Pvr Limited Vs. Ekta Jindal - Court Judgment

SooperKanoon Citationsooperkanoon.com/1111159
CourtDelhi State Consumer Disputes Redressal Commission SCDRC New Delhi
Decided OnSep-01-2009
Case NumberAppeal No. 08 of 460
JudgeBARKAT ALI ZAIDI, PRESIDENT & THE HONOURABLE MS. JUSTICE RUMNITA MITTAL, MEMBER
AppellantPvr Limited
RespondentEkta Jindal
Excerpt:
consumer protection act, 1986 - section 2(1)(g), section 2(1)(r) - case referred: federation of hotels and restaurants association of india and others., etc. v. union of india and ors., 139 (2007) dlt 7=air 2007 del. 137. comparative citation: 2010 (1) cpj 98barkat ali zaidi, president (oral): 1. mr. vineet mehta, counsel present for the appellant. 2. the appeal has come up before us for hearing at the stage of admission. 3. heard. 4. the facts of the case are as follows: the complainant respondent along with her father on 12.12.2003 had been to the appellant op pvr metropolitan cinema at gurgaon to see a film show. during the interval she purchased tropicana juice and kit kat, the mrp price of which was rs. 12 and 15 respectively but the sales man at the counter charged the price for kit kat rs. 20 and for tropicana juice rs. 25 and rs. 45 for the packed container of the cold drink pepsi and refused to issue a cash memo. 5. she therefore filed a complaint alleging unfair trade practice and deficiency in service on the part of o.p. cinema with a prayer to direct the op to refund the excess money charged. 6. the district consumer forum decreed the claim for rs. 23 + rs. 20,000 towards compensation and rs. 5,000 towards the cost. 7. that is what brings the owner of the cinema in appeal here. 8. proxy counsel present for the appellant op while none present for the respondent. 9. the counsel of the appellant has referred to the case of the federation of hotels and restaurants association of india and ors., etc. v. union of india and ors., 139 (2007) dlt 7=air 2007 del. 137, wherein it has been observed as follows: “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 has direct purpose in doing so would clearly travel to enjoying the ambience available therein and incidentally to the ordering of any article for consumption.” 10. in view of the observations of the honble high court, the op cinema counter will not be bound to charge merely the price printed on the articles, and it can charge over and above the same, and, if it is running the restaurant or hotel. the contention of the respondent before the district consumer forum was that the articles were supplied over the counter in the cinema and, as such, there was no restaurant or hotel, and the op cinema could not therefore charge, more than, what was printed on the articles. 11. the question therefore is whether the counter placed on the floor of the palisade of the cinema hall will be deemed a restaurant or not? 12. in this connection there is an affirmation on the affidavit of the op appellant cinema that it has been granted an eating house license to run a counter. there is no denial of the same. besides this, placing of the counter on the outer floor of the cinema hall and sell any things from there cannot be deemed to be a shop, confined merely to commercial purposes. the counter over which, the sales of articles are made in the precincts of the cinema hall, must therefore fall in the category of a restaurant, and cannot be deemed a shop. it may not be a regular restaurant with all the usual restaurants paraphernalia, but it has the basic image of a restaurant, because there is counter and the sale are being made over the counter in the precincts of the cinema hall, and the customers have the facility of obtaining eatables right at the entrance door. 13. it must therefore be held that the counter over which the sales were made by the salesman to the complainant is a virtual mini restaurant and could not be called a commercial shop, confining the seller to sell the articles on the basis of the price printed thereon. 14. the district consumer forum was therefore not justified in its findings and in the award giving by it and the appeal must therefore be allowed. 15. the appeal is allowed and the award given by the district consumer forum, new delhi is set aside and the complaint of the respondent shall stand dismissed. appeal allowed.
Judgment:

Barkat Ali Zaidi, President (Oral):

1. Mr. Vineet Mehta, Counsel present for the appellant.

2. The appeal has come up before us for hearing at the stage of admission.

3. Heard.

4. The facts of the case are as follows:

The complainant respondent along with her father on 12.12.2003 had been to the appellant OP PVR Metropolitan Cinema at Gurgaon to see a Film Show. During the interval she purchased Tropicana juice and kit kat, the MRP price of which was Rs. 12 and 15 respectively but the Sales Man at the counter charged the price for Kit Kat Rs. 20 and for Tropicana juice Rs. 25 and Rs. 45 for the packed container of the cold drink Pepsi and refused to issue a cash memo.

5. She therefore filed a complaint alleging unfair trade practice and deficiency in service on the part of O.P. cinema with a prayer to direct the OP to refund the excess money charged.

6. The District Consumer Forum decreed the claim for Rs. 23 + Rs. 20,000 towards compensation and Rs. 5,000 towards the cost.

7. That is what brings the owner of the Cinema in appeal here.

8. Proxy Counsel present for the appellant OP while none present for the respondent.

9. The Counsel of the appellant has referred to the case of the Federation of Hotels and Restaurants Association of India and Ors., etc. v. Union of India and Ors., 139 (2007) DLT 7=AIR 2007 Del. 137, wherein it has been observed as follows:

“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 has direct purpose in doing so would clearly travel to enjoying the ambience available therein and incidentally to the ordering of any article for consumption.”

10. In view of the observations of the Honble High Court, the OP Cinema counter will not be bound to charge merely the price printed on the articles, and it can charge over and above the same, and, if it is running the restaurant or hotel. The contention of the respondent before the District Consumer Forum was that the articles were supplied over the counter in the cinema and, as such, there was no restaurant or hotel, and the OP Cinema could not therefore charge, more than, what was printed on the articles.

11. The question therefore is whether the counter placed on the floor of the palisade of the cinema hall will be deemed a restaurant or not?

12. In this connection there is an affirmation on the affidavit of the OP appellant cinema that it has been granted an eating house license to run a counter. There is no denial of the same. Besides this, placing of the counter on the outer floor of the cinema hall and sell any things from there cannot be deemed to be a shop, confined merely to commercial purposes. The counter over which, the sales of articles are made in the precincts of the cinema hall, must therefore fall in the category of a restaurant, and cannot be deemed a shop. It may not be a regular restaurant with all the usual restaurants paraphernalia, but it has the basic image of a restaurant, because there is counter and the sale are being made over the counter in the precincts of the cinema hall, and the customers have the facility of obtaining eatables right at the entrance door.

13. It must therefore be held that the counter over which the sales were made by the salesman to the complainant is a virtual Mini restaurant and could not be called a commercial shop, confining the seller to sell the articles on the basis of the price printed thereon.

14. The District Consumer Forum was therefore not justified in its findings and in the award giving by it and the appeal must therefore be allowed.

15. The appeal is allowed and the award given by the District Consumer Forum, New Delhi is set aside and the complaint of the respondent shall stand dismissed.

Appeal allowed.