Before the District Consumer, Dispute Redressal, COMMISSION, Panchkula.
Consumer Complaint No. | : | 416 of 2019 |
Date of Institution | : | 19.07.2019 |
Date of Decision | : | 25.10.2021 |
Lokesh s/o Sh.Jai Bhagwan, aged 25 years resident of House No.1050, Sector-19B, Chandigarh. …….Complainant
Versus
M/s Future Retail Limited, Easy Day, SCO No.1, Sector-16, Urban Estate, Panchkula-134108) through its proprietor.
….. Opposite Party
Complaint under Sec.35 of the Consumer Protection Act, 2019
Before: Sh.Satpal, President.
Dr.Pawan Kumar Saini, Member.
Dr.Sushma Garg, Member.
For the Parties: Complainant in person.
Sh. Yashdeep Nain, Advocate, for the OP.
Order
(SATPAL, president)
1. The complainant has filed this complaint with the averments that that on27.05.2019, the complainant went to the shop premises of OP and purchased 4 different grocery items for Rs.97/- and paid Rs.101/- inclusive of price of carry bag which was charged as Rs.4. The complainant opposed the said illegal action and has no authority of the opposite party to charge for carry bag but he never got any clear or definite answer from the officials of opposite party. The complainant had no option but to pay Rs.4/- and take the carry bag. It is further alleged that it is duty of OP to provide carry bag free of cost to their customer. It is further averred that such a charge is nowhere mentioned in the shop or anywhere in the shop premises, but no response had been given by the OP. This act and conduct of the OP amounts to deficiency in service on his part. Hence, this complaint.
2. Upon notice, the OP appeared and filed the written statement by taking some preliminary objections such as the present complaint is not maintainable being false and baseless; concealed the material facts and suppressed the true facts. The factual position in the present complaint is that the complainant has purchased 4 different grocery item for Rs.97/- on 27.05.2019 but incurred a bill for Rs.101/-. The bill raised by the OP includes the charges for shopping bag @ Rs.4/- which was purchased by the complainant by his own sweet will and desire and as well as necessity to carry the other goods and commodities purchased by his. He was made aware about the charges for different variant of the carry bags and also asked the complainant to use his carry bags, in case he wishes to purchase a carry bag, the same can be made available at the OP’s store for a separate charge. Also, it has been clearly displayed at the entrance of the store, as well as the bill counter and also at various places of the store, that customer may purchase the carry bag of different variants which are available at the store at different prices. The list of the variants of carry bags alongwith their prices have been displayed at the store. Further, it is stated that the OP follows an environmentally responsible policy aimed at encouraging customers to carry their own shopping bags, of which suitable notice was provided to the consumers by way of advertisements. Thus, there is no deficiency in service on the part of the OP and requested for dismissal of the complaint with special cost.
3. To prove his case, the complainant has tendered his affidavit as Annexure C-A along with document Annexure C-1 in evidence and closed the evidence by making a separate statement. On the other hand, counsel for the OP tendered affidavit Annexure R-A along with documents Annexure R-1 and closed the evidence.
4. We have heard learned counsels for the complainant as well as OP and have gone through the entire record available on record including written statement filed by the ld. Counsel for the OP, minutely and carefully.
5. The sole grievances of the complainant in the present complaint is with regard to the charging of a sum of Rs.4/- from the complainant by the OP vide memo dated 27.05.2019 for the carry bag. The complainant has disputed the charging of carry bag on the ground that the act of the OP in charging the amount for the carry bag was neither permissible nor justified as it was nowhere displayed in the entire showroom that the carry bag would be provided to the customers on basis of chargeability.
6. On the other hand, the OP has justified its act with regard to chargeability of the carry bag on several grounds. The first ground is that due notices were given to all customers by way of affixation of notice in the shape of Annexure R-1 in the premises of the Mall/Store. It is contended that the complainant was aware of the fact that carry bags would be provided on the chargeable basis. It is also contended that option was given by OP to its customers including the complainant to bring their own empty bags while purchasing the goods from the store of the OP. In this regard, the learned counsel invited our attention towards Annexure R-1 which reads as under:
Annexure R-1
- We encourage you to bring your own carry bags.
- In case you forgot to bring a carry bag, merchandise bag options are available to help you make your shopping convenient.
- Purchase of a merchandise bag is an option given to you and not a compulsion.
- In case you are forced to purchase the carry bag at the counter, you may please bring it to the notice of Store Manager.
- As a responsible business, we make sincere efforts to reduce the usage of paper carry bags since it is detrimental to the environment. We encourage you to reuse the carry bags purchased.
- We believe that it is our joint responsibility to ensure that the environment is protected for present and future generations.
7. The learned counsel emphasized that the complainant had paid for the purchase of carry bag out of his sweet will and free consent and that he used and consumed the bag for his requirement to carry the goods to his home and that the complainant was at liberty to deny to make the payment of Rs.4/-on account of carry bag. It is vehemently contended that the complainant was never forced and duped to buy the carry bag from the store. Concluding the arguments, the learned counsel has placed reliance upon the law laid down by the Hon’ble National Consumer Commission, New Delhi vide its order dated 22.12.2020 in Revision Petition no.975 of 2020 to Revision Petition No.988 of 2020 titled as Big Bazaar (Future Retail Ltd.) Versus Ashok Kumar and others, wherein it is held as under:-
“Consumer has right to know that there will be an additional cost for carry bags before he exercise his choice of patronize a particular retail outlet and before he makes his selection of good for purchase from the said retail store”.
8. From above it is clear that a prior notice is/was required to be given by the mall owner/shop owners about the chargeability of the carry bag. However, notice regarding chargeability of the carry bag affixed at the counter, when the customer is in the process of making the payment do not serve any purpose. Now, adverting to the facts of the present case, it is found that no adequate or credible evidence has been produced by the opposite parties showing that prior notice at the entrance of the shopping mall /shop as well as in the interior of the shopping mall/shop was given about the chargeability of the carry bag. The alleged notice Annexure R-1 lacks credibility as it does not bear the date/month/year as to when and where it was affixed in the showroom. Moreover, we find that no prior notice as required was affixed by the OP regarding the chargeability of the carry bag at the main entrance/gate of the shop. Therefore, case law supra is of no help to the case of the OP.
9. At this stage, it is pertinent to mention here that the issue of selling the goods in a deliverable state as required under Section 36(5) of Sale of Goods Act, 1930 did not came up for discussion before the Hon’ble National Commission, New Delhi in the case supra.
10. The Hon’ble State Commission U.T.Chandigarh while disposing of appeal no.160 of 2019 vide its order dated 12.12.2019 titled as M/s Dominos, Jubilant Foodworks Ltd. Vs. Pankaj Chandgothia held that the sellers are under the legal obligation to put the goods in a deliverable state as per provisions of sub section 5 of Section 36 of the Sale of Goods Act, 1930 before handing over the same to its customer. The relevant paras of the aforesaid order are reproduced as under:-
“1. 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.
2. 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.
3. 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.
4. 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.
5. In this case, 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.”
11. The learned counsel for the OP in respect of law laid down in case law supra contended that only loose items such as sugar, pulses and wheat flour etc.,which are not in packaging condition are required to be delivered in a deliverable state by way of packaging the same in a separate packaging cover/bag. It is contended that the purchased items which are already in packaged condition are not required to be delivered in a separate carry bag. The learned counsel when confronted as to how a customer would carry the several items purchased by him/her to the place of parking, where his/her vehicle is lying parked, it is contended that the purchased items are taken to the place of car parking through manual trolly.
12. We do not agree with the aforementioned contentions as it is not practically feasible to carry the purchased items in a manual trolly up to the parking place of the vehicle. It is a matter of common knowledge vehicle of the consumers are being parked at a long distance.
13. Therefore, the ratio of law as laid down by the Hon’ble State Commission, U.T. Chandigarh, in case supra is fully applicable to the facts and circumstances of the present case as admittedly, the OP has charged Rs.4/- on account of carry bag in the present case.
14. The another plea of the OP is that no carry bag shall be made available free of cost by retailers to the customer as per provisions contained in the Plastic Waste(Management and Handling) Rules in 2011, wherein interalia, under rule 10 of Rules, 2011, it is provided that no carry bags shall be made available free of cost by retailers to consumers. This plea is rejected in view of the fact that the mandate for retailers to charge for plastic carry bags has been omitted in March 2018. This plea has been rejected by the Hon’ble State Commission, Chandigarh vide its order dated 18.03.2019 passed in appeal no.24 of 2019 in titled as M/s Lifestyle International Pvt.Ltd.Vs. Pankaj Chandgothia & another.
15. The aforementioned factual as well as legal proposition clearly establishes the deficiency on the part of the OP while charging for the carry bag; hence, the complainant is entitled to relief.
16. In the light of above observations, the present complaint is partly allowed with the following directions to the OP:-
- To refund Rs.4/- to the complainant, which has been wrongly charged on account of carry bag, to the complainant along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
- To pay a lump sum amount of Rs.500/- to complainant on account of mental agony, harassment and cost of litigations charges.
- The OP is further burdened with a cost of Rs.5,000/- to be paid in the Legal Aid Account of District Legal Service Authority, Panchkula.
17. The OP shall deposit the above said amount of Rs.5,000/- within a period of one month from the receipt of copy of this order, failing which the said amount shall carry an interest @9% per annum from the date of institution of the complaint till its deposition. After depositing the aforesaid amount in the above mentioned account, the OP shall furnish the payment receipt thereof with this office. In case of non-compliance of the direction with regard to deposition of cost/penalty in the above mentioned account, the office Assistant shall submit his report to the Commission about the same after three months from the date of this order.
18. The OP is further directed to refrain from the unfair trade practice, in future, by way of charging on the carry bag.
19. The OP shall comply with the directions/orders within a period of 30 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties of the complaint and file be consigned to record room after due compliance.
Announced:25.10.2021
(Dr.Sushma Garg) (Dr.Pawan Kumar Saini) (Satpal)
Member Member President
Note: Each and every page of this order has been duly signed by me.
Satpal
President
