Delhi

North

CC/396/2024

RAJAT YADAV - Complainant(s)

Versus

XO KITTY - Opp.Party(s)

23 Oct 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

CONSUMER COMPLAINT NO.: 396/2024

In the matter of

Rajat Yadav

171, Lawyers Block- 2

Delhi High Court Complex

Delhi- 110503                                                         …       Complainant

Versus

Xo Kitty

2514, Second Floor, GTB Nagar

Hudson Lane

Delhi- 110009                                                         …       Opposite Party

 

ORDER

23/10/2024

Divya Jyoti Jaipuriar

1. By way of this complaint, the Complainant herein has alleged that M/s XoO Kitty (OP herein) has overcharged for the food items served by the OP to the Complainant and his friends. He also alleges that the OP herein has also misbehaved with the Complainant and his friends and has also charged for the items which were not served. Hence, the Complainant herein has filed this complaint seeking, inter alia, direction to the OP to refund of the amount paid by the Complainant to the OP along with interest @ 18%, to pay a compensation of Rs. 1,00,000/- and to pay the litigation cost of Rs. 50,000/-. We have heard the arguments on admissibility of the complaint and reserved the orders on admissibility.
2. The Complainant alleges that he along with his friends visited the restaurant and bar operated by OP at the address given in the memo of parties on 12.05.2024 at around 04:45 pm. It is alleges that the OP permitted other guests to consumer Hookah in the closed environment causing suffocation to the Complainant and his friends. It is also alleged that the OP did not appreciate the complaint of the Complainant and his friends for not serving Hookah in closed room. It is also alleged by the Complainant that the OP as charged a sum of Rs. 9,197/- (Rs. 3,999/- for one Exotic Platter, Rs. 2,599/- for one Chillam Change, Rs. 999/- for one Ice Base and Rs. 1,600/- for two shots of Absolut Vodka) for items which were not served at all. It is also alleged that the OP has charged a sum of Rs. 470/- for salted fries, although the price of the said item in the menu card was Rs. 229/-. The OP also allegedly forced the Complainant to make the payment of the bill in the personal bank account of one of the staff of the OP restaurant. Later, the manager of the OP, upon persuasion, refunded a sum of Rs. 3,000/- to the Complainant. It is also alleged that the staff of the OP has threatened, humiliated, assaulted and abused- physically and verbally the Complainant and his friends.
3. The Complainant has annexed the copy of the menu card, bill and the payment details along with the complaint. We have perused the pleadings, perused the documents and have also heard the arguments in detail led by Shri Shivam, Ld. Advocate for the Complainant on the last date of hearing.
4. The Complainant has alleged that the OP restaurant was serving Hookah in the closed environment. There is no evidence to show that the hookah was served in the OP restaurant. It is also not the case of the Complainant that OP was serving hookah without any licence and authorisation.  In absence of any specific pleading that the OP was serving hookah without obtaining licence or in violation of the terms of licence, we cannot examine this allegation. Further as there is no evidence on record to suggest that OP was serving hookah to other guests, we cannot accept this allegation.
5. The bill and the menu cards annexed by the Complainant in the complaint do not bear name or any identification sign (including address or GST registration number) identifying that the said bill and menu card are from the OP Restaurant. In absence of any identification mark on the bills and the menu card, we cannot take these documents as correct and valid documents. It is alleged by the Complainant that the Manager of the OP has torn the header of the bill. This is not a valid argument. Even the two pages of menu card, the copy of which have been annexed by the Complainant do not show the name of the OP Restaurant. The Complainant has taken the pictures of two pages of the menu cards, which have been annexed, but in none of these pictures, the name of the OP restaurant is visible. Further we can also not ascertain the allegation of the Complainant that the price charged for the salted fries are higher than the one shown in the menu card as two pages of the menu card so annexed by the Complainant does not list salted fries as one of the items.
6. The payments so made by the Complainant and refund so received are from private individuals. The payment of Rs. 27,822/- was made to one Shri Jatin Choudhary and the alleged refund of Rs. 3000/- was made from the personal account of one Shri Balram. None of these accounts are associated with OP. The Complainant has also failed to establish the relationship of Shri Jatin Choudhary and Shri Balram with the OP restaurant.
7. As alleged by the Complainant that the Staff of the OP restaurant threatened, humiliated, assaulted and abused- physically and verbally the Complainant and his friends, there is nothing on record to suggest that the made any police complaint or even a stress/ help call to PCR. If someone is being threatened, humiliated, assaulted and abused- physically and verbally, the normal course of action is to report the offence to the police. There is no such complaint/ report filed to the police in the case in hand.
8. In the context of serving poor quality of food, we are aware of the order dated 25.01.2019 passed by District Forum (East), Delhi in the matter of Sandeep Saxena vs McDonalds India & Anr [CC No. 935/2014] in which the Complainant therein found insects, mosquitos and cockroach in the burger served by the OP restaurant. In the said case before District Forum- East, one of the Members of this Commission was also part of the bench passing the order. In that case, OP has also challenged the correctness of the claims of the Complainant but the District Forum (as it then was) recorded that the Complainant made complaint to the Food Safety Officer, who on the same day took sample from the said outlet. The test report of the food sample proved the allegations of the Complainant. Hence, the District Forum found corroborative evidence led by the Complainant to prove his case. This order was also upheld by Hon’ble Delhi State Commission while disposing the appeal titled McDonalds vs Sandeep Saxena [FA No. 216/2019, decided on 01.05.2019].
9. In a recent order of District Commission-1, UT Chandigarh in the matter of Ranjot Kaur vs Chili’s Restaurant [CC/543/2020, decided on 11.09.2023], the Complainant’s allegation of finding of live worm in the food was questioned by the OP therein, was also found correct by the District Commission. In its order, the District Commission has noted that when the Restaurant failed to address the complainant’s concerns adequately, she took the initiative to contact the police. Subsequently, a Daily Diary Report (DDR) was filed, affirming that the issue of a live worm in the food had been reported to the police with specific mention that the restaurant had not displayed empathy and had withheld the bill copy.
10. In the case in hand, there is nothing to suggest that the Complainant has actually gone to the OP outlet or has he immediately reported the alleged threatening, humiliation, assault and abuse- physical and verbal to the Police authorities. This reporting the crime to the police is expected more from the Complainant herein because he is not just a person unaware of their rights and duties, but admittedly a practicing Advocate, who is supposed to be more vigilant about his rights and duties including knowledge of law.
11. Further, in order to even establish the prima facie case of the Complainant against the OP, the Complainant has to lead detailed evidence, examine and cross examine witnesses. The detailed examination of evidences, examination and cross examination of witness is out of scope of the powers of this Commission.
12. In a complaint under the provisions of the Consumer Protection Act, 2019, the case is decided in summary proceedings in which leading of detailed evidences, examination and cross examination of parties is not permitted. In such a situation, where parties require leading of evidences and the examination & cross examination of parties is necessary, the Complainant can approach the jurisdictional civil court. The appropriate forum to decide such disputes is the civil court. In this context, we would like to refer to the judgment of Hon’ble Supreme Court in the matter of Synco Industries vs State Bank of Bikaner and Jaipur [(2002) 2 SCC 1], in which Hon’ble Supreme Court has clarified that in cases where detailed evidence are required to be led to prove the claim or the damages, Consumer Fora are not appropriate forum to decide the dispute in summary procedure. In the case in hand, for adjudication of the claims of the Complainant, detailed pleadings and evidences are required to be led, which is beyond the scope of adjudication by this Consumer Commission.
13. Further, Hon’ble National Commission in the matter of Capital Charitable & Education Vs Axis Bank Limited (NCDRC, CC No.269 of 2017 decided on 09/12/2019) held that when the adjudication required elaborate evidence, the same cannot be decided by a Consumer Fora, proceedings before which are summary in nature.
14. In such a situation, we do not find any merits in the allegations levelled by the Complainant against the OP. Even otherwise, as this complaint requires detailed examination of evidences, examination and cross examination of witness, this Commission cannot entertain this complaint.
15. As a result, we are not inclined to entertain this complaint. Accordingly, this complaint is dismissed at admission stage itself. No orders to cost.
16. Office is directed to supply the copy of this order to the parties as per rules. Thereafter, file be consigned to the record room.
17. Order pronounced in open court.

 

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

 

___________________________

Ashwani Kumar Mehta, Member