District Consumer Disputes Redressal Commission, Hooghly
PETITIONER
VS.
OPPOSITE PARTY
Complaint Case No.CC/09/2022
(Date of Filing:-24.01.2022)
- Shri Subhrakanti Samanta
Residing at T.C.Road, Padmapukur
P.O. & P.S. Tarakeswar, District:- Hooghly, West Bengal : 712410
Versus -
- The Director
Sher-e-Punjab Inn, Pvt. Ltd. having its Office and Restaurant at Barisha, P.S. Kolaghat, Purba Medinipur, Pin-712134
and having its registered office at
27/1B Rameshwar Shah Road Centre Court, FL-2C, Kolkata-700014
- The Factory Manager (The Inspecting Authority),
Global Aqua Pvt. Ltd. having its factory at Vill:- Pakuria, NH-6, P.O. Lakhanpur, P.S. Domjur, District:- Howrah, Pin:-711114
…………Opposite Parties
Before:-
Mr. Debasish Bandyopadhyay, President
Mr. Debasis Bhattacharya, Member
Mrs. Babita Choudhury, Member
PRESENT:
Dtd. 29.07.2024
Final Order/Judgment
Debasis Bhattacharya:- Presiding Member
Being aggrieved and dissatisfied with charging of excess price over and above the MRP by the OP 1 on purchase of mineral water from their eatery and endorsement of such charging by the OP 2, the instant complaint petition has been filed by the Complainant u/s 35 of the Consumer Protection Act 2019.
The fact of the case is depicted below in aphoristic manner.
The complainant on 09.10.21, while making payment after having breakfast in the said eatery was surprised to see that the OP 1 charged Rs.35/- which was much above the printed MRP, for a bottle of mineral water, manufactured OP 2 and a cash receipt was issued accordingly.
Allegedly, on being asked about the excess charging of price violating the Company guidelines of OP 2, the restaurant authority cunningly shrugged the issue off.
The Complainant made a further purchase of another bottle of mineral water which was charged Rs.30/- reportedly because it was a counter sale.
On being challenged OP 1 allegedly ignored the issue by one way or the other.
Subsequently the Complainant sent a legal notice to OP 1 on 25.10.21 and in response to the said legal notice OP 1 retorted by stating that customers who want parcel outside the purview of Non-AC, AC and Garden area, they charge all the packaged products at MRP.
The Complainant here expresses his grievance over the issue that why the second bottle of mineral water was charged excess over the MRP when this time the purchase of mineral water was the sole purchase across the counter and there was no service involved.
Considering these as unfair trade practice on the part of OP 1 in collusion with OP 2 the Complainant claiming himself a consumer, approaches to this Commission with a prayer to impose direction upon the opposite parties to pay a sum of Rs.2,50,000/- for causing mental agony arising out the deficiency of service of the OP 1and to pay further Rs.2,00,000/- as compensation for unfair trade practice.
The Complainant also prays for an order ‘restraining the OPs from such unfair trade practice with deceitful and ill motive just for wrongful gain’
The remarkable feature of the complaint petition is that the Complainant has not made any claim for refund of the differential price of mineral water bottles which is claimed to have been charged over and above the MRP.
As documentary evidence, the complainant has annexed copies of relevant bills, legal notice sent to OP 1and 2 and reply received from OP 1.
Apart from the above, the Complainant to defend his stand has also filed through firisti, copies of judgments passed in CC case No. 30/2017 of DCDRC Jalpaiguri dtd.22.09.2017, in corresponding Appeal case No. A/1123/2017 dtd.05.02.2021 and guidelines issued by Central Consumer Protection Authority.
Now in the light of the discussion made hereinabove, the complainant having purchased mineral water for his own consumption against a consideration price is a consumer u/s 2(7) (i) of the Act.
Cause of action arose for the first time on 09.10.2021 when the Complainant had his breakfast at the eatery run by the OP 1.
The complainant is a resident within the district of Hooghly and the claim preferred by the complainant does not exceed the amount of Rs.50,00,000/-. Thus this Commission has both territorial as well as pecuniary jurisdiction to proceed in the instant matter.
The questions whether there was any deficiency of service and unfair trade practice on the opposite parties’ part and whether the complainant is entitled to get any relief are taken together in the following part of this order.
Evidence on affidavit filed by the Complainant is almost replica of the Complaint petition but deviating from the demands placed in the complaint petition, the Complainant in the evidence on affidavit claims Rs.1,00,000/- for causing mental agony and Rs.50,000/- towards compensation as well as litigation cost.
Defense case
OPs of this case contested the case by filing written version, evidence on affidavit and brief notes of argument.
Now so far as the complaint petition is concerned both the OPs primarily in their respective written versions have applied certain routine adjectives like ‘misconceived’ ‘not maintainable’, ‘devoid of cause of action’, ‘barred by mis-joinder and non-joinder’, ‘jurisdictional irregularity’ etc. However no specific reasons have been assigned for application of such adjectives. Besides OP 1 has referred to certain judicial pronouncements to establish that the instant complaint petition is speculative, vexatious and frivolous. But none of the OPs has filed any non-maintainability petition against the complaint petition. Thus this Commission does not find any reason to make any discussion over these issues.
Both the OPs while speaking volumes over the grievances expressed by the Complainant have denied almost all the allegations leveled by the Complainant against them. Evidence on affidavit and BNA have been filed by OP 1 only.
The succinct version of the representations submitted through the written versions and evidence on affidavit by the OPs is as under.
Op 1 puts stress on the issue that a consumer enjoying extra amenities, comfort, facilities, luxury, ambience and special services in a restaurant is ‘duty bound to pay as per the menu of the restaurant’.
It is claimed that the OP eatery having been located in a very convenient position of the highway, has a non-AC, AC and garden area facility for its customers and in addition to that there is clean and healthy ambience, neat sitting area and the area outside the restaurant is well maintained in order to create a picturesque sight.
Thus, OP 1 tries to establish that for providing quality service, clean ambience, hygienic wash rooms, qualified and efficient staff they usually have to charge more than the MRP and this is not unfair trade practice.
At the same time, OP 1 mentions against para-8 of serial no.7 of the W/V that customers who want parcel outside the purview of the non-AC, AC and Garden area are charged at the MRP as the restaurant provide open area facility to carry the takeaways.
OP 1 points out that the Complainant had his breakfast in the garden area of the restaurant. Simultaneously OP1 denies that the Complainant was charged above the MRP for the water bottle purchased from the takeaway counter.
In the written version, OP 2 has denied all the allegations leveled by the Complainant. Apart from that, W/V filed by OP 2 is almost repetition of the W/V of OP 1.However OP 1has relied upon the judgment delivered by the Apex Court in the case of Federation of hotel and Restaurant Association of India vs. Union of India and others reported in (2018) 2 SCC 97 where it is stated that the standard of Weights and Measures Act, 1976 read with enactment of 1985 along with Legal Metrology Act, 2009 would not apply so as to interdict the sale of mineral water in hotels and restaurants at prices which are MRP.
OP 1 here mentions that Restaurants and Hotels provide a composite contract of service with incidental supply of goods. Therefore even if a customer of a hotel or restaurant orders nothing beyond a bottle of water, he is still enjoying a composite service.
OP 1 further continues that when the complainant ordered breakfast in the restaurant he had entered into a contract of service with the restaurant as distinguished from the sale of a commodity; there is one indivisible contract of service coupled incidentally with sale of food and drink. It is not possible to divide the ‘service element’ which is dominant element from the ‘sale’ element.
Decision with reasons: Materials on records are perused.
Firstly it is to be mentioned that so far as the prayer of the Complainant in the matter of imposing directions upon the OPs are concerned, the respective parts of the complaint petition and the evidence on affidavit is self contradictory.
Secondly the petitioner appears to be interested only in realizing the compensation amount and litigation cost. Surprisingly not a single word is uttered in the complaint petition in the matter of refund of the differential excess price over the MRP charged by OP 1, whatever is the amount. When a complainant approaches to a forum like DCDRC for compensation only without seeking proper redressal for the root cause for his grievance it is to be considered that the complaint petition is meant for a wrongful gain.
Once and for all it should be clear that a Consumer Disputes Redressal Commission is neither meant for taking any measure to restrain a business house from adopting a particular trade practice permanently nor to ensure compensation and litigation cost exclusively without providing a remedy for the root cause.
On perusal of the respective bills, it transpires that the first bottle of mineral water was ordered along with the breakfast in the garden area. But from the second bill it cannot be established that the bottle was purchased across the general sale counter.
However in none of the bills any service charge has been included separately.
After much apprehension regarding the sale of packaged mineral water above the MRP at restaurants, hotels, multiplexes etc., Hon’ble Apex Court gave the ruling that restaurants are not bound by the MRP.
Earlier the Government had said that selling mineral water above the MRP at restaurants, hotels, multiplexes etc. would attract a monetary fine and may also result in a jail term for the restaurant owners and the management. The Government told the Hon’ble Supreme Court that charging a higher price than the MRP of the packaged drinking water is not only against the consumer interest but also leads to tax evasion,
However a Bench led by Justice Rohinton F Nariman declared in the case of Federation of hotel and restaurant Associations of India Vs. Union of India that the provisions of the legal metrology Act are not applicable to restaurants selling packaged water in restaurants and hotels.
Hon’ble Apex Court ruled that the service is also provided in restaurants, where customers go to enjoy the ambience and the customer service. “It is not a case of simple sale. Nobody goes to a hotel to buy or take away a bottle of mineral water”.
In view of the above this Commission is of the opinion that deficiency of service or any sort of unfair trade practice on the part of the OPs cannot be established in unequivocal terms. More over the Complainant is apparently inconsistent in placing his demands so far as the complaint petition and the evidence on affidavit filed by him are concerned.
Hence, it is
ORDERED
that the complaint case bearing no. 09/2022 be and the same is dismissed on contest. However there is no order as to costs.
Let a plain copy of this order be supplied free of cost to the parties or their authorized Advocates/Agents on record, by hand against proper acknowledgement or sent by ordinary post for information and necessary action.
