to prove any deficiency in service and unfair trade practice on the part of the OPs and thus, the complaint of the complainant is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                             Jaswant Singh Dhillon                    Dr. Harveen Bhardwaj     

19.05.2023                              Member                                President