Date of filing: 28.12.2020
Date of Disposal: 28.06.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU – 560 027.
DATED THIS THE 28th DAY OF JUNE, 2023
CONSUMER COMPLAINT NO.1178/2020
PRESENT:
SRI. SHIVARAMA,K:
SMT. Rekha Sayannvar: MEMBER
Sri. Malisetty Ranjit Rayal,
S/o M.K. Venkata Ramana,
Aged about 34 years,
R/at Flat No.130 B Block,
Mahaveer Zephyr Apartment,
Vakil Marina Layout,
(Smt. Mega Mohan, Advocate)
V/s
- Subway Restaurant
A Franchisee of Subway Systems
India Pvt. Ltd., Road No.1,
Jubilee Hills, Hyderabad,
(Sri. Devaraj .H.K, Advocate)
- Subway Systems India Pvt. Ltd.,
A Private Limited Company,
Having Registered Office at
Unit No.20-24, 3rd Floor, MGF
Metropolis, MG Road, Sector 28,
Gurgaon-122002, Haryana,
Rep by its Managing Director.
(Sri. Rohit. R. Kukeraj, Advocate)
******
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
The complainant has filed this complaint u/s 35 of the Consumer Protection Act-2019 seeking for a direction to the opposite party No. 1 & 2 to pay a sum of Rs.25,00,000/- and such other relief as this commission deems fit in the circumstances of the case.
2. It is not in dispute that opposite party No. 1 is a franchisee and opposite party No. 2 is the franchisor for opposite party No. 1. Further, it is not in dispute that the legal notice dated: 07.10.2020 issued by the counsel for the complainant was served on opposite party No. 2 on 14.10.2020.
3. It is the case of the complainant that he visited Hyderabad City in the month of September 2020 and he had chosen ‘Subway’ restaurant for his daily food. Further, he had consumed food from the said restaurant from 09.09.2020 to 12.09.2020. During these days he found unhygienic atmosphere and unhealthy practice in serving their customers at opposite party No. 1 restaurant. Hence, there was deficiency of service on the part of opposite party as the complainant had lost peace of mind. Hence, the complaint came to be filed.
4. Opposite party No. 1 & 2 had denied the entire averments made in the complaint other than the admission made by opposite party No. 2 that opposite party No. 2 is the franchisor for opposite party No. 1.
5. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P6 documents. The authorised representative of opposite party No. 2 (RW-1) has filed affidavit in the form of his evidence in chief and got marked ExR1 to R5 documents. The authorised signatory of opposite party No. 1 (RW-2) has filed affidavit in the form of his evidence in chief and got marked ExR6 to R10 documents.
6. Counsel for Complainant has filed written arguments. Counsel for opposite party No. 2 has filed written arguments with a citation. Counsel for opposite party No. 1 has filed a written arguments.
7. Heard the Arguments.
8. The points that would arise for consideration are as under:
i) Whether there is deficiency of service on the part of the opposite party?
ii) Whether the complainant is entitled for the relief
as sought ?
iii) What order?
9. Our findings on the aforesaid points are as follows:
Point No.1: In affirmative
Point No.2: partly in affirmative
Point No.3: As per the final order for the following;
REASONS
10. POINT NO.1:- PW1, RW1 &2 have reiterated the fact stated in their respective pleadings in the affidavits filed in the form of their evidence in chief.
11. It is the contention of the learned counsel for the opposite party No. 1 that the complainant cannot be a consumer within the meaning of Section 2(7) of CP Act 2019. Further, the complainant did not produce any document to prove that from 09.09.2020 to 12.09.2020 he had visited opposite party No. 1 restaurant. On perusal of Ex.P5 e-mail dated: 16.09.2020 sent by opposite party No. 1 it appears that opposite party No. 1 sought feedback from the complainant and the complainant’s enquiry has been forwarded to the appropriate areas for further review. Further, in the e-mail dated: 19.09.2020 sent by opposite party No. 1 to the complainant it is said that opposite party No. 1 extended thanks to the complainant for the contact made and opposite party No. 1 extended it’s apologies for the less than ideal experience the complainant had described while he was in the restaurant of opposite party No. 1. Further, opposite party No. 1 had addressed the behaviour/activity with its team to ensure that it does not happen again and his team at this ‘Subway’ restaurant feels sorry and thanks for choosing the ‘Subway’ at Jubilee Hills.
12. The opponents did not dispute the above said e-mail and its contents in their evidence. Further, the complainant has produced Ex.P1 certificate u/sec 65 B of Evidence Act. Further, the complainant has also produced Ex.P4 CD. According to opposite party No. 2 (RW-1) the video filed on record by the complainant along with the complaint is an unverified video which does not show any date or time. Further, the video recording shows the premises of opposite party No. 1 does not show any vegetables or the alleged employee of opposite party No. 1 at the counter. Further, at the time of video shot it was not at 11.00 am and the service had not at commenced.
13. From the above e-mail and the assertion of opposite party No. 2 in his evidence it is clear that complainant had visited opposite party No. 1 restaurant. It is not attributed by opposite party No. 1 & 2 that the complainant had any ill will with opposite party No. 1 & 2. Hence, it is surprise as to why the complainant had made the allegations against opposite party No. 1 without any reason. On the facts it could be inferred that the complainant had visited opposite party No. 1 restaurant. If not it is also surprise as to why opposite party No. 2 had sent e-mail letter of pardon for their activity. The e-mail vide Ex.P5 is sufficient to hold that the complainant visited opposite party No. 1 restaurant and had the food from there. It is the contention that Ex.P5 e-mail is an automatic e-mail by opposite party No. 1. We feel there is no merit with regard to that. Since, opposite party No. 1 had served food to the complainant for the price paid, it amounts to service within the meaning of Section 2(42) of CP Act 2019 and the complainant was a consumer within the meaning of Section 2 (7) of CP Act 2019. Hence, there is no merit in the contention of the learned counsels for opposite party No. 1 & 2.
14. It is the further contention of opposite party No. 1 & 2 that to have a wrongful gain the complaint came to be filed. It is the contention of the learned counsel for the complainant that according to PW-1 he and his friend one Sri. Ramachandra Gowda. P.K. visited the restaurant and found that the restaurant was working against the policies and assurance the brand opposite party No. 2 gave to its customers. Further, even though it was assured that working hours of opposite party No. 1 was from 10.00 am to 9.00 pm even at 11.00 am opposite party No. 1 was not ready to serve the customer and opposite party No. 1 was practising very unhygienic and unhealthy practice in serving their customers. Further, the vegetables were kept without cleaned and was stinking with the smell of stale vegetables and when the complainant confronted with the person who was working at vegetable counter he exhibited casual approach towards maintenance. Further, food items were kept in a horrible unhygienic condition having cockroaches and insects moving on inside and around it. No doubt opposite party No. 1 (RW-2) has produced the certificate given by Food Safety and Standards Authority of India vide Ex.R7, for having done pest control vide Ex.R8 receipts. We feel that itself is not sufficient to discredit the say of the complainant. Hence, we feel there is deficiency of service from opposite party No. 1 within the meaning of Section 2(11) of CP Act 2019. Accordingly, we answer this point in affirmative.
15. Point No. 2:- The complainant claimed a sum of Rs.25,00,000/-. The complainant had consumed food items worth Rs.1,500/-. Since, proper hygienic food was not served and he had a belief that branded service would be provided by opposite party No. 1 & 2, as the complainant approached opposite party No. 1, opposite party No. 1 is liable to pay compensation of Rs.10,000/-. Further, the act of opposite party No. 1 made the complainant to get issued legal notice vide Ex.P2 and to approach this commission. Hence, opposite party No.1 shall pay a sum of Rs.10,000/- towards litigation cost. Further, there is merit in the contention of the learned counsel for opposite party No. 2 that the role of opposite party No. 2 is very limited and opposite party No.1 is directly involved in serving the food items. Accordingly, we answer this point partly in affirmative.
16. POINT No.3:- In view of the discussions made above, we proceed to pass the following;
-
Complaint is allowed in part.The Opposite Party No. 1 is directed to pay a sum of Rs.10,000/- towards damages and a sum of Rs.10,000/- towards litigation cost.
2. The opponent No. 1 shall comply the order within 30 days from the date of order. In case the opponent No. 1 fails to comply the same within the above said period, the above said amount of Rs.20,000/- carries interest at the rate of 9% per annum from the date of order.
3. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
4. Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
(Dictated to the Typist to online computer and typed by him and corrected and then pronounced in the open Commission on 28th day of June, 2023)
(Rekha Sayannvar)(SHIVARAMA, K)
-
//ANNEXURE//
Witness examined from the side of complainant:
Sri. Malisetty Ranjit Rayal the complainant (PW-1).
Documents marked from the side complainant:
1. Certificate u/s 65(B) of Evidence Act.
2. Copy of the legal notice dated: 07.10.2020.
3. Copy of the postal track consignment details.
4. CD.
5. Copy of e-mail communication complainant and opposite party (two sheets).
6. Returned postal cover.
Witness examined from the side of opposite party:
Sri. Inal Jaganath Rao, the opposite party (RW-1)
Documents marked from the side of Opposite Party:
1. Copy of the board resolution of opposite party No. 2 company.
2. Xerox copy of the Aadhar Card of Deponent.
3. Computer downloaded print out copy of the transactions its relates to opposite party No. 1 (5 Pages).
4. Xerox copy of the printout bill taken from the computer device.
5. Certificate u/sec 65(b) of Evidence Act in the form of affidavit.
Witness examined from the side of opposite party:
Sri. Dhairyasheel Shelar, the opposite party (RW-2)
Documents marked from the side of Opposite Party:
1. Xerox copy of license dated: 06.12.2021.
2. Xerox copy of two receipts.
3. Xerox copy of tax invoices and statement of daily sales analysis.
4. Xerox copy of service invoice.
5. Xerox copy of the extract of the book maintained by the opposite party No. 1
(Rekha Sayannvar)(SHIVARAMA, K)
MEMBER PRESIDENT
JA
