Ld Advocate for the complainant is present. Judgement is ready and pronounced in open Commission in 5 pages 4 separate sheet of paper.

BY - SRI.SAURAV CHANDRA, MEMBER

1. Brief facts of the Complainant’s case are that the Opposite Party is a Restaurant where the Complainant visited for lunch on 29.07.2022 and ordered some food with One Liter Water Bottle. After delivery of water bottle, the Op issued a bill to the Complainant where the price is mentioned as Rs.25.00 whereas as per MRP of the bottle tag is actually Rs.20.00 only.

2. The Complainant objected to such Unfair Trade Practice by requesting the Op to sale it at Rs.20.00 without taking Rs.5.00 as extra but, the Op denied with misbehaves. As a result the Complainant was bound to pay Rs.25.00 by paying total Rs.125.00 for Food and Water Bottle.(Copy of such Cash Memo is annexed hereto)

3. Thereafter, the Complainant lodged a complaint before the Assistant Director of Consumer Affairs & Fair Business Practices, Purba Medinipur for peaceful mediation by claiming a compensation of Rs.1,00,000.00 vide Office Complaint Index No.27/PBM/22-23, dated: 08.08.2022 where the Op has sent an email on 20.09.2022 with a written apology to refund the extra amount of Rs.5.00 charged by them on the Packaged Drinking Water.

4. Subsequently the Op neither returned the extra charges nor compensate to the Complainant as per his claim. Therefore, the Complainant on 20.12.2022 again appeared before the CA&FBP at Tamluk for seeking compensation but, the CA&FBP advised the Complainant to move before this Commission because the process of mediation at a system of amicable settlement which has no authority to provide any compensation to the Complainant from the Op as prayed.

5. Therefore, the mediation proceeding has been disposed by the department by drawing a Mediation Report dated: 20.12.2022.(Copy of such Apology Letter and Mediation Report are annexed hereto)

6. The cause of action of this case arose on 29.07.2022 when the Op refused the Complainant to charge the price of bottle on MRP basis.

7. The Complainant, therefore, prays for:-

1. To Refund excess price of Rs.5.00 to the Complainant by the Op.

2. To pay Compensation of Rs.1,00,000.00 by the Op for harassment, mental pain and agony, loss of peace etc.

3. To pay Litigation Cost of Rs.5,000.00 to the Complainant for conducting the case.

4. Any other reliefs.

8. Notice was duly served upon the Op. The Op appeared before this Commission through his Ld. Advocate. As there were elements of settlement, the case was placed before the National Lok Adalat held on 13.05.2023; however, the case was not settled. Thereafter, the Op did not turned up to file any Written Version, accordingly the proceeding of the case runs exparte against the Op.

9. Under the above circumstances, the Complainant has prayed for ex-parte order against the Op.

10. Points for determination are:

1. Is the case maintainable in its present form and in law?
2. Is the Complainant entitled to the relief(s) as sought for?

11. Decision with reasons

1. Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.

2. We have carefully perused the Complaint supported by Affidavit, Examination-in-Chief on Affidavit of the Complainant alongwith all relevant documents on record.

12. Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that complainant is a consumer having grievances against the Op, as such the case is maintainable in its present form and in law.

13. On careful scrutiny, analysis and evaluation of the materials on record, it is evident that the Complainant had taken lunch at the restaurant of the Op where the Complainant was charged Rs.25.00 for the bottle of mineral water and that is excess of the printed MRP. The MRP on the bottled mineral water was printed Rs.20.00 whereas Op was charged Rs.25.00 for each bottle.

14. The most important question to be decided in this present complaint is as to whether or not a bottle of Mineral Water can be sold at a higher price than the MRP by the Op Restaurant. It is important to note that Maximum Retail Price (MRP) is the highest price at which product can be sold. According to the Legal Metrology (Packaged Commodities) Rules, 2011, no Retail Dealer or Other Person including Manufacturer, Importer, Packer and Wholesale Dealer shall make any sale of any commodity in packaged form at a price exceeding the Retail Sale Price thereof. The aforesaid rule will cover all Retail Dealer and Other Persons and does not exclude hoteliers or restaurants. But, in the instant case the Op restaurant is not only merely selling the bottled Mineral Water but also it renders the service by providing the Bottled Mineral Water instead of normal drinking water to the customer on demand. Moreover, 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 Standards of Weights and Measures Act, 1976 as this does not constitute a sale or transfer of these commodities by the Opto the Complainant. The customer 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.

15. The Hon’ble Supreme Court of India in the case of Federation of Hotel & Restaurant Associations of India – Vs. – Union Of India & Others [Civil Appeal No.21790 of 2017] held that neither the Standards of Weights and Measures Act, 1976 read with the Standards of Weights and Measures (Enforcement) Act, 1985 and the Standards of Weights & Measures (Packaged Commodities) Rules, 1977 or the Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in Hotels and Restaurants at prices which are above the MRP. Therefore, as per the verdict of the Hon’ble Supreme Court, the Hotels and Restaurants are allowed to sell bottled water and other packaged products at above the Maximum Retail Price (MRP), on the ground that the transaction consisting predominantly a service and not merely a sale of drinking water, consisted of a composite charge which included incidental charges for food, drinks etc.

16. Under the above facts and circumstances, the Complainant has failed to establish the elements of Unfair Trade Practice on the part of the Op.

1. Now, coming to the matter of reliefs. The Complainant is not at all entitled to get any relief as prayed for.

2. Both the points are disposed of accordingly.

3. Thus, the complaint case does not succeed.

Hence, it is     

O R D E R E D

That the CC-16 of 2023 be and the same is dismissed ex-pate against the Op.

No order as to cost is passed.

Let a copy of the judgment be supplied to the Complainant free of cost.