Chandigarh

StateCommission

A/179/2019

M/s Dominos, Jubilant Foodworks Limited - Complainant(s)

Versus

Jitender Bansal - Opp.Party(s)

Kshitij Sharma, Saurabh Gulia, Balwinder Singh, Rohan Jain Adv.

12 Dec 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	179 of 2019
Date of Institution	19.08.2019
Date of Decision	12.12.2019

 

M/s Dominos, Jubilant Foodworks Limited, SCO 3, Sector 8, Chandigarh through its Manager.

                       

…..Appellant/opposite party No.1.

                        Versus

Jitender Bansal Son of Sh.Kishori Lal Bansal, resident of House No.3174, Sector 27-D, Chandigarh.

…..Respondent/complainant.

 

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                             MRS. PADMA PANDEY, MEMBER

                             MR. RAJESH K. ARYA, MEMBER

 

Argued by:

 

Sh. Kshitij Sharma, Advocate for the appellant.

Sh. Jitender Bansal, respondent/complainant in person.  

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                This appeal is directed against the order dated 04.06.2019, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short ‘the Forum’ only), vide which, it allowed Consumer Complaint bearing No.94 of 2019 against the opposite parties with the following directions :-

“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.”

2.             Stating succinctly, the facts necessary for the disposal of the appeal in hand are that the complainant Sh.Jitender Bansal (respondent herein) on 15.02.2019 ordered food items with the opposite parties and it was carry out (taken away) order.  It is averred that when the complainant reached the outlet of opposite party No.1 to collect the order, the Company i.e. M/s Dominos handed over the eatables without carry-bag and when the complainant asked for carry-bag, it charged Rs.12/- for it and gave receipt, apart from bill for food items of Rs.261.24/- (Annexures C-1 & C-2).  It is stated that the charging for a carry-bag by the opposite parties even without mentioning the same at store, is deficiency in service and unfair trade practice. 

3.         The opposite parties contested the complaint by filing their reply, inter alia, admitting the factual matrix of the case. It has been pleaded that the opposite parties being a socially responsible corporate, stopped providing polythene bags once the Chandigarh Administration has banned the use of plastic bags.  It has been pleaded that after the ban of plastic bags, which are hazardous to the nature, the opposite parties started providing paper bags to its customers on payment of its price as the paper bags are purchased by them and such paper bags are much costlier than the polythene bags, thus the opposite parties charged for the same.  It has been further pleaded 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 (Annexure R-1).   It has been further pleaded 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 further stated that the opposite parties 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 opposite parties and hence the use of carry-bags is purely optional. Denying all other allegations, the opposite parties have prayed for dismissal of the complaint.   

4.             The parties led evidence, in support of their case.

5.              After hearing the complainant and Counsel for the opposite parties, and, on going through the evidence, and record of the case, the Forum, allowed the complaint, vide the impugned order, as sated above.

6.             Feeling aggrieved, the instant appeal has been filed by opposite party No.1.

7.             We have heard the Counsel for the appellant/opposite party No.1, respondent/ complainant in person, and have gone through the evidence and record of the case, carefully.

8.             The Counsel for the opposite party No.1 argued that the Company i.e. M/s Dominos are not liable to provide any carry-bag to the complainant as the food items were delivered to him in a cardboard box itself. He further argued that the impugned order passed by the Forum is not sustainable in the eyes of law and the same is liable to be set aside and that the complaint deserves dismissal.

9.             On the other hand, the complainant (respondent herein) has contended that the Forum has rightly passed the impugned order and prayed for dismissal of the appeal filed by opposite party No.1.

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

11.           In the instant appeal filed by opposite party No.1 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.

12.           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.

13.           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. 

14.           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.

15.           In this case, the food items were 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 parties have used the same for the purpose of their own advertisement and to put the things into a deliverable state. Thus, all the expenses have to be borne by the opposite parties i.e. M/s Dominos. In this view of the matter, the opposite parties have no right to recover the expenses borne by them on the packing of the goods or putting the goods in a deliverable state.

16.           It has brought to our notice that District Forum-II, UT, Chandigarh has awarded an amount of Rs. 5 lakhs as penalty to be paid to Poor Patient Welfare Fund (PPWF) of PGIMER (Chandigarh) whereas, in the similar case titled as Pankaj Chandgothia Vs. M/s Dominos, Consumer Complaint No.594 of 2018, decided on 25.06.2019 by District Forum-I, UT, Chandigarh has awarded an amount of Rs.10,000/- to be deposited 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 of this Commission. This Commission, while applying the principle of equity is of the view that in the instant case, Rs.10,000/- be deposited by M/s Dominos in the aforesaid Consumer Legal Aid Account and Rs.4,90,000/- be deposited in the Poor Patient Welfare Fund (PPWF) of PGIMER, Chandigarh.

17.           For the reasons recorded above, this appeal filed by M/s Dominos stands dismissed with cost of Rs.2,500/-, which shall be paid to the complainant (respondent herein). Thus, the impugned order under appeal stands modified in the following manner:-

                The opposite parties (M/s Dominos) are directed to:-

(i)     provide free carry-bags to all customers forthwith who purchase articles from its outlet/selling centres;

(ii)    refund to the complainant the amount of Rs.12/- wrongly charged for the paper carry-bag;

(iii)   pay Rs.1,500/- to the complainant towards compensation for harassment and mental agony as well as litigation expenses.

(iv)   deposit Rs.10,000/- 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 of this Commission.

(v)    However, it is made clear that statutory deposit made by the opposite party (appellant herein) at the time of filing or during the pendency of the appeal shall be adjusted towards the total decretal amount.

(vi)    deposit Rs.4,90,000/- in the Poor Patient Welfare Fund (PPWF) of PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh and submit the receipt thereof with this Commission.

18.           This order shall be complied with by the opposite party within a period of 30 days from the date of receipt of its certified copy, failing which, the opposite party shall be liable to pay additional compensatory cost of Rs.5,000/- to the complainant, apart from complying with the above relief.

19.           Certified copy of this order be sent to the parties as well as Director, PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh.

20.           After compliance, file be consigned to record room.

21.           Certified copies of the order be sent to the parties free of charge.

Pronounced.

12.12.2019

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

                                                        [PADMA PANDEY]

        MEMBER

 

 

[RAJESH  K. ARYA]

MEMBER