Chandigarh

DF-I

CC/585/2020

Gaurav Sharma - Complainant(s)

Versus

Hotel Best Western Mary Land - Opp.Party(s)

In Person

01 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/585/2020
Date of Institution	:	10/12/2020
Date of Decision	:	01/03/2023

 

Gaurav Sharma s/o Mahesh Sharma r/o H.No.1126, Saini Vihar, Phase III, Baltana, Zirakpur, District Mohali. Pb. PIN 140604.

… Complainant

V E R S U S

Hotel Best Western Mary Land, Chandigarh-Ambala Highway, Zirakpur, Chandigarh, Punjab, through its concerned Manager/Owner.

… Opposite Party

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	None for complainant
	:	Ms. Sushma Chopra, Counsel for OP

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sh.Gaurav Sharma, complainant against the opposite party (hereinafter referred to as the OP).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that on 24.10.2020, complainant alongwith his family visited Hotel Best Western Mary Land (hereinafter referred to as “OP Hotel”) at Chandigarh-Ambala Highway, Zirakpur (Punjab) to take dinner and ordered various eatable items including three bottles of water. The said food items were enjoyed by the complainant and family. Thereafter the OP raised a bill (Ex.C-1) of ₹5,499.38.  After seeing the bill, the complainant found that the OP had charged ₹75/- per bottle of water (exclusive of CGST/SGST) despite of the fact that price of the bottle was embossed as ₹20/- on the same.  Not only this, it was also noticed by the complainant that the OP had charged extra price of ₹3.75p on the MRP for each bottle.  In this manner, the said act of the OP amounts to deficiency in service and unfair trade practice.  OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability and jurisdiction.  On merits, admitted that the complainant and his family had enjoyed food in the OP hotel on the relevant date, time and place and bill (Ex.C-1) was also raised by the OP, but, denied that there is any deficiency in service or unfair trade practice on its part.  OP hotel had only charged as per law as sale of food and drinks which takes place in the hotels and restaurant, the same is also being charged for service rendered by the said hotel.  This aspect has been considered by the Hon’ble Supreme Court in various cases.  Even the definition of institutional consumer contained in explanation 1 of the Act shows that the provisions of the chapter would not apply to package commodities meant for institutional consumers such as hotels.  It has further been held by the Hon’ble Apex Court that neither Standards of Weights and Measures Act, 1976 read with the enactment of 1985 nor The Legal Metrology Act 2009 would apply so as to interdict the sale of mineral water in hotels and restaurants at prices which are above the MRP. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. Despite grant of sufficient opportunity, rejoinder was not filed by the complainant to rebut the stand of the OP.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the OP and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant alongwith his family had enjoyed dinner inside the OP hotel and it had had raised the bill (Ex.C-1) of ₹5,499.38, inclusive of ₹75/- each for three bottles of water whereas the actual price embossed on the bottle was ₹20/-, the case is reduced to a narrow compass as it is to be determined if the act of the OP amounts to deficiency in service and unfair trade practice and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OP.
   2. As it is an admitted case of the parties that the complainant had taken/enjoyed the dinner inside the OP hotel, it is clear that the OP had provided services to the complainant and his family, who had enjoyed the ambience while sitting inside.  In such scenario, it is to be determined if the case of the complainant is covered under the Standards of Weights and Measures Act, 1976 (hereinafter referred to as “SWM Act”) on account of excess price charged by the OP Hotel for the bottles of water served upon the complainant and his family on the relevant day. 
   3. The learned counsel for the OP has relied upon the judgment of Hon’ble Delhi High Court in the case of The Federation of Hotels and Restaurants Association of India & Ors. Etc. Vs. Union of India & Ors., 2007 AIR (Delhi) 137 in which it was held as under :-

“A.    Constitution of India, 1950 — Article 366 (29A), Schedule 1, List 3, Entry 34 - Standards of Weights and Measures Act, 1976 Sections 2(5) and 83 Standards of Weights and Measures (Packaged Commodities) Rules, 1977, Rule 23 (2) - Charging prices for mineral water/soft drink in excess of MRP printed on packages during the service of customers in hotels and restaurants does not violate any provisions of SWM Act as the persons enters hotels and restaurants to enjoy ambience available therein – Because this does not constitute sale or transfer of these commodities.

B. Consumer Protection Act, 1986 Section 2(d) Consumer Protection Act does not apply to eatables and drinks ordered and supplied in a Hotel or restaurant on the principle that such are not sale but only service and falls under the rate of caveat emptor – Hence persons enjoying eatables and drink in a hotel or restaurant is not a consumer case defined in the Consumer Protection Act.”

4. The learned counsel for the OP further relied upon the judgment of the Hon’ble Delhi High Court in the case of Delhi Gymkhana Club Limited Vs. Union of India, 2009 (3) CPJ 244 in which it was held as under :-

“A. Standard of Weights and Measures Act, 1976 Sections 2(b), 2(c) & 83 Standards of Weights and Measures (Packaged Commodities) Rules, 1977, Rules 1(3), 2(d), 2(o), 2(w), 2(v), 23 — Finance Act, 2005 — Section 65(25a) — Consumer Protection Act, 1986 Sections 13 & 2(1)(d) Food and Beverages — Sale of Beverages and Food in Clubs above maximum retail price - Provisions of 1977 rules not applicable — Held that a person consuming refreshment in club does not fall within the definition of consumer — therefore, the Consumer Disputes Redressal Forum has no jurisdiction to decide the dispute — Petitioner sought to be restrained from the practice of charging in excess of maximum retail price written on cold drink bottles — No case made out to grant relief — Members of club enter and use its premises, not to make simple purchases of commodities — Purpose of creation of club is to create place of activity for members which they can use either gratuitously or for a payment — Club do not provide the article in same condition in which it has purchased them to its members or guests — Service rendered by club in making available to its members for their convenience and consumption in comfortable atmosphere provided at the premises of club cannot be treated as a sale for applicability of consumer for a legislations  within the definition of consumer as defined in Section 2(1)(d) of Consumer Protection Act — Proceedings before Consumer Disputes Redressal Forum are without jurisdiction and not maintainable, therefore, quashed.

B. Words & Phrases – “Club” – “Association” – Meaning of – A club is not constituted or created for the purposes of sale or trade or commercial activities in any goods or services – It is a forum where a group of persons having common interest are able to get together to share, develop or indulge in the same.”

5. The learned counsel for the OP further relied upon the judgment of the Hon’ble Apex Court in the case of Federation of Hotel and Restaurant Associations of India Vs. Union of India & Ors., 2018 AIR (SC) 73 in which it was held as under :-

“No prohibition on sale of packaged mineral water in hotel at prices above MRP.

Legal Metrology Act, 2009, Section 2(r) - Standards Weights and Measures Act, 1976, Section 2 (v) – Indivisible agreement to supply – Sale at price above MRP -  when sale of food and drinks takes place in hotels and restaurants - There is one indivisible contract of service coupled incidentally with sale of food and drinks — Since it is not possible to divide service element from sale element - Composite indivisible agreements for supply of services and food and drinks not within purview of either enactment — Neither of Acts to apply so as to interdict sales of mineral water in hotels and restaurants at prices above MRP.”

 

6. In the light of the ratio laid down in the aforesaid judgments, as it is an admitted case of the complainant that he had ordered the dinner, including water bottles, from the OP which were supplied to him and his family inside the OP hotel, the same cannot be treated as a sale for applicability of consumer for a legislation within the definition of consumer as defined under the Consumer Protection Act. Moreover, charging price for water bottles in excess of MRP printed on the packaging, during service of customer in hotels and restaurants, would not violate any provision of SWM Act as the complainant and his family had entered the OP hotel to enjoy its ambience available therein and the same does not constitute sale or transfer of the aforesaid commodity.
7. In view of the foregoing discussion neither the SWM Act read with enactment of 1985 nor the Legal Metrology Act, 2009 would apply so as to interdict the sale of mineral water/drinks in hotels and restaurant at prices above the MRP.  Hence, the complainant has failed to prove any deficiency in service or unfair trade practice on the part of the OP and the present consumer complaint deserves to fail.

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 01/03/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Suresh Kumar Sardana] Member