Date of Filing: 01.07.2019

                                                                     Date of Order: 11.08.2021

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION – I, HYDERABAD

P r e s e n t­

   HON’BLE Smt. P. Kasthuri B.Com, L.L.M., PRESIDENT(FAC)

HON’BLE Sri  K.RAM MOHAN, B.Sc. M.A L.L.B.,   MEMBER

On this the Tuesday the 10^th  day of August, 2021

C.C.No. 301 of 2019

Between       

Vijay Gopal, S/o Raghavan,

Aged about 31 years,

R/o: 12-13-1085/72, 3^rd floor,

St # 11, Shirdi Sai Nagar,

Tarnaka, Secunderabad – 500017.

Mobile No. 9052882988

          ….Complainant

And

1. Paradise Restaurant,(Secunderabad Branch)

          Rep. by the Manager,

SD Road, Sappu Bagh Apartment, Jogani,

Ramgopalpet, Secunderabad,

Telangana  500003

Mobile No. 08977011117.

2. The Municipal Administration

& Urban Development of Telangana,

Rep. by the Principal Secretary (Arvind Kumar IAS),

640, AC Guards, Masab Tank, Opp PTI Building,

Hyderabad – 500 004. Phone No. 040-2330 2150.

3. Directorate of Enforcement, Vigilance &

Disaster Management , GHMC,

Rep. by Vishwajit Kampati, IPS (Director –Enforcement GHMC)

CC Complex Tank Bund Road, Lower Tank Bund, Hyderabad

500063, Phone No. 040-23225397.

 … Opposite Parties No.1 to 3

Counsel for the Complainant                   : Party-In-Person

Counsel for the Opposite parties No.1    : M/s Vamaraju Sri Krishnudu

Counsel for the Opposite party No.2        : Party-In-Person

Counsel for the Opposite party No.3        : P.H. Pannagasai

                                                       O R D E R

(By Smt. P. Kasthuri B.Com, L.L.M., PRESIDENT(FAC)on behalf of the Bench)

1.            The present complaint is filed under Section 12  of Consumer Protection Act, 1986 for deficiency in service to direct to the opposite parties ;

1. to direct the OP no.1 to immediately stop charging for carry bags as they cannot do so without license and cannot sell bags in deviation with the norms and do not charge for plastic bags until they have a license to do so.
2. to term such “Packing Charges” as illegal and Unfair Trade Practice by anyone within Hyderabad District and implead all retailers/vendors/shopkeepers/aggregators in the case and direct to stop such practice immediately
3. to direct the OP no. 1 that taking even a paisa more than the bill amount leads to illegality and unfair trade practice.
4. To direct the OP No.2 to take steps to stop such “Unfair Trade Practice” in Hyderabad District and submit a compliance report to the Hon’ble Forum.
5. To Direct the OP No.2 to make sure citizens in Hyderabad District have a complaint/grievance cell to report such violations with a facility of docket number; so the complaints can be tracked by the petitioners and resolve the grievances in a stipulated timeline.
6. To direct the OP no.3 to make sure that the laws are enforced duly about the availability of the plastic bags and no one is making the bags available without license from the OP no.2 and act against all the vendors/shops/traders in the Hyderabad District immediately.
7. To levy significant financial penalty u/s 14 (1) (h) (hb) of at least 10 lacs or more on the Hospital Management for as they have been resorting to this “Unfair Trade Practice” and generated millions of rupees in revenue wasting time of the patrons and the same be submitted in the Consumer Legal Aid Account.
8. To compensate for the legal expenses i am incurring due to this case up to 5000/-.
9. To compensate me with appropriate sum of 25,000/- for the mental trauma and harassment the management has caused me as they resorted to their exploitation tactics while i was simply there to buy food.
10. To pass any such order as this Forum deems fit in the given circumstances of the case.

2.    The case of the complainant in brief:-

          Complainant submitted that on 15^th April 2019 (Monday) around 9:25 p.m. he visited the opposite party No.1/Paradise Restaurant, Secunderabad Branch to purchased the food (Take away) and the Bill No.is 0000T0006001107611. The total bill amount is Rs.244.99/- and the Restaurant has charged an amount of Rs.4.76/- for the plastic carry bag which has the Restaurant’s logo. The cost of the biryani which was purchased by the complainant was Rs.228.57/- and charges for plastic carry bag was Rs. 4.76/- and the total bill amount was Rs.233.33/-, the restaurant added 2.5% of CST and SST with which the total bill was Rs. 244.99/-.

The complainant further submitted that the restaurant decided to round off the figure of the bill to the next rupee in the chronological order and made him to pay 245/- INR for the purchase. This is illegal to charge consumers for more than what the ideal bill amount was.

The complainant submitted that the restaurant is required to have separate license from the “Secretary” of the Urban Development under G.O.Ms.No.79 of 2016 issued by the Telangana State Government dated  30^th December 2016; to make the plastic bag available and then only collect extra charges for the bag which also needs to be plain.

The complainant submitted that the restaurant does not have any such license, yet he continued to sell the plastic bags by calling it (Non-Woven Carry Bags) trying to hide the fact that the bag is made up of plastic only. The cover also carries the logo of the restaurant, making the consumers pay for the marketing of their logo which is illegal (under the said G.O.) and also amounts to “Unfair Trade Practice”.

The opposite party no. 2 is the licensing authority for the retailers & street vendors to provide license to all; and also to enforce the usage of the plastic within the Hyderabad District; yet the opposite party no.2 is evidently failing in implanting the laws and also not provided any grievance cell or helpline for the consumers to report their grievances. Grievance Redressal is a basic consumer right under the Consumer Protection Act 1986 of India.

Thousands of restaurants, retailers, shopkeepers, etc are resorting to this Unfair Trade Practice and charging the consumers for the plastic bags they provide without any license and that to the bags which carry their logo on them. Even papers bags are being charges extra up to 10/- INR as the consumers are unaware of the laws. The extra charge for Plain Plastic Bags were imposed by the Government of India (Environment Ministry) in order to discourage the use of plastic. The retailers/restaurant owners have started misusing this guideline and started charging for paper bags also which is clear violation of the consumer rights.

Due to the high amounts of focus the “Extra payment of Plastic Bags” is garnering lately, the OP no.1 has resorted to new way of committing this unfair trade practice of charging extra for the bags by calling it “Packing Charges” which is illegal. A complaint was made to the office of the Commissioner of GHMC on 23^rd  Jan 2019  which  the  office  received  on 25the Jan 2019 through registered

 post against OP no. 1which in-turn should have been forwarded to the office of the OP No.3 to enforce and act up on, yet it has been ignored so far for 6 months straight. Hence the complaint.

3.    Version of Opposite party No.1 in brief:-

The opposite party No.1 submitted that they are required to spend amount for packing of the food items like Biryani, Salads, Raitha (Curd), gravy etc.,,and who ever bring their own utensils and carry bag, they will not charge any amount for the same, and whoever comes without their own utensils and bag, the opposite party  No.1 informs the customer upfront  that they will charge separately for packing/carry bag and after taking  their specific consent, they charge nominal amounts for the same and they will not earn any profit out of the packing material. Further there is no compulsion to take carry bag from them after purchasing the food items. It is at the time of billing, they will specifically ask the customer whether they brought their utensils or any packing material for carrying food or do they require to take a carry bag. By asking so, the same is chargeable.

Opposite party No.1 also submitted that the packing material and the carry bags supplied by them are as per the standards fixed by the Government, and are re-useable. They also submitted that they had been providing direct and indirect employment and also contributing for the economic growth of the country and if they do not charge for the packing material / carry bags, they had to increase prices of the product as they have not included the cost of packing material / carry bag in the price fixed by them. Further if the charges are not levied, it becomes a burden on them and ultimately it effects their business growth directly and affects the economic growth of country indirectly. They also submitted that they are supplying   the packing material / carry bags for the convenience of its customers, who go to them without carrying their own utensils / bags and are charging for the carry bags with the sole intention to encourage the customers to bring their own utensils or carry bag. In the present case also the complainant was given prior intimation that they would be charging for the packing and for the carry bags and have not insisted or forced the complainant to buy the carry bag and the complainant has voluntarily paid Rs 4.76/- paisa towards packing charges / carry bag for his own convenience. 

Opposite party No.1 further submitted that the complainant has not issued them  with  any  notice  before  filing  the present case for refund of the amount of

Rs. 4.76/- Paisa and without any such notice, he directly approached this Commission by claiming huge amounts. The purpose of purchase made by the complainant from the opposite party No.1 itself was  for filling the present complaint and also stated that the complainant was trying to get unjust enrichment by making false allegation against them. Opposite party No.1 also submitted that they obtained all the necessary licences from the concerned authorities and there was no need for them to obtain any licence from opposite party No.2 as alleged by the complainant. They also submitted that no licence was required to be obtained by them as they were not selling the carry bags separately and was only providing the same to the customers who voluntarily agree for the packing / carry bag charges.  The opposite party No.1 also submitted that there was no prohibition for printing the logo of their Restaurant, particularly when they are not charging any amount for printing of its logo. The printing of logo is only for the purpose to identify the bag and will not get any customer from carry bag advertisement. Hence they stated that there was no unfair trade practice or much less any deficiency in service on their part in rendering its services to its customers or to the complainant, as such the opposite party No.1 prayed to dismiss the complaint against them.

4.   Version of Opposite party No. 3 in brief:-

          The opposite party No.3 filed their counter stating that on reading of the complaint as a whole it does not show that the complainant is a “Consumer” within the meaning of Sec.2(d)(ii) of the Consumer Protection Act, as the complainant  has not stated anywhere in the complaint that the complainant has hired or availed of any services from them for a consideration. The contention of the complainant against the opposite party No.3 that they have been collecting taxes from them for providing basic amenities and to maintain hygiene etc., for which  they are consumers and the payment of taxes to Municipal Corporation for development and maintenance cannot be taken as consideration and does not fall within the  meaning of Sec(1)(d)(ii) of the Act and the amounts spent by the municipal corporation from out of the taxes collected by it cannot be taken as service within the meaning of Sec 2(1)(o) of the Act. Therefore in view of the above discussion the complainant is not entitled to any relief and the complaint is not maintainable either in law or in facts.

          The opposite party No.3 also submitted that the complainant has failed to issue the mandatory notice to them U/s 685 of GHMC Act 1955 before filing case / complaint against them which is a statutory authority on this ground alone, the complaint is liable to be dismissed. 

 The opposite party also submitted that as per clause No. 9 of GOMS No. 79 dt. 30.12.2016. The Paradise Restaurant (Secunderabad Branch) and other shop keepers and vendors shall either provide the carry bags to the customers without costs, duly printing the information as mentioned in clause 9 of GOMS No.79 or display a sign board stating “Customers shall carry their own bags”  preferably made of jute or cotton to discourage the plastic bags. The Enforcement Officers at field level are imposing penalties on single use plastic bag. Recently, Paradise Food Court, Secunderabad was levied with fine of Rs. 1,00,000/- for violation of PWM rule and other sanitation issues on 17.10.2019. In this regard along with other sanitation related violations. The opposite party No.3 also submitted that the GHMC has developed “MY GHMC” app to register and address the grievances of the citizens for the service provided by the GHMC under this app grievance can be registered under various sections such as citizens can call the helpline No. 040-21111111 to address the grievance which may not be covered under “MY GHMC” app.

          The opposite party No.3 GHMC further submitted that they are keeping a close watch on the usage of plastic bags and is following and implementing the provisions of GOMS No.79 dt. 30.12.2016 issued by the Environment, Forests, Science and Technology (For III) Department with respective Plastic Waste (Management and Handling) rules, 2016 issued under Environment Protection Act, 1986 and Ban on manufacture stock, sale and use of plastic carry bags less than 50 microns in thickness and in implementation of conditions of manufacture, importer stocking , distribution, sale and use of carry bags , plastic sheet or like, or cover made of plastic sheet and multi-layer packing , Plastic Waste and Management etc., As such, the opposite party No.3 submitted that the complainant herein has unnecessarily made them as a party to the present complaint and though there was no Consumer disputes or  no cause of action against them as such they prayed to dismiss the complainant against them.

5.            In the course of enquiry, the complainant has filed Evidence Affidavit reiterating the material facts of the complaint and got marked Exhibits Ex.A1 to A5. The opposite parties also filed their evidence affidavit  on their behalf.  Written arguments are filed by both parties. Heard both parties.

6.            On the consideration of the material brought on record, the
 following points have emerged for consideration.

1. Whether there is any deficiency in service on the part of the opposite party?
2. Whether the complainant is entitled for the relief claimed for?
3. If so, to what relief.?

7.  Point No. 1 and 2:

Before we go for disposing of the present case, it is pertinent here to discuss about the prevailing law on the subject.

          As per rule 10 of the Plastic Waste (Management and Handling) Rules 2011 :-

10.    Explicit   printing of carry bags:-

No carry bags shall be made available free of costs by retailers to Customers. The concerned Municipal Authorities may by notification determine the minimum price for carry bags depending upon the quantity & size which covers their material and Waste Management costs in order to encourage their re-use so as to maximize Plastic Waste generation.

          According to Sec. 3(b) “carry bags” means all plastic bags used to carry commodities including self-carrying features.

As per the above said rule, the Consumers shall not be provided with any carry bags free of costs i.e, every carry bag made available to customers should be charged.

          The said rule was imposed to induce retailers to shift to the new standards and discourage Consumers from using plastic bags, encourage to bring their own bags and also finance Plastic Waste Management of Civic bodies.

          Later in 2016, the Government of India has notified the Plastic Waste Management Rules 2016 in suppression of the earlier Plastic Waste Management and Handling Rules 2011 since, it is observed that the Municipal authorities had not fixed the cost of carry bags and the rules were silent on the mode of transfer of money collected by retailer (from Consumers) to the Municipal authorities.

 Rule 15 of Plastic Waste (Management and Handling) Rules 2016 is as follows:-

15.    Explicit pricing of carry bags : -

 The shopkeepers and street vendors willing to provide plastic carry bags for dispensing any commodity shall register with local body. The local body shall, within a period of six months from the date of final publication of these rules in the Official Gazette of India, by notification or an order under their appropriate state statute or byelaws shall make provisions for such registration on payment of plastic waste management fee of minimum rupees forty eight thousand @ rupees four thousand per month. The concerned local body may prescribe higher plastic waste management fee, depending upon the sale capacity. The registered shop keepers shall display at prominent place that plastic carry bags are given on payment.

          As per the above rule, Plastic carry bag will be available only with the shopkeeper/street vendors pre-registered with local bodies on payment of certain registration fee. The amount collected as registration fee by local bodies is to be used for Waste Management.

          Again in the year 2018 on March 27, the Ministry of Environment, Forest and climate change has notified the Plastic Waste Management (amendment) rules 2018 in which rule 15 of Plastic Waste Management (amendment)  Rules 2018 on explicit pricing of (carry bags) has been omitted.

          As per the rules in 2018, the Government has now dropped the rule 15 and Consumers need not pay for the carry bags. So those retailers who shifted to non-plastic carry bags had no legal basis for asking Consumers to pay for

          Ex.A1 dt. 15.04.2019, is the bill issued by opposite parties. The total amount charged under the bill is 244.99/-. The details of the amount charged are as follows:-

The cost of Mutton Biryani was Rs. 228.57/-Paisa  Rs. 4.76/- paisa was charged towards the cost of carry bag and added 2.5% towards CST and SST  bringing the total of the bill to Rs. 244.99/- paisa.

It is the minimum responsibility on the part of opposite party No.1 having offered the facility of take away to customers shall provide food in a respectable manner by way of proper packing using carry bags and not charge for the same.

          In the present case, the complainant was charged with a sum of Rs. 4.76/- paisa for the carry bag. Such leving of charges towards the carry bag was against the Plastic Waste (Management and Handling) Rules 2018. As per the said rules, the collection of charges towards the carry bag was omitted meaning to say that no carry bag whether made of plastic or any other material supplied to the Consumers shall  be charged.

          There was no prior intimation of such charges to be collected by way of display at any conspicuous place of the opposite party’s Restaurant, so that the Consumer visiting the opposite party’s Restaurant are made aware of such condition. The complainant / consumer having visited the Opposite party’s Restaurant and having waited for sufficient time to take the ordered food has no other way except to pay for the carry bag as he cannot take all the food items without a carry bag.  It is not proper on the part of the opposite party stating that the Consumers have to get their utensils for carrying food from them. Opposite party No.1 has not stated anywhere in its pleadings that it has already advertised or given prior  intimation stating that one has to bring their own utensils for taking their ordered food from them. The plea taken by opposite party No.1 that the customers are asked to bring their utensils for carrying food from them is lowering the decency and dignity of the customers and was not worthy listening such words. The opposite party No.1 also categorically admitted that they have charged for the carry bag which had the logo of the Restaurant and from July onwards, they stopped printing the logo on the carry bags. From the said admission, it is crystal clear that the opposite parties have sold the carry bags with the logo of their Restaurant advertising about their Restaurant and giving information about their Restaurant situated at various parts in the country.  On thorough perusal of the photograph of the carry bag under Ex.A3 which is not disputed by the opposite party No.1 contains not only the advertisement of the Restaurant of Opposite Party No.1, but it also contains advertisement of another product by name Davath Rice.

          Moreover, the opposite party No.1 has nowhere in its counter mentioned that they have displayed at the prominent place in their Restaurant that the carry bags are given on payment. Even the opposite party No.3 in their counter has though mentioned that they have inspected the Restaurant and imposed a sum of Rs. 1.lakh as fine for violation of many rules. It has not mentioned that opposite party No.1 has displayed about the charges to be levied for the plastic carry bags.

Hence, basing on the aforesaid discussion, we strongly feel that the act of opposite parties in forcing the consumers to pay additionally for the carry bags is surely and certainly amounts to deficiency in service and further the selling of the carry bags with the printed logo of their Restaurant and using the complainant and other customers as a tool for advertising their names constitutes unfair trade practice.    

Further, the complainant has made several prayers in the present complaint. Undoubtedly, as per the Plastic Waste (Management and Handling) Rules 2016, the opposite party No.2 and 3 have to enforce/implement the rules made thereunder, but a general direction cannot be issued as this Commission cannot go beyond the jurisdiction of Consumer Protection Act. Point No.1 & 2 are answered accordingly in favour of the complainant and against the opposite party No.1.       

Point No.3:-

In the result, the complaint is allowed in part and direct the opposite party No.1;

1. To stop charging for the carry bags and provide free carry bags to all the customers forthwith who come to them ordering for food and take away.
2. To refund to the complainant a sum of Rs. 4.76/- paisa wrongly collected for the carry bag.
3. To deposit a sum of Rs. 50,000/- towards the Consumer Welfare Fund as penalty for the violation of rules under Plastic Waste (Management and Handling) rules, 2016 & 2018 and submit the receipt before this Commission.
4.  To pay a sum of Rs. 3,000/- towards compensation for the mental agony and trauma suffered by the complainant.
5. To pay a sum of Rs. 1,000/- towards costs of litigation.

Time for compliance: 40 days 

In case of noncompliance of the order within the stipulated time, the opposite party No.1 shall pay interest @ 12% p.a on Rs. 50,000/- and 3,000/- from the date of complaint till the date of realization.

Dictated to steno, transcribed and typed by him, pronounced by us on this 11^th the  day of  August, 2021.

MEMBER                                                                              PRESIDENT

APPENDIX OF EVIDENCE

WITNESS EXAMINED

    Exhibits filed on behalf of the Complainant:

1. Ex.A1–  Copy of  Bill dt. 15.04.2019.
2. Ex.A2 –  Copy of  GO MS No. 79, 30.12.2016 Government of Telangana for regulation of plastic bags  dt. 30.12.2016.
3. Ex.A3 -   Copy of photographs showing the plastic cover
4. Ex.A4 – Copy of Notification dt.21.04.2017
5. Ex.A5 – Copy of complainant filed at TCIC dt. 27.05.2019

    Exhibits  filed on behalf of the Opposite parties:

     Nil-                                           

    MEMBER                                                                    PRESIDENT