Rajasthan

StateCommission

A/521/2016

Hotel Royal Plazzo - Complainant(s)

Versus

Satish Kumar s/o Nirnjan Lal - Opp.Party(s)

Ajjat Satru Singh

18 May 2017

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 521/2016

 

Hotel Royal Plazo, E-6, Subhash Nagar Shopping Complex, TB Hospital Road, Shastri Nagar, Jaipur through Manager

Vs.

 

Satish Kumar s/o Niranjanlal r/o 15 Jaitpuri Colony, Mahesh Nagar, Jaipur.

 

Date of Order 18.5.2017

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

 

Mr. Ajat Shatru Singh counsel for the appellant

Mr. Sawan Kumar Sharma counsel for respondent

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

This appeal has been filed against the order passed by the

2

 

District Forum, Jaipur 4^th dated 18.4.2016 whereby the claim has been allowed against the appellant.

 

The contention of the appellant is that he has not only sold the beer to the consumer but consumer has also availed ambience and facility of the hotel and it is not a case of simple sale or purchase hence, the claim should not have been allowed.

 

Per contra the contention of the respondent is that after enactment of Legal Metrology (Packaged Commodities ) Rules 2011 the appellant were not competent for sale of beer Haywards 500 in retail package on the price more than that printed on the commodity so packed. Hence, the claim has rightly been allowed.

 

Heard the learned counsel for the parties and perused the impugned judgment as well as original record of the case.

 

There is no dispute about the fact that the consumer has purchased Haywards 500 beer and Anx. 1 bill was issued to him and it contains rate of the beer as Rs. 100/- whereas the contention of the consumer is that rate printed on the package was only Rs. 72.24.

3

 

The contention of the appellant is that he consumed beer at the restaurant and he has enjoyed the ambience of the restaurant. Hence, it was not a simple case of sale but service was provided to him and reliance has been placed on the judgment passed by the Delhi High Court in LPA No.334/2007 Union of India Vs. National Restaurant Association where stay was granted on the judgment passed by the single bench but the averment of the Additional Solicitor General was that under the new Legal Metrology Act action could be taken against the restaurant for sale of packaged mineral water within the restaurant at more than MRP and in the light of above the impugned order was passed. Both the parties have relied on the above judgment supra.

 

The appellant has further relied upon AIR 2007 Delhi 137 The Federation of Hotels and Restaurant Association of India Vs. Union of India , (2009) ILR 5 Delhi 625 Delhi Gymkhana Club Ltd. Vs. Union of India where in the light of Standards of Weights and Measures Act, 1976 the controversy was dealt with but now there cannot be any dispute about the fact that the packaged material would govern by the Legal Metrology (Packaged Commodities ) Rules 2011 and as per definition 2 (k) retail package means the packages which are

4

 

intended for retail sale to the ultimate consumer for the purpose of consumption of the commodity contained therein. Retail sale has also been defined in rule 2 (l) and retail sale price has also been defined in rule 2 (m) which reads as under:

“ “retail sale price” means the maximum price at which the commodity in packaged form may be sold to the ultimate consumer and the price shall be printed on the package in the manner given below:

'Maximum or Max.retail price Rs............ inclusive of all taxes or in the form MRP Rs.............incl.,of all taxes after taking into account the fraction of less than fifty paise to be rounded off to the preceeding rupee and fraction of above 50 paise and upto 95 paise to the rounded off to fifty paise;”

 

It means that retail package could not be sold more than that of retail sale price and further it is not permissible for the seller to affix individual sticker on the package for altering or making declaration required under these rules as per the explanation 3 of rule 6 and rule 18 sub-clause (2) clearly provides that no retail dealer or other person shall make any sale of any commodity in packed form at a price exceeding the retail sale price thereof.

 

The combined reading of the above provisions make it

5

 

abundantly clear that the packaged commodity could not sold on more than that of printed price and here in the present case admittedly Haywards 500 beer was sold on the price of Rs.100/- instead of Rs. 72.24.

 

The contention of the appellant is that he has not sold the beer to the consumer but it was served to the consumer as clear from the affidavit of respondent himself that he has consumed it there be that may be the case respondent has also stated that beer was sold in packed container hence, in view of the provisions the appellants were deficient in charging the price more than the MRP and this Commission has dealt with this controversy in Appeal No. 524/2014 Punjab In Pinkcity Vs. Vishambar Dayal Meena and Appeal No. 1572/2011 Hotel Shyampuria Palace Vs. Satish Kumar where it has been held that if commodity was served in the restaurant then service charges could be taken but packaged material could not be sold more than that of printed rate. Here in the present case Anx. 1 clearly speaks that beer container was sold for Rs. 100/- hence, the appellant could not take shelter of the contention that the beer was served to him. If that may be the case service charges could be shown in Anx. 1. Hence, in view of the above the Forum below has rightly ordered and no interference is needed.

6

 

The respondent has further relied upon judgment passed by the National Commission in Revision Petition No. 2038/2015 Big Cinemas Vs. Manoj Kumar where also maximum retail price defined in the rules is interpreted and it has been held that it is mandatory to mark maximum retail price on all packaged commodities.

 

The other contention of the appellant is that Legal Metrology (Packaged Commodities)Rules 2011 are not applicable to him as he is institutional consumer and reference has been made to the definition provided u/s 2 (bc) but here in the present case the appellant is in the capacity of service provider by any stretch of imagination he cannot be said to be a consumer hence, the contention is not at all appreciated.

 

The other contention of the appellant is that the object of Legal Metrology Act should have been seen. Admittedly the object of the present enactment is to establish and enforce standards of weights and measures, regulate trade and commerce in weights, measures and other goods which are sold or distributed by weight, measure or number and for matters connected therewith or incidental thereto and by necessary implication the object of the Act is bringing about the

7

 

uniformity in weights and measure in accordance with the establish standard so as to facilitate trade and commerce meaning thereby that a uniform pattern should be established regarding weights, measures and for regulation of trade and commerce and to achieve this object rule 18 is enacted. Hence, the service provider could not get any benefit as the object of the Act is to regulate the trade and commerce which is for the benefit of the consumer as well as for the service provider.

 

Hence, in view of the above there is no merit in this appeal and liable to be rejected.

 

 

(Nisha Gupta )

President

 

nm