M/S SAPNA VASUDEVA v. HOT MILLIONS RESTAURANT

(SATPAL, PRESIDENT)

1. The complainant has filed this complaint with the averments that on 09.12.2017, the complainant ordered four takeaway dishes for lunch after going through the menu, from the OP. The order was placed at the cash counter and paid an amount of Rs.1197/- as bill price. After making the payment, the complainant noticed a charge of Rs.10/- with the title PK and upon asking the cashier, he told that he has levied the packing charges as the order is takeaway order. It is further alleged that a restaurant does not charge for the utensils when the food is served in the restaurant and thus, it cannot charge for the packing if the order is takeaway; service cost and packing cost are deemed to be included in the menu price mentioned as MRP; like food cannot be served without utensils, likewise, it cannot be taken-away without packing. It is further averred that such a charge is Ms. Sapna Vasudeva Vs. Hot Millions Restaurant nowhere mentioned in the menu or anywhere in the restaurant, but no response had been given by the OP; this act and conduct of the OP amounts to deficiency in service on his part. Hence, this complaint.

2. Upon notice, the OP appeared and filed the written statement by taking some preliminary objections such as the present complaint is not maintainable; that the complaint is bad for non-joinder and mis-joinder of necessary parities; that the complainant has not come to the Forum with clean hands. It is admitted that OP charged Rs.10/- for packing charges and the complainant was well aware of the packing charges, but she has not made any kind of complaint before filing the present complaint. The complaint is an afterthought and there is no grievance or deficiency in service. The complainant was charged for the Packing which is legal. The complainant was well aware of the fact that the takeaway food is subject to packing charges which are also displayed in the restaurant. It is settled law that the restaurant can charge for extra services offered to their customers. To provide utensils for the food and the packing material, both are the different issues. It is wrong and denied that the packing charges are included in the mentioned Menu Price. Thus, there is no deficiency in service on the part of the OP and requested for dismissal of the complaint with special cost.

3. To prove her case, the complainant has tendered her affidavit as Annexure C-A along with documents Annexure C-1 to C-3 in evidence and closed the evidence by making a separate statement. On the other hand, counsel for the OP tendered affidavit Annexure R-A and closed the evidence.

4. The ld. counsel for the complainant submitted written arguments and additional written submissions on 12.11.2018 along with the copy of notification dated 18.03.2016 and 27.03.2018 issued by Ministry of Environment, Forest and Climate Change. Ms. Sapna Vasudeva Vs. Hot Millions Restaurant

5. We have heard the complainant and learned counsel for the OP and gone through the record carefully and minutely.

6. During arguments the complainant reiterated the facts and version as contained in the complaint, affidavit Annexure CA, documents Annexure C-1 to C-3 and written submissions/arguments dated 12.11.2018 and prayed for acceptance of the complaint. On the other hand, the ld. counsel for the OP, while controverting the version of the complainant reiterated the facts and version as contained in the reply supported with affidavit Annexure RA and contended that the complaint is liable to be dismissed on the ground of non-joinder and mis- joinder of necessary parties as the complainant has not impleaded the M/s Hot Million, which is a partnership firm, through its Director/Partner. The ld. counsel contended that the complainant was well aware of the fact that the takeaway food was always subject to the packing charges, which were displayed in the restaurant. The ld. counsel further contended that the complainant before filing the present complaint never agitated about her grievances with regard to packing charging of Rs.10 vide cash memo/bill Annexure C-1 either in the office of the OP nor anywhere else. Continuing the arguments, the ld. counsel asserted that as per settled law the restaurant are entitled to charge for the extra services offered to their customers. Comparing the services of providing the utensils for the food to the customers in the premises of the hotels/restaurants with the services of providing the packing material to the customer for takeaway food, the ld. counsel stated that the both services are quite different and not comparable. Further, the ld. counsel invited the attention of this Forum towards the provisions of notification dated 04.02.2011 issued by the Ministry of Forest and Environment vide which the service provider i.e. hotels/restaurants could charge the amount for the carry bags from the customers. The ld. Ms. Sapna Vasudeva Vs. Hot Millions Restaurant counsel in support of his contention placed reliance upon the judgment dated 12.12.2017 delivered by Honble Bench of the Apex Court in the case titled as Federation of Hotel and Restaurant Associations of India Vs. Union of India and Ors. in Civil Appeal No.21790 of 2017 arising out of S.L.P. (C) No. 28685/2015 & in Civil Appeal No.21791 of 2017 arising out of S.L.P. (C) No.27629/2015. The Honble Apex Court vide said judgment (supra) upheld the order of Single Judge, which is mentioned as under:-

16. In the above analysis I hold that charging prices 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 hotelier or Restaurateur 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 bottle of water or a beverage, but his direct purpose in doing so would clearly travel to enjoying the ambience 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. Concluding the arguments, the ld. counsel prayed for the dismissal of the complaint being meritless and baseless.

7. After hearing the complainant and ld. Counsel for OP and going through the entire record available on the file, it has been transpired that the complainant purchased certain eatable items on 9.12.2017 from the Ms. Sapna Vasudeva Vs. Hot Millions Restaurant cash counter of OP restaurant by making payment of Rs.1197/- as is evident from the perusal of cash memo Annexure C-1. The complainant has no dispute with regard to the quality and quantity of the eatable items provided by OP vide said cash memo Annexure C-1. She has also no dispute with regard to the charging of price in respect of eatable items except the charging of Rs.10/- on account of packing material. The version of the complainant is that no packing charges of any kind in any manner are being charged by the OP while the delivery of eatable items is made by the OP at the very doorstep of the consumer and in this regard the complainant has drawn the attention of this Forum towards the cash memo dated 27.05.2018 Annexure C-2 vide which home delivery of food items was allegedly made by the OP without charging any packaging amount. The complainant has contended on the basis of copy of menu of OP (Annexure C-3) that there is no provision of charging of any amount for the purposes of packaging. It is also the contention of the complainant that in spite of space for the code against the item of packaging no code number has been assigned by the OP and thus, the OP has indulged into unfair trade practice. We have perused the cash memo Annexure C-1 vide which the food items were obtained by the complainant from the cash counter of the OP and an amount of Rs.10/- was paid by her on account of packaging whereas no such amount on account of packaging has been charged by the OP while providing the food items through the services of home delivery as is evident from the perusal of Annexure C-2. Having perused the said cash memo Annexure C-1 vide which Rs.10/- on account of packaging has been charged, we find that no code number has been assigned by the OP to the item of packaging whereas the code items have been assigned to other eatable items. Further, we have gone through the Menu Annexure C-3 of the OP, which reveals about the code number, price as against the each food items Ms. Sapna Vasudeva Vs. Hot Millions Restaurant but we find no mention of any item of packaging with its code number and price as alleged by the OP. The OP in Para No.3 of merit of the affidavit Annexure RA has alleged as under:- The complainant was well aware of the fact that the takeaway food is always subject to the packing charges which are also displayed in the restaurant. The above recital as contained in the said affidavit Annexure RA has not been corroborated by any documentary evidence. Further, the Menu Annexure C-3 containing the details of food items with code number and price is silent about the charging of any amount for the packing material. Further, we find no reasonable and plausible justification for the OP to charge the amount on account of packing when the food items are delivered from the cash counter of the restaurant whereas nothing on account of packing material is charged by the OP while delivery of food items is made at the very door step of its customers.

8. Further, the attempt of the ld. counsel for the OP to justify the action of the OP about charging the amount for the packing material on the basis of said notification dated 04.02.2011 issued by Ministry of Environment and Forest stands negated in view of the fact that said notification has been superseded by notification dated 18.03.2016 issued by Ministry of Environment Forest and Climate Change. Rule 15 of said notification dated 18.03.2016 entitles the shopkeepers and street vendors to charge for providing the plastic carry bags. Though, the said Rule 15 of the said notification dated 18.03.2016 has been omitted vide notification dated 27.03.2018 yet we find clue with regard to the definition of carry bag which has been defined in the said notification dated 04.02.2011 and 18.03.2016. As per definition of the carry bags, it has been found that packaging is not Ms. Sapna Vasudeva Vs. Hot Millions Restaurant a part of carry bag and thus, we find no force in the version of the OP that an amount of Rs.10/- was charged for providing the carry bag to the complainant. It would not be out of place to mention here that the word PK has been mentioned in the cash memo Annexure C-1 which undoubtedly denotes packaging and not the carry bag. We find no hindrance or impediments on the part of OP to clearly specify about the charging of amount on account of packaging with price and code number in its Menu Annexure C-3 so as to apprise its customers like the present complainant about the charging on account of packing before giving the order for takeaway meal etc. The law laid down by the Honble Apex Court in case supra as relied upon by ld. counsel is not disputed but is of no avail to the case of the OP as the said case is distinguishable on facts and law with the facts and circumstances of the present case. In View of the above stated facts, we may safely conclude with a reasonable degree of certainty that there has been lapse and deficiency on the part of OP while delivering services to the complainant; hence, the complainant is entitled to relief.

9. As a sequel to above discussion, we allow the complaint of the complainant by directing the OP to pay Rs.10/- to the complainant along with interest @9% per annum w.e.f. filing of present complaint i.e. 13.02.2018 till realization. The OP is further directed to pay a lump sum amount of Rs.2200/- to complainant on account of mental agony, harassment and cost of litigation charges.

10. The OP shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OP. A copy of this order shall be Ms. Sapna Vasudeva Vs. Hot Millions Restaurant forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. Announced 17.12.2018 RUBY SHARMA JAGMOHAN SINGH SATPAL MEMBER MEMBER PRESIDENT Note: Each and every page of this order has been duly signed by me. SATPAL PRESIDENT Ms. Sapna Vasudeva Vs. Hot Millions Restaurant CC No. 32 of 2018 Present: Complainant in person. Mr. Krishan Singla, Advocate for the OP. Vide a separate order of even date, the present complaint has been allowed. A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance. 17.12.2018 RUBY SHARMA JAGMOHAN SINGH SATPAL MEMBER MEMBER PRESIDENT Ms. Sapna Vasudeva Vs. Hot Millions Restaurant CC No. 32 of 2018 Present: Complainant in person. Mr. Krishan Singla, Advocate for the OP. Today, the case is fixed for order. However, Ld. Member Sh. Jagmohan Singh is on leave today. Hence, case is adjourned to 17.12.2018, for order. 14.12.2018 RUBY SHARMA SATPAL MEMBER PRESIDENT