Haryana

Panchkula

CC/63/2017

MANU LOONA - Complainant(s)

Versus

WESTREN COURT HOTEL AND ANOTHER - Opp.Party(s)

COMPLAINANT IN PERSON

17 Nov 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.        

                                                       

Consumer Complaint No	:	63 of 2017
Date of Institution	:	20.3.2017
Date of Decision	:	17.11.2017

                                                                           

Manu Loona S/o Mohinder Loona, aged about 31 years, R/o House No.212, Sector 15, Panchkula, Haryana.

                                                                           ….Complainant

Versus

 

1. Hotel Western Court through its Manager, Sita No.2, Sector-10, Panchkula.
2. West Side Hotels and Restaurants through its Managing Director/authorized signatory, Site no.2, Sector-10, Panchkula.

                                                                            ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.Jagmohan Singh, Member.

 

For the Parties:   Complainant in person. 

Mr.Anirudh Kush, Adv., for the OPs.

ORDER

(Anita Kapoor, Member)  

                        This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by Manu Loona, complainant against Hotel Western Court  and another, the opposite parties.

2.                     It is stated by the complainant that  on 22.2.2017,  he along with his family members visited the restaurants for a family dinner run by the Ops and ordered many eatables things. The complainant was having 30% discount coupon on the food bill through the deal snapper and the same was given to the cashier of the restaurant before any order was made as per the terms and conditions mentioned on the discount coupon. Food was served properly to the complainant and his family members, but when in the last the complainant asked for the bill, he was shocked to see that a diet Pepsi Can has been overcharged by more than 5 times of its actual price mentioned at the bottom of the Can. The actual MRP mentioned is Rs. 25/- whereas the Ops have charged it at an exorbitant rate i.e. 127/- + 12.50% VAT on each Can. Thereafter, complainant requested the cashier to make requisite corrections in the bill by deducting the overcharged amount of the Diet Pepsi Can, but the cashier bluntly refused to do the same and was very arrogant and stated that it is his routine job and he knows what item is to be charged at what price. Hence, he denied the correction/reduction in the  rate of Diet Pepsi.  The complainant had to make the payment of the bill to the OP. The complainant was billed to Rs. 5,008/- in total after discount of 30% and was issued a bill No.9281/- dated 22.2.2017 and the complainant had paid it through his HDFC Bank credit card. The complainant has been overcharged Rs. 589/- including VAT, as complainant ordered five Cans of Diet Pepsi @ 25/- of each. The Op has rendered itself guilty of overcharging the complainant and adopting means of unfair trade practice. In this way the OP adopted unfair trade practice with the complainant. It amounts to deficiency in service on the part of Ops and as such, the present complaint was moved by the complainant with the prayer to direct the Ops to refund the amount of Rs. 510/- as overcharged amount on the MRP and also to refund Rs. 76.02 charged as VAT @ 12.50/- over and above the MRP of the Diet Pepsi Can 250 ML; a sum of Rs. 50,000/- only as compensation for mental harassment and physical agony suffered by the complainant because of gross deficiency in service on the part of the Ops and indulgence into unfair trade practice by them;  to pay a further sum of Rs. 11,000/- as the cost of litigation.

3.                     Upon notice, OPs appeared and contested the complaint by filing written statement taking preliminary objections that complaint is not maintainable; that the complainant has got no locus standi to file the present complaint; that the complainant has suppressed the true and vital material facts from the Forum; that the complainant has estopped by his own act and conduct from filing the present complaint; that the present complaint is liable to be dismissed on the grounds of non-joinder of necessary parties.

4.                     The Hon’ble Delhi High Court while dealing with the such matter in a case titled as The Federation of the Hotels and Others Versus Union of India has decided the question i.e. whether it is impermissible for the petitioners to charge their customers/guest any price above the maximum retail price mentioned on mineral water packaged and bottled by third party. This conundrum is common both to hotels and restaurants and it has been held by the Hon’ble High Court. The relevant portion as follow:-

In the above analysis I hold that charging price for mineral water in excess of MRP printed on the packaging during the service of customers in hotels and restaurants does not violate any of the provisions of the SWM Act as this does not constitute a sale or transfer of these commodities by the hoteliers or restaurateurs to its customers. The customer does not enter a hotel or a restaurant to make a simple purchase of these commodities. It may well be that a client would order nothing beyond a bottled of water or a beverage, but his direct purpose in doing so would clearly travel to enjoy the ambiance available therein and incidentally to the ordering of any article for consumption. Can there by any justifiable reason for the court or commission to interdict the sale of bottled mineral water other than at a certain price, and ignore the relatively exorbitant charge for a cup of tea or coffee. The response to this are rhetorical query cannot but be in the negative. Although, the virus of Rule 23 have been assailed I do not find it necessary to answer that challenge since the provisions relates to sales between dealers and neither the hotel and the restaurant of the one part and customers of the others falls within the categorization. That argument addressed by Mr. Bhasin would also be endured to the benefit of petitioner/restaurateur in WP (C) No.9528/2003 and WP(C) No.13775-14072/2005. These petitioners are allowed in the above terms. There shall however, be no orders as to cost. All pending applications are also stand disposed of.

5. 5.                It has been allowed by HRAWI that hotels can sell water, soft drinks above MRP at tables

3498205.  

6. The Ops provide menu to its customers for placing orders. The complainant place the order from the said menu by confirming the price of food items mentioned in the said menu. The price of diet cola under the head of beverages mentioned in the menu of the OP is Rs. 127/- .the price of diet cola was already been looked into by the complainant before placing the order of said items. The complainant was not sitting in the premises of OP hotel to enjoy its ambiance and aura and are just come to buying a bottle of soft drinks to drink it elsewhere. The hotels are not a retail shop where a person comes to purchase a bottle of water or soft drink to take away with him or her to outside the hotel premises. Therefore, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering OPs and as such, the complaint of the complainant is liable to be dismissed with heavy costs for the sake of brevity, equity and natural justice. On merits, the remaining contents of the complaint were denied. Preliminary objections were repeated. Prayer for dismissal of the complaint was made.

7.                     The complainant placed on record his own affidavit as Annexure C-A along with documents Annexure C-1 to C-3 and thereafter closed the evidence. On the other hand, the Ops have placed on record the affidavit as Annexure R-A along with documents Annexure R-1 and R-2 and has closed the evidence.

8.                     We have heard learned counsel for the parties and related the contentions canvassed to the material available on record.  

9.                     It is beyond the pale of controversy that the complainant and members of  his family had been to the commercial premises of the Ops for having dinner and the relevant item i.e. diet Pepsi Can was served to them during the course of dinner itself. It is relevant to note here that it is not the case of the complainant that he walked into the hotel of the Ops to purchase diet Pepsi Can only.

10.                    The cue to the controversy is to be found in the law laid down by the Hon’ble High Court of Delhi at New Delhi in WP (C) 6517/03 and WP (C ) 14691-16927/05 (with WP (C ) 9528/03 and WP (C ) Nos.13775-14072/2005) wherein, in an absolutely identical situation, the Hon’ble Court recorded that the provisions of Consumer Protection Act do not apply to an item of food made available to a customer, who visits the premises for a meal, and not only for the purchase of a particular article. While relying upon the Hon’ble Apex Court judgment titled “The State of Punjab Versus Associated Hotels of India Limited” (1972)2 SCR937, the Hon’ble High Court held that charging prices for an item in excess of MRP printed on the packaging (and made available during the service of customers in Hotels and Restaurants), does not constitute a sale of that commodity and it does not, thereby, invite the provisions of the Consumer Protection Act.

11.                    We would, in respectful obedience to the law laid down by the Hon’ble Apex Court and Hon’ble Delhi High Court, hold that the present complaint under the Consumer Protection Act is not maintainable as the complainant herein was not a consumer and the impugned transaction was not a sale which would have invited the applicability of the Consumer Protection Act. The complaint shall stand rejected accordingly.

12.                    We must make it clear that the rejection of the complaint by this Forum is on point of maintainability and it cannot bar any remedy which may be available to the complainant in the civil jurisdiction. We can neither mandate the vesting of jurisdiction nor denude any judicial Forum of any jurisdiction. The view, on point of jurisdiction, has obviously to be taken by the concerned Forum/Court.

13.                    A copy of this order be sent to the parties free of costs and file be consigned to record room after due compliance.

Announced

17.11.2017          JAGMOHAN SING      ANITA KAPOOR       DHARAM PAL

                                  MEMBER                 MEMBER               PRESIDENT

Note: Each and every page of this order has been duly signed by me.

 

                                        ANITA KAPOOR                                                                                   MEMBER