Chandigarh

StateCommission

A/87/2020

Reliance Retail Ltd. - Complainant(s)

Versus

Diksha Goel - Opp.Party(s)

Sanjiv Pabbi & Rajat Pabbi Adv.

11 May 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION

U.T., CHANDIGARH

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Appeal No.	:	87 of 2020
Date of Institution	:	24.06.2020
Date of Decision	:	11.05.2021

 

 

Reliance Retail Limited, Elante Mall, Plot No.178, Shop No.247 & 248, Industrial Area, Phase-I, U.T. Chandigarh, having its office at C-135, Phase VIII, Industrial Area Mohali, Punjab – 160071, through its Power of Attorney Holder Himanshu Shekhar Jha, aged 55 years, son of Late Dr. M.P. Jha.

……Appellant/Opposite Party

V e r s u s

 

 

Diksha Goel, Resident of House No.478, Sector 8, Panchkula, Haryana. 

 

 

…..Respondent/complainant

 

(Appeal arising out of order dated 12.05.2020 passed by District Commission-II, U.T., Chandigarh)

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   MRS. PADMA PANDEY, MEMBER

                   MR. RAJESH K. ARYA, MEMBER

 

Present:      Sh. Sanjiv Pabbi, Advocate for the Appellant.

Sh. Devinder Kumar, Advocate for the Respondent.

 

PER  RAJESH  K.  ARYA, MEMBER

1.                This appeal has been filed by Opposite Party (Reliance Retail Limited) against order dated 12.05.2020 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (now District Commission-II), vide which, Consumer Complaint bearing no. 639 of 2019 filed by Respondent/ Complainant (Diksha Goel) was allowed against opposite party (Appellant herein) in the following manner:-

“7.    In view of the above discussions, the complaint deserves to be allowed against the Opposite Party, and the same is accordingly allowed qua it. The Opposite Party is directed: -

i.         to refund Rs.5/- i.e. price of the paper carry bag to the Complainant.

ii.        to pay Rs.1,000/- to the Complainant towards compensation for harassment and mental agony. Compensation imposed on lower side as mental agony of parting with the price of the carry bag could only be caused to this extent.

iii.       to pay Rs.2,100/-  as litigation expenses.

iv.       By way of punitive damages, to deposit Rs.5,000/- in the “Consumer Legal Aid Account” No. 32892854721, maintained with the State Bank of India, Sector 7-C, Madhya Marg, Chandigarh in the name of Secretary, Hon’ble State Commission, U.T. Chandigarh.

8.        This order shall be complied with by the Opposite Party within one month from the date of receipt of its certified copy, failing which, it shall be liable to pay the amount at Sr. No.(i) to (iii) to the Complainant along with interest @9% p.a. from the date of the order, till its realization.  The amount mentioned at Sr. No.(iv) be deposited in the account aforesaid, within one month from the date of receipt of its certified copy, failing which the same will also carry interest @9% p.a. from the date of this order till its deposit. A copy of this order be also sent to the Secretary (SCDRC), U.T. Chandigarh, for necessary action.”

2.                Aggrieved against the aforesaid order passed by the District Forum-II  (now District Commission), the instant appeal has been filed by the Appellant/Opposite Party.

3.                We have heard the contesting parties and carefully gone through the material available on the record, including the written arguments.

4.                Counsel for the appellant contended with vehemence that the amount towards the carry bags was rightly charged from the respondents, keeping in mind the provisions of Rule 10 of the Plastic Waste (Management and Handling) Rules, 2011, which says that no carry bags shall be provided free of costs by retailers to the consumers. He further submitted that the appellant has stopped using plastic carry bags for the sake of saving the environment; that the appellant is now purchasing cloth bags and its cost is being passed over to the customers; and that the respondent herself chose to purchase the said carry bags from the appellant. He further submitted that the impugned order passed by the District Commission allowing the consumer complaint is not sustainable in the eyes of law and the same is liable to be set aside and that the complaint deserves dismissal.

5.                On the other hand, Ld. Counsel for the Respondent contended that the carry bag has been given for the purpose of packing of the purchased articles without the asking or demand of the respondent; and that the appellant has no right to charge for the carry bags. According to the respondent, the order passed by the District Commission is fully legal and are liable to be upheld.

6.                This Commission has considered the rival contentions and meticulously gone through the material available on the record.

7.                It is significant to mention here that a similar question, as to whether, the appellant/vendor can charge for the carry-bags in order to put the articles purchased by the consumers, in order to bring them in the complete deliverable state, so that its physical possession could be handed over to the consumers or not, fell for determination before this Commission in First Appeal No.238 of 2019 titled as Big Bazaar (Future Retail Ltd.) Vs. Ashok Kumar (18 connected appeals), decided on 18.05.2020, to which the answer was given in the negative while holding as under:-

“11.   It may be stated here that it is well settled law that each seller is obliged to deliver the goods in the complete state of delivery. The delivery of goods means physically handing over the goods from buyer to seller in a complete deliverable state. The goods can be delivered straight, when these are fully packed as per the nature and environment affecting the goods. The packing of goods is also a state in putting the goods in the deliverable state. If you want to buy biscuits or bread, those should not be given in open and rather should be packed in such a manner, to save them from external atmosphere. All kinds of expenses incurred in order to putting goods into a deliverable state shall be suffered by the seller. 

12.    Our above view is supported by the provisions of Sub Section (5) of Section 36 of The Sale of Goods Act, 1930 which makes it absolutely clear that unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state, shall be borne by the seller. Thus, under this provision of law, all the expenses with regard to packing, providing carry bags etc. shall be borne by the vendor in order to put the goods into a deliverable state.

                   In the present cases also, the goods with different brands name i.e. macroni pep, dettol, oreo; cop urad etc., were put in the carry-bags by the appellant, in order to bring it in the complete deliverable state, so that its physical possession could be handed over to the respondents. The appellant has failed to prove its case that the carry-bag was separately purchased by the respondents/purchasers of their own free will, rather, the appellant has used the same for the purpose of putting the above said goods to make them into a deliverable state. Thus, all the expenses required and incurred to make the goods into a deliverable state for handing over to the purchasers thereof, were to be borne by the appellant. In this view of the matter, the appellant has no right to recover the expenses borne by it on the packing of the goods or putting the goods in a carry bag for making the same in a deliverable state.

13.    At the time of arguments, when confronted with the above situation, Counsel for the appellant with a view to buttress her cases, placed heavy reliance on provisions of Rule 10 of the Plastic Waste (Management and Handling) Rules, 2011, to contend that the appellant was not bound to provide carry bags, free of cost, to the respondents. Relevant part of the said Rule is reproduced hereunder:-

“10 Explicit pricing of carry bags. - 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.”

                   No doubt, from Rule 10 afore-extracted, it is evident that no “carry bags” shall be available free of cost by the retailers to customers, yet, when we go through Rule 3 of the said Rules, under the heading “Definition”, it is found that the said "carry bags" means bags made from any plastic material, used for the purpose of carrying or dispensing commodities but do not include bags that constitute or form an integral part of the packaging in which goods are sealed prior to use. Relevant part of the said Rule reads as under:-

"carry bags" means bags made from any plastic material, used for the purpose of carrying or dispensing commodities but do not include bags that constitute or form an integral part of the packaging in which goods are sealed prior to use;]”

                   When we read the said Plastic Waste (Management and Handling) Rules, 2011, as a whole, it reveals that the said Rules have been framed with a view to enforce the provisions relating to the use, collection, segregation, transportation and disposal of plastic waste and also the conditions to be fulfilled during the course of manufacture, stocking, distribution, sale and use of carry bags and sachets, in order to save the environment. Thus, Rule 10 relates to explicit pricing of carry bags, made from any plastic material, used for the purpose of carrying or dispensing commodities, to encourage their re-use so as to minimize plastic waste generation, to save the environment. Whereas, in the present cases, as stated above, the appellant failed to deliver the goods in the complete state of delivery and on the other hand, charged for the carry bags made of jute, which was required to put the goods i.e. macroni pep, dettol, oreo; cop urad etc., in order to bring it in the complete deliverable state, so that its physical possession could be handed over to the respondents; thereby violating the provisions of Sub Section (5) of Section 36 of The Sale of Goods Act, 1930, referred to above, which says that  all the expenses with regard to packing etc. shall be borne by the vendor in order to put the goods into a deliverable state. No help, therefore, can be drawn by the appellant from the provisions of Rule 10 of the Rules 2011.

14.    It was also vehemently contended by Counsel for the appellant that the purchase of carry bag is entirely optional and is a voluntary act by a consumer. However, in the same breath, it was also contended by her that the customers cannot bring their own carry bags containing items/goods purchased from other shops.

                   It may be stated here that, once we have already held that all kinds of expenses incurred in order to put goods into a deliverable state shall be suffered by the seller, as such, the contention raised does not merit acceptance. Ever otherwise, as per the contention raised by Counsel for the appellant, on the one hand, purchase of carry bags is made optional & voluntary but at the same time, the consumer/customer is not allowed to enter the shop with their own carry bags containing some goods purchased from other shop premises. We cannot expect that for every single item/article intended to be purchased by a customer, he/she needs to carry separate carry bags. For e.g. if a customer wants to purchase, say about 15 in number, daily-use goods/articles like macroni pep, dettol, oreo; cop urad, soap, toothpaste, shaving cream, pen, pencil etc., from different shops, we cannot expect him/her to take 15 carry bags from home, for the same. Thus, by not allowing the customers to carry their own carry bags by the appellant in its premises, there was no option left with them to buy the carry bags alongwith the goods purchased, to carry the same from the shop-premises. We are shocked to note the kind of services provided by these big Malls/Showrooms. One cannot be expected to take the goods like macroni pep, dettol, oreo; cop urad etc., purchased, in hands. By not allowing the customers to bring in the shop premises, their own carry bags, and thrusting its own carry bags against consideration, the appellant is deficient in providing service and also indulged into unfair trade practice. No case is made out to reverse the findings of the respective District Forum in each appeal…..”.

8.                It is significant to mention here that Revision Petition No.975 of 2020 filed against First Appeal No.238 of 2019 titled as Big Bazaar (Future Retail Ltd.) Vs. Ashok Kumar (18 connected appeals) cases supra was dismissed by the Hon’ble National Commission vide order dated  22.12.2020 and as such, the findings given by this Commission therein, have attained finality. 

                   Since the dispute raised in the present case is almost identical  and no cogent and convincing evidence has been produced on record by the appellant, which could persuade this Commission to deviate from the findings, what have been given in Big Bazaar (Future Retail Ltd.) Vs. Ashok Kumar case (supra), especially when the same have attained finality. In this appeal also, we reiterate that each seller is obliged to deliver the goods in the complete state of delivery. The delivery of goods means physically handing over the goods from buyer to seller in a complete deliverable state. The goods can be delivered straight, when these are fully packed as per the nature and environment affecting the goods. The packing of goods is also a state in putting the goods in the deliverable state. If you want to buy biscuits or bread, those should not be given in open and rather should be packed in such a manner, to save them from external atmosphere. All kinds of expenses incurred in order to putting goods into a deliverable state shall be suffered by the seller.  This view of ours is supported by the provisions of Sub Section (5) of Section 36 of The Sale of Goods Act, 1930, which makes it absolutely clear that unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state, shall be borne by the seller. Thus, under this provision of law, all the expenses with regard to packing, providing carry bags etc. shall be borne by the vendor in order to put the goods into a deliverable state.

9.                It may also be stated here that similar view has been expressed and held by this Commission in the cases of M/s. Lifestyle International Pvt. Ltd. Vs. Pankaj Chandgothia,  Appeal No.24 of 2019 decided on 18.03.2019, Westside Vs. Sapna Vasudeva, Appeal No.36 of 2019 decided on  08.04.2019 and Bata India Limited Vs.  Dinesh Parshad Raturi, Appeal No.98 of 2019 decided on 22.07.2019.

10.               For the reasons recorded above, we are of the considered opinion that the present appeal is devoid of merit and the same deserves dismissal. Consequently, this appeal is hereby dismissed with no order as to costs. The order of the District Commission is upheld.

11.               Certified copies of this order be sent to the parties, free of charge.

12.               The file be consigned to Record Room, after completion.

Pronounced.

11.05.2021

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

 

 (RAJESH K. ARYA)

MEMBER

“Dutt”