Hindustan Coca-Cola Beverages ...

vs Siddharth Manchanda And Others on 21 July, 2017

State Consumer Disputes Redressal Commission

Hindustan Coca-Cola Beverages ... vs Siddharth Manchanda And Others on 21 July, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN

FIRST APPEAL NO. 299 / 2014

Hindustan Coca-Cola Beverages Pvt. Ltd.

1105/7/8/33 Pirangut, Tal, Mulshi
District Pune 41211, Maharashtra
......Appellant / Opposite Party No. 3

Versus

1. Sh. Siddharth Manchanda, Advocate

S/o Sh. Pawan Manchanda
R/o Ram Bhawan Near Lal Mandir, Arya Nagar Chowk
Jwalapur, Haridwar
......Respondent No. 1 / Complainant

2. Multiplex Cinevision Pvt. Ltd.

Wave Cinemas, The Pentagon Mall
3rd Floor, C-1, Sector -12, SIDCUL, Haridwar
......Respondent No. 2 / Opposite Party No. 1

3. The Pentagon Mall

C-1, Sector-12, SIDCUL, Haridwar, Uttarakhand
......Respondent No. 3 / Opposite Party No. 2

Sh. T.S. Bindra, Learned Counsel for the Appellant

None for Respondent Nos. 1 & 3
Sh. Sanjay Gupta, Learned Counsel for Respondent No. 2

AND

FIRST APPEAL NO. 01 / 2015

Multiplex Cinevision Pvt. Ltd.

Wave Cinemas, The Pentagon Mall
3rd Floor, C-1, Sector -12, SIDCUL, Haridwar
.......Appellant / Opposite Party No. 1

Versus

1. Sh. Siddharth Manchanda, Advocate

S/o Sh. Pawan Manchanda
R/o Ram Bhawan Near Lal Mandir,
Arya Nagar Chowk, Jwalapur, Haridwar
......Respondent No. 1 / Complainant

2. The Pentagon Mall

C-1, Sector-12, SIDCUL, Haridwar, Uttarakhand
......Respondent No. 2 / Opposite Party No. 2

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 Hindustan Coca-Cola Beverages ... vs Siddharth Manchanda And Others on 21 July, 2017

3. Hindustan Coca-Cola Beverages Pvt. Ltd.

1105/7/8/33 Pirangut, Tal, Mulshi
District Pune 41211, Maharashtra
......Respondent No. 3 / Opposite Party No. 3

Sh. Sanjay Gupta, Learned Counsel for the Appellant

None for Respondent Nos. 1 & 2
Sh. T.S. Bindra, Learned Counsel for Respondent No. 3

Coram: Mr. D.K. Tyagi, H.J.S., Member

Mrs. Veena Sharma, Member

Dated: 21/07/2017

ORDER

(Per: Mr. D.K. Tyagi, Member):

These two appeals, one by the opposite party No. 3 and another by opposite party No. 1, under
Section 15 of the Consumer Protection Act, 1986, are directed against the order dated 14.11.2014
passed by the District Forum, Haridwar in consumer complaint No. 115 of 2014, whereby the
District Forum has allowed the consumer complaint and directed the opposite party No. 1 to pay Rs.
1,000/- to the complainant within a month from the date of order and also directed to the opposite
party No. 3 to deposit Rs. 10.00 lacs with the District Forum as penalty within a month from the
date of order. Since both the appeals arise out of the same order passed by the District Forum,
therefore, these appeals are being disposed of by this Common order.

2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the applicant
had purchased a 330 ml. Diet Coke Cane bearing batch No. PNBN016 manufactured on 06.02.2014
from the opposite party No. 1 whose office is situated at the premises of opposite party No. 2
manufactured by opposite party No. 3 via bill No. 143037 on 18.02.2014. For the above said product
the opposite party No. 1 had charged Rs. 60/- including VAT and other taxes from the applicant. The
complainant had told the opposite party No. 1 that the price Rs. 60/- for the above noted Diet Coke
Cane is very high and this produce is available in Indian market near about Rs. 30/-, but after
listening, the opposite party No. 1 began arguing with the complainant that the product will be sold
on Rs. 60/-, as the price has been increased and also said that if you want this Diet Coke Cane then
you have to purchase at Rs. 60/- only. The complainant for enquiring the price for the product noted
above, purchased another identical piece of Diet Coke Cane of the same quantity i.e. 330ml. bearing
batch No. PNBN016 manufactured on 06.02.2014 by the opposite party No. 3 from another local
shop named "Easy Day" via bill No. 07849 dated 08.03.2014 of Rs. 30/-. The complainant surprised
after discovering that the two product of same quantity manufactured by same manufacturer
bearing the same batch number and manufacturing date of selling with two different price tags Rs.
60/- and Rs. 30/-respectively, even ingredients and packing is also same and identical to each other.
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The complainant after discovering such discrepancies in prices of the same and identical type of
product immediately rushed to opposite party No. 1 regarding this matter. But opposite party No. 1
refuses to talk. Later on complainant went to opposite party No. 2 for complaining for unfair trade
practice of opposite party No. 1. But opposite party No. 2 said this is not his responsibility. Although
the opposite party No. 1 is running his business under the supervision of opposite party No. 2 as
opposite party No. 1 office is situated at opposite party No. 2 premises. Though the product is
available at much lower price in the Indian market, then the price offered by opposite party No. 1
and befooling ordinary people of India by selling the product at much higher price and such act
comes under the unfair trade practice. The complainant is the customer of opposite parties and the
above act of opposite parties shows deficiency in service and comes under unfair trade practice. Due
to the act of opposite parties, the complainant suffered mental, social and economic damage, for
which the opposite parties are responsible.

3. The opposite party No. 1-Multiplex Cinevision Pvt. Ltd. has filed written statement before the
District Forum and has pleaded that there was no occasion available to the answering opposite party
to argue with the complainant to sale the produce in question at higher or lower price. It is pertinent
to clarify that the M.R.P. printed on Diet Coke Cane is Rs. 60/- and no higher rate were demanded
or charged by the answering opposite party. The answering opposite party has no concern with the
contents that the complainant purchased the identical piece of Diet Coke Cane of same quantity
from another shop at price of Rs. 30/- only. It is clarified that there may be two or more prices for
same product to sale at different places. There was no occasion to cause any mental, social and
economic loss to the complainant. There was no terms and conditions labelled behave of answering
opposite party that bound to the complainant to drink the Diet Coke Cane, if he visits to see the
cinema in Wave Cinema. In the specific pleas, the answering opposite party has stated that the
complaint is not maintainable. The complaint in question is not duly instituted for the reason that
answering opposite party is not a legal entity and cannot be sued directly. The product sold to the
complainant was sold on the M.R.P. printed on the product, which was mentioned on the product
nothing was concealed. Therefore, it cannot be said that the answering opposite party has
committed any wrong by selling the product on its printed price. It is not prohibited to fix or declare
more than one M.R.P. for the same product available for the sale at different places for different
classes of customers. There is no cause of action for the present complaint under the Consumer
Protection Act, 1986. Under PC Rules and LM Rules, the only requirement is to declare the M.R.P.
on each bottle. There is no law that a particular commodity cannot have a dual fixation of price. The
declaring different M.R.Ps. for the similar goods to be sold from different channels at different
locations in the same state, cannot be considered to be an unfair trade practice or malpractice,
resulting in manipulation of prices and imposing unjustified costs on the consumer. Matters relating
to declaration of M.R.P. on the package are specifically with in the erstwhile PC Rules framed under
the SWM Act and now under the LM Rules framed under the LM Act. There are a variety of
situations in which commodities are sold at different locations and in different circumstances at
different prices. Retailers may require higher margins to make it commercially viable to deal with a
commodity. Because retailers may have to incur additional expenses of diverse nature for selling
their commodities from a particular outlet. For a particular outlet, the costs in the outlet to deal with
a particular produce may be higher than the other outlets. This could be for a variety of reasons. The
outlet may be in an expensive retail mall or it may be in a cinema hall, where the retailer may be

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incurring a much higher cost to maintain the outlet by way of higher lease rentals, air conditioning
costs and other operating and fixed overheads, where only limited buyers come for short intervals.
The costs at such outlets cannot be compared to the costs of other shop or a stall on the road side.
Since there is no price control, such products may be sold at such outlets at such prices as are
considered feasible. The M.R.P. would be different from the M.R.P. declared on other packages of
similar goods for sale from different channels at different locations. It is submitted that the
answering opposite party is a movie theatre having world class Digital Sound, Audio and Projection
System in a mall, i.e. opposite party No. 2 and its maintenance costs and other costs are much
higher than that of a other shop or a stall on the roadside. If the complaint does not relate to any
defect of the goods for deficiency in service the complaint will not lie and the Forum have no
jurisdiction. The practice of declaring different M.R.Ps. on Diet Coke Cane sold from different
locations, neither constitutes 'Deficiency in service' or 'unfair trade practice' nor has it caused any
'loss' or 'injury' to a large number of consumers and cannot therefore be deemed to have caused any
kind of loss to the complainant. The answering opposite party has neither manipulated the price nor
overcharged for the Diet Coke Cane allegedly purchased by the complainant. It is further stated that
a single product can have two different M.R.Ps. in the same state. Declaring M.R.Ps. on the packages
of similar products for sale from different channels in different locations is a legislatively recognized
principle which has also been approved and enumerated by the Supreme Court. The declaring of
different M.R.P. on bottles of Diet Coke Cane made available for different channels cannot
tantamount to 'Deficiency in Service', 'unfair trade practice' or even 'malpractice' as claimed in the
complaint, especially since this practice is legislatively recognized and has been approved by the
Hon'ble Supreme Court. Declaring of different M.R.P. on Diet Coke Cane made available at different
channels in different locations has not caused any suffering to many other consumers. It is
reiterated that a practice which is legislatively recognized cannot be said to have caused any 'loss' or
'injury' to a large number of consumers. There is no consumer who has suffered, as claimed in the
complaint. Under Section 14(1), with respect to 'goods' the Forum below can only deal with and give
compensation in case there is a defect in the goods. The present complaint only relates to the
'declaration' of M.R.P. on the Diet Coke Cane.

4. The opposite party No. 2-The Pentagon Mall has filed written statement before the District Forum
and has pleaded that the complainant was never the customer of answering opposite party. The
answering opposite party has only given an area/accommodation to the opposite party No. 1 and for
this simple reason he cannot be held responsible or made party to any dispute, if arises between
opposite party No. 1 and any third party. The answering opposite party has nothing to do with any
deal or transaction between opposite party No. 1 and any third party. Complainant has no cause of
action against the answering opposite party.

5. The opposite party No. 3-Hindustan Coca-Cola Beverages Pvt. Ltd. has filed written statement
before the District Forum and has pleaded there is nothing to show in the complaint that the two
separate 330ml. canes of Diet Coke, allegedly purchased by the complainant, was manufactured and
sold by the answering opposite party to opposite party No. 1. There is no cause of action for the
present complaint either under the Consumer Protection Act, 1986 or any other law for the time
being in force. It is stated that Rule 6(1)(e) of The Legal Metrology (Packaged Commodities) Rules,
2011 issued under The Legal Metrology Act, 2009, the retail sale price of a package, being the

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maximum retail price (M.R.P.) at which the package may be sold to the ultimate consumer is
required to be duly declared on the package, which has been duly declared by the answering
opposite party on its products. Under the LM Rules, the only requirement is to declare the M.R.P.
on each cane.

The LM Rules do not prohibit fixation / declaration of more than one M.R.P. for the same product
made available for sale at different places for different classes of customers. There is no law which
requires that a product must be sold to all parties, at a uniform price. There is no price control with
regard to sale of soft drinks. The requirement of M.R.P. declaration on a package is provided for
only under the LM Rules framed under the LM Act, which is the comprehensive legislation dealing
with packaged commodities and for declaration of M.R.P. thereon. In relation to packaged
commodities, such as carbonated water, the only requirement under the LM Rules is that every
package (including canes) must bear a declaration of M.R.P. as provided under Rule 6(1)(e) of the
LM Rules to ensure that the canes are not sold in retail at a price higher than the M.R.P. declared
thereon. The aforesaid practice is not only permissible in law, but is also legislatively recognized. It
is submitted that declaring different M.R.Ps. for the similar goods of answering opposite party, to be
sold from different channels at different locations in the same state, cannot be considered to be an
Unfair Trade Practice. If the prices are declared and clearly known the choice is of the customer to
buy the product at the offered price. In such cases, there can be no manipulation of prices. Merely
because a product may be sold at certain location at a higher price, which is declared, it cannot be
said that unjustified costs are imposed on the consumer. Additional expenses are incurred by the
outlets situated at various malls and the product from such outlets cannot be expected to be sold at
the same price at which it may be sold at outlets where additional expenses are not incurred. In any
event, it is the choice of the consumer to buy the product from an expensive outlet and also enjoy the
facilities and ambience of such location. The jurisdiction of the District Forum to pass an order on a
complaint filed before it is confined to matters which are set out in Section 14(1) of the Consumer
Protection Act. The said section provides for directions which may be issued in respect of 'goods' as
well as 'services'. In the present case, the allegation relates to 'goods', i.e. Diet Coke. The said section
provides that a direction may be given in relation to 'goods', if the District Forum is satisfied that the
goods complained against suffer from any 'defects' specified in the complaint. As such, the
jurisdiction of the District Forum, while dealing with 'goods' is confined only to cases where the
allegation relates to 'defect' in goods and not when no 'defect' in goods is alleged in the complaint.
The reliefs sought in the present complaint are beyond the scope of the directions and relief
contemplated under the various clauses of Section 14(1) of the Consumer Protection Act, 1986.
There are a variety of situations in which commodities are sold at different locations and in different
circumstances at different prices. Certain retailers may require higher margins to make it
commercially viable to deal with a commodity. Retailers may have to incur additional expenses of
diverse nature for selling their commodities from a particular outlet. Such a practice of charging
different prices for the same commodity is commonly observed in most commodities and the
rationale for similar practice for packaged commodities would be no different. Declaration of
different M.R.Ps. on similar packages may be done for a number of commercial reasons. It may be
for promotion of the product or to compete effectively in the market with competing manufacturers
or to give incentive to select channels or for increasing market share. Business / commercial
considerations have to be kept in mind for this purpose, which may also change from time to time. It

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is stated that for a particular outlet, the costs in the outlet to deal with a particular product may be
higher than the other outlets. This could be for a variety of reasons. The outlet may be in an
expensive retail mall or it may be in a cinema hall where the retailer may be incurring a much higher
cost to maintain the outlet by way of higher lease rentals, air-conditioning costs and other operating
and fixed overheads, where only limited buyers come for short intervals. The costs at such outlets
cannot be compared to the costs of a petal shop or a stall on the road side. It is submitted that Wave
Cinema is a movie theatre in a mall and its maintenance costs and other costs are much higher than
that of a petal shop or a stall on the roadside. The Supreme Court has categorically held that dual
pricing is permissible. In reply of para No. 6 of the consumer complaint, the answering opposite
party has stated that the practice of declaring of different M.R.P. on canes of Diet Coke made
available at different channels in different locations does not befool ordinary people of India or be
deemed as unfair trade practice. The answering opposite party in compliance with the LM Rules is
conspicuously declared on the cane, to enable the customer to make an informed choice. It is further
stated that once the product has been purchased by the customer, issues related to the declaration of
prices cannot be brought under the Consumer Protection Act, only issue related to deficiency of
service or defects in goods can be brought under the Consumer Protection Act. The answering
opposite party is neither the necessary nor proper party to the present complaint, as there is nothing
in the consumer complaint to show that the answering opposite party is sold the said cane to the
complainant. The District Forum does not have jurisdiction to entertain the present complaint.
Jurisdiction of the District Forum is confined to matters, which are set out in Section 14(1) of the
Consumer Protection Act. The said section provides that a direction may be given in relation to
goods, if the District Forum is satisfied that the goods complained against suffer from any defects
specified in the complaint. The complaint is wholly misconceived without any basis and is not
maintainable against the answering opposite party and is, therefore, liable to be dismissed.

6. The District Forum on an appreciation of the material on record has allowed the consumer
complaint vide order dated 14.11.2014 in the above manner. Aggrieved by the said order, the
opposite party No. 3 has filed First Appeal No. 299 of 2014 and the opposite party No. 1 has filed
First Appeal No. 01 of 2015, thereby assailing the propriety and legality of the impugned order
passed by the District Forum.

7. We have heard Sh. T.S. Bindra, learned counsel for the appellant, Sh. Sanjay Gupta, learned
counsel for respondent No. 2 in First Appeal No. 299 of 2014. None appeared on behalf of
respondent Nos. 1 & 3 in the First Appeal No. 299 of 2014. We also heard Sh. Sanjay Gupta, learned
counsel for the appellant and Sh. T.S. Bindra, learned counsel for respondent No. 3 in First Appeal
No. 01 of 2015. None appeared on behalf of respondent Nos. 1 & 2 in First Appeal No. 01 of 2015.
We have also perused the entire record of the District Forum as well as material placed on record.

8. There is no dispute with regard to the fact that the complainant- respondent No. 1 has purchased
a 330ml. Diet Coke Cane bearing batch No. PNBN016 from the opposite party No. 1-Multiplex
Cinevision Pvt. Ltd. on 18.02.2014 @ Rs. 60/-. It is also undisputed that one more Diet Coke Cane of
330ml. was purchased by the respondent No. 1 from the department store 'Easyday' at Saharanpur
for Rs. 30/- on 08.03.2014. It is to be seen whether appellant-opposite party No. 1 had charged
higher price of Diet Coke Cane, then price of the available coke at lower rates in the market or not,

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and committed deficiency in service as well as unfair trade practice.

9. Learned counsel for the appellant-opposite party No. 3 in First Appeal No. 299 of 2014 has
submitted before this Commission that the impugned order is illegal and contrary to law as dual
pricing is not prohibited in law. The complainant has failed to make out a case of unfair trade
practice. The District Forum erred in law and committed judicial impropriety by advancing the date
of hearing of the complaint from 01.12.2014 to 14.11.2014. On 13.11.2014, the District Forum
directed that the matter be next listed for hearing on 01.12.2014. On 14.11.2014, counsel for
respondent No. 1- complainant approached counsel for the appellant with an application for early
hearing of the complaint. Since, the appellant's counsel had only read such application and was not
served a copy, he noted on the application that he had 'seen' it. On 06.12.2014 , learned counsel for
the appellant was shocked to be informed that a final order had already been passed in the
complaint, which had been allowed. It transpired that counsel for complainant-respondent No. 1
had purportedly moved the application for early hearing of the complaint on 14.11.2014 and the
complaint was heard by the District Forum on the very same day without notice of the application
being issued to the appellant. The District Forum had heard arguments by the complainant on the
complaint, had decided the complaint and even passed its order all on 14.11.2014. The complaint
was heard and decided on 14.11.2014 without presence or knowledge of the appellant. The appellant
was deprived of a right of fair hearing as the District Forum advanced the date of hearing of the
complaint from 01.12.2014 to 14.11.2014 without notice to the appellant. Learned counsel has
argued that the District Forum has failed to consider that the fixation or adoption of dual pricing for
the Diet Coke Cane for different consumers is not prohibited under law. It is well settled that there is
no prohibition on dual pricing of products. The appellant can fix different prices for the same
product for different consumers. The District Forum has failed to consider that the concept of dual
pricing has been judicially upheld and also legislatively recognized. The District Forum erred in law
in failing to consider that the provisions of the Legal Metrology Act, 2009 and the Legal Metrology
Rules, 2011 only required the appellant to declare the Maximum Retail Sale Price of the Diet Coke
Cane on the cane itself. Admittedly, the M.R.P. of Rs. 60/- was displayed on the Diet Coke Cane sold
at the mall. The District Forum further failed to consider that there is no law regulating the fixation
of the M.R.P. The appellant was free to fix M.R.P., the appellant has two broad categories of M.R.Ps.
that it uses for its products, one being for products sold as part of general trade and the other being
in relation to products sold in select channels, where higher M.R.Ps. are charged since such products
target different consumers. The complainant-respondent No. 1 purchased the product of his own
free will and enjoyed the comfort of the Mall. The District Forum has failed to appreciate that at the
time of purchasing the Diet Coke Cane for Rs. 60/- in the Mall, respondent No. 1- complainant was
fully aware that a similar product was available outside the mall for Rs. 30/- and yet consciously and
of his own volition purchased the Diet Coke Cane for Rs. 60/-. It is not the case of respondent No. 1
that he was compelled to purchase the Diet Coke Cane at the M.R.P. of Rs. 60/-. Further, the Diet
Coke Cane for Rs. 60/- was an offer for sale and there was no compulsion for the respondent No. 1
to buy the Cane. In such circumstances, the respondent No. 1 could not be permitted to complain
against the appellant for his own voluntary actions. In the present case, it is admitted that the Diet
Coke Cane was not sold above the M.R.P. In fact, in certain situations, courts have recognized that it
is even permissible to charge over and above the M.R.P. of a product. The District Forum ought to
have appreciated that respondent No. 1 had decided to purchase the Diet Coke Cane within the

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ambience and comfort of the mall, although a similar product was available at a road side shop for
half the price, which he was free to visit. The District Forum has failed to appreciate that the M.R.P.
did not amount to an unfair trade practice, rather a trade practice permitted by law. The complaint
filed by respondent No. 1 did not satisfy the definition of 'complaint' as defined in Section 2(1)(c) of
the Consumer Protection Act, 1986. The complaint does not fall within any definition of 'unfair trade
practice' under Section 2(r) of the Act. No unfair method or unfair or deceptive practice was used to
promote the sale of the Cane of Diet Coke. The District Forum exceeded its jurisdiction under
Section 14(1) of the Act by imposing the fine. Powers of the District Forum are limited by Section
14(1) of the Act and there is nothing in Section 14(1) which empowers the District Forum to direct
the deposit of the fine or penalty in the Forum. The District Forum cannot accept or receive funds
from the non-Government sources without the authority of law. The District Forum did not pass a
reasoned order and brushed aside the reply and written arguments filed by the appellant.

10. Learned counsel for the appellant-opposite party No. 1 in First Appeal No. 01 of 2015 has
submitted before this Commission that the District Forum erred in law and committed judicial
impropriety by advancing the date of hearing of the complaint from 01.12.2014 to 14.11.2014 and
decided the complaint behind the back of the appellant on 14.11.2014 itself. In the case of cold
drinks and beverages the manufacturers are free to fix the price of their products without any
interference by the Government or any other agency. It is not the case of respondent No.
1-complainant that M.R.P. mentioned on the Cane is Rs. 30/- and the same is being sold for Rs.
60/-. There is no law prohibited dual pricing of products. Dual fixation of price bases on reasonable
distinction between the different types of customers has met with the approval of the Courts. The
appellant had sold the Cane at the price printed on the Cane and no more. The District Forum has
failed to note that purchasing of a Diet Coke Cane from a grosser store and purchasing of a Diet
Coke Cane at a Cinema Hall / Mall involved payment of extra duties and liabilities towards the
Government, on account of which there is difference in the M.R.P. of the Diet Coke.

11. We have gone through the record of the District Forum, Haridwar. Date 13.11.2014 was fixed for
arguments and further on 13.11.2014, the case was listed for arguments on 01.12.2014. On
14.11.2014, an application was moved by the complainant-respondent No. 1 to expedite the matter.
Application was endorsed with remark "seen" by learned counsel for the opposite parties. No
objection was filed by the counsel for the opposite parties. It was directed by the Forum to argue the
case on 14.11.2014 itself. Thereafter, arguments were heard and fixed for judgment and later on, on
the same date judgment was delivered. Learned counsel for the appellants in both the appeals have
submitted before us that on 14.11.2014, learned counsel for the complainant-respondent No. 1 was
heard without notice of the application being issued to the appellants. The District Forum had heard
arguments of the respondent No. 1-complainant on complaint, had decided the complaint and even
passed its order, all on 14.11.2014. It is submitted that the complaint was heard and decided on
14.11.2014 without the presence or knowledge of the appellant. From the perusal of the order dated
14.11.2014 on the District Forum's record there is no specific and speaking order that the District
Forum had heard both the parties and decided the matter on the very same date. It creates suspicion
in the mind of this Commission.

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12. Learned counsel for the appellants in First Appeal No. 299 of 2014 and First Appeal No. 01 of
2015, have relied on the judgment of the Hon'ble Supreme Court in the case of Pallavi Refractories
vs. Sangarenni Collieries Company Limited (2005) 2 SCC 227 on the question of dual price. In the
said judgment, the Hon'ble Apex Court has held that there is no such law that a particular
commodity cannot have a dual fixation of price and that dual fixation of price based on reasonable
classification from different types of customers has met with approval from the courts. Learned
counsel for the appellants have also relied upon the judgment of the Hon'ble Supreme Court in State
of Punjab vs. Associated Hotels of India (1972) 1 SCC 472 and Northern India Caterers (India) Ltd.
vs. Lt. Governor of Delhi (1978) 4 SCC 36. In the said judgment, the Hon'ble Apex Court has held
that it was recognized that there is no sale when food and drink are supplied to guests residing in a
hotel or in a restaurant. The rational is that the customer is paying more than the price of the good
including the services provided, for instance, enjoying the ambience of the hotel or restaurant.
Learned counsel also relied upon the judgment of Hon'ble Delhi High Court in the case of
Federation of Hotels and Restaurants Association of India and Others vs. Union of India and others
139 (2007) DLT 7. In the said judgment, the Hon'ble Delhi High Court has held that charging prices
for mineral water in excess of the M.R.P. printed on the packaging during the service of customers
in hotels and restaurants does not violate any of the provisions of the Standards of Weights and
Measurement Act, 1976. In the case of Prabhudayal Keshwani vs. The Commissioner, Chattisgarh
Housing Board decided on 08.05.2014, the State Consumer Disputes Redressal Commission,
Chattisgarh has held that it is now a settled law that consumer fora cannot go into the question of
'pricing'. It also does not amount to consumer disputes as per law laid down by the Hon'ble National
Commission in earlier cases. Learned counsel also relied upon the judgment of Kerala State
Consumer Disputes Redressal Commission, Thiruvananthapuram in the case of The Secretary,
K.S.E.B. and Anr. vs. Yesu Adimanadar; 2009 (4) CPR 140. In the said case, the State Commission
has held that Consumer Forum could not interfere with the pricing. It is to be noted that Fora has no
jurisdiction to go into the question of pricing. Learned counsel also relied upon the judgment of
Maharashtra State Consumer Disputes Redressal Commission, Mumbai in the case of City and
Industrial Development Corporation Maharashtra Ltd. vs. Sunita Naganath Gadewar; 2009 (4) CPR
274. In this case the State Commission has held that Forum had no locus standi to direct the
opposite party to accept particular price. In First Appeal No. 1132 of 2009; Hindustan Coca-Cola
Beverages Private Limited vs. Consumer Guidance Society and Others, the State Consumer Disputes
Redressal Commission, Hyderabad has held that if the complaint does not relate to any defect of the
goods for deficiency in service the complaint will not lie and the Forum have no jurisdiction. If the
complaint does not relate to any of the defects in the goods supplied but relates to a breach of
contract of the sale of goods on the ground of failure to supply of full quality of goods agreed to be
supplied. It is a civil liability for which remedy is available elsewhere. In the absence of any
allegations of any defective goods or deficiency in service, it is not a consumer dispute at all.

13. Section 14(1) of the Consumer Protection Act, 1986 provides procedure for finding of the District
Forum, as defined as follows:-

Finding of the District Forum -- (1) If, after the proceeding conducted under Section
13, the District Forum is satisfied that the goods complained against suffer from any
of the defects specified in the complaint or that any of the allegations contained in the

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 Hindustan Coca-Cola Beverages ... vs Siddharth Manchanda And Others on 21 July, 2017

complaint about the services are proved, it shall issue an order to the opposite party
directing him to do one or more of the following things, namely:--

(a) to remove the defect pointed out by the appropriate laboratory from the goods in
question;

(b) to replace the goods with new goods of similar description which shall be free
from any defect;

(c) to return to the complainant the price, or, as the case may be, the charges paid by
the complainant;

(d) to pay such amount as may be awarded by it as compensation to the consumer for
any loss or injury suffered by the consumer due to the negligence of the opposite
party.

Provided that the District Forum shall have the power to grant punitive damages in
such circumstances as it deems fit;

(e) to remove the defects in goods or deficiencies in the services in question, etc. In the instant case,
the respondent No. 1-complainant has not come before the District Forum with a prayer about the
defects in product, i.e. Diet Coke Cane, therefore, in these circumstances, we are of the view that the
District Forum has no power to entertain such complaints, in which there was no question of defect
in goods or regarding services. The respondent No. 1 has failed to prove the allegations against the
opposite parties-appellants. The respondent No. 1-complainant has not placed any law or citation of
higher courts in support of his consumer complaint, whereas on the other side, the opposite
parties-appellants have relied on so many judgments of Hon'ble Apex Court, Delhi High Court as
well as other State Commission that there is no law that a particular commodity cannot have a dual
fixation of price. Citations relied upon by the appellants as stated above are fully applicable in the
instant case. Admittedly, respondent No. 1-complainant had purchased Diet Coke Cane at a printed
M.R.P. of Rs. 60/- at the counter of opposite party-Multiplex Cinevision Pvt. Ltd., an air conditioned
cinema, known as Wave Cinemas. No extra money was demanded or charged by the Multiplex
Cinevision Pvt. Ltd. from the respondent No. 1-complainant. The complainant was not bound to
purchase the Diet Coke Cane @ Rs. 60/- in the Wave Cinemas. The appellant-opposite party No. 1
has not sold the product at higher rate from the printed M.R.P. on Diet Coke Cane from the
respondent No. 1-complainant. Respondent No. 1 has not filed any replication against the pleadings
of the appellants regarding The Legal Metrology Act, 2009 and The Legal Metrology (Packaged
Commodities) Rules, 2011 regarding the declaration of M.R.P.

14. The District Forum has failed to consider that the fixation or adoption of dual pricing for the Diet
Coke Cane for different consumers is not prohibited under law and concept of dual pricing has been
judicially upheld and also legislatively recognized. The manufacturer is free to fix M.R.P. for its
products, one being for products sold as part of general trade and the other being in relation to
products sold in select channels, where higher M.R.Ps. are charged since such products target

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 Hindustan Coca-Cola Beverages ... vs Siddharth Manchanda And Others on 21 July, 2017

different consumers. Respondent No. 1 purchased the product of his own free will and enjoyed the
comfort of the Mall. It is not the case of respondent No. 1 that he was compelled to purchase the Diet
Coke Cane at the M.R.P. of Rs. 60/-. It was an offer for sale and there was no compulsion for the
respondent No. 1 to buy the Cane. The District Forum ought to have appreciated that respondent
No. 1 had decided to purchase the Diet Coke Cane within the ambience and comfort of the mall,
although a similar product was available at a road side shop for half the price, which he was free to
visit. The District Forum has failed to appreciate that M.R.P. did not amount to an unfair trade
practice, rather a trade practice permitted by law. In this way, we are of the view that the respondent
No. 1 has failed to prove that there was any deficiency of service or unfair trade practice on the part
of the appellants by charging Rs. 60/- on printed M.R.P. of Diet Coke Cane at Multiplex Cinevision
Pvt. Ltd. situated in The Pentagon Mall.

15. So far as the punitive damages imposed by the District Forum upon the appellant-Multiplex
Cinevision Pvt. Ltd. are concerned, as per Section 14(1)(d) of the Consumer Protection Act, 1986, a
consumer is entitled to an amount as compensation as to the actual loss or injury suffered by him
due to the negligence on the part of the opposite party, which should be reasonable. The object of
the Consumer Protection Act, 1986 is not to unjustly enrich the consumer and allow them to raise
whimsical and capricious claims. Normally punitive damages are awarded against a conscious
wrong doing unrelated to the actual loss suffered. Such a claim has to be pleaded, as has been held
by the Hon'ble Apex Court in the case of General Motors (India) Private Limited vs. Ashok Ramnik
Lal, Lal Tolat and another; AIR 2015 Supreme Court 562. In the present case, no averment has been
made in the consumer complaint to the effect that other consumers have also suffered loss. No such
prayer was made in the consumer complaint to award punitive damages. The District Forum has
awarded the punitive damages without assigning any reason and did not consider the fact that no
such averment has been made in the consumer complaint.

16. For the reasons aforesaid, the appeals are fit to be allowed and the order impugned passed by the
District Forum is liable to be set aside.

17. In view of the above, both the appeals are allowed. Impugned judgment and order dated
14.11.2014 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 115
of 2014 is dismissed. No order as to costs. Amount deposited by the appellant in First Appeal No.
299 of 2014 and amount deposited by the appellant in First Appeal No. 01 of 2015 be released in
their favour.

18. Let the copy of the order be kept on the record of First Appeal No. 01 of 2015.

(MRS. VEENA SHARMA) (D.K. TYAGI)

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