BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 121 of 2020
Date of Institution : 13.03.2020
Date of Decision : 05.06.2023.
Narender Kumar, aged about 35 years son of Shri Raghvir Singh, resident of Law Deptt. Ambedkar Bhawan Chaudhary Devi Lal University, Sirsa, District Sirsa.
….Complainant.
Versus
Dominos Pizza, Shri Lal Complex, Barnala Road, Sirsa, Distt. Sirsa, Haryana through its authorized signatory. (Phone No. 01666-235060-67).
..…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. PADAM SINGH THAKUR………. PRESIDENT
SMT. SUKHDEEP KAUR……………..MEMBER
SH. OM PARKASH TUTEJA…………MEMBER
Present: Sh. Ajay Saini, Advocate for the complainant.
Sh. A.S. Kalra, Advocate for opposite party.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment u/s 35 of C.P. Act, 2019) against the opposite party (hereinafter referred as OP).
2. In brief, the case of complainant is that on 16.09.2019 he approached to the op and purchased two PAN PM Tomato Pizzas and HT PT Tomato Pizza and the employee of op charged a sum of Rs.198/- from complainant and issued bill of Rs.186/- for purchase of Pizzas and charged Rs.11.42 for carry bag and issued another bill of Rs.12/- for the carry bag to carry pizzas vide order no. 96 dated 16.09.2019. The complainant made protest against the illegal charge of carry bag. It is further averred that complainant again approached to the op on 26.11.2019 to order three HT PM Tomato Pizzas and the employee of op charged a sum of Rs.170.34 and issued bills of Rs.147/- for three pizzas and charged Rs.11.42 for carry bag and Rs.380 for four sachet and also charged CGST, SGST/UGST and issued another bill of Rs.170.34 vide order no.77 dated 26.11.2019. Thereafter, the complainant again approached the op on 2.12.2019 and ordered two pizzas and employee of the op charged a sum of Rs.98/- and issued bills of Rs.102.90 for purchase of two pizzas and charged Rs.12/- for carry bag and issued another bill of Rs.12/- for the carry bag to carry pizza vide order no.98 and order no.96 dated 26.11.2019. It is further averred that complainant made protest against the illegal charge of carry bag but they paid no heed rather op has stated that for the carry bag he has to pay extra amount of Rs.12/- and only after that they will provide the carry bag to him and also misbehaved with him and under protest he paid Rs.12/- for the carry bag to the complainant. That complainant has no intention to purchase the carry bag, rather it was the moral duty of every pizza shop keeper to provide the carry bag for the purchases made by its consumer and they have no right to charge the amount for the carry bag. The complainant was forced to pay price of the carry bag and same was being used as advertisement by op. That due to above said act and conduct on the part of op, the complainant being lecturer of law suffered disturbance and as such undergone much mental tension, agony and harassment, hence the complainant besides the refund of Rs.12/- paid every time is also entitled for the compensation amount of Rs.3,00,000/- for unnecessary harassment. Hence, this complaint.
3. On notice, op appeared and filed written version raising certain preliminary objections regarding cause of action, maintainability, jurisdiction, no consumer dispute and that consumer complaint can be filed only in case of defect in goods and suppression of material facts etc. It is submitted that it is clearly mentioned/ printed on all of the “Take Away” menu of the answering op that Carry bags will be charged extra and further answering op has prominently displayed a display board in all of its restaurant mentioning clearly “carry bags will be charged extra”. That pizzas are supplied by op in a cardboard box container which is spill proof and convenient to carry, hence carry bags cannot be said to be the need of the customer. It is further submitted that there is no bar in the restaurant premises of the op for carrying the own carry bag by the customers of the op and there is no security guard on the entrance to stop the customers to being their own carry bag. The carry bags are not a forced purchase. There are no hidden agenda, concealment of facts, breach of trust or unfair trade practice adopted by the seller who up front declares that the carry bags are chargeable. Whether the consumer opts to avail or not to avail a carry bag is entirely a customer’s decision. That carry bag does not bears any advertisement by the op. Hence, if the complainant or any other person prefers to buy the carry bag, he or she has to pay for the same. It is further submitted that complainant himself opted for a carry bag and accordingly paid for the same without any objection three times. It is thus apparent that even after willful opting of the said carry bag in course of getting the pizza and thereafter ventilating grievance there against is nothing but an attempt on the part of the complainant to make wrongful gain at the cost of the answering op. The complainant has further failed to indicate of any statutory mandate whereby the answering op can be made bound to provide free carry bags to its customers. It is further submitted that answering op being an environment friendly organization does not promote usage of carry bags. The carry bags are provided only when specifically asked for the customer and price thereof is duly intimated to the customer on opting of the same. Here, the usage of carry bag depends totally upon the discretion of the customer and it is not the need of the customer in a case where the pizza is delivered on a spill proof and easy to carry card box container. It is further submitted that carry bags provided by answering op are printed with the word/ logo mark to caution people at public places that the said carry bag contains Hot food item and should be handled with special care, particularly during movement through lanes, elevators, stairs etc. Such printing of logo does not amount to unfair trade practice as alleged by complainant and complainant has failed to quote any provision of law which prohibits printing of logo mark on the carry bag and just because the carry bags bear the logo and branding of answering op does not mean that charging for such carry bags will become illegally. It is further submitted that in fact, carry bags without logo may have adverse impact as the purpose of putting logo by the op is primarily to alert the public at large as to what is contained in the carry bag and to avoid any possible accident due to the contents of the carry bag being hot. Further the carry bag is not covered under the Legal Metrology Act, hence no MRP is to be mentioned on the same. Further, it cannot be said that it is odd and inconvenient for the customer to carry articles, without carry bags. Firstly, there is absolutely nothing odd at all to carry a food article i.e. a pizza in a pizza box. On the contrary, putting it in a bag is not just odd, but even irrational since the topping/ slices will get all spoilt. A bag does not make carrying a pizza box convenient in any manner. It is also submitted that inconvenience/ odd is not covered either under the definition of defect/ deficient or unfair trade practice as prescribed under the Act. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
4. The complainant in evidence has tendered his affidavit Ex. CW1/A and invoices Ex.C1 to Ex.C4.
5. On the other hand, op has tendered affidavit of Sh. Sandeep, authorized signatory of op as Ex.R1 and copy of Menu card Ex.R2.
6. We have heard learned counsel for the parties and have gone through the case file carefully.
7. Learned counsel for the complainant while reiterating the contentions of complaint has argued that op has wrongly and illegally charged the price of the carry bags from the complainant and has relied decision of the Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh in case titled as My Lifestyle International Pvt. Vs. Pankaj Chandgothia, Appeal No.24 of 2019 decided on 18.3.2019.
8. On the other hand, learned counsel for op while reiterating the contentions of written version has contended that complainant himself opted for carry bags for the pizzas as it is very much clearly mentioned in the Menu and display board of the op that carry bag would be charged extra and op is not liable to provide the carry bag to its customers free when they are already delivering the Pizza in a cardboard box container which is spill proof and convenient to carry pizzas and op has got prepared the cardboard boxes after spending huge amount. He has further contended that above said case law relied upon by learned counsel for complainant is not applicable to the facts and circumstances of the present case as the above said case is not related to the charging for carry bag for delivery of the pizza and prayed for dismissal of the complaint.
9. We have duly considered the rival contentions of the parties. There is no dispute of the fact that complainant purchased pizza from the op for three times i.e. on 16.09.2019, 26.11.2019 and 2.12.2019 which were delivered to the complainant in the carry bags after charging amount of Rs.12/- each time. The complainant in order to prove charging of amount of Rs.12/- for carry bags besides charging of the amount of pizzas has also placed on file invoices Ex. C2 to Ex.C4. It is also not disputed that said carry bags were having logo marks of op’s company. The op has drawn our attention towards its Menu Ex.R2 in which it is mentioned that Carry bag would be charged extra. However, it is noteworthy that said carry bags for which the complainant had to shell out extra amount from his pocket, is a printed carry bag, which has a prominent display of the advertisement of the op and is thus apparently serving as an advertisement for them, whenever the said carry bag is carried by the consumers. In this manner, the complainant and other gullible consumers like him have certainly been taken for a ride by the op for advertising their name. Undoubtedly, the op has several stores across the country and in the above said manner, is minting money by selling the carry bags alongwith the purchased food items. The op is getting itself enriched by such unfair means at the cost of innumerable gullible consumers. No doubt the case law relied upon by learned counsel for complainant does not pertain to the charging of amount for carry bag for delivery of pizza but however, in case titled as M/s Dominos Jubilant Foodwords Limited, SCO 3, Sector 8, Chandigarh through its Manager versus Pankaj Chandgothia, Appeal No. 160 of 2019 decided on 12.12.2019, the Hon’ble State Consumer Disputes Redressal Commission Union Territory, Chandigarh has held as under:-
“First of all coming to the appeal filed by the opposite party i.e. M/s Dominos, this Commission is of the view 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. It is not out of place to refer here 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 etc. shall be borne by the vendor in order to putting the goods into a deliverable state.
In this, the goods i.e. Pizza was put in the paper carry-bag having the name/ insignia of the appellant printed thereon in order to bring it in the complete deliverable state so that its physical possession be handed over to the complainant. It is not the case of the opposite party that the carry bag was separately purchased by the complainant/ purchaser, rather the opposite party has used the same for the purpose of its own advertisement as well as to put the things into a deliverable state. Thus, all the expenses have to be borne by the opposite party i.e. M/s Dominos. In this view of the matter, the opposite party has no right to recover the expenses borne by it on the packing of the goods or putting the goods in a deliverable state.Thus, all the expenses have to be borne by the opposite party i.e. M/s Dominos. In this view of the matter, the opposite party has no right to recover the expenses borne by it on the packing of the goods or putting the goods in a deliverable state.
In view of above, the appeal filed by the opposite party bearing No.160 of 2019 deserves dismissal”.
10. The above said authority is also fully applicable in this case. All the contentions put forth by the op to justify charging of additional amounts of carry bags that complainant himself opted for carry bags and op has displayed on the display board about extra charging for carry bags found to be misleading because complainant was forced to pay extra amount for carry bags for taking away the pizzas from the store of op and op is charging extra amount on the above said excuses only to make money and as already held its sole intention is to enrich itself by such unfair means at the cost of innumerable gullible consumers. So, the complainant has proved on record that op has wrongly and illegally charged the amount of Rs.36/- (Rs.12/- for three times) from the complainant for carry bags and complainant is entitled to refund of the said amount besides compensation for harassment and litigation expenses.
11. In view of our above discussion, we allow the present complaint and direct the opposite party to make refund of the amount of Rs.36/- charged from the complainant for carry bags. We also direct the op to pay a sum of Rs.10,000/- as compensation for harassment and Rs.5000/- as litigation expenses to the complainant. The op is liable to comply with this order within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to interest on the total amount of Rs.15,036/- at the rate of @6% per annum from the date of this order till actual realization. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member Member President,
Dated:05.06.2023. District Consumer Disputes
Redressal Commission, Sirsa.
