Delhi

North

CC/109/2023

SACHI AGGARWAL - Complainant(s)

Versus

BATA INDIA LTD - Opp.Party(s)

30 May 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

CONSUMER COMPLAINT NO.: 109/2023

In the matter of

Sachi Aggarwal

D/o Mr. Ajay Kumar Aggarwal

R/o E-5, 3rd Floor

Guru Nanak Road, Adarsh Nagar

Delhi-110033                                                                   …       Complainant

 

Versus

Bata India Limited

Having its registered office at

27b, Carmac Street, 1st Floor

Kolkata, West Bengal-700016

 

Also at:

Shop No. 24F, Block F

Kohlapur Road

Kamla Nagar,

Delhi-110007                                                                   …       Opposite Party

 

ORDER

30/05/2023

Present: Ms Priti Agarwal, Ld. Advocate for the Complainant

 

Divya Jyoti Jaipuriar, President

On the last date of hearing, we have heard the arguments on behalf of Complainant on the admissibility of this complaint. On our direction, the Complainant has also filed the paper carry bag in original in this commission.

2. Briefly stated, main grievance of the Complainant is that the M/s Bata India Limted (OP herein), which is having its outlet at Kamla Nagar, Delhi, has charged a sum of Rs. 6/- for the paper carry bag after the Complainant purchased shoes from the store as she was not carrying his own carry bag. Charging for the paper carry bag by outlet of OP, according to the Complainant, is unfair trade practice and the Complainant has claimed relief for such practice.

3. In support of his complaint, the Complainant has stated in the complaint that not providing free carry bag to carry purchased items to the complainant by outlet of OP is unfair trade practice as defined in section 2 (47) of the Consumer Protection Act, 2019 (hereinafter CPA, 2019). According to the Complainant, charging inflated amount and not providing any alternative to carry goods purchased from the store is in violation intrinsic part of customer satisfaction enshrined under the provisions of the Consumer Protection Act. It is also argued that the charging for the carry bag is the “deceptive trade practice” which is covered in section 2 (47) of the CPA, 2019. Section 2 (11) of the CPA, 2019 reads as under:

“2.Definitions. In this Act, unless the context otherwise requires,—

(47) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:—

(i) making any statement, whether orally or in writing or by visible representation including by means of electronic record, which—

(a) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

(b) falsely represents that the services are of a particular standard, quality or grade;

(c) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;

(d) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;

(e) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;

(f) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

(g) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof: Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;

(h) makes to the public a representation in a form that purports to be—

(A) a warranty or guarantee of a product or of any goods or services; or

(B) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result,

if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;

(i) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;

(j) gives false or misleading facts disparaging the goods, services or trade of another person.

Explanation.—For the purposes of this sub-clause, a statement that is,—

(A) expressed on an article offered or displayed for sale, or on its wrapper or container; or

(B) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or

(C) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;

(ii) permitting the publication of any advertisement, whether in any newspaper or otherwise, including by way of electronic record, for the sale or supply at a bargain price of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.

Explanation.—For the purpose of this sub-clause, "bargain price" means,—

(A) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise; or

(B) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;

(iii) permitting—

(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged, in the transaction as a whole;

(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest, except such contest, lottery, game of chance or skill as may be prescribed;
(c) withholding from the participants of any scheme offering gifts, prizes or other items free of charge on its closure, the information about final results of the scheme.

Explanation.—For the purpose of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time published, prominently in the same newspaper in which the scheme was originally advertised;

(iv) permitting the sale or supply of goods intended to be used, or are of a kind likely to be used by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by the competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;

(v) permitting the hoarding or destruction of goods, or refusal to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services;

(vi) manufacturing of spurious goods or offering such goods for sale or adopting deceptive practices in the provision of services;

(vii) not issuing bill or cash memo or receipt for the goods sold or services rendered in such manner as may be prescribed;

(viii) refusing, after selling goods or rendering services, to take back or withdraw defective goods or to withdraw or discontinue deficient services and to refund the consideration thereof, if paid, within the period stipulated in the bill or cash memo or receipt or in the absence of such stipulation, within a period of thirty days;

(ix) disclosing to other person any personal information given in confidence by the consumer unless such disclosure is made in accordance with the provisions of any law for the time being in force. ”

4. In the complaint, the Complainant has quoted only a part of the said provision, which is underlined here. But for the convenience, we have quoted the entire provision. This provision, by far, is the most extensive definition of any term as defined in CPA, 2019. Use of the words “including any of the practices” in the opening paragraph of the section 2 (47), makes the definition an inclusive one which expands the scope of the said provision from the ordinary, natural and popular meaning of the term “unfair trade practice”. The word “including” in this definition is very important. Hon’ble Supreme Court, while explaining the term “including” in the matter of Ramanlal Bhailal Patel v. State of Gujarat, (2008) 5 SCC 449 held as under:

“23. … Where the definition is an inclusive definition, the use of the word “includes” indicates an intention to enlarge the meaning of the word used in the statute. Consequently, the word must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. Thus, where a definition uses the word “includes”, as contrasted from “means”, the word defined not only bears its ordinary, popular and natural meaning, but in addition also bears the extended statutory meaning (see S.K. Gupta v. K.P. Jain [(1979) 3 SCC 54 : AIR 1979 SC 734] following Dilworth v. Commr. of Stamps [1899 AC 99 : (1895-99) All ER Rep Ext 1576 : 79 LT 473] and Jobbins v. Middlesex Country Council [(1949) 1 KB 142 : (1948) 2 All ER 610 (CA)]).”

5. The definition of “unfair trade practice” in Section 2 (47) refers to such trade practices which are used “for the purpose of promoting the sale”. Charging a price for the carry bag is not one of such practice as included in the definition. Rather had the OP offered a free carry bag, but the cost of the came would have been included in price of the product being sold, such a practice would have been a clear case of unfair trade practice. In the case in hand, the OP is selling carry bag as a separate product and has never advertised/ offered the carry bag as free commodity while addition the charged for such carry bag in the price of the commodity. Hence, we are not in agreement with the Complainant that charging for the carry bag just because giving carry bag for free for carrying the goods so purchased forms intrinsic form of customer satisfaction. The customer satisfaction is a relative term and the same cannot be demanded as a right.

6. Further, even the argument that charging for carry bag is “deficiency of service” as defined in section 2 (11) of the CPA, is not a valid argument. Section 2 (11) CPA reads as under:

“2.Definitions. In this Act, unless the context otherwise requires,—

(11) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes—

(i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and

(ii) deliberate withholding of relevant information by such person to the consumer”

7. There are two tests in this provision to decide deficiency by the service provider- first that the service provider is not performing as required by or under the provisions of any law in force, and second, failure to perform in compliance of agreed terms of contract. Deficiency also includes negligence or omissions or commissions that cause loss or injury to the consumer; and deliberate withholding of information from the consumer.

8. In the case in hand, charging for the paper carry bag is neither prohibited under any law and nor does it fall within the parameter of non-adherence of agreed terms of contract between the service provider and consumer. It is not the case of the Complainant that the price of the paper carry bag was neither printed nor displayed anywhere at the store. As a matter of fact, the paper carry bag has a printed Maximum Retail Price (MRP) on it which is seen at the bottom of the carry bag which has been annexed as an annexure with the complaint. Once the price is printed on the paper carry bag, it becomes an independent item to be sold at the store.

9. The Complainant has also alleged that the OPs are charging for the paper carry bag, but the same should be provided free of cost. The Complainant has not explained that under which law, the OPs are supposed to provide carry bags free of cost. There is no law that requires the shopkeepers to provide carry bags for free. The carry bag in question has been sold as a separate item at a price printed on it. In India, manufacturers and sellers are required to print the Maximum Retail Price (MRP) which should also include all taxes. Unfortunately, there is no law that governs the upper limit of the price that can be fixed as MRP, and the manufacturers/ retailers are permitted to print any amount as MRP. Under the relevant laws, the seller cannot charge any amount higher than the MRP and the printed MRP can also not be altered. In the case in hand, the MRP of the carry bag is printed which is not altered. The OP-1 store has charged for the Paper Carry Bag at MRP. Complainant has also not challenged the fixing of MRP and has only alleged that such carry bag must be given free of cost, without giving any legal requirement in support of his claim/ allegations. It is also not the case of the Complainant that OP is charging the price higher than the printed MRP. In such a situation, we cannot accept the allegation of the Complainant that charging for the paper carry bag by the OPs is deficiency of service.

10. In the order passed by Hon’ble National Commission in the matter of Big Bazaar vs Sahil Dawal (NCDRC, RP No. 975/2020, Decided on 22/12/2020) (also in the matter of Big Bazar vs Ashok Kumar, as referred by the Complainant in the complaint), by which Hon’ble National Commission has upheld the orders passed by the District Forum-II, U.T. Chandigarh has observed, inter alia, as under:

“13. … The consumer has the right to know, before he exercises his choice to patronize a particular retail outlet, and before he makes his selection of goods for purchase, that additional cost will be charged for carry bags, and also the right to know the salient specifications and price of the carry bags. Prominent prior notice and information has necessarily to be there (inter alia at the entrance to the retail outlet also), to enable the consumer to make his choice of whether or not to patronize the concerned outlet, and the consumer has necessarily to be informed of the additional cost for carry bags and of their salient specifications and price before he makes his selection of the goods for purchase.

…

It may be noted that carry bags, sold at a particular price to the consumer, are in themselves 'goods', and, as such, are themselves, too, within the ambit of the statute for "better protection of the interests of consumers". It cannot be that the said goods (i.e. the carry bags) are imposed on the consumer, without disclosing their salient specifications, at the price fixed by the Opposite Party Co., without prior notice or information that (additional) cost will be charged for them.

…

In the instant case, arbitrarily and highhandedly deviating from its past practice, deviating from the normal, not giving adequate prominent prior notice or information to the consumer before he makes his choice of patronizing the retail outlet, and before he makes his selection for purchase, imposing additional cost of carry bags at the time of making payment, after the selection has been made, forcing carry bags without disclosing their salient specifications at price as fixed by the Opposite Party Co., putting the consumer to embarrassment and harassment, burdening the consumer with additional cost, in such way and manner, is decidedly unfair and deceptive.

14. As a matter of Consumer Rights, the consumer has the right to know that there will be an additional cost for carry bags (the same being a deviation from the normal wont in retail outlets in general), and also to know the salient specifications and price of the carry bags, before he exercises his choice of patronizing a particular retail outlet and before he makes his selection of goods for purchase from the said retail outlet.

15. The Opposite Party Co. through its Chief Executive is ordered under Section 39(1)(g) of the Act 2019 [corresponding Section 14(1)(f) of the Act 1986] to forthwith discontinue its unfair trade practice of arbitrarily and highhandedly imposing additional cost of carry bags on the consumer at the time of making payment, without prominent prior notice and information before the consumer makes his choice of patronizing its retail outlets and before the consumer makes his selection of goods for purchase, as also without disclosing the salient specifications and price of the carry bags. The necessary notice / signs / announcement / advertisement / warning should be in the place and manner as may enable the consumer to make his informed choice of whether or not to patronize its retail outlets, and whether or not to make his selection of goods for purchase from its retail outlets. The notice or information cannot be at the occasion of making payment, after the consumer has exercised his choice to patronize its retail outlet, and after he has made his selection of goods for purchase.”

11. In the Big Bazaar case (supra), Hon’ble National Commission has held that that carry bag is covered under the definition of the “good” as defined in section 2 (21) of the CPA 2019. Hon’ble National Commission also held that the store cannot charge for carry bag without prominent prior notice and information before the consumer makes his choice of patronizing its retail outlets and before the consumer makes his selection of goods for purchase, as also without disclosing the salient specifications and price of the carry bags. In the case in hand, it is not the case of the Complainant that the store did not have any notice at prominent places in the store before the Complainant decided to make selection for his goods to be purchased. Further the paper carry bag that has been filed by the Complainant clearly indicates that all required and relevant specifications are well placed along with the MRP so displayed at the carry bag. The specifications as available at the bottom side of the paper carry bag, as printed, are as under:

9

12. The above declaration as available on the paper carry bag indicates, apart from the MRP, the bar code, Article number, Name of the product i.e. Carry Bag- Plain, details of the manufacturer and date of manufacturing and contact details for consumer complaints. All these information are relevant as mandated in the judgment passed by Hon’ble National Commission in Big Bazaar case (supra).

13. Further, we would like to refer to section 2 (21) of the CPA, 2019 which defines “goods” in following terms:

“2.Definitions. In this Act, unless the context otherwise requires,—

(21) "goods" means every kind of movable property and includes "food" as defined in clause (j) of sub-section (1) of section 3 of the Food Safety and Standards Act, 2006;”

14. The definition of the term “goods” is very wide and it covers all movable property in its ambit. The paper carry bag is also a movable property and is also covered under this definition. Further, every good is required to have its price printed on it and it is the right of the consumer to know the price of every good. In this context, the definition of term “consumer rights” as in section 2 (9) of the CPA, 2019 needs to be reproduced, which is as under:

“2.Definitions. In this Act, unless the context otherwise requires,—

(9) "consumer rights" includes,—

(i) the right to be protected against the marketing of goods, products or services which are hazardous to life and property;

(ii) the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices;

(iii) the right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices;

(iv) the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate fora;

(v) the right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and

(vi) the right to consumer awareness;” (underlining by us)

15. The definition of term “consumer rights” clearly indicates that the consumer has a right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices. All the cases before Hon’ble National Commission including the Big Bazaar case (supra) are cases originally filed under Consumer Protection Act, 1986 which did not specifically recognise any of these consumer rights which are part of section 2 (9) of the CPA, 2019. Further, the required and relevant specifications and the MRP as printed on back of the paper bag of the OP-2 Company is in complete recognition of consumer rights as available in section 2 (9) of the CPA, 2019.

16. At this stage, we also see that the Complainant has sought the compensation of Rs. 50,000/- on account of harassment, mental pain and agony and Rs. 25,000/- as litigation charges. The Complainant has not filed any document to show that he has incurred any cost for filing this complaint. She has also not justified his litigation expenses by filing any payment receipts for her payments to any of his lawyers, if any. For harassment, mental pain and agony, except for the argument that the said amount is payable on account of charging of additional price for paper carry bag, there is no other specific averments or proof of exact injury or harm inflicted upon the Complainant. The allegation of harm and mental agony is very vague and not specific. It is a settled law that the Complainant filed under CPA 2019, is meant for saving consumer from being exploited and it is not meant for windfall or making purchaser millionaire overnight. CPA, 2019 is a welfare registration and is not meant to be a tool to wrong gains. The compensation sought by the Complainant is dis-appropriately high and the Complainant has not given any proper justification for the same. In our opinion, prayer for high compensation and cost without proper justification by the Complainant herein is not correct and is to be discouraged. For this, reliance is placed on the judgment of Hon'ble National Commission in the matter of Dr. Uttam Kumar Samanta vs. Vodafone East Limited [FA 847/2017 decided on 05.10.2018]. However, considering young age of the Complainant, who is said to be a student, we are refraining from passing any adverse order on this aspect against the Complainant.

17. For the reasons explained above, we do not find any merit in the case. Hence the complaint is dismissed being devoid of merit.

18. Before parting, we would like to stress upon use of paper/ cloth carry bags and need to develop the habit of carrying own carry bag for shopping. For a very long time, shopkeepers and vendors used to deliver purchased items in plastic carry bags which were single-use and very thin. These single use thin carry bags have impacted our environment very badly and still doing so. In order to achieve the goals of sustainable development and also to hand over mother earth to our future generation in a better condition, it is important to inculcate habits which are environment friendly and less polluting. One such step to achieve such goal is to minimise use of shopping bags provided by the shopkeepers/ sellers/ vendors and replace these with cloth bags of our own, which can be used multiple times and has longer shelf life. Plastic bags and even paper bags are not very environmental friendly. Plastic bags cause pollution and littering and paper bags require cutting of trees for making papers.

19. Keeping in view the adverse impacts of littered plastic on both terrestrial and aquatic ecosystems, Government of India has prohibited identified single use plastic items which have low utility and high littering potential. In the 4^th United Nations Environment Assembly (UNEA-4) held in 2019, India had piloted a resolution on addressing single-use plastic products pollution, recognising the urgent need for the global community to focus on this very important issue. The adoption of this resolution at UNEA-4 was a significant step. The Government has also been taking measures for awareness generation towards elimination of single use plastics, adoption of ways to curb plastic pollution, promoting plastic waste management and many other measures for making mother earth a better place. Every one of us should take part in such an effort in our own way. Carrying our own cloth bags for shopping is one such small contribution that one can make.

20. Office is directed to supply the copy of this order to the parties as per rules. Office is also directed to return all original documents filed by the Complainant, if any, after keeping certified copies of the same in the record. Thereafter, file be consigned to the record room.

21. Ordered accordingly.

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

___________________________

Harpreet Kaur Charya, Member