Tamil Nadu

StateCommission

A/128/2015

Auchan-Max Hypermarket India Pvt. Ltd., The Manager - Complainant(s)

Versus

C.R. Shanmugavadivel - Opp.Party(s)

J.M. Dharma

09 Mar 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

            Tmt. Dr. S.M.LATHA MAHESWARI  ... MEMBER

 

F.A. No.128 of 2015

(Against the Order, dated 18.12.2014, passed in CC No.26/14,

on the file of  the DCDRF, Coimbatore)

                                                    

                               Orders pronounced on:   09.03.2022

            

The Manager,

Auchan – Max Hyper Market

     India Pvt. Ltd.,

Brookfields Estates Pvt. Ltd.,

67-71, Krishnasamy Road,

Coimabtore.                           … Appellant / Opp. Party

 

vs.

 

C.R.Shanmugavadivel,

S/o.C.M.Ramachandran,

No.3-B, S.S. Garden,

Subramaniyampalayam,

G.N. Mills Road,

Coimbatore.                                  … Respondent/Complainant

 

             Counsel for Appellant      : J.M.Dharamasanjeevi

             Counsel for Respondent     : K.S. Kaviarasu

 

          This First Appeal came up for final hearing on 23.02.2022 and, after hearing the arguments and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

R.Subbiah, J. – President.

               The appellant herein/Supermarket challenges the Order, dated 18.12.2014, passed by the District Consumer Disputes Redressal Forum, Coimbatore, in C.C. No.26 of 2014, whereby, the District Forum allowed the complaint filed by the complainant/respondent herein by holding that charging of Rs.5/- extra for the carry-bags is a deficiency in service, and ultimately, directed the Supermarket to return Rs.5/- that was charged for the carry-bags and to pay Rs.8,000/- as compensation to the complainant/respondent herein.

 

          2. The case of the complainant/respondent herein before the District Forum, in brief, is that, on 16.11.2013, he went for shopping to the Opposite Party/Supermarket, where customers are not allowed to carry any bag of their own inside the Market, since the belongings brought by the customers are received at the entrance-counter itself; that although he purchased 5 items for a sum of Rs.734.31, he was charged Rs.739, that is Rs.5 extra towards 2 plastic carry-bags; that, when he asked the Cashier for the said extra charging towards the carry-bags without prior permission/information of the customer, it was responded that it was their regular practice to bill for carry-bags that can be used by the customers to carry the purchased items and that, once the items are billed, the same cannot be cancelled; that it is the duty of the seller to give proper packaging to carry the goods purchased; that the Supermarket is unlawfully collecting charges for selling their carry bags which practice goes against the green city principles of the government; that no information is made available in the vicinity of the Supermarket to the effect that the customers would be charged for plastic carry-bags; that the conduct of the Supermarket in voluntarily billing for plastic carry-bags from the customers amounts to Unfair Trade Practice; that, as a result, the complainant suffered mental agony; and that, despite his legal notice, dated 23.11.2013 that was received by the Supermarket on 25.11.2013, neither they refunded the extra charges nor replied to the notice, hence, the complaint.

 

         3. In brief, it is the defence of the  Opposite Party/Supermarket in the version filed before the District Forum that their action in  insisting upon the customers, before entering the Store, to deposit their belongings with the Baggage Counter and retrieve it once they complete their shopping/billing, is purely meant for safety/security reasons as well as to avoid shrinkage in the store; that the Cashier at the counter always informs the customers that plastic carry-bags are issued on chargeable basis only and enquires the customers as to whether they require the same and then only, he bills the charges for the carry-bag depending upon its size;  that billing of Rs.2 and Rs.3 respectively for a small and medium size plastic carry bag in the present instance was done only after the concurrence of the complainant, who insisted to provide the said carry bags; that, if the complainant had brought his own bag, then, he could have taken the purchased items in the said bag, hence, the averments made by him are false and an after-thought; that, having insisted for plastic carry bags on cost basis, the complainant is neither entitled for any refund of the cost paid towards the same nor he can seek for a response from the Supermarket to his legal notice, dated 23.11.2013; that the said billing for plastic carry-bags is in strict compliance with the Notification, dated 04.02.2011, of the Ministry of Environment and Forest (in short MEF), New Delhi, and also, as per the direction of the Coimbatore City Municipal Corporation, whereby, plastic carry-bags cannot be distributed by the Supermarket free of cost to any customer/consumer; that compliance with such rules and regulations of the Government by the Supermarket cannot be construed as deficiency in service or unfair trade practice so as to base a claim for compensation towards alleged mental agony; and that the complaint, being a clear abuse of process of law, the same may have to be dismissed in limini.

 

              4. Before the District Forum, both sides filed their respective proof affidavits and while, on the side of the complainant, 4 documents were marked as Exs.A1 to A4, the OP marked 7 documents as Exs.B1 to B7.  By the impugned order, dated 18.12.2014, the District Forum allowed the complaint, as mentioned supra, and aggrieved thereby, the Supermarket has come up with the present First Appeal.

 

              5. Learned counsel for the appellant, at the outset, by stating that the Supermarket is carrying on its business as per the prevailing law of the land, would submit that, as per the strict instructions issued in the MEF Notification, dated 04.02.2011, they were prohibited from giving plastic carry-bags to the customers “free of cost” and, having acted in line therewith, at no stretch of imagination, it can be alleged that their action either amounts to any unfair trade practice or deficiency in service.  It is next submitted that the respondent never informed the Cashier before billing that he had brought his own bag with him and, having made a voluntary demand for providing plastic carry-bags,  his act in subsequently agitating over the billing made for the carry-bags shows that he lacks bona fides and that he has not come to the forum with clean hands.  Further, before shopping,  if the respondent had informed the Security or the person concerned at the entrance counter about availability of the bag brought by him, they would have made specific arrangements in such a way that the bag brought by him could be pinned or closed so that no other item could be added till billing.  According to the learned counsel, inasmuch as the billing for carry-bags came to be made only after the voluntary demand of the respondent to provide the same and further, the reason for not providing plastic carry-bags free-of-cost is due to strict adherence to the Government Notification as stated supra,  it cannot be said that the appellant has indulged in any unfair trade practice or has committed any deficiency in service, that too, on the basis of the self-projected and baseless claim of the complainant that he brought his own bag, however, was not permitted to use the same.  That being so, the District Forum, in a quite strange manner, has generously given evidentiary value to the baseless claim of the complainant for erroneously allowing the complaint and for ordering compensation; as such, the impugned order warrants absolute interference by this Commission, he pleaded.

 

             6. Though there is no representation for the respondent/complainant, his stand, as could be seen from the available materials, is that the extra charges collected for the carry-bags coupled with the action of the Supermarket in not allowing him to carry his own bag inside the shopping area not only amounted to unfair trade practice but also deficiency in service.  After noticing that extra charges were collected for the plastic carry-bags, the respondent requested the Supermarket for return of those charges by stating that he could be allowed to use the bag brought by him, however, he was slapped with an answer that once the items are billed, there is no question of return or refund.  Such attitude on the part of the appellant once again clearly exhibits unfair trade practice and deficiency in service.  All those relevant aspects having been considered rightly by the District Forum, there is no scope for interference with the impugned order.

 

             7.  In the light of the claim and counter-claim between the parties, the only issue that requires our consideration is as to whether the appellant is said to have indulged in unfair trade practice so as to attribute any deficiency in service to them over their action in charging Rs.5 extra without informing the respondent/customer towards purchase of two plastic carry bags, so as to either sustain or set aside the impugned order under challenge?

            

        8. As could be inferred from the complaint, in particular at the inception of para No.5 thereof, it is the grievance of the respondent that the appellant failed to give proper packaging to carry the purchased goods.   Having regard to such grievance, the appellant has only two choices, either to provide the plastic carry-bags free of cost, which cannot be done, in view of  the MEF Notification, dated 04.02.2011, which provides under clause-10 thus,

      “No carry bags shall be made available free of cost by retailers to consumers.  The concerned municipal authority may by notification 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 ….”,

or to provide any alternate, about which, it is the stand of the appellant that they explicitly notified in the vicinity of the Supermarket itself to the effect that customers are encouraged to carry their own shopping bags or else to avail use of their bio-degradable bags that would be charged as per the notified rates.  In between these two options, to find out as to how the respondent came to be aggrieved, we looked into the averments made in the complaint, wherein, at para No.3, the respondent would claim that though the actual billing was made for Rs.734.31 against 5 items, after payment through debit card, he came to know that he was charged a higher sum viz., Rs.739/- and that the additional sum of Rs.5/- charged extra was against two more items/plastic carry bags purchased by him.   In other words, although the  billing for Rs.734.31/- covered only five items, without his knowledge or permission, two more items/plastic carry bags came to be covered for charging Rs.5/- extra and as such, debit was made for a higher sum of Rs.739/- than the actual bill amount of Rs.734.31.  Since all other consequential grievances of the respondent for ultimately alleging deficiency in service/unfair trade practice on the part of the appellant arise from this transaction, it is absolutely necessary to find out the actuality involved therein.   In this regard, we have perused Ex.A1 relevant Bill marked by none else than the respondent herein/complainant, which clearly shows that no such billing for a sum of Rs.734.31 as claimed by him was ever done, rather, it was only for Rs.739/-, which again, not for 5 items as claimed by the respondent, but, for 7 items including 2 plastic carry bags/medium and small size.   Other relevant piece of material viz., Ex.B2 bank debit statement, also does not suggest any break up figure for Rs.734.31 and Rs.5/- so as to lend credence to the first claim, for, it also reflects a single total sum of Rs.739/-. This would go to show that, at the time of making payment through debit card, the respondent was conscious of the fact that the bill amount was Rs.739/- and that he was going to pay the said amount towards purchase of 7 items in total, that included the 2 carry-bags in question. As such, the claim projected by the respondent in the complaint that the actual bill amount being Rs.734.31, before making payment for the said sum of Rs.734.31 through debit card, the charges for the carry-bags were added without the consent/information of the respondent, thus, the appellant has indulged in unfair trade practice, does not merit consideration at all.   At the risk of repetition, we add that a conjoint perusal of both these exhibits clearly show that the respondent was well aware of the fact that the billing done in his presence was for 7 items and not for 5 items, as claimed by him and similarly, there was no separate/subsequent charging for the carry-bags, since the single bill was for a total sum of Rs.739/- and not for Rs.734.31.  Even otherwise, if the petitioner was really aggrieved by the extra charging in the bill towards 2 plastic carry bags, nothing prevented him from withholding payment by not swiping the debit card whatsoever, since the single bill visibly covered the carry bags also. As such, both the above documents cast serious doubts about the very genesis of the respondent/complainant’s claim, thereby, the consequential grievances projected by him for alleging unfair trade practice and deficiency in service against the appellant are rendered absolutely insignificant, particularly when the action of the appellant in charging for plastic carry-bags is absolutely justified, as it is in due compliance with the MEF Notification, as mentioned above.  Further, the stand taken by the appellant that they clearly notified/advertised in the vicinity of the Supermarket to the effect that customers are encouraged to carry their own shopping bags and also, there is an option for the customers to avail use of bio-degradable bags on payment of applicable charges and their specific stand that the respondent never intimated at the Baggage Point about the bag brought by him, cannot be simply brushed aside.  We also find substance in the ground taken by the appellant that the District Forum erroneously held that the Supermarket, in the written version filed, admitted the case of the complainant/respondent that the employee in the supermarket denied the request of the respondent/complainant to use his own bag.  Since the written version does not contain any such admission, we have no hesitation to hold that the impugned order is based on erroneous factual findings and as such, it is liable to be interfered with.

 

             9. In the result, the Appeal stands allowed, by setting aside the impugned order, dated 18.12.2014, passed by the DCDRF, Coimbatore, in C.C.No.26 of 2014.

 

S.M.LATHA MAHESWARI                             R.SUBBIAH, J.

MEMBER                                                      PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/Mar/2022.