Ld. Advocate(s)

                                    For Complainant: Rajdeep Majumder, Aishwarya Roy and SupreetoKar

                                    For OP/OPs : Romeet Sil

            Date of filing of the case                      :21.12.2022

            Date of Disposal  of the case              :29.08.2024

Final Order / Judgment dtd.29.08.2024

The concise fact of the case of the complainant is that the complainant Biplab Krishna Deb went to the Hotel of OP namely Hotel Astha Midway Bhatjangla, Krishnagar / OP for eating. On 01.01.2024 he ordered in the said hotel Aloo Paratha, Butter Naan, Chicken Curry and one bottle of mineral water. The OP served all menu items to the complainant which the complainant ate. Thereafter, the OP served the bill to the complainant and after seeing the bill the complainant was shocked due to the price charged for one litre mineral water bottle for Rs. 30/- against the  printed price of Rs. 20/- only. The complainant informed the matter to the manager of Hotel  Astha Midway / OP and requested to take fair price of Rs.20/- for the said mineral water but the OP did not take any action against the matter and harassed the complainant. So the complainant suffered pecuniary loss and damage. The OP did not answer to the complainant as to why they charged more money. Despite that OP charged Rs. 30/- for the said one litre of mineral water. So the present case is filed against the OP. The cause of action arose on and from 01.01.2024   and every day till the filing of the case. The complainant prayed for an award for Rs.10/- which is the extra money taken by the OP from the complainant together with interest @ 8 % per annum from the date of receiving the money, Rs 50,000/- towards compensation for unfair trade practice, harassment and mental pain and agony and Rs. 10,000/- towards litigation cost.

 The OP contested the case by filing W/V denied each and every allegation of the complaint. The OP challenged the case as not maintainable on the ground that it is barred by law of limitation and the complainant is not a consumer under the C.P.Act. The positive defence case of the OP is that the OP Hotel Astha Midway is run for restaurant business for so many years with a very good will. The OP has its own restaurant building having several facilities and waiters for serving, beverage and water to the customers which formed composite indivisible agreement for supply of services and food and drinks. The definition of sale in both the Act of 1976 and 2009 so that the composite indivisible agreement for supply of service and food and drinks would not come under the C.P.Act. The charging of excess price for mineral water more than the MRP during the service of customers in hotel and restaurant does not violate the provision of Legal Metrology Act .Customer does enter the hotel or the restaurant for ordinary purchasing of the commodities. The complainant filed the present case with malafide intention and as such is not entitled to get compensation. The complainant has filed the case through CAB but illegally prayed for litigation cost. So the complaint should be dismissed with cost with a compensation for hampering the goodwill of the OP.

 On the basis of the pleading of the parties the following points are required to be ascertained for proper adjudication of this case.

                             Points for Determination

Point No.1.

Whether the case is maintainable in its present form and prayer.

Point No.2.

Whether the complainant  is entitled to get the relief as prayed for.

Point No.3.

          To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

 It is the admitted fact that the complainant Biplab Krishna Deb purchased  one disputed water bottle. However, the OP denied that the complainant is not a consumer. He referred to section 2 (r) of Legal Metrology Act, 2009/. The OP sold the said water bottle to the complainant for consumption. Thus the relation between the complainant and OP falls within the purview of C.P.Act and as such complainant is a consumer under C.P.Act.

The OP however challenged the case on the ground that composite indivisible agreement for supply of service and food and drinks would not come within the purview of either enactment. In this regard Ld. Adv for the OP referred to a decision reported in Civil Appeal no 21790 of 2017 wherein Hon’ble Supreme Court held that neither Standards of Weights and Measures Act, 1976 read with enactment of 1985 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.

 Thus in view of the decision of the Hon’ble Supreme Court present case is kept outsight the purview of this C.P.Act. Accordingly point no 1 is answered in negative and decided against the complainant.

Point No.2&3.

Both the points are closely inter linked with each other and as such these are taken up together for brevity and convenience of discussion.

It is the specific allegation of the complainant that the complainant went to the OP Hotel Astha Midway on 01.01.2022 for eating and ordered for certain food including one bottle of mineral water. The OP charged Rs. 30 for the said water bottle of which the print rate of price was Rs.20/-. Thus OP has charged unfair and extra price for the said mineral water. The complainant therefore prayed for award against the OP as per the prayer of the complaint.

 The OP by filing W/V categorically stated that the complainant is not covered under the consumer. Ld. defence counsel drew the attention of this Commission regarding section 2r of Legal Metrology Act as per definition of sale in both the Act 1976 and 2009 show that composite indivisible agreement for supply of services and food and drinks would not come within the purview of either enactment.

 In this regard he resorted to one case law reported in civil appeal no. 21790 of 2017 wherein it was held that neither the standards of Weights and Measures 1976 read with enactment of 1985 for the Legal Metrology Act 2009 would apply so as to interdict the sale of mineral water in hotels and restaurants at price which are above the MRP.

 The said case law is applicable here.

 The complainant adduced evidence by filing affidavit-in-chief and also the catalogue of the said hotel wherefrom it is found that the price of chilled drinking water is Rs. 30/-.

 It is admitted fact that price for the said drinking water was charged for Rs. 30/-.

 The OP also answered against cross examination that this fee of Rs 10/- charged by the OP from the complainant for composite indivisible agreements for supply of services of food and drinks would not come within the purview  of  sale as defined  u/s 2 (r) of the Legal Metrology Act or u/s 2 (v) of the  Standards of Weights and Measures Act.

 The complainant duly proved the payment voucher of Rs. 30/- for mineral water. It is the specific defence case  that despite charging Rs. 30/- from the complainant for one bottle of mineral water. Complainant cannot claim any relief because the case is not maintainable as per the decision of the Hon’ble Supreme Court.

 The argument of OP has reasonable force in view of the decision of the Hon’ble Supreme Court reported in Civil Appeal no. 21790 of 2017 in the case of federation of hotel and restaurant association of India versus Union of India and others.  It was held that neither Standards of Weights and Measures Act 1976 read with the enactment of 1985 for the Leal Metrology Act 2009 would apply so as to interdict of sale on mineral water in hotels and restaurants at price which are  above MRP.

 The said case law is relied on. The complainant could not file any  case law against the said ruling  of the Hon’ble Supreme Court cited by the Ld. Adv for the OP. Accordingly, the said case law is relied on.

 Thus having assessed  the evidence in the case record vis-a -vis the position of law as stated hereinabove the  Commission comes to the finding  that the present case is not maintainable and the complainant is not entitled to get the relief as prayed for.

In the results the point no 2 and 3 are answered in negative and decided against the complainant. Consequently the case fails.

Hence,

 It is

 ordered.

 That the CC/120/2022 be and the same is dismissed on contest without cost.

All Interim Applications  (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.        

Dictated & corrected by me

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               PRESIDENT                                                                          

(Shri   HARADHAN MUKHOPADHYAY,)    

                                                                                                                  PRESIDENT                                                                                

                   (Shri   HARADHAN MUKHOPADHYAY,)    

I  concur

                                                                                          …………………………………………………..                       

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                             MEMBER

 (SHRI NIROD  BARAN   ROY  CHOWDHURY)