Punjab

Faridkot

CC/17/119

PAWITTER SINGH - Complainant(s)

Versus

DOMINO'S PIZZA FARIDKOT - Opp.Party(s)

SIMAR VIJAY SINGH

12 Mar 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C.C. No. :                      119 of 2017

Date of Institution:             6.04.2017

Date of Decision :           12.03.2019

 

Pawitter Singh son of Banta Singh resident of Dogar Basti, Street No. 10 (R),  Faridkot.

...Complainant

Versus

1. Domino’s Pizza, Circular Road, Jublee Cinema Chowk, Near Bus Stand, Faridkot, Punjab through its Proprietor.
2. Jubilant Foodworks Limited, Plot NO. 1-A, Sector-16 A, Noida-201305, Uttar Pradesh- India. (Registered Office).
3. Domino’s Pizza India Limited, Gautam Budh Nagar, Noida, Uttar Pradesh, India.
4. Coca-Cola Company, Atlanta, USA, Hindustan Coca cola Beverages Private Limited, Mayapuri Industrial Area, New Delhi, India.

(Name of OP-4 was deleted vide order dated 8.08.2017)

5. Wave Beverages Pvt Ltd, 14 KM Stone, Amritsar-Jallandhar GT road, V & PO Nawan Kot, Near Jandiala Guru, District Amritsar. (Punjab)-143115

                                            ....Opposite parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh. Ajit Aggarwal, President,

Smt. Param Pal Kaur, Member.

 

Present:     Sh Samar Vijay Singh, Ld Counsel for complainant,    

                 Sh Surinder Dhir, Ld Counsel for OP-1 to OP-3,

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Sh Ashok Monga, Ld Counsel for OP-5,

                (Name of OP-4 was deleted vide order dated 8.08.2017)

* * * * * * * * * *

ORDER

(Ajit Aggarwal, President)

                                      Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops for selling expired product and for seeking directions to Ops to pay Rs.80,000/- as compensation for mental agony and harassment besides litigation expenses.

2                                         Briefly stated, the case of the complainant is that on 2.03.2017, complainant alongwith his friend visited the restaurant of OPs and placed order for 1 Gold Corn Pizza and 2 mobile pack Coke of 500 ml each and received bill no.26945 for Rs.143/- and bill no. 26951 for Rs.60/-. After getting the food items ordered by complainant, he noticed that one coke bottle was expired as it was having manufacturing date mentioned on it as 7.10.2016 and it was fit for consumption within a period of 2 ½ months and it had already been expired on 22.12.2016. As it expired on 22.12.2016 and was not fit for human consumption, but still OPs served the same to complainant. Moreover, Ops charged Rs.60/-for each bottle though in open market it is worth Rs.35/- only. Complainant complained about this to OPs and requested them to replace the expired product or to refund the price taken by them for said cold drink, but instead of paying heed to his genuine requests, OPs used filthy language and refused to do anything needful. Even legal notice issued by complainant to Ops bore no fruit. This act of OPs in selling expired product and  for charging over prices against the market rate price has caused huge harassment and mental agony to him. He has prayed for accepting

 

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the present complaint alongwith compensation and litigation expenses besides the main relief. Hence, the instant complaint.

3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 17.04.2017, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                         OP-1 to OP-3 filed reply through counsel wherein took preliminary objections that complaint filed by complainant is false and frivolous and is based on baseless allegations. They have denied all the allegations of complainant being concocted ones and asserted that complainant is not their consumer and he has not registered any complaint in writing before them against his grievance. However, it is admitted that complainant alongwith his friend visited their restaurant on 2.03.2017, but it is specifically denied that he was served with expired product of Coke at that place. It is also admitted that they received legal notice dated 6.03.2017 issued by complainant through his counsel but denied all the allegations made therein. As per OPs-1 to 3, complainant was served with fresh stock of coke product from their supplier on 2.03.2017 and thus, question of selling old product does not arise at all. It is further averred that beverages served at their outlets have adequate shelf life and are served on the fundamental principle of first in first out and there is rarest possibility of selling old  stock to complainant. complainant has concocted a false story to gain undue benefits. However, on merits Ops have denied all the allegations of complainant being wrong and incorrect and asserted that they never charged any extra charges from complainant as they charged only MRP as printed over the label of the said bottle. Complainant is a well educated person and he might have read the maximum retail price at the

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time of said purchase and with own sweet will and discretion, he preferred to purchase 600 ml coke bottle and he did not raise any query regarding excess prices for said coke bottle. It is further averred that there is no deficiency in service on the  part of answering OPs. All the other allegations are denied being wrong and incorrect and prayed for dismissal of complaint with costs.

5                                        OP-5 also filed reply wherein took preliminary objections that complainant is not their consumer and he has filed this complaint with mala-fide intention to harm and harass the answering OP. It is averred that he has not come to the Forum with clean hands and has concealed the material facts from this Forum and therefore, complaint is liable to be dismissed. dispute regarding pricing of commodities does not fall within the ambit of Consumer Protection Act and this Forum has no jurisdiction to hear and try the present complaint. Present complaint involves complicated questions of law and facts requiring lengthy evidence, which is not possible in the summary procedure of this Forum. Complainant has levelled false allegations to extract money from them. Answering OP is franchise of M/s Coca Cola India Pvt ltd and is acting under the contractual understanding regarding pricing between Coca Cola Pvt Ltd and answering OP. Process of implementation of prices or MRP is done by answering OP as per contractual understanding between OP-1 to 3 and Coca Cola India Pvt Ltd. It is submitted that said bottle of Coke was never sold by answering OP to complainant and no product with expired date was ever sold by them to OP-1 to Op-3. It is asserted that there is no deficiency in service on the part of OP-5 and further asserted that complaint is bad on account of deleting the  Coca Cola India Pvt Ltd which is a necessary party from the array of OPs and without adjudicating Coca Cola India Pvt Ltd in present matter, proper adjudication of case is not

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possible. However, on merits, OP-5 have denied all the allegations of complainant being wrong and incorrect and prayed for dismissal of complaint with costs.

6                                                          Parties were given proper opportunities to produce evidence to prove their respective case. Ld counsel for complainant tendered in evidence affidavit of complainant Ex.C-1 and documents Ex C-2 to C-6 and then, closed the evidence.

7                                                         To controvert the allegations of complainant, ld counsel for OP-1 to 3 tendered in evidence affidavit of Sanjay Ex OP-1 to 3/1 and document Ex OP-1 to 3 /2 and then closed the same on behalf of OP-1 to OP-3. Ld counsel for OP-5 tendered in evidence affidavit of Maninder Singh Ex OP-5/1 and closed the evidence on behalf of OP-5.

8                                                   From the careful perusal of record and after going through evidence and documents produced on file by complainant as well as OPs, it is observed that case of complainant is that he alongwith his friend visited the restaurant of OPs and placed order for 1 Gold Corn Pizza and 2 mobile pack Coke of 500 ml each against proper bill. On receiving  ordered food items, he noticed that one coke bottle was expired with manufacturing date mentioned over it as 7.10.2016 and was not fit for consumption. It expired on 22.12.2016 and was not fit for human consumption and was worth consumable within 2 ½ months, but still OPs sold and served the same to him. Even Ops charged Rs.60/-for each bottle though in open market it is worth Rs.35/- only. Complainant requested them to replace the expired product or to refund the price taken by them for said cold drink, but instead of doing anything needful, OPs started insulting him and refused to pay any heed to his genuine requests. Legal notice issued to Ops also bore no fruit. All

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this caused harassment and mental agony to him and amounts to deficiency in service on their part to them. In reply, OP-1 to 3 stressed mainly on the point that  allegations levelled by complainant are totally false. However, it is admitted by OP-1 to 3 that on said date, complainant visited their restaurant, but strictly denied that they ever served expired bottle of coke to them. allegations of complainant regarding overcharges for coke bottle against market rate price are also sternly denied. OP-5 took plea that Op-5 is the franchise of M/s Coca Cola India Pvt ltd, which has been deleted from the array of Ops. OP-5 is acting under the contractual understanding regarding pricing between Coca Cola Pvt Ltd and OP-5 and process of implementation of prices or MRP is done by them as per contractual understanding between OP-1 to 3 and Coca Cola India Pvt Ltd. Op-5 also submitted that said bottle of Coke was never sold by them either to complainant or to OP-1 to Op-3. There is no deficiency in service on the part of OP-5 and prayed for dismissal of complaint with costs.

9                                                       Grievance of complainant is that OPs sold him expired bottle of cold drink coke and even charged Rs.60/-for same though in open market price of said bottle of coke is only Rs.35/-. There is deficiency in service on the part of OPs in selling expired product which is unhealthy and unfit for human consumption and there is also trade mal practice on their part in charging excess amount from the complainant. To prove his pleadings complainant has placed on record original bills issued by OPs for said food articles to him on 2.03.2017 as Ex C-2 and ExC-3, Ex C-4 is copy of legal notice which reiterates the grievance of complainant and through which complainant made request to OPs to redress his grievance. Ex C-6 is original bottle of coke sold and served by Ops to complainant on the ordered placed by him before them. The bottle in question is self

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explanatory and is beyond any doubt and clearly reveals the truth about the mal practice of OPs in selling old stock of food articles to consumers. Manufacturing  date mentioned over it rightly indicates that it was fit for consumption by 2 ½ months from the date of manufacturing. Date of manufacture mentioned over it as 7.10.2016 and it was fit for consumption within a period of 2 ½ months and it had already been expired on 22.12.2016. Though said bottle of cold drink Coke having manufacturing date 7.10.2016 expired on 22.12.2016 and was unsafe for human consumption, but still OPs served the same to complainant, which is a gross negligence on their part. Moreover, Ops have no right to sell any food item beyond the market retail price. Said bottle is available in open market at the cost price of Rs.35/-only but action of OPs in selling the same for Rs.60/-is a wrong practice.

10                                         Ld Counsel for Ops argued that they are not selling any product beyond its maximum retail price. They further argued that even as per latest judgment of Hon’ble Apex Court, the restaurants, cinemas and malls can sell products at the rate more than the maximum retail price as they are providing several special services like standard, ambience, air conditioning and other amenities. So, they can charge prices more than the maximum retail prices.

11                                     We have gone through the file, the present case is not regarding selling the product beyond M.R.P, rather it is the case of dual maximum retail price i.e selling the same product with two different M.R.Ps. Same bottle of Coke is available in open market with M.R.P. of Rs.35/-, while the OP-1 to 3 sell the same bottle of Coke mentioning in their menu with maximum retail price of Rs.60/- printed over it. Thus, OP-1 to Op-3 are selling the bottle of coke at Rs.60/-while same is available in open market at rate of Rs.35/-. Thus, Ops are selling the

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product at very excessive rate than the M.R.P. of product sold in open market. As such, it is a case of dual M.R.P. of same product. OP-1 to OP-3 have been cheating the public at large by saying that they are selling the product at its M.R.P., but in reality they got printed M.R.P. which is very excessive than open market product in connivance with each other. The dual M.R.P. of a commodity is not permissible as per law. The Union Ministry of Consumer Affairs decided to ban the dual MRP i.e a practice through which sellers charge a higher M.R.P. for their products in certain spaces like malls, airports and hotels etc. The quality, quantity and weight of these products were exactly the same as the ones sold by common kirana stores at a lower price. The Big Companies claimed the Legal Metrology Act was silent on dual M.R.P. so, they could charge a different price. The Act has now been amended to prohibit companies from levying two different M.R.P.s for a single product unless done under legal provisions. There is no law that permits them to do so. The issue of Dual M.R.P. has been in limelight for the last one year with more and more people complaining about such practices. All this while, the law was silent on the issue of dual M.R.P. Recently, on 23.06.2017, the government has amended the Legal Metrology Rules, 2011 effectively banning dual M.R.P. These rules have become effective from 1.01.2018. The government has now amended these rules by adding the following in rule 18 which says “Unless otherwise specifically provided under any other law, no manufacturer or packer or importer shall declare different maximum retail prices on an identical pre-packaged commodity by adopting restrictive trade practices or unfair trade practices as defined under clause (c) of sub section (1) of section 2 of the Consumer Protection Act, 1986.

 

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12                                            Thus, it is clear that OPs are selling their products by printing different M.R.P. on the similar products which are being sold in open market at lesser M.R.P. and it is sold at the store of OP-1 to 3 by printing higher MRP. This act of Ops is wrong and illegal and amounts to deficiency in service and trade mal practice on their part. All this act of OPs in selling their product by printing dual M.R.P. with excessive rates amounts to deficiency in service on their part. Complainant has produced sufficient and cogent evidence to prove his pleadings and documents alongwith coke bottle produced on record are beyond any doubt and there is no reason to question their authenticity. On the contrary, Ops have nothing to defend themselves against the wrong done by them. it is observed that there is deficiency in service on the part of OPs.

13                                                 From the above discussion and keeping in view the evidence produced by parties, this Forum is of considered opinion that there is deficiency in service on the part of OPs and therefore, present complaint is hereby allowed. OP-1 to OP-3 are directed to pay Rs.10,000/- to complainant on account of selling expired product which was not fit for human consumption. OP-1 to 3 and Op-5 are jointly and severally directed to pay Rs.80,000/-as compensation for selling the same product with different M.R.P. i.e one for which they sell their product in open market and second for selling their product in different outlets of OP-1 to OP-3 with higher M.R.P. against the provisions of the Legal Metrology Act 2009. It is cleared that out of this amount of Eighty Thousands, Rs.5000/-shall be payable to complainant and remaining amount of Rs. 75,000/- is to be deposited in Legal Aid Account of this Forum. OPs are further directed to pay Rs.3000/-to

 

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complainant for litigation expenses incurred by him. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room. 

Announced in Open Forum

Dated: 12.03.2019

(Param Pal Kaur)                  (Ajit Aggarwal)  

          Member                               President