The Proprietor, New Hotel Satkar V/S D.S.Kalmath S/o. D.Siddayya Kalmath - Consumer Court Case

Karnataka

Raichur

DCFR 63/06

D.S.Kalmath S/o. D.Siddayya Kalmath - Complainant(s)

Versus

The Proprietor, New Hotel Satkar - Opp.Party(s)

Sri. G.S.R.K

15 Dec 2006

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. DCFR 63/06

D.S.Kalmath S/o. D.Siddayya Kalmath						...........Appellant(s)
Vs.
The Proprietor, New Hotel Satkar Caribou Packaged drinking water supplier						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant D.S. Kalmath against two Respondents- (1) The Proprietor, New Hotel Satkar, Sindhanoor to Raichur Road Sindhanur, and (2) Caribow Packaged drinking water supplier-M/s. Deepa Aqua Minerals Illkal District. Bagalkot. The brief facts of the complaint are as under:- The complainant who is an Advocate & Tax-Practitioner had a function of cradle ceremony of his grand son in his house on 28-11-05 and he had invited relatives, friends and guests to bless the child and had arranged for lunch on the said occasion. For the said function he had purchased two cans of 20 Ltrs each of packaged drinking water from Respondent No-1 who is the retailer of Respondent NO-2 who is the producer of packaged drinking water. Respondent NO-1 has sold the water cans for Rs. 70/- per can which is more than the market price at Rs. 50/- per can. Thus, Respondent NO-1 has charged Rs. 20/- per can in excess of the market rate price. The claim of the complaint that the Respondent No-1 should charge only market rate price and not more than that was given deaf-ear by the Respondent and has failed to accept the market rate price and has issued two bills bearing NO. 4 & 11 dt. 28-12-05 for the amount received by him. The complainant issued Legal Notice dt. 19-01-06 to both the Respondents who remained silent even after receipt of notices from the complainant. The complainant had to bear un-necessarily and un-reasonably excess price than the market rate price quoted on the same cans. The acts of the Respondents are nothing but illegal and un-fair trade practice for their wrongful gains. Respondent No-2 remained passive to the legal acts of the Respondent NO-1 even after receipt of notice. The complainant was put to much inconvenience and in-tolerance and mental agony having had to pay excess price than the market rate price. Hence for all these reasons the complainant has sought for direction to the Respondents for repayment of excess price charged along-with exemplary cost of Rs. 1,000/- and to award Rs. 5,000/- towards inconvenience and mental agony and Rs. 5,000/- towards cost of proceedings and Rs. 50,000/- towards Advocate charges. 2. In-response to service of notice Respondent No-1 appeared through his counsel Respondent NO-2 remained absent when called out so Respondent NO-2 has been placed Ex-parte. In his written statement the Respondent No-1 has contended that the allegation that he has charged Rs. 70/- for 20 Ltrs of Caribou Water is false. The price charged by this Respondent for 20 Ltrs can/bottle each includes the charges of cold storage and transportation and delivery of said water can through Auto and labour. It is not the duty of this Respondent to supply water can to the doors of the complainant or any other person. It is only at the request of the complainant and in-view of age of the complainant only water can were supplied to the house of the complainant in a hired auto through the Employer of this Respondent. Hence this Respondent has collected Rs. 20/- extra separately to each. Water can apart from Market Rate Price. When the complainant requested this Respondent for supply of said water can within the said Market Rate Price to the house of the complainant the same has been denied by this Respondent and he insisted for payment of Auto and labour charges. If the complainant had ordered at a time for supply of two cans he would have saved Rs. 20/- in the said bills. Hence as ordered separately for 20 Ltrs can so Rs. 20/- was collected separately by this Respondent for extra service rendered to the complainant. The filing of this complaint against this Respondent is only an after thought and upon instigation by another Advocate who is enimical towards this Respondent. The complainant is taking mis-use of bills which includes the charges of delivery and transportation of water can to the house of the complainant. It is true that this Respondent had received the notice from the complainant but this Respondent need not to reply when he is not at fault. So there is no cause of action for filing this complaint. Hence for all these reasons the Respondent NO-1 has prayed for dismissal of the complaint with heavy cost. 3. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief and has got marked (5) documents at Ex.P-1 to P-5. In-rebuttal the Respondent NO-1 has filed his sworn affidavit-evidence and one more affidavit-evidence of one Ajmirsab, Auto driver at Sindhanur. 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:- 1. Whether the complainant proves deficiency of service un-fair trade practice by the Respondents in charging excess amount of Rs. 20/- each as against Market Rate Price for 20 Ltrs two water cans, as alleged.? 2. Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1. In the affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 6. It is not in dispute that the complainant has purchased 20 Ltrs of Caribou Water Can for Rs. 70/- on 28-12-05 under receipts at Ex.P-1 & P-2. It is the case of the complainant that the Respondent NO-1 has sold the water can more than the market pate price at Rs. 50/- each and has charged Rs. 20/- each per can in-excess of market rate price and his claim that the Respondent NO-1 should charge only market Rate price and not more than that was given a deaf-ear and has failed to accept market rate price only. In-spite of service of Legal Notice dt. 19-01-06 issued to both the Respondents they remained silent and have made the complainant to bear un-necessary and un-reasonable excess price than the market rate price quoted on the water cans. The complainant has produced the chit/label of Caribou drinking water at Ex.P-5. This chit/label shows the market rate price at Rs. 50/- per can of 20 Ltrs of Caribou water and also shows the address of Respondent No-2 supplier of Caribou Packaged Drinking Water Can. As stated supra the Respondent NO-2 M/s.Deepa Aqua Minerals Ilkal, supplier of Caribou Packaged Drinking Water has remained absent and placed Ex-parte. The Respondent NO-1 Proprietor New Hotel Satkar, Sindhanoor who has contested this case has not disputed the market rate price of 20 Ltrs of can at Rs. 50/- But according to him the excess amount of Rs. 20/- per each can includes the charges of cold storage, transportation and delivery of said water can through auto & labour. It is also his case that it is not the duty of the Respondent No-1 to supply water can to the doors of the complainant or any other person but it is only at the request of the complainant and in-view of age of complainant the water cans were supplied to the house of the complainant in a hired Auto by this Respondent and hence he has charged Rs. 20/- extra separately to each can apart from market rate price of water cans. In this regard he has produced the affidavit-evidence of one Ajmir Sab Auto driver who has sworn to the effect that he is the residing in H.No. 4-1-130 Katibase area, at Sindhanur and carrying on profession as Auto driver owning Auto Rickshaw bearing Registration NO. KA 37/2648 and having valid Driving Licence No. 668/03-04 and Badge No. 106/0304. On 28-12-05 one Jagadish Prabhu the proprietor of New Satkar Hotel (Respondent NO-1) called him for transportation of water can of each 20 Ltrs along with labour for delivering the same to the house of one Sri. D.S. KKalmath, Advocate (complainant). He agreed for the same and carried the said water cans twice to the house of complainant and he has received charges for the same from Respondent No-1. 7. The Receipts at Ex.P-1 & P-2 which are not disputed by Respondent NO-1 goes to show for charging of Rs. 70/- per 20 Ltrs of Caribou water can. But these two Receipts do not show mentioning of the service charges of Rs. 20/- as contended by the Respondent NO-1. So from a plain reading of these two Receipts it shows charging of Rs. 70/- for 20 Ltrs of water can. When these Receipts issued by him at Ex.P-1 & P-2 show the price of two water can at Rs. 70/- each without specifying or differentiating the market rate price and service charges has contended by him then the contention of the Respondent NO-1 that he has collected Rs. 20/- extra for cold storage, transportation and delivery of water-can through his Auto and labour cannot be accepted especially when in sub-para of para-5 of his written version he has specifically contended that it is not his duty ( this Respondent) to supply water-can to the door of the complainant or any other person and that it is only at the request of the complainant and in-view of age of the complainant the water can were supplied to the house of the complainant in a hired auto by this Respondent. This averments in his written statement cuts the very case of the Respondent NO-1 that the water charges of Rs. 70/- in receipt at Ex.P-1 & Ex.P-2 includes the transportation charges to the Home-Delivery. Because according to him he is not entertaining the delivery of water cans to the doors of the customers and under exceptional circumstances in this case that too having regard to the age of the complainant he has sent the two cans through auto twice to the house of the complainant. If this is so his contention that he has charged excess Rs. 20/- towards cold storage and transportation charges holds no water and hence it follows that the Respondent No-1 has charged Rs. 70/- per water-can as against the market rate price Rs. 50/- and thereby the complainant has proved un-fair trade practice by the Respondent NO-1. This our view is supported by the decision of Honble State Commission Gujarat reported in: 2006 (2) CPR Page-34 Head Note i & ii: (i) Consumer Protection Act, 1986__Section2(1)(r)__ Unfair trade practice__Appellant hotel charging Rs. 18 per bottle of soft drink as against printed MRP 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__Menu card would indicate soft drinks separately from items of cold drink showing price of Rs. 18/-__ findings of District Forum that appellant indulged in unfair trade practice was liable to be confirmed. Hence for all these reasons we hold that the complainant has proved un-fair trade practice by the Respondent No-1 and so Point NO-1 is answered in the affirmative against Respondent No-1 only. POINT NO.2:- 8. The complainant has claimed for repayment of excess price charged along with exemplary cost of Rs. 1,000/- and Rs. 5,000/- towards in-convenience and mental agony and Rs. 5,000/- towards cost of proceedings and Rs. 5,000/- towards Advocate charges. From a bare reading of this it shows that the complainant has sought for Rs. 11,000/- towards cost of litigation and Rs. 5,000/- towards compensation for mental agony in-addition to the repayment of excess price charged by the Respondent. So far as the repayment of excess price charged, is concerned the complainant is entitled for refund of Rs. 40/- being the excess price charged at the rate of Rs. 20/- per two water can. So far as claim for Rs. 5,000/- towards inconvenience and mental agony, Rs. 11,000/- under heads like exemplary cost, cost of proceedings and advocate charges, is concerned we feel that this claim of the complainant is exorbitant taking into consideration the value of refund of excess price charged. Hence having regard to the facts and circumstances of the case for the un-fair trade practice by Respondent No-1 we feel it just and proper to award a global compensation of Rs. 2,000/- including cost of litigation. In the result we pass the following order: ORDER The complaint of the complainant is allowed in part. Respondent No-1 Proprietor New Hotel Satkar Sindhanoor shall refund Rs. 40/- to the complainant being towards excess price charged to the two water cans at the rate of Rs. 20/- per can. Respondent No-1 shall pay a global compensation of Rs. 2,000/- to the complainant including cost of litigation. Respondent NO-1 shall comply this order within (6) weeks from the date of receipt of copy of this order. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 15-12-06) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Sri.Pampannagouda Member. Dist.Consumer Forum-Raichur. On Leave Smt.Kavita Patil Member.

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant D.S. Kalmath against two Respondents- (1) The Proprietor, New Hotel Satkar, Sindhanoor to Raichur Road Sindhanur, and (2) Caribow Packaged drinking water supplier-M/s. Deepa Aqua Minerals Illkal District. Bagalkot. The brief facts of the complaint are as under:- The complainant who is an Advocate & Tax-Practitioner had a function of cradle ceremony of his grand son in his house on 28-11-05 and he had invited relatives, friends and guests to bless the child and had arranged for lunch on the said occasion. For the said function he had purchased two cans of 20 Ltrs each of packaged drinking water from Respondent No-1 who is the retailer of Respondent NO-2 who is the producer of packaged drinking water. Respondent NO-1 has sold the water cans for Rs. 70/- per can which is more than the market price at Rs. 50/- per can. Thus, Respondent NO-1 has charged Rs. 20/- per can in excess of the market rate price. The claim of the complaint that the Respondent No-1 should charge only market rate price and not more than that was given deaf-ear by the Respondent and has failed to accept the market rate price and has issued two bills bearing NO. 4 & 11 dt. 28-12-05 for the amount received by him. The complainant issued Legal Notice dt. 19-01-06 to both the Respondents who remained silent even after receipt of notices from the complainant. The complainant had to bear un-necessarily and un-reasonably excess price than the market rate price quoted on the same cans. The acts of the Respondents are nothing but illegal and un-fair trade practice for their wrongful gains. Respondent No-2 remained passive to the legal acts of the Respondent NO-1 even after receipt of notice. The complainant was put to much inconvenience and in-tolerance and mental agony having had to pay excess price than the market rate price. Hence for all these reasons the complainant has sought for direction to the Respondents for repayment of excess price charged along-with exemplary cost of Rs. 1,000/- and to award Rs. 5,000/- towards inconvenience and mental agony and Rs. 5,000/- towards cost of proceedings and Rs. 50,000/- towards Advocate charges. 2. In-response to service of notice Respondent No-1 appeared through his counsel Respondent NO-2 remained absent when called out so Respondent NO-2 has been placed Ex-parte. In his written statement the Respondent No-1 has contended that the allegation that he has charged Rs. 70/- for 20 Ltrs of Caribou Water is false. The price charged by this Respondent for 20 Ltrs can/bottle each includes the charges of cold storage and transportation and delivery of said water can through Auto and labour. It is not the duty of this Respondent to supply water can to the doors of the complainant or any other person. It is only at the request of the complainant and in-view of age of the complainant only water can were supplied to the house of the complainant in a hired auto through the Employer of this Respondent. Hence this Respondent has collected Rs. 20/- extra separately to each. Water can apart from Market Rate Price. When the complainant requested this Respondent for supply of said water can within the said Market Rate Price to the house of the complainant the same has been denied by this Respondent and he insisted for payment of Auto and labour charges. If the complainant had ordered at a time for supply of two cans he would have saved Rs. 20/- in the said bills. Hence as ordered separately for 20 Ltrs can so Rs. 20/- was collected separately by this Respondent for extra service rendered to the complainant. The filing of this complaint against this Respondent is only an after thought and upon instigation by another Advocate who is enimical towards this Respondent. The complainant is taking mis-use of bills which includes the charges of delivery and transportation of water can to the house of the complainant. It is true that this Respondent had received the notice from the complainant but this Respondent need not to reply when he is not at fault. So there is no cause of action for filing this complaint. Hence for all these reasons the Respondent NO-1 has prayed for dismissal of the complaint with heavy cost. 3. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief and has got marked (5) documents at Ex.P-1 to P-5. In-rebuttal the Respondent NO-1 has filed his sworn affidavit-evidence and one more affidavit-evidence of one Ajmirsab, Auto driver at Sindhanur. 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:- 1. Whether the complainant proves deficiency of service un-fair trade practice by the Respondents in charging excess amount of Rs. 20/- each as against Market Rate Price for 20 Ltrs two water cans, as alleged.? 2. Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1. In the affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 6. It is not in dispute that the complainant has purchased 20 Ltrs of Caribou Water Can for Rs. 70/- on 28-12-05 under receipts at Ex.P-1 & P-2. It is the case of the complainant that the Respondent NO-1 has sold the water can more than the market pate price at Rs. 50/- each and has charged Rs. 20/- each per can in-excess of market rate price and his claim that the Respondent NO-1 should charge only market Rate price and not more than that was given a deaf-ear and has failed to accept market rate price only. In-spite of service of Legal Notice dt. 19-01-06 issued to both the Respondents they remained silent and have made the complainant to bear un-necessary and un-reasonable excess price than the market rate price quoted on the water cans. The complainant has produced the chit/label of Caribou drinking water at Ex.P-5. This chit/label shows the market rate price at Rs. 50/- per can of 20 Ltrs of Caribou water and also shows the address of Respondent No-2 supplier of Caribou Packaged Drinking Water Can. As stated supra the Respondent NO-2 M/s.Deepa Aqua Minerals Ilkal, supplier of Caribou Packaged Drinking Water has remained absent and placed Ex-parte. The Respondent NO-1 Proprietor New Hotel Satkar, Sindhanoor who has contested this case has not disputed the market rate price of 20 Ltrs of can at Rs. 50/- But according to him the excess amount of Rs. 20/- per each can includes the charges of cold storage, transportation and delivery of said water can through auto & labour. It is also his case that it is not the duty of the Respondent No-1 to supply water can to the doors of the complainant or any other person but it is only at the request of the complainant and in-view of age of complainant the water cans were supplied to the house of the complainant in a hired Auto by this Respondent and hence he has charged Rs. 20/- extra separately to each can apart from market rate price of water cans. In this regard he has produced the affidavit-evidence of one Ajmir Sab Auto driver who has sworn to the effect that he is the residing in H.No. 4-1-130 Katibase area, at Sindhanur and carrying on profession as Auto driver owning Auto Rickshaw bearing Registration NO. KA 37/2648 and having valid Driving Licence No. 668/03-04 and Badge No. 106/0304. On 28-12-05 one Jagadish Prabhu the proprietor of New Satkar Hotel (Respondent NO-1) called him for transportation of water can of each 20 Ltrs along with labour for delivering the same to the house of one Sri. D.S. KKalmath, Advocate (complainant). He agreed for the same and carried the said water cans twice to the house of complainant and he has received charges for the same from Respondent No-1. 7. The Receipts at Ex.P-1 & P-2 which are not disputed by Respondent NO-1 goes to show for charging of Rs. 70/- per 20 Ltrs of Caribou water can. But these two Receipts do not show mentioning of the service charges of Rs. 20/- as contended by the Respondent NO-1. So from a plain reading of these two Receipts it shows charging of Rs. 70/- for 20 Ltrs of water can. When these Receipts issued by him at Ex.P-1 & P-2 show the price of two water can at Rs. 70/- each without specifying or differentiating the market rate price and service charges has contended by him then the contention of the Respondent NO-1 that he has collected Rs. 20/- extra for cold storage, transportation and delivery of water-can through his Auto and labour cannot be accepted especially when in sub-para of para-5 of his written version he has specifically contended that it is not his duty ( this Respondent) to supply water-can to the door of the complainant or any other person and that it is only at the request of the complainant and in-view of age of the complainant the water can were supplied to the house of the complainant in a hired auto by this Respondent. This averments in his written statement cuts the very case of the Respondent NO-1 that the water charges of Rs. 70/- in receipt at Ex.P-1 & Ex.P-2 includes the transportation charges to the Home-Delivery. Because according to him he is not entertaining the delivery of water cans to the doors of the customers and under exceptional circumstances in this case that too having regard to the age of the complainant he has sent the two cans through auto twice to the house of the complainant. If this is so his contention that he has charged excess Rs. 20/- towards cold storage and transportation charges holds no water and hence it follows that the Respondent No-1 has charged Rs. 70/- per water-can as against the market rate price Rs. 50/- and thereby the complainant has proved un-fair trade practice by the Respondent NO-1. This our view is supported by the decision of Honble State Commission Gujarat reported in: 2006 (2) CPR Page-34 Head Note i & ii: (i) Consumer Protection Act, 1986__Section2(1)(r)__ Unfair trade practice__Appellant hotel charging Rs. 18 per bottle of soft drink as against printed MRP 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__Menu card would indicate soft drinks separately from items of cold drink showing price of Rs. 18/-__ findings of District Forum that appellant indulged in unfair trade practice was liable to be confirmed. Hence for all these reasons we hold that the complainant has proved un-fair trade practice by the Respondent No-1 and so Point NO-1 is answered in the affirmative against Respondent No-1 only. POINT NO.2:- 8. The complainant has claimed for repayment of excess price charged along with exemplary cost of Rs. 1,000/- and Rs. 5,000/- towards in-convenience and mental agony and Rs. 5,000/- towards cost of proceedings and Rs. 5,000/- towards Advocate charges. From a bare reading of this it shows that the complainant has sought for Rs. 11,000/- towards cost of litigation and Rs. 5,000/- towards compensation for mental agony in-addition to the repayment of excess price charged by the Respondent. So far as the repayment of excess price charged, is concerned the complainant is entitled for refund of Rs. 40/- being the excess price charged at the rate of Rs. 20/- per two water can. So far as claim for Rs. 5,000/- towards inconvenience and mental agony, Rs. 11,000/- under heads like exemplary cost, cost of proceedings and advocate charges, is concerned we feel that this claim of the complainant is exorbitant taking into consideration the value of refund of excess price charged. Hence having regard to the facts and circumstances of the case for the un-fair trade practice by Respondent No-1 we feel it just and proper to award a global compensation of Rs. 2,000/- including cost of litigation. In the result we pass the following order: ORDER The complaint of the complainant is allowed in part. Respondent No-1 Proprietor New Hotel Satkar Sindhanoor shall refund Rs. 40/- to the complainant being towards excess price charged to the two water cans at the rate of Rs. 20/- per can. Respondent No-1 shall pay a global compensation of Rs. 2,000/- to the complainant including cost of litigation. Respondent NO-1 shall comply this order within (6) weeks from the date of receipt of copy of this order. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 15-12-06) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Sri.Pampannagouda Member. Dist.Consumer Forum-Raichur. On Leave Smt.Kavita Patil Member.