Haryana

Karnal

CC/475/2019

Raj Sukhan - Complainant(s)

Versus

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

Narinder Sukhan

10 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 475 of 2019

                                                          Date of instt.29.07.2019

                                                          Date of Decision 10.02.2020

 

Raj Sukhan wife of Shri Narinder Sukhan resident of SCF 10, Sukhan Market, Model Town, Karnal.

                                                 …….Complainant.

                                              Versus

 

Aditya Birla Fashion and Retail Limited, Pentaloons Division, 98-99, Kunjpura Road, near Civil Hospital Chowk, Karnal through its Manager.

 

                                                                        …..Opposite Party.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri N.K. Sukhan Advocate for complainant.

                   Shri Kuldeep Kumar Advocate for opposite party.

                                              

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant purchased certain items from the shop of the OP on 17.06.2019 amounting to Rs.1312/- and the bill of the same was paid against receipt no.P204006119003883. The OP put the above certain items in a carry bag which indicates the publicity of the shop of the OP and the OP charged Rs.7/- for the said carry bag against the receipt no.P204006119003885. The amount was paid by the complainant in cash but OP intentional mentioned name of Neeru daughter of the complainant. The OP has committed deficiency in service by charging Rs.7/- for the cost of the carry bag. Complainant suffered lot of mental agony, mental torture and humiliation due to deficiency in service on the part of the OP so the OP is liable to compensate the complainant.

2.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to maintainability and cause of action. On merits, it is pleaded that the complainant was asked prior to giving him delivery of the products bought, regarding purchase of paper bag and when she confirmed then the same was billed alongwith the items purchased thus the complainant has not approached this Forum with clean hands. 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 of the Forum for International Retail Association Executives (FIRAE) of NRF, United States of America. It is further pleaded that OP being a socially responsible corporate and knows its duty & responsibility that indiscriminate use of disposal plastic/paper carry bags is a burden on our environment and poses a substantial risk to our ecosystem. In order to contribute its bit towards sustainable development vis-à-vis environment impact and also in-line with the guidelines by Ministry of Forest & Environment, Government of India, 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 charge a nominal price towards it, which is intended to discourage such blatant use of disposable carry bags. It is submitted that the paper bags are purchased by the OP and such bags costs the OP. Thus, the OP charges for paper bag. However, it is pertinent to mentioned 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 no legal/statutory obligation on the OP to provide any bag to carry purchased items for free to its customers. It is further pleaded that the OP has paid GST (Gods and Service Tax) to the government on the sale of paper bag. It is further pleaded that no compulsion of any of the customers to buy the paper bag from the OP. The purchase of carry bag is an option given to the customers. The purchase of carry bag is a commercial transaction between the willing parties and under no contours of law a mutual transaction can be labeled as an unfair trade practice. 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. It is further pleaded that prior to concluding the sale cashier specifically asked the complainant whether she would prefer to buy the carry bag, which will cost them Rs.7/-, or she has her own carry bag to take the purchased items. It is further pleaded that carry bag was billed to the complainant only upon confirmation from the complainant with respect to the purchase of the paper bag. It is further denied that charging for carry bag is illegal and the complainant had not opted to purchase the same. It is further pleaded that carry bags provided in OP stores have two option:

1. The carry bags with name of “Pantaloons” printed on the same.

2. The carry bags without bearing brand name.

It is further pleaded that the name of brand are not printed for any advertisement purpose and printed merely for information purpose which indicates that the products are purchased from a particular brand. Hence 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 and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence her affidavit Ex.C1 and documents Ex.C2 to Ex.C4 and closed the evidence on 19.12.2020.

4.             On the other hand, OP has made a statement that his written version be read as his evidence.

5.             We have heard the learned counsel for both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

6.             The case of the complainant, in brief, is that she purchased certain items from the shop of the OP on 17.06.2019 amounting to Rs.1312/- and the bill of the same was paid against receipt no.P204006119003883. The OP put the above certain items in a carry bag which indicates the publicity of the shop of the OP and the OP charged Rs.7/- for the said carry bag against the receipt no.P204006119003885.The OP has committed deficiency in service by charging Rs.7/- for the cost of the carry bag.

7.             On the other hand, the case of the OP, in brief, is that complaint is totally frivolous and complaint has been filed to challenge the charging of Rs.7/- for a carry bag. The said charges were taken only after the consent of the complainant.

8.             Admittedly, complainant purchased certain items on 17.06.2019 amounting to Rs.1312/-, vide bill Ex.C2 and Ex.C3. OP has also charged Rs.7/- for a carry bag vide bill Ex.C4. 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.

9.             Learned counsel for OP 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) of the Consumer Protection Act, 1986. 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.  It was further 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?

10.            Further, it was next argued that by learned counsel for the OP 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 are free to carry the goods so purchased in their own carry bag or in any manner that suits him best. It is further argued that on the amount collected through the sale of carry bags, the OP pays the requisite taxes to Government. Learned counsel of the OP relied upon the judgment of Hon’ble Competition Commission of India case no.05 of 2015 case titled as Shri Kamble Sayabanna Kallappa versus M/s Lifestyle International Private Ltd. and in writ petition no.274 of 2012 with writ petition no.244 of 2012 decided on 14.11.2014 case titled as Consumer Education and Research Society Versus Municipal Commissioner of Hon’ble High Court of Gujarat at Ahmedabad.

11.            Pre-contra, the learned counsel for the complainant argued that Rule 15 of Plastic Waste (Management and Handling) Rules, 2016 on which, reliance has been placed by the opposite party, has already been omitted vide Notification dated 27.03.2018. 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 opposite party can be brought in their own carry bags or they are allowed to bring their own carry bags inside the showroom. Learned counsel for complainant relied upon the judgment of Hon’ble State Commission in case titled as My Lifestyle International Pvt. Versus Pankaj Chandgothia on 18 March, 2019 in appeal no.24 of 2019, decided on 18.03.2019.

12.            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) of Consumer Protection Act, the complainant has purchased goods including the carry bag from the opposite party against consideration paid and as such, the complainant is undoubtedly consumers under section 2(1)(d) of the Act and the opposite party 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.

13.            Reliance placed by the OP on rule 10 of the Plastic Waste (Management and Handling) Rules, 2011 and Rule 15 of Plastic Waste (Management and Handling) Rules, 2016. As per Rule 10 of the Plastic Waste (Management and Handling) Rule 2011, no carry bags were to be made available free of cost by retailers to consumers but thereafter, 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 was omitted vide subsequent notification dated 27.03.2018 and as such, the opposite party cannot take shelter of the said rule. Since, the mandate for retailers to charge for plastic carry bags has been omitted in March 2018, therefore, the contention of OP that it could charge for carry bags is totally against law and has no legs to stand.

14.            In view of the facts and circumstances of the present case, authorities relied upon by the complainant are applicable whereas the judgments relied upon by the OP are not applicable.

15.            We are of the considered view that charging for carry bags is totally against consumerism. It is nowhere mentioned in the plea of opposite party that it has displayed either in the shop premises or at the entry gate that the customers can bring their own carry bags to carry the goods purchased. 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 premises like of the OP to buy some goods, he/she is not allowed entering the said shop premises with any carry bag by their security guard (s). Furthermore, the carry bag Ex.C1 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 as a brand ambassador. Thus, we are of the considered view that the charging for the carry bag by the OP amounts to deficiency in service and unfair trade practice.

16.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to refund Rs.7/- being wrongly charged for the carry bag to the complainant. We further direct the OP to pay Rs.10,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.3300/- for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. It is made clear that 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:10.02.2020

                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

       

                (Vineet Kaushik)          (Dr. Rekha Chaudhary)

                    Member                         Member