By Smt. PREETHI SIVARAMAN.C, MEMBER
1.Case of the complainant:-
On 15/12/2018, complainant along with his friend had purchased a set of shoeworth Rs. 3,495/- and socks worth Rs. 169/-from the opposite party shop situated at Calicut. Apart from the price of the above articles, the bill discloses an additional amount of Rs. 7/- towards carry bag with in print advertisement of opposite party.Complainant alleged that charging for the carry bag with the logo and advertisementof opposite party is in violation of law. The logo of opposite party was printed on both sides of the carry bag and that was sold by opposite party for advertisement purpose. Thereafter complainant informed this matter to the opposite party in person and through phone that the collection of amount towards the cost of bag with printed logo is illegal and requested to refund the cost of the bag. But nothing was done by the opposite party. Collection of money for the supply of carry bag to carry the items purchased is unfair trade practice and amounts to deficiency in service. Hence this complaint.
2. Prayer of the complainant is that he is entitled to get Rs. 1,00,000/- as compensation for the economic loss suffered by him and Rs. 1,50,000/- as compensation for the mental agony and hardship suffered by complainant due to the act of opposite party.
3. On admission of the complaint, notice was issued to the opposite party and notice served on him and he appeared before the Commission and filed the version.
4. In their version, they stated that as per the Consumer Protection Act the jurisdiction of District Forum is defined U/s 11 of the Act. The complainant ought to have filed the above complaint before the Consumer Disputes Redressal Forum Calicut. No where in the complaint, it is stated that there is either deficiency in service nor an unfair trade practice adopted by the opposite party. There is no allegation that the goods bought by the complainant suffer from any defects. It is also not discernible from the complaint that the opposite party has charged for the carry bag in excess of its price fixed by or under any law for the time being in force. The allegation of the complainant is that the opposite party had cheated the complainant by charging Rs. 7/- for carry bag cannot be swallowed without a pinch of salt because there is no compulsion by the opposite party to purchase the carry bag and the same was purchased by the complainant wilfully for his requirement as he had come without shopping bag. The charge of Rs. 7/- levied for the carry bag was introduced by the concerned Panchayath to reduce litter and to protect environment. No law is shown under which the opposite party is required to give a shopping bag free of cost to its customers or which prohibits advertisement on a shopping bag. Environment friendly citizens do carry their own shopping bags preferably cloth bags while going for shopping. Complainant demanded for carry bag and it’s with the consent of the complainant the amount of Rs. 7/- was levied for the carry bag by the opposite party and the complainant also does have a case adverse to the above fact. It is under the instruction of Local Self government the opposite party had levied price for carry bag and omission to array the concerned Panchayath as opposite party in the complaint is erroneous as Panchayath is a necessary party and on that score alone the complaint is liable to be dismissed. Apart from the above illegalities and irregularities the complaint is not maintainable before this Hon’ble Forum as the opposite party carries on business within the territorial limits of Kozhikode District Consumer Forum. The complaint is filed on 22/12/2018 before the amendment of Act and the old Act will apply as the amendment has only prospective effect. There was absolutely no fault on the side of opposite party. Hence complaint may be dismissed.
5. In order to substantiate the case of the complainant, he filed an affidavit inlieu of Chief examination and he produced one document which is marked as Ext. A1 and MO.1. Ext.A1 is the copy of purchase bill/ Tax invoice given by opposite party to complainant dated 15/12/2018. MO.1 is the carry bag with in print advertisement of opposite party. Thereafter opposite party filed affidavit, but no documents filed.
6. Heard complainant and opposite party. Perused affidavit and documents. The following points arise for consideration:-
- Whether there is any deficiency of service and unfair trade practice on the part of opposite party.
- If so, Reliefs and cost.
7. Point No.1 & 2 :-
Case of the complainant is that he had purchased some articles from opposite party shop situated at Calicut and the bill discloses an additional amount of Rs. 7/- towards carry bag with in print advertisement and logo of opposite party and it is a violation of law. Collection of money for the carry bag to carry the items from the same shop is unfair trade practice and amounts to deficiency in service.
8. But as per the version and affidavit, opposite party stated that as per the Consumer Protection Act the jurisdiction of District Forum is defined U/s 11 of the Act. Opposite party filed IA 20/2019 to question the maintainability of the complaint filed by complainant. They stated that as per Section 11 (2) (a) of the Consumer Protection Act 1986, the complainant can file a complaint where the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business (or has a branch office) or personally works for gain. There is a statutory bar for the complainant to file the above complaint before this Hon’ble Forum as the opposite party carry on business at Calicut. The opposite party again stated that complainant ought to have filed the above complaint before the Consumer Disputes Redressal Forum, Calicut. There is no averment in the complaint that any branch of opposite party is carrying on business within the territory of this Hon’ble Forum nor any of the branch has been made party to the complaint and therefore this Hon’ble Forum lacks jurisdiction to entertain the above complaint.
9. From the above points it is clear that opposite party stating that there is no jurisdiction for the complainant to file a complaint before the Consumer Disputes Redressal Forum, Malappuram (Now Consumer Disputes Redressal Commission, Malapppuram). As per Section 11 of Consumer Protection Act 1986 clearly stated the jurisdiction of the District Forum which prohibits complainant from filing a complaint before this Commission. This Commission lacks jurisdiction to entertain the above complaint at the date of filing of the complaint that is 22/12/2018.
10. But on 26/09/2019 opposite party filed an IA 20/2019 to question the maintainability of the complaint. On that day itself that IA was considered. The Commission already found that the complaint is maintainable as per order in IA 20/2019 dated 26/09/2019. The earlier Commission stated the reason for dismissing that IA is that, complainant in CC 29/2019 is residing within the jurisdiction of the Forum (Now Commission). Moreover opposite party did not challenge the order in IA 20/2019. Complainant has submitted one judgement dated 11/04/2022 pronounced by District Commission, Visakhapattanam and the subject matter of complaint in that CC/210/2020 is the same subject matter in complaint filed by complainant herein. The same situation exists both the complainants. In that order Commission finds that opposite party selling the carry bag having company logo, they are using complainant as a tool of the advertisement that leads to adoption of unfair trade practice that means using the customers as their advertisement agents. As per the judgment in Big Bazaar Vs Ashok Kumar in Revision Petition 975 of 2020 before NCDRC clearly expressed its anguish and observed as follows: “ As a matter of Consumer rights, the consumer has the right to know that there will be an additional cost for carry bags and also to know the salient specifications and price of the carry bags, before he exercises his choice of patronizing a particular retail outlet and before he makes his selection of goods for purchase from the said retail outlet”.
11. Another contention of complainant is that, the charge of Rs. 7/- levied for the carry bag was introduced by the concerned Panchayath to reduce litter and to protect environment. But opposite party did not produce a piece of paper to show that there is a direction to them from Panchayath regarding that. Moreover the opposite party did not display any board before their shop which indicates that the carry bags would be charged or the customer would have to bring their own carry bags. It is clearly shows that there was unfair trade practice and also deficiency in service on the part of opposite party as they did not disclose/ display the price of the carry bag at cash counter is undoubtedly an unfair trade practice .
12. We are on the opinion that the complaint filed by complainant is of great social relevance. The collection of amount towards the cost of carry bag with printed logo and advertisement of opposite party is illegal. Collection of money for the supply of
the printed carry bag to carry the items purchased from the same shop is an unfair
trade practice and amounts to deficiency in service. Hence we are on the opinion
that opposite party is deficient in service and there is some unfair trade practice from the side of opposite party. Hence we allow this complaint is follows:-
- The opposite party is directed to refund Rs7/-(Rupees Seven only) the cost of the carry bag to complainant.
- The opposite party is also directed to pay compensation of Rs.10,000/-(Rupees Ten Thousand only) to the complainant on account of deficiency in service and unfair trade practice on the part of opposite party and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite party is also directed to pay Rs. 5,000/-(Rupees Five thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite party is liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 17th day of November, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1
Ext.A1 : Copy of purchase bill/ Tax invoice given by opposite party to complainant
dated 15/12/2018.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MO.1 : Carry bag with in print advertisement of opposite party.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
