State Consumer Disputes Redressal Commission
Avinash Kankani vs New Kenilworth Hotel Pvt. Ltd. on 8 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/112/2013 1. Avinash Kankani 5, Kiran Shankar Roy Road, Kolkata - 700 001, State of West Bengal. 2. Priyanka Kankani 256, Picnic Garden Road, Kolkata - 700 039. 3. Biswanath Chatterjee 44, Bramho Samaj Road, "Chatterjee Niwas", Kolkata - 700 034. 4. Aparna Chatterjee 44, Bramho Samaj Road, "Chatterjee Niwas", Kolkata - 700 034. 5. Shailendra Tiwari 140, Bidhan Sarani, Radha Building, 4th Floor, Kolkata - 700 004. 6. Renu Tiwari 140, Bidhan Sarani, Radha Building, 4th Floor, Kolkata - 700 004. ...........Complainant(s) Versus 1. New Kenilworth Hotel Pvt. Ltd. 1 & 2, Little Russell Street, Kolkata - 700 071. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: In-Person/, Advocate For the Opp. Party: Suman Majumder, Advocate Dated : 08 Feb 2018 Final Order / Judgement Date of filing - 15.05.2013 Date of final hearing - 19.01.2018 The instant complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of some customer of a hotel on the allegation of deficiency in services on the part of the hotel in behaving properly with the Complainants. Succinctly put, complainants' case is that the Complainant Nos. 1, 3 & 5 are practising Advocates of Calcutta High Court and man of decent depute and status in the society and Complainant Nos. 2, 4 & 6 are home makers. Sometimes in September, 2012 complainant no.1 was approached by one Mr. Pradip Sharma, a representative of Addmarck Hospitiality Marketing Services Pvt. Ltd. representing that respondent was offering a membership for enjoying wide range of privileges along with discount on services and some special offers. Complainant No.1 availed of the membership upon making of payment of a sum of Rs.5,618/- by cheque and against the said consideration paid by Complainant no.1 along with gift certificate and food coupons to be utilised at OP/Hotel. At the time of offering the membership, it was represented to the complainant no.1 that such certificates can be utilised at a time with a minimum of billing of Rs.2,000/-. It was further represented that on a billing of Rs.5,000/- all the five gift certificates can be utilised in a single transaction thus making up the cost paid for availing the membership on a single visit. The complainant no.3 has also opted for the membership. On 29.12.2012 about 8:15 P.M. the complainants consisting of a group of six members went for dinner at Marbel Room, a restaurant of the OP for dinner. At around 10 P.M. complainant no.1 asked the staff to present the bill for payment. Upon presentation of the bill, complainant no.1 along with his membership card handed over 5 nos. of gift certificates for adjustment against the total bill. However, one Mr. Saurabh Mitra, Assistant Manager refused to accept the said gift certificates and stated that complainant no.1 is not entitled to the discounts as mentioned in the gift vouchers. The complainants alleged that the OP through its staff, servants and employees illegally confined and restrained them from leaving the hotel and closed the exit gate of the hotel so that complainants would not be able to leave the premises. Ultimately, one Mr. Malay Mukherjee, another Assistant Manager intervened and a fresh bill was presented to the complainants for a sum of Rs.5,661/- and after adjustment of the gift certificates, a discount of Rs.5,000/- was offered to the complainants and the balance sum of Rs.661/- was pain in cash. The complainants submit that they were immensely humiliated, harassed and illegally confined for about one and half hours causing loss reputation and mental agony for such illegal act and behaviour of the staff and management of the OP. On the following day i.e. on 30.12.2012 complainant no.1 lodged a complaint with the Shakespeare Sarani Police Station and a case under Section 341/114 of IPC has been registered and charge sheet has been submitted against Mr. Saurabh Mitra. The complainants have lodged the complaint with prayer for a direction upon the opposite party to pay a sum of Rs.49,00,000/- as compensation on account of harassment and mental agony suffered by them.
The Opposite Party i.e. Kenilworth Hotel, Kolkata by filing a written version has stated that the complaint has been deliberately and dishonestly overvalued with the sole object attracting the jurisdiction of the State Commission. The OP has also stated that there was no privity of contract between the complainants and them and the certificate being a nature of a gift there can be no case of deficiency in services.
On behalf of the complainants, Sri Avinash Kankani, Complainant No.1 has tendered evidence on affidavit on behalf of himself and also for other complainants. He has also given reply against the questionnaire set forth by OP.
On behalf of Opposite Party, one Mr. Sudipta Nandi, Authorised Signatory of the OP has filed evidence through affidavit. However, complainants did not file any questionnaire against the statement made on behalf of OP and as such question for filing reply by OP did not arise.
Besides the same, the parties have relied upon some documents.
On perusal of pleadings, evidence adduced by the parties including the documentary evidence, it emerges that on 29.12.2012 the complainants, who were six in numbers visited OP/Hotel for a dinner at Marbel Room, a restaurant of the OP situated at Premises No.1 & 2, Little Russell Street, Kolkata - 700071. After dinner, a bill of Rs.5,661/- was raised by OP hotel. The complainants insisted for adjustment of gift certificates discount of Rs.5,000/-. After a prolonged untoward incident, on the intervention of Assistant Manager of the hotel, the dispute of bill was settled and the OP hotel offered to the complainants a discount of Rs.5,000/- and the balance amount of Rs.661/- was paid in cash.
Since the question of pecuniary jurisdiction has been seriously challenged by OP touching the maintainability of the proceeding in this Commission by mentioning the same in Paragraph-2(c) of the written version it should be addressed first. Under the scheme of the Act, the complaint can be filed in the District Forum or the State Commission or the National Commission depending upon the value of the costs of the goods/services. Section 11, Section 17 and Section 21 provides the pecuniary jurisdiction of the respective Fora. Section 11 provides that a District Forum shall have the jurisdiction to entertain the complaints where value of the goods or services and compensation, if any, does not exceed rupees twenty lakhs. According to Section 17, State Commission can entertain the complaints where the value of goods or services and compensation claimed exceeds rupees twenty lakhs but does not exceed rupees one crore and if the said value is more than rupees one crore, jurisdiction to entertain the original complaint lies with the National Commission as provided under Section 21 of the Act.
Presently, no court fee on the claims preferred before the Fora concerned is payable. Therefore, tendency to defeat the hierarchy as per the scheme of the Act is always there. In the instant case, the OP hotel raised a bill of Rs.5,661/- for dinner out of which Rs.5,000/- had been adjusted by gift vouchers and the balance amount of Rs.661/- was paid by cash. But the complainants seeking disproportionate demand of Rs.49,00,000/- as compensation so as to bring the complaint within the jurisdiction of the State Commission. The above act of the complainants obviously is malafide with a view to defeat the scheme of the Act.
In catena of decisions, the Hon'ble National Consumer Commission has observed that the Consumer Fora at various level are required to guard against the inflated claims with malafide intentions to defeat the hierarchy of the Fora concerned. This case is a glaring example of the same and on that count alone, the petition of complaint should have been returned/rejected and ultimately by an order dated 20.05.2016 while disposing of application being MA/964/2015, this Commission dismissed the complaint with liberty to the complainants to file the complaint before the appropriate Forum. However, challenging the said order, the complainants preferred a revisional application in the Hon'ble High Court at Calcutta bypassing the statutory remedy available under Section 21(b) of the Act. By an order dated 03.07.2017 in C.O. No.3524/2016 the Hon'ble High Court has been pleased to set aside the order passed by this Commission dated 20.05.2016 and directed to adjudicate the issues involved in the complaint case including the point of maintainability on merits in accordance with law.
In this backdrop, we shall proceed to discuss the merits of the case. The materials on record indicates that in September, 2012, complainant no.1 was approached by one representative of Addmarc Hospitality Marketing Services Pvt. Ltd. representing that OP was offering a membership for enjoying wide range of privileges along with discount on services and some special offers. The complainant no.1 availed the membership being No. AHMSPL 369/12 and on consideration complainant no.1 was given gift certificates and coupons to be utilised at the hotel.
The untoward incident of altercation and hot exchanges between the complainants and the staff of the hotel had taken place after dinner party is over on 29.12.2012 at 10 P.M. in the Marbel Room, a restaurant of OP. In fact, when the complainants asked for bill and the bill of Rs.5,661/- was raised, the complainants intended to adjust of the gift certificates amounting to Rs.5,000/- but one Saurabh Mitra, Assistant Manager of the Hotel refused to accept the gift certificates. Ultimately, at the intervention of another Assistant Manager named Mr. Malay Mukherjee, the dispute ended when the gift certificates of Rs.5,000/- was adjusted.
On 30.12.2012, an FIR was lodged with the Officer-in-charge, Shakespeare Sarani P.S. and one case being Sec. K2 Case No.466/12 dated 30.12.2012 under Section 341/114 of Indian Penal Code was registered and the Police after investigation into the matter submitted charge sheet against the said Saurabh Mitra on 27.02.2013. Therefore, for high handedness on the part of the said Saurabh Mitra, the hotel cannot be blamed because the other Assistant Manager of the said hotel intervened into the matter in time and settled the billing dispute.
So far as allegation of the complainants that the alleged incident has caused humiliation, insult etc., it cannot be adjudicated by a Consumer Forum and for redressal of their grievances about the alleged defamation, the complainants may approach the Ld. Chief Metropolitan Magistrate at Calcutta by lodging a complaint under Section 500 I.P.C. or by filing a suit for damages in a competent Civil Court for obtaining damages.
In the case beforehand, the complainants were of course 'consumer' within the meaning of Section 2(1)(d) of the Act but there is no pleading or evidence whatsoever that there was any inconsistency in the bill or that the OP/Hotel has claimed any abnormal prices or higher prices for eateries supplied to the complainants and as such the OP cannot be held responsible for deficiency in providing services as per Section 2(1)(g) read with Section 2(1)(o) of the Act.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and on perusal on materials on record and more particularly when the evidence of opposite party remain unchallenged, I must say that the complaint is liable to be dismissed.
Consequently, the petition of complaint is dismissed. However, there will be no order as to costs. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER