BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOPPAL

CONSUMER COMPLAINT NO.  – 09/2015

PRESENT

Smt. Akatha.H.D. M.A. L.L.M.                            .. President

Sri. Raviraj Kulakarni, B.A. L.L.B                       .. Member

Dated this 24^th day of November 2015

V/s

JUDGMENT

            The complainant has filed this complaint u/sec. 12 of the Consumer Protection Act – 1986 against the Ops alleging unfair trade practice in collecting excess amount of MRP.  Hence prays for seeking relief for unfair trade practice for compensation of Rs.3,00,000/- for unfair trade practice.  Rs.50,000/- for mental and physical agony and Rs.50,000/- for deficiency in service and Rs.10,000/- for litigation and miscellaneous expenses.

             Brief averments of the Complaint are as under;

            2.  That, the complainant alleged that on 16-09-2014 had visited to the OP Bar and ordered for D.S.P. Black (60 ML) drinks. (The selling price is as Rs.45/-, whereas the maximum retail price is Rs.42.21 including tax) and one Knockout Beer (650 ML) (selling price was Rs.120/-, whereas the MRP is Rs.100/- including tax) and one soda, its selling price is Rs.15/-.  All these three items were taken parcel by the complainant.  For these items, the opponent has charged Rs.180/- and a receipt is given for this and has charged excess amount of Rs.22.79 and has sold more than MRP.  Further, when the complainant asked for the reason of charging excess amount, the OP behaved indecently/rudely with the complainant.  The complainant further alleged that,  on
17-10-2014, the complainant issued a legal notice to OP which is served on him and reply was not given to the notice and hence has filed this complaint praying for unfair trade practice of Rs.3,00,000/-.  Physical and mental agony of Rs.50,000/-.  Deficiency in service of Rs.50,000/- and litigation expenses of Rs.10,000/- as prayed above.

            3.  The Forum after admitting the complaint, the notice was issued to the opponent and the notice is served upon the opponent.  The opponent appeared before the Forum along with their counsel and filed vakalat and main objections/written version to the main petition.

            4.  The objections of the opponent are as under;

            That, the Proprietor of B.S.Pawar Grand is providing lodging facility and is also running Hotel with Bar and Restaurant.  The Hotel B.S. Pawar Grand is providing lodging room facility to the visitor and tourist.

            The Tourism Development authority of Karnataka Government has approved Hotel B.S. Pawar Grand, Koppal.  Whenever the visitors approaching Hotel for room facility for stay purpose and taking rest for limited hours.  During the visit time, if the customer desires to have the drinks facility, the said Hotel is providing the drinks for consuming purpose in an arranged hall.  For such visitors, the OP hotel is providing comfortable chair and table.  Further the Hotel is providing to the visitors at the time of consuming liquor snacks like groundnut masala seeds, onion, chilli, chips to them.  The waiter takes the order and provide the drinks with snacks as stated above to the visitors.  Further, the OP states that their Hotel is authorized to provide the liquor and soft drinks to the visitors.  So the Hotel is treated as C-L-7-BAR, the said fact is mentioned in the bill and receipts.

            Further the opponent contended that the complainant has falsely contended that on 16-09-2014 he has purchased DSP black liquor of 60 ML and also purchased Knock Out beer 650 ML as parcel.  In fact, the complainant and his two friends have visited the lodge room of opponent on 16-09-2014.  They have requested the bar in charge for providing the liquor.  There is a hall where the Hotel Management provided the chair and table for consuming the liquor.  Accordingly the Hotel waiter has taken to the hall and provided seat facility.

            Further, the opponent contended that the complainant and two of his friends have placed the order for providing DSP Black liquor 60 ML and Knock Out beer 650 ML and one soda bottle with snacks.  In pursuance of the said order, the waiter of the hotel has provided above said drinks with Masala Groundnut seeds, Onion, Chili chips to the complainant and his friends.  The waiter also provided the mineral water.  So in the receipt, it is mentioned including service charges.  The services includes service of waiter and providing of snacks as stated above and water.  They have also provided plates and glass to them.  It is further stated that, it is absolute false to say that the opponent has collected Rs.22.79 ps excess to the MRP price for above said liquor.  The opponent has collected Rs.22.79 Ps towards service charges and providing snacks.

            The opponent further contended that the complainant has falsely pleaded that he has questioned the Hotel authority why he is charging the more price on the liquor.  Further, the complainant has falsely pleaded that the opponent has answered he would sell the liquor on excess prices.

            The opponent further contended that the opponent has provided the liquor with snacks to the complainant and his friends on 16-09-2014.  The cash paid is Rs.120/- includes service charge.  The receipt produced by the complainant reveals short name K.O.T. meaning of it Kitchen Order Ticket.  So they have placed the order in the Hotel for providing drinks with snacks in the Hotel itself.  The opponent has not sold the liquor mentioned in the complaint for excess price than MRP price.

            The opponent further contended that the complainant has waited for one month after this alleged incident and then issued the legal notice.  The OP called the complainant and his friends and discussed about the legal notice matter.  They expressed that the same has been given in casual way, they had informed the OP not to take it is serious matter.  So the OP has not replied for the said notice. 

            For all other reasons, they pray for dismissal of the said complaint with cost.

            5.  On the basis of the above pleadings, the following issues have been framed

POINTS

1.  Whether the complainant proves that there is unfair trade practice in selling more than MRP?

2. Whether the complainant is entitled for the relief sought?

3. What order?

6.  To prove the case of the complainant, the complainant himself examined as PW1 and he has got marked documents as Ex.A.1 to Ex.A.4 and closed their side of evidence.  The opponent himself examined as DW1 and got examined one witness as DW2 and got marked documents as per Ex.B.1 and Ex.B.2 and closed their evidence.

7.  Heard the arguments.

8.  Our findings on the above points are as under:

Point No. 1:   Negative

Point No. 2:   Negative

                  Point No. 3:  As per final Order for the following

REASONS

9.  POINT No. 1 and 2:  As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence documents and arguments.

            10.  On perusal of the pleadings, evidence coupled with the documents of respective parties on record, there is no dispute regarding the complainant and his friend visited the Hotel.  Further, it is also admitted that the complainant had ordered for DSP Black liquor 60 ML, Knock Out beer 650 ML and one soda bottle.  To prove the case of the complainant, the PW1 has reiterated the complaint averments in his Examination-in-Chief and in support of his case, he has produced the document pertains to Hotel bill, i.e. Ex.A.1.  Ex.A.1 clearly reveals the price of the commodity.  It shows the excess amount of the commodities.  As per Ex.A.2, the DSP Black 60 ML liquor price mentioned as Rs.45/-, its MRP is Rs/42.21 PS.  In the same manner, Knockout Beer 650 ML price shown on the bill is Rs.120/-, its MRP is Rs.100/- and one soda bottle price mentioned is Rs.15/-. The total amount is Rs.180/-.  After the perusal of Ex.A.1, it is clear that below the total price, there is a seal mentioned as ‘including service charge’.  This fact is known to the complainant.  The availability of the seal itself says that the service charge is taken by the OP from the complainant.  The OP should have mentioned it clearly the amount of the service charge separately but in this case, the OP has added in the commodities itself.  Because OP has added in the commodities, the extra price it cannot be said that excess charge has been received; it can be presumed that service charge has been included in the bill.  Where it is clearly mentioned in the bill as “including service charge”.  Apart from this, rate of the commodities on the upper part of the bill, there it is mentioned as KOT.  It means “Kitchen Order Ticket”.  The Kitchen order ticket itself reveals that it was served in the Hotel itself.  PW1 has averred that he had taken parcel of these commodities but the Ex.A.1 clearly says that is was served in the Hotel itself as it contains “Kitchen Order Ticket, i.e., K.O.T.” But to disprove the said entries in Ex.A.1, the complainant has not spoken anything about it and has kept silent on it, the complainant have not produced any other cogent and corroborative evidence except putting suggestion to that the OP has behaved very rudely with them.  Further, DW1, who is working as Service man in the Hotel B.S.Pawar Grand, Koppal has deposed that it was he who placed order for serving the drinks and snacks and also asked him to arrange the table and chair.  Though he has corroborative the version of DW1 with respect to alleged service on the table.

            Further, the arguments advanced by counsel of OP that excess amount is not taken but it has included service tax also.  The counsel for the OP has relied the citation which has been passed by our Hon’ble State Consumer Disputes Redressal Commission, Bengaluru in M/s Shivas Bar and Restaurant V/s Sri. Parasappa and another in Appeal No. 184/2009

“4. Xxxxxx decision reported in the Federation of Hotels and Restaurants Association of India & others etc., V/s Union of India & others reported in AIR 2007 Delhi 137.  In this decision, his lordship has laid down thus;

1. Constitution of India, Art.366 (29-A), Sch.1, List 3, Entry 34 – Standards of Weights and Measures Act (60 of 1976), Ss.2(5), 83 – Standards of Weights and Measures (Packages Commodities) Rules (1977), R.23(2) – Supply of articles of mineral water/Soft drink in hotel/restaurants – Do not constitute sale or transfer of commodity – Charging any price above MRP mentioned on packaging, by hotelier / restaurateur – Permissible, not violate of SWM Act – Person enters hotel to enjoy ambience available therein and not to purchase such commodity.

The above decision is clear that when any article is supplied in Hotels / Restaurants, the hotelier or restaurants are entitled to collect more price than the MRP mentioned in the package.”

The facts and circumstances of the case in hand and the facts and circumstances of the said citation are all together same.

So also, the counsel for the complainant has relied on citation reported in 2006 (2) CPR 34, Gujarat State Consumer Disputes Redressal Commission, Ahmedabad, it is held that;

(i) “Consumer Protection Act, 1986 – Section 2(1)® - Unfair trade practice – Appellant hotel charging Rs.18 per bottle of soft drink as against printed M.R.P. Rs.12,50 on bottle – Defence plea that bottle was sold for Rs. 15/- and Rs.3 was charged towards service charges – No board displaying that consumers of soft drink would have to pay such service charges in case he occupied seat in hotel and consumed soft drink by availing of service in hotel. X x x x x x x “

The facts and circumstances of the case in hand the very complainant has at one breath contended that has taken excess amount.  In this citation which has been relied by the counsel for the complainant is not applicable to case in hand.  Because, here the OP bill i.e. Ex.A.1, it is clearly mentioned as ‘Including Service Charges’.

And also he has relied on another citation reported in II (2007) CPJ 96, Delhi State Consumer Disputes Redressal Commission, New Delhi in Zaika Bazar V/s Hemant Goel, Appeal No. A-512 of 2006 – Decided on 9.10.2006,

“Consumer Protection Act, 1986 – Section 2(1)(r) – Unfair Trade Practices – Section 2(1)(g) – charging higher price than MRP – xxxxxx”

            In that context, the counsel for the complainant has relied the citation reported in II (2014) CPJ 493 (NC), D.K. Chopra V/s Snack Bar, which has been passed by our Hon’ble National Consumer Disputes Redressal Commission, New Delhi,

“Consumer Protection Act, 1986 – Sections 2(1)(g, 2(1)(r), 14 (1)(d), 21(b) – consumer Services, Snack Bar – ‘RedBull’ energy drink – Double amount than MRP charged – Deficiency in service – Unfair trade practice.  District Forum dismissed complaint – State Commission dismissed appeal – hence revision.  To protect the ‘consumer’ from excessive prices charged by Traders, it is provided that State declared rates for purchase and sale of all marketable commodities, in order to protect ‘consumers’ from arbitrary exploitation by traders – Respondent has been charging double amount for redbull-energy drink – Airport authority cannot disturb the MRP rates – A person who purchases ‘redbull’ energy drink while standing is not obliged to pay the fees which is prescribed for restaurant – Xxxxxxx”

            The facts and circumstances of the case are different together and they are no way helpful to the complainant.

            Further, the documents which have been relied by the complainant, more specifically with respect to Ex.A.3.  Ex.A.3 is the legal notice issued by the complainant to the OP and the same is served on OP and the Ex.A.4 and Ex.A.5.  It is admitted by the OP in his defence stating that a legal notice was served on him and deposed that reply notice was not issued to the complainant.  Because a reply notice was not issued one cannot come to a conclusion that the OP has taken excess amount.  Therefore the complainant fails to prove that the OP has taken excess amount and there was an unfair trade practice and deficiency of service on the part of OP as contended in their complaint has not proved by him by adducing cogent and corroborative evidence.  Hence, in the light of above observations, the complainant is not entitled for any compensatory cost as prayed for.  Accordingly we constrained to hold point No. 1 and 2 in the negative.

Point No. 3:- Hence in the result, we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby dismissed.
2. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by her, typescript, corrected by me and then pronounced in the Open Forum on 24^th day of November 2015.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Opposite party