Haryana

Karnal

CC/640/2019

Mukesh - Complainant(s)

Versus

Aditya Birla Fashion ANd Retail Limited - Opp.Party(s)

Sarita Saini

23 Feb 2022

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 640 of 2019

                                                        Date of instt.19.09.2019

                                                        Date of Decision:23.02.2022

 

Mukesh son of Shri Jai Singh resident of House no.275, Sector-6, Urban Estate, Karnal.

                                               …….Complainant.

                                              Versus

 

Aditya Birla Fashion and Retail Limited, Pantaloons Division, 98-99, Kunjpura Road, Civil Hospital, Karnal, through its Manager/partner.

 

                                                                      …..Opposite Party.

 

Complaint Under Section 12 of the Consumer Protection Act, 1986 and after amendment Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

              Dr. Rekha Chaudhary…Member

 

 Argued by: Ms. Sarita Saini, counsel for complainant.

Shri Kuldeep Kumar, counsel for opposite party.

 

                    (Jaswant Singh President)

ORDER:  

 

                    The complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant was in need of some clothes/dresses and complainant saw advertisement of OP. As per advertisements by OP, the branded clothes of OP company were shown of best quality and under the influence of the same, complainant visited the showroom of OP at Kunjpura Road, Karnal and purchased some clothes on 05.07.2019, vide receipt no.P204006119004947 on payment of Rs.976.94 and the payment was made by the wife of complainant from account no.358502010047932 of Union Bank of India. At the time of billing, the person over the cash/billing counter asked the complainant as to whether shopping bag to carry the said purchases clothes is required or not by the complainant. As the complainant was in need of same because, it was difficult and impossible for the complainant to carry the goods in his hands and complainant requested the OP to provide a bag free of costs to carry the purchased goods/clothes. But the person over the cash/billing counter refused to give the bag free of costs and asked the complainant to purchase a bag against payment. Under the compelling circumstances, complainant purchased the shopping bag on payment of Rs.5/-. The complainant was shocked to know that the bag supplied by the OP was printed with the logo of the OP company i.e. Pantaloon. Complainant objected to the said illegal act of the OP that if the OP company is charging for the bag, then how can they supply a bag containing their advertisement. The person over the counter showed his incapability to answer the genuine question of complainant and told that it is the policy of our company and he cannot help in this regard. In this way there was deficiency in service and unfair trade practice on the part of the OP by not providing the carry bag. Hence complainant filed the present complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that complainant was asked prior to giving him delivery of the products bought, regarding purchase of paper bag and when he confirmed then the same was billed alongwith the items purchased. It is further pleaded that the charge of carry bags is in accordance with the notification and guidelines framed by “Retailers Association of India (RAI)”. Retailers Association of India is an Indian retail trade association and it represents the rights of Indian retailers. RAI has been awarded membership to the Forum for International Retail Association Executives (FIRAE) of NRF, Unites States of America. It is further pleaded that OP encourages its customers to bring in their own carry bags while shopping with it. In cases, where the customer still wishes to buy a disposable carry bag, OP charge a nominal price towards it, which is intended to discourage such blatant use of disposable carry bags. It is further pleaded that buying such bag is purely discretion of customer and the cashier of the OP obtains the consent of each customer who buys bag. It is further pleaded that OP has paid GST to the government on the sale of paper bag. It is further pleaded that a nominal amount is charged for the carry bag and there is no compulsion to buy the same. There is no mandate in any law to provide customer carry bags free of cost. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant tendered into evidence his affidavit Ex.CW1/A, Union Bank receipt Ex.C1, bill of Aditya Birla Fashion Ltd. Ex.C2, photocopy of carry bag Ex.C3 and closed the evidence on 12.01.2021 by suffering separate statement.

5.             On the other hand, learned counsel for OP suffered a separate statement to the effect that written version filed by the OP be read as evidence of the OP.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that complainant purchased some clothes from the showroom of OP on 05.07.2019 and the bill of the same was paid against the receipt no.P204006119004947. The OP put the product purchased by the complainant in a carry bag which indicate publicity of the store of the OP and OP charged Rs.5/- for the said carry bag. He also argued that it is nowhere displayed in the shop premises of OP, either at the entry gate or in the showroom that the customers can carry their own bags so that the goods purchased from the OP can be brought in their own carry bags or they are allowed to bring their own carry bags inside the showroom. The OP has committed deficiency in service by charging Rs.5/- for the cost of the carry bag.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that an amount of Rs.5/- has been charged only after the consent of the complainant. Learned counsel for OP argued that charge of the carry bags in accordance with the notification and guidelines framed by ‘Retailers Association of India (RAI)’, Retailers Association of India is an Indian retail trade association and it represents the rights of Indian retailers. RAI has been awarded membership to the Forum for International Retail Association Executives (FIRAE) of NRF, United States of America. Further, OP being a socially responsible corporate and knows its duty & responsibility that indiscriminate use of disposable plastic/paper carry bags is a burden on our environment and poses a substantial risk to our ecosystem. He further argued that OP encourage its customers to bring in their own carry bags while shopping with it. In cases, where the customer still wishes to buy a disposable carry bag, OP charges a nominal price towards it, which is intended to discourage such blatant use of disposable carry bags. He further argued that the OP is a retail store and as such it does not fall within the purview of the “service” as contemplated in Section 2(1)(o) (now 2(42) of the Consumer Protection Act. He further argued that as per the Rule 10 of the Plastic Waste (Management and Handling) rules, 2011 under the heading “Explicit Pricing of carry bags, no Carry Bag shall be made available free of cost by retailers to consumers and the concerned Municipal Authority shall determine the minimum price for carry bags depending upon their quality and size, which covers their material and waste management costs in order to encourage their re-use so as to minimize plastic waste generation.  He argued that  as per rule 15 of the Plastic Waste (Management and Handling) Rules 2016, published vide notification dated 18.03.2016, issued by Ministry of Environments and Forests, retailers have been specifically barred from making plastic bags available to customers free of cost and it is mandatory for retailers to charge for plastic carry bags

9.             He further argued that it is not obligated to provide a carry bag free of cost to the complainant to carry the goods purchased. There is no such legal obligation on the OP and the complainant is free to carry the goods so purchased in his own carry bag or in any manner that suits him best. He further argued that on the amount collected through the sale of carry bags, the OP pays the requisite taxes to Government.

10.           Admittedly, complainant purchased clothes on 05.07.2019 from OP, vide bill Ex.C2. OP has also charged Rs.5/- for the carry bag. As per the version of complainant, OP has no right to charge the amount for carry bag and the said carry bag was purchased by the complainant under compelling circumstances.

10.           As regards the first submission that the OP being a retail store does not fall within the purview of ‘service’ as contemplated in section 2(1)(o) (now 2(42) of Consumer Protection Act, the complainant has purchased goods including the carry bag from the OP against consideration paid and as such, the complainant is undoubtedly consumer under section 2(1)(d) (now 2(7) of the Act and the OP is a service provider and very much covered under the aforesaid definition of ‘service.’ The submission raised by the learned counsel for the OP stands rejected being untenable.

11.           The another plea taken by the OP is that as per rule 10 of the Plastic Waste (Management and Handling) Rules, 2011, and Rule 15 of Plastic Waste (Management and Handling) Rules, 2016,  no carry bags were to be made available free of cost by retailers to customers. In this regard, we are of the considered opinion that in the year 2016, the aforesaid Rules were amended vide notification dated 18.03.2016 to be read as Plastic Waste (Management and Handling) Rules, 2016. As per Rule 15 of Plastic Waste (Management and Handling) Rules, 2016 the mandate for retailers to charge for plastic carry bags has been omitted vide subsequent notification dated 27.03.2018 and as such, the opposite party cannot take shelter of the said rule. Thus, the contention of OP that it could charge for carry bags is totally against law and has no legs to stand.

12.           In view of the above, we are of the considered view that charging for carry bags is totally against consumerism. We have seen now-a-days that it has become the general practice prevalent in the market that if a person who goes to the shop/shopping mall like of the OP to buy some goods, he/she is not allowed to enter in the said shop/shopping mall with any carry bag by their security guard (s). Furthermore, the carry bag Ex.C3 shows that it bears the logo as well as name of the OP and no print rate is mentioned on it. Hence, the customer who is buying the same, in fact publicizing the brand of the OP and thereby becomes a brand ambassador. Thus, we are of the considered view that charging for the carry bag by the OP amounts to deficiency in service and unfair trade practice.

13.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to refund Rs.5/- to the complainant being wrongly charged for the carry bag. We further direct the OP to pay Rs.3,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. It is made clear that if the abovesaid amount is not paid by the OP within stipulated period then this amount will carry interest @ 9% per annum from the date of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 23.02.2022

 

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)   

                     Member                     Member