Punjab

Ludhiana

CC/16/141

VishalChabra - Complainant(s)

Versus

Sams Pizza - Opp.Party(s)

Devan Verma Adv.

30 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

 

Consumer Complaint No.141 of 19.02.2016

Date of Decision        :  30.11.2016

 

Vishal Chabbra son of Shri Harish Chabbra resident of House No.648, Civil Lines, Ludhiana.

….. Complainant

Versus 

 

1.M/s. Sams Pizza c/o Amar Food Plaza 28-f, Malhar Road, Ludhiana through its Branch Manager.

2.Manager, M/s. Sams Pizza c/o Amar Food Plaza 28-f, Malhar Road, 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.Sahil Sharma, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                Complainant after visiting the premises of OP1 with his friend placed an order for two buffet of Pizza with one mineral water of one liter. When the complainant along with his friend was enjoying their food, then he(complainant) noticed as if MRP recorded on the purchased packed drinking water bottles of brand Kinley is Rs.20/-, but OP1 and OP2 charged Rs.42/- for the same. When the complainant raised objection regarding excess charging than that of the MRP, then Ops failed to provide due explanation. Complainant was in difficulty due to dry throat and that is why, he was having no option except to pay Rs.42/- for the each purchased mineral water. Ops charged service tax @5.8% and VAT @14.3% on the purchased items including mineral water bottle. Ops are supposed to provide proper drinking water facilities in their premises, but they failed to provide the same and as such, by charging price in excess of MRP, they committed deficiency in service and even violated the terms and conditions of Rule 18(2) of the Legal Meteorology (Package Commodity) Rules 2011. Copy of bill dated 11.2.2016 is annexed with the complaint. After pleading deficiency in service on the part of OPs, prayer made for directing Ops to refund the excess charged amount and even pay compensation for mental harassment, torture and agony of Rs.50,000/- to       the complainant. Even direction sought against Ops for discontinuing the practice of charging in excess of MRP. Amount of Rs.5500/- even claimed on account of counsel feel and litigation expenses.

2.                In joint written statement filed by OPs, it is pleaded interalia as if the complaint is not maintainable because the same has been filed with ulterior motive of extracting money from Ops in illegal manner and that complainant does not fall in the definition of consumer laid down under the Consumer Protection Act, 1986(hereinafter in short referred as ‘Act’). Factum regarding visit by the complainant along with friend to the premises of Op1 not denied, but it is claimed that the complainant has specifically requested for mineral water bottle instead of regular water, which is served in the restaurant premises of Ops. Allegations of over-charging denied by claiming that the same are spineless and false. The Act does not apply to customers visiting restaurant for consuming eatables and drinks and as such, the complaint alleged to be not maintainable. Besides, it is claimed that restaurant of Ops provided many services in addition to supply of foods/beverages/drinks. The extra services provided are of furniture, furnishing, crockery, cutlery and music as well as air conditioner facilities. The purchased mineral water bottle was not taken away by the complainant, but the same was served by the staff of Ops with meal as ordered by the complainant and as such, there is no violation of the rules and regulations as alleged in the complaint. The taxes were charged as per law governing taxes. Those taxes were charged on the entire food bill and not on separate water bottle. It was specifically enquired from the complainant at the time of placing the order as to whether he prefers to have regular water or mineral water and on his request, the mineral water bottle was supplied. No illegality committed by Ops and as such, prayer made for dismissal of complaint with exemplary costs.

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.RA of Sh.Bhushan Aggarwal 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.                 Perusal of bill Ex.C2 reveals that one mineral water (large) was purchased by the complainant for Rs.42/- on 11.2.2016 from Op1. However, the produced mineral water Ex.C1 shows as if Rs.20/- mentioned as MRP thereon. So, certainly Ops charged Rs.22/- in excess of the MRP. However, after going through Ex.C2, it is made out that besides mineral water bottle, the complainant purchased two unlimited adult lunch of worth of Rs.498/- @249/- per lunch. So, the mineral water bottle alone was not purchased by the complainant, but he purchased the other food/eatable items also and as such, contents of affidavit Ex.RA of Mr.Bhushan Aggarwal are correct that those food items along with mineral water bottle was purchased for enjoying the same, while sitting in the restaurant of OP1. In that restaurant, facilities of furniture, furnishing, crockery, cutlery, music and of air conditioner are provided is a fact borne from the contents of affidavit Ex.RA. There is no denial to this fact made by the complainant. So, case of Ops fully believable that facility of R.O.water free of cost is provided in the restaurant of Ops, but the mineral water is supplied on order only. In view of providing of these extra facilities of music, air conditioner and furniture etc., the customer like complainant able to sit and enjoy the food there by availing the service of staff of Ops. So, virtually extra facilities of restaurant were availed by the complainant also and as such, the complainant is not a consumer within the meaning of Section 2(d) of the Act.

7.                As and when services in any restaurant availed, then charging of price for mineral water/soft water in excess of printed MRP on the packages does not render the restaurant authorities liable under the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’). In holding this view, we are fortified by law laid down by the Hon’ble Delhi High Court in case titled as The Federation of Hotels and Restaurants Association of India and others vs. Union of India and others-2007 AIR (Delhi) 137. After going through para no.15 of this cited case, it is made out that when person goes to a hotel and consumes eatable commodities there, then he does not fall within the definition of consumer as contained in Section 2(d) of the Act. This analogy laid by keeping in view the proposition of law laid down by the Hon’ble Apex Court of the country in case titled as Northern India Caterers(India) Ltd. vs. Lt.Governor of Delhi(1979) 1 SCR-557. As in the restaurant of Ops, facility of free R.O.water provided and besides, the facility of sitting for enjoying the purchased eatables provided along with that of air conditioner and as such, certainly the complainant does not fall within the definition of Consumer at all. So, submission advanced by counsel for the Ops has force that consumer complaint is not maintainable.

8.                Even in case titled as PVR Limited vs. Ekta Jindal-I(2010)CPJ-98(Delhi State Consumer Disputes Redressal Commission, New Delhi), it has been laid down that precincts of Cinema hall falls in the category of a restaurant because the same give basic image of a restaurant. In this reported case also, it was held that in case charges more than that of price printed on the articles claimed on counter of such restaurant, then the same is permissible in view of law laid down in above cited case of The Federation of Hotels and Restaurants Association of India and others(Supra). Ratio of this case fully applicable to this case in view of providing of extra facilities of free drinking R.O. water; that of sitting arrangements; rendering premises fully air-conditioner and of keeping the restaurant neat and clean.

9.                Sh.Devan Verma, Advocate representing complainant vehemently contends that in view of the orders passed in case Big Cinemas and another vs. Manjo Kumar by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 01.02.2016 in Revision Petition No.2038 of 2015, charging of price in excess of MRP, the dealer concerned liable in action under the Consumer Protection Act. However, after going through para no.21 of this unreported case, it is made out that though there cannot be two MRPs, but the same is permissible in accordance with the law only. As above referred law laid down by the Hon’ble Delhi High Court and Hon’ble Supreme Court provides that where extra facilities in a restaurant to consumer are provided,then charging of excess price of MRP is permissible and as such, charging of Rs.42/- as price of supplied mineral water bottle is appropriate because of providing of extra facilities referred above. However, charging of price in excess of MRP is inappropriate in case of serving of mineral water after unsealing of bottle takes place through supply in  loose glasses. This in fact is the ratio of case Zaika Bazar vs. Hemant Goel-2007(2)CPJ-96(Delhi State Consumer Disputes Redressal Commission, New Delhi). Present is not a case of serving the mineral water bottle in loose glasses, but it is case, in which, Rs.22/- charged extra then MRP because of providing of extra facilities and services. Para no.9 of this cited    case provides that if customer wants to take advantage of extra kind of service or facilities like A/c restaurant, three stars, four stars or five star  hotels,  then the owner or management or authorities of that hotel/ restaurant may be free to charge extra for these referred services/facilities. Same is the position in the case before us because here, OP1 concern is a restaurant providing extra facilities.

10.               Case of Satyam Cineplexes vs. Mark Paul-2006(3)CPJ-12 decided by Hon’ble Delhi State Consumer Disputes Redressal Commission, New Delhi decided on 3.3.2006, but case of The Federation of Hotels and Restaurants Association of India and others vs. Union of India and others-2007 AIR (Delhi) 137, decided by the Hon’ble Delhi High Court on 5.3.2007 and legally later law laid down by the Hon’ble Supreme Court or Hon’ble High Court to prevail, particularly when the law laid down by the Hon’ble Apex Court of country in case of Northern India Caterers(India) Ltd.(ibid) taken note of in case of The Federation of Hotels and Restaurants Association of India and others(supra). In case of Hotel Navtara vs. Kishore Mandrekar-2013(3)CPJ-113(Goa State Consumer Disputes Redressal Commission, Panaji), it was found that purchase receipt produced by the complainant does not reveal that the complainant had purchased or consumed any other item of food or beverage except packaged drinking water bottle and that is why, it was held that no extra facility provided to the complainant,  like  that  of arrangement for sitting on tables and chairs etc.  In view of this, it was held that charging of price in excess of MRP is unfair trade practice. However, in the case before us, complainant purchased  eatables  along  with mineral           water bottle as discussed above and as such, complainant availed the extra facilities of sitting in air-conditioned restaurant, due to which, his case stands on different footing than that of above quoted case by the counsel for the complainant.

11.              In view of factual and legal position discussed above, there is no escape from the conclusion that as the complainant availed extra facilities of sitting in air-conditioned restaurant and enjoyed the purchased eatables by sitting there and as such, the complainant is not a consumer.

12.              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.

13.              File be indexed and consigned to record room.

                                      (Vinod Bala)                                (G.K.Dhir)

                               Member                                       President

Announced in Open Forum

Dated:30.11.2016

Gobind Sharma.