Punjab

Ludhiana

CC/16/65

Harsh Goyal - Complainant(s)

Versus

Queen's Flower Tourist - Opp.Party(s)

Devan Verma Adv.

15 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

 

Consumer Complaint No.65 of 25.01.2016

Date of Decision        :  15.11.2016

 

Harsh Goyal aged about 26 years son of Sh.Kamal Jain son of Sh.Ved Parkash Jain, resident of H.No.611/27, Deewana Street, Malerkotla.

….. Complainant

Versus 

 

1.Queen’s Flower Tourist Resort Pvt. Ltd., Ludhiana Chandigarh Road, Neelo, Ludhiana through its Proprietor/Partner/Managing Director/Authorized Person.

2.Manager, Queen’s Flower Tourist Resort Pvt. Ltd., Ludhiana Chandigarh Road, Neelo, Ludhiana.

..…Opposite parties

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                     :         Sh.Devan Verma, Advocate

For Ops                         :         Sh.Amandeep Sharma, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant after visiting premises of OP1 with his family members and friends purchased eatables along with mineral water bottles of brand Kinley of 1 liter, on which, MRP mentioned was of Rs.20/- per bottle. However, OP1 and Op2 charged Rs.40/- per bottle. It is claimed that OP2 claimed as if their charges are as per their wishes. Complainant due to difficulty of dry throat paid Rs.40/- for each mineral bottle. Charging of price in excess of the MRP alleged to be an unfair trade practice and also deficiency in service. Prayer made for directing Ops to refund the excess amount charged by them and further, directions sought to discontinue the practice of charging excess amount than the MRP. Compensation for mental harassment of Rs.50,000/-, but litigation expenses of Rs.5500/- more claimed. All the above referred items were purchased through bill No.5665 of 27.12.2015.

2.                In joint written statement filed by OP1 and OP2, it is pleaded interalia as if the complaint is not maintainable because no deficiency committed by Ops. Besides, it is claimed that OP1 concern is renowned restaurant constructed on the bank of Neelon Canal in area of about 2 acres. This restaurant provides three star facilities to the guests visiting it. Menu  Cards are placed on each and every table. Restaurant offers R.O.water to each and every visiting guest without any costs, but if any guest wants to have packed drinking water, then he can order, but the charges are as per the menu card. On the first page of the Menu Card itself it is mentioned that cost of the packed drinking water is Rs.40/-. On every leaf of the Menu Card, it is mentioned that price  includes  MRP and additional charges for establishment services as well as other facilities. No service tax was charged on the bill relied upon by the complainant. It is claimed that Ops provides the packed drinking water, but not of Kinley Brand. Admittedly, OP1 issued bill No.5665 of 27.12.2015 showing about charging of Rs.40/- per mineral water bottle of 1 liter. Other averment of the complaint denied by claiming that Ops have not violated any rules or committed any deficiency in service. Rather, Ops complied with all the rules and regulations of the State Government as well as the Legal Meteorology Rules.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CW1 along with documents Ex.C1 & Ex.C2 and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.OP1/2 of Sh.Bhagat Singh, Manager of OP1 concern along with documents Ex.OP1/2/A and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of the parties. Oral arguments heard and addressed. Records gone through minutely. 

6.                Undisputedly, bill Ex.C1 shows the purchases made by the complainant during his visit on 27.12.2015 to OP1 restaurant/resort. Rs.40/- per mineral water bottle was charged from the complainant through this bill Ex.C1. So, Rs.160/- in all for the four mineral water bottles were charged. Complainant has produced the mineral water Ex.C2 to show as if Rs.20/- mentioned as MRP on this bottle. But counsel for Ops contends that Ops do not supply the Kinley Brand Mineral Water bottle in its resort. So, dispute remains as to whether the produced bottle Ex.C2 by the complainant in fact is the one purchased from OP1 concern or not? However, OP1 has not disclosed about the brand of the packed water bottle supplied by it and as such, in absence of that assertion or mention of brand thereof in Menu Card Ex.OP1/2/A, it has to be held that the produced mineral water bottle was purchased by the complainant from OP1 concern.

7.                It is vehemently contended by counsel for the complainant that charging of price at Rs.40/- per packed mineral water bottle is an unfair trade practice, particularly when MRP mentioned on the bottle as Rs.20/-. That submission of counsel for the complainant though looks ex-facie as correct,   but in fact the same is not the position because versions given by Ops in their written statement along with Menu Card Ex.OP1/2/A establishes that OP1 concern provides facilities of three star hotel and the same being located on banks of Neelon Canal is a tourist resort. On each and every page of this    Menu Card Ex.OP1/2/A, it is mentioned that prices includes MRP and additional charges for establishment services and facilities , which means that OP1 restaurant provides facilities other than one available on a usual shop or dhaba. In view of providing of these extra facilities, OP1 concern specifically mentioned on each and every page of Menu Card Ex.OP1/2/A that additional charges for establishment services and facilities will also be levied and that is why price of the packed drinking water mentioned as Rs.40/-.

8.                Hon’ble Delhi High Court in case titled as Federation of Hotels and Restaurants Association of India and others vs. Union of India and others-2007 AIR (Delhi) 137, by relying on law laid down by the Hon’ble Supreme Court of India and discussing the relevant provisions of Consumer Protection Act has specifically held that when a person goes to a hotel or restaurant and orders for consumable commodities, then he does not fall under the definition of consumer as contained in Section 2(d) of the Consumer Protection Act. It has been specifically held in para no.15 of this reported case that in view of the law laid down by the Hon’ble Supreme Court of India in Associated Hotels and Northern India Caterers case, supply or service of eatables and drinks in hotels and restaurants, does not partake the nature of a sale in    common legal parlance because of providing of the extra facilities or of provision  for furniture and furnishing, linen, crockery and cutlery etc. Same is the position in the case before us and as such, in view of this legal proposition and in view of the fact that extra establishment services and facilities of three star hotel provided by OP1 in its restaurant, complainant does not fall within the domain of consumer.

9.                After going through para no.7 of case titled as Kamat Hotels vs. Pralhad N.Padalikar and another-2012(5)AIIMR(JS)51(Maharashtra State Consumer Disputes Redressal Commission), it is made out that no special circumstances pointed out by the dealer or manufacturer for claiming price in excess of the recorded MRP and that is why, charging of excess price than that of MRP was found an unfair trade practice. In the reported case, plea was taken only to the effect that MRP mentioned on Oxyrich bottle does not include any constituent for service rendered in the premises, but the manufacturer took the simple plea that it has right to fix the price supplied to Kamat Group of Hotels. So, no distinguishable features in terms of quality, purity, quality or any special treatment were pleaded or established in the reported case. However, in the case before us, providing of three star hotel facilities along with that of special facilities of enjoyment in resort on the banks of canal of Neelon are special circumstances pleaded and proved. So, facts of the case before us are quite distinct than the above said case of Kamat Hotels(Supra). Same is the                  position with respect to the ratio of cases titled as Hotel Nyay Mandir vs. Ishwarlal Jinabhai Desai-2006(1)CPJ-521(Gujarat State Consumer Disputes Redressal Commission, Ahmedabad) and Zaika Bazar vs. Hemant Goel-2007(2)CPJ-96(Delhi State Consumer Disputes Redressal Commission, New Delhi). Rather, in case of Zaika Bazar(supra), it was held that if sale of water or cold drink in loose and not in sealed or packed container takes place, then virtually no extra facility is found to be provided and that is why charging of price in excess of MRP is an unfair trade practice. In para no.9 of this case itself it has been held that if consumer wants to take advantage of extra kind of service or facilities like A/c restaurant, three stars, four stars or five stars hotels, then the owner or management of that hotel free to  charge extra for these referred services/facilities. So, ratio of this case point out the distinction referred above. After going through para no.6 of case of Hotel Nyay Mandir(ibid), it is made out that no board was displayed for reflecting that consumers of bottled soft drinks would have to pay such service charges in case, they occupied space in the hotel and consumed soft drinks by availing of services in the hotel. However, in the case before us, on each and every page of Menu Card Ex.OP1/2/A, it is mentioned that additional charges for establishment services and facilities will be levied in addition to the MRP. So, clear cut notice was given to the complainant and other customers visiting OP1 restaurant qua charging of specific notified price through Menu Card due to providing of establishment services and other facilities. In view of this, we do not find any deficiency in service on the part of Ops in charging of Rs.40/- as the price of packed water bottle.

10.              Envelop Ex.C2 of water bottle opened today for noting down the contents of MRP and of brand of bottle. This bottle be sealed again today itself by the office.

11.              Therefore, as a sequel of the above discussion, the complaint dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules.

12.                        File be indexed and consigned to record room.

 

                                      (Vinod Bala)                                (G.K.Dhir)

                               Member                                       President

Announced in Open Forum

Dated:15.11.2016

Gobind Sharma.