Tripura

StateCommission

A/3/2016

Sri. Arindam Kar - Complainant(s)

Versus

The Proprietor Rupasi Cinema Hall - Opp.Party(s)

Mr. Arindam Kar

11 May 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

 

APPEAL CASE No. A/03/2016.

 

 

 

 

1. Sri Arindam Kar,

S/o Sri Ranjit Kar,

Room No.9, Tripura Bar Association,

Fire Brigade Chaowmuhani, P.O. Agartala,

P.S. West Agartala, Dist-West Tripura.

 

 

                   ….    ….    ….    ….    Appellant/Petitioner.

 

                   Vs

 

1. The Proprietor,

Rupashi Cinema Hall,

Near Post Office Chowmuhani,

P.O. Agartala, P.S. West Agartala,

Dist-West Tripura.

 

                              ….    ….    ….    ….    Respondent/Opposite Party.

 

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

For the Appellants             :         Mr. Arindam Kar, Advocate, in person.

For the Respondent No.1    :         Mr. Rakhal Majumder, Adv., Mr. Debasish Datta, Adv.,

Mr. Swarup Pandit, Adv.   

Date of Hearing       :         02.04.2016.

Date of delivery of Judgment:      11.05.2016

 

 

 

 

 

J U D G M E N T

 

S. Baidya, J,

This appeal filed on 05.02.2016 by the appellant Sri Arindam Kar, under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment and Order dated 06.01.2016 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-14/2015, whereby the Ld. District Forum dismissed the case of the complainant, the appellant herein.

2. The case of the appellant, as narrated in the memo of appeal, in brief, is that on 20.10.2014, Monday at 02:00 pm the appellant herein, along with his three other colleague went to Rupashi Cinema Hall to see a Bengali Movie. It has also been stated that while entering the movie theatre, the appellant purchased cold drinks (Coca-Cola Cans) for himself and also for his colleague from an unnamed establishment just outside the theatre in the lobby on the third floor. It has also been stated that though the Maximum Retail Price (MRP) of the cans were Rs.25/- each, but the opposite party charged Rs.40/- each which is Rs.15/- more than the M.R.P. and not only so, the opposite party denied to provide any money receipt for the same.
3. It has also been stated that on 22.10.2014, the appellant issued a legal notice to the respondent, the Proprietor of Rupashi Cinema Hall for harassing the appellant and also for selling the product  above its Maximum Retail Price (MRP) fraudulently, but the opposite party gave a vague reply on 27.10.2014 against the said legal notice which was not at all satisfactory and thereby being aggrieved the appellant herein, as complainant filed a complaint under section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum which was numbered as CC-14/2015.
4. It has also been stated that the opposite party appeared in the said complaint case through his advocate and submitted a written statement denying allegation stating that there are various rented shops in the establishment and the opposite party cannot be held liable for the actions and/or inactions of the same. It has also been stated that the appellant has exercised three witnesses including himself, but the opposite party failed to produce any witness to counter the claim of the complainant-appellant or to substantiate his pleadings made out in his written statement. It has also been stated that in spite of that, the Ld. Forum dismissed the complaint case by the impugned judgment on 06.01.2016 and thereby being aggrieved and dissatisfied, the complainant as appellant has preferred the instant appeal assailing the impugned judgment on the grounds that the Ld. Forum failed to appreciate the fact that, despite giving vivid description in the petition, the opposite party chose not to disclose the specific name of the shop or the name of its owner, if at all, it was a separate shop from Rupashi Cinema Hall and thereby the opposite party accepted his liability and the allegation made in the petition by the appellant herein, that the Ld. Forum was not even aware about the deposition of the witnesses, that the Ld. Forum grossly failed to evaluate any of the fact and evidence on record, that the Ld. Forum failed to appreciate the law that a judgment should be conclusive, final and cannot conclude leaving an ongoing investigation and hence, the instant appeal has been preferred.

 

Points for Consideration

5. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in arriving at the conclusion and dismissing the complaint filed under section 12 of the C.P. Act, 1986 and (ii) whether the impugned judgment under challenge in this appeal should be set aside as prayed for.

Decision with Reasons     

6. Both the points are taken up together for the sake of convenience and brevity.
7. At the outset, it is found necessary to mention that the respondent-opposite party, the Proprietor of Rupashi Cinema Hall did not contest the appeal although his Ld. Counsels so engaged only appeared before this Commission for once. It also transpires from the record of the Ld. District Forum that this respondent appeared in the District Forum through his Ld. Counsels and submitted written objection denying the allegations made against him in the complaint, but the opposite party did not appear further during final hearing of the said complaint case before the Ld. District Forum. So, it can be said without any hesitation that the pleadings of the opposite party-respondent made in the written statement filed in the Ld. District Forum in the said complaint case have not been substantiated.
8.   It is found admitted position that the high rise building named Rupashi Cinema Hall belongs to the respondent-opposite party Sri Ratan Saha, Proprietor of Rupashi Cinema Hall premises. It is also found admitted position that the appellant-complainant is a practicing advocate and the PW-2 Swarnalata Tripura and PW-3 Rumela Guha are also practicing advocates. It transpires that in the District Forum the Examination-in-Chief on affidavit of Sri Dhrubajyoti Saha, another practicing advocate was also filed, but he was not examined by the complainant. It further appears from the record that as per case of the complainant-appellant, PW-2, PW-3 and the said Dhrubajyoti Saha were with the complainant while the complainant allegedly purchased four Coca-Cola cans from an unnamed and unbannered Food Outlet establishment in the lobby on the third floor before entering the Rupashi Cinema Hall to see a Bengali Movie ‘Chatushkon’ on 20.10.2014 at about 02:00 pm.
9. The appellant submitted that there is another Food Outlet establishment in the name of “Coffee, Tea & Me” outside the movie theatre on the third floor, but having no name and banner of another Food Outlet establishment outside the movie theatre on the third floor clearly indicates that the said other Food Outlet establishment is attached to Rupashi Cinema Hall belonging to the respondent-opposite party, but the opposite party in the written statement evasively denied that the said unnamed and unbannered Food Outlet establishment belongs to him. He also submitted that the opposite party did not say specifically as to who was running the said unnamed and unbannered Food Outlet establishment on the relevant time and date. Although the O.P. admitted in the written statement regarding the existence and running of such unnamed and unbannered Food Outlet establishment in the lobby on the third floor of Rupashi Cinema Hall premises.
10. The appellant also submitted that because of hurry, he could not notice that the said Food Outlet establishment had no name and banner while purchasing four cans of Coca-Cola for himself as well as for his three other advocates-colleague. He also submitted that the employee working in the said Food Outlet demanded Rs.40/- for each of the four cans which he paid, but the employee of the said Food Outlet establishment on demand denied to provide any money receipt. He also submitted that in meantime movie had already been started and he, therefore, along with three other colleague rushed to the cinema hall. He also submitted that during the interval one of his colleague notices that the Maximum Retail Price of the Coca-Cola can was Rs.25/- only which was printed in the body of the said can, but the opposite party cheated and realised Rs.40/- for each cans by way of cheating. He also submitted that on query, the employee of the Rupashi Cinema Hall merely stated that the cold drinks and chips are costing more than the Maximum Retail Price because they have to pay the establishment cost along with other expenses like freezing etc.      
11. The appellant also submitted that under no circumstance, the seller of food item or any other item can charge any amount more than the Maximum Retail Price printed on the body of the said item, but the opposite party fraudulently and intentionally realized Rs.40/- for each of the four Coca-Cola cans from him and thereby cheated him which is nothing but an unfair trade practice. He also submitted that the Ld. District Forum failed to appreciate this fact and circumstance, and passed the impugned judgment erroneously which cannot be sustained in the eye of law and is liable to be set aside allowing an award in favour of him with a view to teach a good lesson to the respondent who is involved in an unfair trade practice.   
12. We have gone through the complaint petition, the written statement and the evidences on record. Admittedly, the Food Outlet establishment in question is unnamed and unbannered. In a case where the question of purchasing any item or food item is involved, the consumer or the customer as a complainant has to prove the name of the shop wherefrom he has purchased any item or food item and also the rate at which price he has purchased the same. Admittedly, in the instant case, the complainant-appellant could not produce any money receipt or cash memo showing that he purchased four numbers of Coca-Cola cans from the said unnamed and unbannered Food Outlet establishment. Not only so, the complainant also requires to prove the name or the name of the proprietor of the shop, but having no money receipt the complainant could not establish the name of the said Food Outlet establishment and also the name of the proprietor of that establishment and also the price at which he purchased each of the alleged four Coca-Cola cans from that establishment.
13. In the instant case, we find that the complainant-appellant and his witnesses are all practicing advocates and as such, it is generally expected that they are conscious consumers, but the complainant himself admitted that at the time of purchase of the said Coca-Cola cans he did not notice the body-print price of the can. It is also not clear to us as to why the complainant being a conscious consumer purchased the alleged Coca-Cola cans from an unnamed and unbannered Food Outlet establishment. In a case like the present one, the money receipt or the cash memo showing the purchase of any food item is a must. It is settled principle of law that in a case where a documentary evidence is required to be produced for proving a particular fact i.e. the fact of purchasing Coca-Cola cans, that document must be produced, otherwise the oral evidence of the witnesses, however numbers it may be, does not prove the said fact.
14. It is true that the opposite party-respondent in the written objection evasively denied the allegation made by the complainant in the complaint, but that does not mean that the opposite party admitted the allegation and the complainant is absolved from his liability to prove the fact of purchasing the alleged four Coca-Cola cans from the said unnamed and unbannered Food Outlet establishment. The opposite party in his written statement clearly stated that excepting the Rupashi Cinema Hall, all other rooms in the Rupashi Cinema Hall premises have been let out to different tenants who are running their respective business in those tenanted or leasehold rooms. In that case, it is incumbent upon the complainant by producing cogent and material evidence for establishing that the said unnamed and unbannered Food Outlet establishment belongs to O.P.-respondent, but the complainant in the District Forum miserably failed to prove so. There is no question of drawing any inference or presumption when the law requires the production of a money receipt or the cash memo showing the purchase of the alleged food item from a particular food establishment. Mere allegation is not the ‘ifso facto’ proof of the matter alleged. So, having no cogent and material evidence it cannot be held that the said unnamed and unbannered Food Outlet establishment located in the lobby of the third floor of Rupashi Cinema Hall premises belongs to the opposite party-respondent.   
15. It is needless to say that no seller can demand price more than the M.R.P. printed on the body of the item itself, but in the instant case, there is nothing to hold in the absence of any documentary evidence i.e. money receipt that the complainant paid Rs.40/- for purchasing each of the four Coca-Cola cans exceeding the M.R.P. That being the position, we are of the view that the allegation made against the opposite party-respondent has not been substantiated and therefore, the complainant-appellant is not legally entitled to get any compensation from the opposite party.  
16. Going through the impugned judgment, we are of the view that the Ld. District Forum rightly held that the petitioner is not entitled to get any compensation from the opposite party. We find nothing to interfere with the findings of the Ld. District Forum made in the impugned judgment.
17. The appellant in the memo of appeal has taken a plea that the Ld. District Forum keeping the ongoing investigation pending passed the impugned judgment dismissing the complaint. But the complainant in person as appellant before us made no submission in this regard. However, we find it appropriate to look into the relevant portion of the impugned judgment which, according to the appellant, is an ongoing investigation which runs as follows:-
18. “We are of considered opinion that Legal Meteorological Department Inspector, Legal Meteorology, Agartala should take step to find out actual seller in the Rupashi Cinema Hall doing this unfair trade & file complaint. We also direct Petitioner & O.P. to extend all sorts of cooperation to the Inspector of Legal Meteorology in this regard.” It further appears from Para-8 of the impugned judgment that order to sent copy of judgment to Controller, Legal Meteorology & also Director, Food & Civil Supplies to give necessary direction to the Inspector Legal Meteorology has been passed by the Ld. Forum. This direction to make inquiry by the Inspector of Legal Meteorology to find out the seller of unnamed and unbannered food outlet establishment in the Rupashi Cinema Hall premises, no doubt, will be a subsequent matter to be complained of because under the law no food item can be sold from an unnamed and unbannered food outlet establishment. This is, according to us, nothing, but a guiding direction to the Inspector of Legal Meteorology to find out and take appropriate step against any person who carries on any business of food items from any unnamed and unbannered establishment. That being the position, it cannot be said that the Ld. District Forum passed impugned judgment keeping pending an ongoing investigation in respect of the matter involved in the case. Be that as it may, the impugned judgment calls for no interference by this Commission in this appeal and as such, the impugned judgment is liable to be affirmed and the appeal having no merit at all is liable to be dismissed.
19. In the result, the appeal fails. The impugned judgment dated 06.01.2016 passed by the Ld. District Forum in case no.CC-14/2015 is hereby affirmed. There is no order as to costs.  

 

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura