State Consumer Disputes Redressal Commission
The Manager, Amirtham Bar,Hotel ... vs G.Venkatesh,Trinelveli And Another on 15 December, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Date of Appeal filed:19.02.2020
Present: - THIRU.S. KARUPPIAH, PRESIDING JUDICIAL MEMBER
F.A.No.18/2020
FRIDAY, THE 15th DAY OF DECEMBER 2023.
1. The Manager,
Amirtham Bar, Hotel Aryaas,
67, Madurai Road,
Tirunelveli Junction.
2. The Proprietor,
Amirtham Bar, Hotel Aryaas,
67, Madurai Road,
Tirunelveli Junction,
.....Appellants/Opposite parties 1 & 2
-Vs-
1. G.Venkatesh,
S/o.Ganesan,
104/3, Megalingapuram,
Salai street, Sindhupundurai,
Tirunelveli-1
......1st Respondent/Complainant.
2. The assistant Commissioner,
Prohibition and Excise,
District Collector Office,
Kokkivakulam, Tirunelveli-9.
......2nd Respondent/3rd Opposite party
Counsel for Appellants/Opposite parties 1 & 2 : M/s.S.B.Kamalanathan, Advocate
Counsel for 1st Respondent/Complainant : Called absent.
Counsel for 2 Respondent/3 Opposite party : Called absent.
nd rd
Aggrieved by the order passed by District Consumer Disputes Redressal
Commission, Tirunelveli made in C.C.No.40/2018, dated 21.01.2020. The
Appellants/Opposite parties 1 & 2 preferred the appeal. This appeal coming before
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me for final hearing on 08.11.2023 and upon perusing the material records, this
Commission made the following:
ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The Facts:
The short question arose in the appeal is whether the opposite parties 1 & 2 Amirtham bar entitled to sell a packaged alcohol for more than MRP rate?
2. The fact is the complainant on 08.01.2018 purchased British Empire Beer two bottles for Rs.420/- + Vat Rs.61/- totally Rs.481/-. But the MRP rate for the each bottle is only Rs.120/- So, the actual sale price of two bottles is only Rs.240/-
instead the opposite parties sold the same for Rs.420/- which amounted to deficiency in service and unfair trade practice. So, claiming refund of Rs.241/- and Rs.95,000/- towards compensation, the complaint was filed.
3. The opposite party filed written version that that as per Excise Rules they obtained FL3 license and as per the license a tourist who stayed in the hotel and other who permitted in the hotel entitled to purchase alcohol from their bar. The bar was Air-conditioned and attached with a Star Hotel with parking facility , as well the bar provided snacks along with alcohol, hence they are entitled to charge more.
4. The District Commission after receiving evidence and documents Ex.A1 to A3 finally allowed the complaint by awarding Rs.10,000/- along with order of refund of Rs.241/-.
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5. Now the Points for consideration is,
1. Whether the Appeal has to be allowed or not?
6. Discussion on the Point:-
Aggrieved over the same the appeal has been preferred on the following Grounds : that the District Commission order is erroneous and the District Commission failed to consider that the Tamilnadu Prohibition Act empowered the owner of the bar to fix the rate of Alcohol as per the license given by authority and the MRP rate will not be applicable for the bars who obtained permission since higher license fees were paid by them.
7. As per the case of the Hotel/bar, FL 3 license issued by the excise authorities, and as per the terms of license, the Hotel/Bar can sell liquor only to the guests stayed in the hotel at least for 3 hours. The license issued to the petitioner, prohibits the petitioner from carrying out retail sale of alcohol to the customer for the purpose of consumption outside the premises. The customer is prohibited from even taking away the unfinished items from the hotel / restaurant as per the provisions of the license. The customer cannot enter the hotel of the petitioner and make a purchase of a bottle of beer for consumption at home. For the reasons already stated, by virtue of the terms of the FL3 license, it seems even the petitioners herein, are also prohibited from selling the goods in the packaged form to the customer. This condition would also take the transaction out of the purview of retail sale as defined under Rule 2(l) of the Legal Metrology (Packaged Commodities) Rules 2011.
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8. Further it is useful to refer the Judgment of The Supreme Court of India in the case of State Of Punjab vs M/S. Associated Hotels Of India 1972 AIR 1131, "The transaction in the present case is one and indivisible, namely, one of receiving a customer in the hotel to stay. The bill is not capable of being split up into one for residence and another for sale of meals. Amenities including meals, are part and parcel of the service which, in reality, is the transaction between the parties. Even if it was to be disintegrated the supply of meals during such stay does not constitute a separate contract of sale, since no intention on the part of the parties to sell and purchase the food stuffs supplied during meal time can be spelt out.
Similarly when the Hotels Association raised that they are legally entitled to sell Mineral water to their guests more than the rate fixed as MRP, The Supreme Court of India in Federation Of Hotel And ... vs Union Of India And Ors. Through Its ... on 12 December, 2017 has reiterated as follows "We are, therefore, of the view that neither the Standards of Weights and Measures Act, 1976 read with the enactment of 1985, or the Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices which are above the MRP".
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9. As per the case of the Hotel/bar, FL 3 license issued by the excise authorities. As per the license the Hotel/Bar can sell liquor only to the guests stayed in the hotel atleast for 3 hours. As per the law laid down by the Apex Court in the above judgments, the transaction that takes place inside the hotel / restaurant is one of service in the performance of which alcohol or snacks or both are served as part of and incidental to that service to the customer, who may have been residing in the said hotel or one who had visited the hotel for having meal or alcohol. The amenities provided to the customer is regarded as essential even as per the express terms of the FL3 license issued to the petitioners by the Excise Department. The bill prepared by the petitioner is one and indivisible, not being capable by approximation of being split up into one for food and the other for alcohol or for the amenities provided to the customer. The said Bill would be prepared after consideration of the costs of alcohol as well but that would include the cost of all the other amenities given to the customer. The value added services like the comforts of the restaurant such as A/C, Ambiance, Parking, comfortable seating, snacks, service of bearer, toilet, drinking water, chilling of the alcohol etc., They are part and parcel of service between the Bar and the Consumer. The license issued to the petitioner, prohibits the petitioner from carrying out retail sale of alcohol to the customer for the purpose of consumption outside the premises. The customer is prohibited from even taking away the unfinished items from the hotel / restaurant as per the provisions of the license. The District Commission without analyzing the above discussed facts, and without taking into consideration the judgments of the Apex Court, wrongly concluded and passed an award in favour of the complainant. So the above award 6 is suffered from illegality and necessarily to be interfered by this commission and the appeal is necessarily to be allowed without costs.
10. In the result,
1. The Appeal is allowed.
2. The order of the learned District Consumer Disputes Redressal Commission, Tirunelveli made in C.C. No.40/2018, dated 21.01.2020 is hereby set aside and the complaint is dismissed.
3.There shall be no order as to costs in this appeal.
4.The Registry is directed to refund the mandatory deposit to the appellants/opposite parties 1 & 2 with accrued interest thereon duly discharged in favour of the appellants/opposite parties 1 & 2.
Dictated and pronounced in the open court to the Steno-typist transcribed and typed by him corrected by me on this the 15th day of December 2023.
-Sd-xxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
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