(SATPAL, PRESIDENT)
1. The complainant has filed this complaint with the averments that on 20.05.2018, he ordered four takeaway dishes for dinner after going through the menu, from the OP. The order was placed at the cash counter and paid an amount of Rs.1013/- 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 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-2 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. We have heard learned counsel for the parties and gone through the record carefully and minutely.
5. It is evident that the complainant ordered four eatable dishes/items on 20.05.2018 from the cash counter of OP restaurant by making the payment of Rs.1013/- vide 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 dated 20.05.2018 (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 complainant has disputed the charging of Rs.10/- on account of packaging stating that the OP was neither legally justified nor legally entitled to charge the said amount on the ground fully detailed in the complaint supported with an affidavit (Annexure C-A) alongwith documents Annexure C-1 & C-2. In support of his contention, the learned counsel placed reliance upon the order dated 18.03.2019 passed in appeal No.24 of 2019 titled as M/s Lifestyle International Pvt. Ltd. vs. Pankaj Chandgotia and order dated 12.12.2019 passed in appeal No.160 of 2019 titled as M/s Dominos vs. Pankaj Chandgotia by the Honble State Commission, U.T. Chandigarh. On the other hand, the ld. counsel for the OP, while refuting the claim of the complainant took the following preliminary objections
(i) That the complainant does not fall under the category of consumer as she has not purchased anything from the OP.
(ii) That the complaint is liable to be dismissed on account of non impleadment of M/s Hot Million which is a partnership firm. Before going into merit of the case, we took up the preliminary objection first for discussion
(i) The Op has disputed the status of the complainant as consumer on the ground that the invoice/bill (Annexure C-1) does not find mention the name of the complainant in it. We reject this plea in view of the fact that the genuineness of the invoice/bill is not disputed.
(ii) The OP has sought the dismissal of the complaint 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. We do not agree with this plea of the Op because the bill (Annexure C-1) clearly shows that it was issued by the Hot Million which is dully represented and defended by its counsel, hence, non impleadment of M/s Hot Million has been found to have caused no prejudice to the Op, thus, we reject this plea. On merits, it is 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. It is 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. Distinguishing 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. 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. The plea with regard to the provisions of notification dated 04.02.2011 issued by the Ministry of Environment and Forest the Honble State Commission has been dealt with at length by the Honble State Commission while disposing of appeal No.24 of 2019 vide its order dated 18.03.2019 as follows:- It may be stated here that no doubt, as per Rule 10 of The Plastic Waste (Management and Handling) Rules, 2011, no carry bags were to be made available free of cost by retailers to consumers but thereafter, in the year 2016, the aforesaid Rules were amended vide notification dated 18.03.2016 to be read as Plastic Waste (Management and Handling) Rules, 2016. It is important to mention here that the aforesaid Rule 15 of Plastic Waste (Management and Handling) Rules, 2016 was omitted vide subsequent Notification dated 27.03.2018 and as such, the appellant/opposite party cannot take shelter of the said rule. Since the mandate for retailers to charge for plastic carry bags has been omitted in March 2018, therefore, its contention that it could charge for paper carry bags is totally against law and has no legs to stand. In view of the aforesaid findings of the Honble State Commission, the plea taken by the Op with regard to aforesaid notification is hereby rejected.
9. The controversy with regard to the charging of amount by the service provider for packaging or carry bag has been settled/at rest by the Honble State Commission, U.T., Chandigarh while disposing of appeal No.160 of 2019 vide its order dated 12.12.2019 holding that the sellers are under a legal obligation to put the goods in a deliverable state as per provisions of sub section 5 of Section 36 of the Goods Act, 1930 before handing over the same to its customer. The relevant paras of the aforesaid order are reproduced as under:-
12. First of all coming to the appeal filed by the opposite party
i.e. M/s Dominos, this Commission is of the view that each seller is obliged to deliver the goods in the complete state of delivery.
13. The delivery of goods means physically handing over the goods from buyer to seller in a complete deliverable state. The goods can be delivered straight when these are fully packed as per the nature and environment affecting the goods.
14. The packing of goods is also a state in putting the goods in the deliverable state. If you want to buy biscuits or bread, those should not be given in open and rather should be packed in such a manner, to save them from external atmosphere.
15. All kinds of expenses incurred in order to putting goods into a deliverable state shall be suffered by the seller. It is not out of place to refer here the provisions of Sub Section (5) of Section 36 of The Sale of Goods Act, 1930 which makes it absolutely clear that unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state shall be borne by the seller. Thus, under this provision of law, all the expenses with regard to packing etc. shall be borne by the vendor in order to putting the goods into a deliverable state.
16. In this case, the goods i.e. Pizza was put in the paper carry-bag having the name/insignia of the appellant printed thereon in order to bring it in the complete deliverable state so that its physical possession be handed over to the complainant. It is not the case of the opposite party that the carry-bag was separately purchased by the complainant/purchaser, rather the opposite party has used the same for the purpose of its own advertisement as well as to put the things into a deliverable state. Thus, all the expenses have to be borne by the opposite party i.e. M/s Dominos. In this view of the matter, the opposite party has no right to recover the expenses borne by it on the packing of the goods or putting the goods in a deliverable state.
10. The ratio of law as laid down by the Honble State Commission, U.T. Chandigarh, in case supra is fully applicable to the facts and circumstances of the present case as admittedly, the OP has charged Rs.10/- on account of packaging in the present case.
11. As a sequel to above discussion, we allow the present complaint 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. 04.02.2019 till realization. The OP is further directed to pay a lump sum amount of Rs.2500/- 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 forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. Announced:31.01.2020 (Dr.Sushma Garg) (Dr.Pawan Kumar Saini) (Satpal) Member Member President Note: Each and every page of this order has been duly signed by me. Satpal President CC No. 77 of 2019 Present: Ms.Sapna Vasudeva, Advocate, for the complainant. Mr. Krishan Singla, Advocate for the OP. Arguments heard. Now, to come up on 31.01.2020 for orders. Date 21.01.2020 (Dr.Sushma Garg) (Dr.Pawan Kumar Saini) (Satpal) Member Member President CC No. 77 of 2019 Present: Ms.Sapna Vasudeva, Advocate, for the complainant. 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. Date 31.01.2020 (Dr.Sushma Garg) (Dr.Pawan Kumar Saini) (Satpal) Member Member President