Chandigarh

DF-II

CC/94/2019

Jitender Bansal - Complainant(s)

Versus

Domino's, Jubilant FoodWorks Limited - Opp.Party(s)

Karajveer Singh Adv.

04 Jun 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	94 of 2019
Date  of  Institution	:	22.02.2019
Date   of   Decision	:	04.06.2019

 

 

 

 

Jitender Bansal s/o Sh.Kishori Lal Bansal, r/o House No.3174, Sector 27-D, Chandigarh 160019

          

             ……..Complainant

 

Versus

 

1]  Domino’s Jubilant FoodWorks Limited, SCO 3, Sector 8-B, Chandigarh 160009 through its Manager.

 

2]  Domino’s Jubilant FoodWorks Limited, Plot No.1A, Sector 16A, Noida 201301 U.P. through its Managing Director

………. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN        PRESIDENT

SMT.PRITI MALHOTRA    MEMBER

         SH.RAVINDER SINGH     MEMBER

 

 

Argued By:       Sh.Karajveer Singh, Adv. for the complainant.

Sh.Sourabh Gulia, Adv. for OPs.

 

PER PRITI MALHOTRA, MEMBER

 

                                Briefly, the case of the complainant is that he ordered food items with OPs on 15.2.2019 and it was Carry Out (Take Away) order.  It is averred that when the complainant reached the outlet of Opposite Party No.1 to collect the food items order, they handed over the food without carry bag and when the complainant asked for carry bag, they charged Rs.12/- for it and gave receipt, apart from bill for food items of Rs.261.24/- (Ann.C-1 & C-2).  It is stated that the charging for a carry bag by the OPs even without mentioning the same at Store, is deficiency in service and unfair trade practice.  Hence, this complaint has been filed.

 

2]       The OPs have filed reply and while admitting the factual matrix of the case, stated that they being a socially responsible corporate, have stopped providing polythene bags once the government has banned the use of plastic bags.  It is stated that after the ban of plastic bags, which are hazardous to the nature, the OPs have started providing paper bags to its customers on payment of its price as the paper bags are purchased by the OPs and such paper bags are much costlier than the polythene bags, thus the OPs charged for the same.  It is submitted that it is categorically mentioned in the terms & conditions of the pamphlet/menu card that the carry bags which will be provided to the customers will be charged extra (Ann.R-1).   It is also stated that there is no legal obligation on the Opposite Parties to provide any bag (paper or cloth or any other material) to carry purchased items for free, to its customers.  It is also submitted that the OPs provide its product i.e. Pizzas to customers in card box containers itself, hence there is no need for any carry bags additionally for carrying the product of the OPs and hence the use of carry bags is purely optional. Denying all other allegations, the OPs have prayed for dismissal of the complaint.   

 

3]      Parties led evidence in support of their contentions.

 

4]       We have heard the ld.Counsel for the parties and have also perused the entire record.

 

5]       Admittedly, the complainant ordered & collected food items from Opposite Party worth Rs.261.24/- and was additionally charged Rs.12/- for the carry bag by the Opposite Parties.

 

6]       The complainant urged that he should have been provided the carry bag free of cost, whereas the Opposite Parties stated that in their pamphlet/menu card it has been mentioned that the carry bags which will be provided to the customers will be charged extra.  OPs also tried to justify the selling of/charging for carry bags stating that due to ban on the use of Plastic bags, they started selling paper bags and claimed that it is also not the legal obligation of the Opposite Parties to provide for carry bags as they are supplying pizzas to customers in card box containers.  

 

7]       Before analyzing that charging of extra bucks for carry bag amounts to deficiency in service coupled with unfair trade practice, we shall first concentrate on the very subject of need of charging money for the carry bags.

 

8]       On the subject, OPs submitted that it is only under the Plastic Waste (Management & Handling) Rules, notified in the year 2011 by the Union Ministry of Environment & Forests, they started charging for the carry bags.

 

9]       The justification put forth by the Opposite Parties is out rightly been discarded for the simple reason that the object of the above referred notification has badly been defeated, which was notified only to streamline the Plastic Waste Management & to minimize the usage of Plastic Carry bags.  That notification particularly required the retailers to provide only plastic carry bags of a specified quality, while doing so, the rules said, “No carry bags shall be made available free of cost by retailors to consumers”.  It was done only to minimize the usage of Plastic bags, as the usage of Plastic Bags is playing a havoc not in the life of general public, but is also hazardous to the environment.

 

10]      The free/uncontrolled usage of plastic bags & its hazardous impacts pose a question mark on the functioning of the government, which is bound to provide healthy and safe environment for life not only under the welfare state policy of the State as per the principles enshrined in the Directive Principles Of the State Policy, but is also fundamental under Right to Life as enshrined in Article 21 of the Constitution of India.

 

12]      It is observed that Plastic bags tend to disrupt the environment in a serious way.  They get with soil & slowly release toxic chemicals, which eventually break down into the soil, with the unfortunate result being that animal eat them and often choke & die.  As it breaks down, plastic particles contaminate soil and waterway and entire food web is affected. The harmful toxic gases mix-up in the air, when plastic is burnt. Other hazardous impacts caused due to the usage of plastic bags also could not be ignored.

 

13]      In order to safeguard the environment from the hazardous impacts of Plastic Carry Bags, the Union Ministry of Environment & Forest, notified the Plastic Waste (Management & Handling) Rules, in the year 2011 and vide that notification the govt. also wanted the proceeds from the sale of carry bags to finance plastic waste management efforts.

 

14]      The rules also required Municipalities to work out the minimum price of the Plastic bag, taking into account the material cost as well as the cost of waste management & issued a notification in that effect. Ironically with the change in Ministry, the 2011 rules were replaced with a new set of rules in 2016.  These rules pointed out that most civic authorities had not fixed the price of the Plastic Carry bags as required.  Secondly, the rules were silent on the mode of transfer of money collected by the retailors from the sale of Plastic carry bags to the civic authorities.

 

15]      The 2016 rules fixed the lacuna and states that the amount paid towards the (Plastic) carry bags would be utilized exclusively for waste management by civic authorities.  That means the retailors were supposed to remit the amount collected by the sale of carry bags in the accounts of civil authorities.  It also wanted the retailors to put up boards in prominent places announcing that carry bags would not be given free.  Unfortunately, no such boards were ever seen to be established.  In any case, in March, 2018, when the govt. brought in certain amendments in the 2016 rules, it dropped the provision that required retailors to sell plastic carry bags, as by then, many states had already banned or were in the process of banning them.

 

16]      However, factually the retailors for their assumed vested interests continued to sell carry bags and this time paper bags.  When such selling of paper carry bags is challenged with the Consumer Forums, they pleaded that they are being protected by the Plastic Waste (Management & Handling) Rules, notified in the year 2011 by the Union Ministry of Environment & Forests; which in fact they are not, as has already been discussed in detail in preceding paras.

 

17]      More so, the Rule of 2011 notification directing the charging for the plastic carry bag has been abandoned in the rules framed in the year 2018, as has already been discussed.  Thus, there exists no rules/notification which justifies the charging of extra money for carry bags.

 

18]      Even the ban put by the authorities not to sell/provide the plastic carry bags, does not entitle the Opposite Parties to charge for its substitute as claimed and the Opposite Parties and all other retailors like it are obliged to provide carry bags free of cost to their customers to carry the purchased items, as the customers cannot be expected to carry the items in hands.  Even it is the trade usage which is prevalent since decades that the consumers are being provided the purchased articles, packed in the carry bag free of costs for e.g. when an ornament(s) is/are purchased from a jewellery shop, then the jewellwer provides the article(s) in a specified box or cloth bag depending on the size of the article(s) purchased and that box or the cloth bag is further put in a carry bag to make it convenient to carry the purchased articles, without charging a single penny extra.  Likewise the items/goods purchased from different retailors had also been packed in certain type of carry bags to make it convenient to carry the same. 

19]     It is also presumed that the expenses incurred by the retailors on the alleged purchase of carry bags had already been included in their profit margins. 

20]      It is highly absurd on the part of Opposite Parties when they/OPs claim that they are not under legal obligation to provide a free carry bag, as it is not only odd but also very inconvenient for the consumer to carry the food item(s) or articles/items without a carry bag, when are purchased in good number or in bulk. 

21]      The Opposite Parties have also not come forward with any of the record showing that the money collected on account of sale of carry bags is deposited with any of the authority(ies) or any steps taken for the management of Plastic Waste for which the retailors were earlier permitted to charge for the plastic carry bags.  

22]      In this backdrop of the case, we are of the considered opinion that badly enforced provisions in the rules brought on consumer an additional burden of paying for the bags.  What makes it worse is promotion of the retailors through the carry bags.  It is observed that retailors are not only making neat profit on selling of bags, but also makes the gullible consumers to pay for its brand promotion.  Even if, they are selling bag at the cost price, consumers are still paying the printing cost of the advertisement on the carry bag and this by no means is ethical.

23]      It is apt to mention that the Consumer Forums are flooded with such complaints of charging for the carry bags and this issue has already been decided by the Forums declaring this practice as unfair trade practice and the decisions of the Forums have also been up upheld by the Hon’ble State Commission(s).  It is further observed that the retailors like OPs are making mockery of law by continuing the practice of charging for the carry bags from the consumers, despite being held to be an unfair trade practice, as if, a strict & stringent direction is awaited and certainly the act of ignoring the orders & putting extra burden on the gullible consumers warrants that a heavy penalty be imposed with a purpose that this unfair trade practice prevalent at large be curbed.  It is a nationwide practice of most of the retailors like OPs to charge the consumers extra for carry bags.  They are exploiting the provisions for their own vested interest & profits.         

24]      It is pertinent to mention here that as per Section 14(1)(f) of The Consumer Protect Act, 1986, Consumer Fora under The Consumer Protection Act, 1986, interalia other powers,  are bestowed with the power to direct the OPs ‘to discontinue unfair trade practice or restrictive trade practice or not to repeat them’.

25]      From the above discussion, facts & circumstances of the case, the complaint stands allowed against Opposite Parties  and exercising the powers conferred under the above referred provisions of Section 14(1)(f) of The Consumer Protection Act, 1986, (as amended upto date), we hereby direct the Opposite Parties as under:-

1. To stop the unfair trade practice of charging extra money for the carry bags from consumer(s);
2. To refund to the Complainant the amount of Rs.12/- wrongly charged for the paper carry bag;
3. To pay Rs.1500/- to the complainant towards compensation for harassment and mental agony as well as litigation expenses.

26]      Undoubtedly, the Opposite Parties have several outlets across the country and in the above said manner, are minting money by selling the carry bags along with the purchased food items. The Opposite Parties are getting themselves enriched by such unfair means at the cost of innumerable gullible consumers, so they warrants a stringent action against them.  In such like situations, the District Forum under the proviso added to Clause (d) Section 14 of The Consumer Protection Act, 1986 has the power to grant punitive damages in such circumstances as it deems fit.  This provision has been inserted by the Act 62 of 2002, Section 10 (w.e.f. 15.3.2003).  The said proviso, along with sub-clause (d) is reproduced as under:-

14(1)(d)           to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.

Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit.  

        In addition, Section 14(1)(hb) of The Consumer Protection Act, 1986 also provides as under:-

(hb)     to pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently:

Provided that the minimum amount of sum so payable shall not be less than five per cent. of the value of such defective goods sold or service provided, as the case may be, to such consumers:

Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed;

         In recourse to the combined reading of the above referred provisions, we are imposing a penalty of Rs.Five Lacs upon the Opposite Parties in the interest of justice, which they shall deposit in the Poor Patient Welfare Fund (PPWF) of PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh and submit the receipt thereof with this Office.  

27]      This order shall be complied with by the OPs within the period of 30 days, failing which they shall also be liable to pay additional compensatory cost of Rs.5,000/- to the complainant, apart from complying with the above relief. The complainant shall ensure the complete compliance of this order having remedy under relevant provisions of the Consumer Protection Act, 1986.

         Certified copy of this order be sent to the parties as well as Director, PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh. After compliance file be consigned to record room.

Announced

4^th June, 2019                        

                                                                             Sd/-             (RAJAN DEWAN)

PRESIDENT

         

 

Sd/-

                                                                    (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER