Second appeal no. 01 of 2021 Second appeal no. 02 of 2021 For the Appellant : Mr. Shyam Divan, Sr. Advocate with Mr. U. Banerjee, Advocate Mr. Vinay Kumar Shailendra, Advocate Ms. Worthing Kasar, Advocate Ms. Raunika Johar, Advocate Second appeal no. 03 of 2021 Second appeal no. 07 of 2021 Second appeal no. 08 of 2021 Second appeal no. 10 of 2021 Second appeal no. 11 of 2021 For the Appellant : Mr. Shyam Divan, Sr. Advocate with Mr. U. Banerjee, Advocate Mr. K. R. Sasiprabhu, Advocate Mr. Vishnu Sharma, Advocate Mr. Tushar Bharadwaj, Advocate Mr. Raghav Shanker, Advocate Dated: 31.01.2022 ORDER Taken up through video conferencing. Second appeals no. 01 of 2021; no. 02 of 2021; no. 03 of 2021; no. 07 of 2021; no. 08 of 2021; no. 10 of 2021; and no. 11 of 2021: 1. Similar facts and same questions of law are involved in these seven second appeals. As such they are being disposed of vide this common order, with second appeal no. 03 of 2021 being taken as the lead case. Second appeal no. 3 of 2021 (lead case): 2. This second appeal has been filed under Section 51(2) of The Consumer Protection Act, 2019 apropos the Order dated 30.09.2021 of the State Commission in first appeal no. 59 of 2020 arising out of the Order dated 03.02.2020 of the District Commission in complaint no. 638 of 2019. 3. The matter was listed for hearing on admission before a co-ordinate bench (bench no. 1) of this Commission on 06.01.2022. The co-ordinate bench recorded that the matter be listed before another bench. Hon’ble President of the Commission directed on the administrative side that the matter be listed before this bench (bench no. 4). 4. The matter was listed before this bench on 10.01.2022. Learned senior counsel for the appellant requested for an adjournment. The matter was then taken up on 12.01.2022. In para 10 of the memorandum of second appeal twenty six (I. to XXVI.) “substantial questions of law” had been formulated. Learned senior counsel for the appellant submitted that the appellant wished to file an application stating precisely the substantial question(s) of law involved in the second appeal and requested for a period of three days for the purpose. Learned senior counsel also wished to place on record certain judgments of Hon’ble Supreme Court and submitted that the same will also be done within the same period of three days by way of an application. Today i.e. on 31.01.2022 arguments on admission were concluded by learned senior counsel for the appellant. 5. An application, being I.A. no. 13 of 2022 has been filed by the appellant. In para 3 thereof four (a. to d.) “new” “substantial question of law” have been formulated. An amended memorandum of second appeal has been annexed with the application. The said four substantial questions of law have been incorporated in para 10 thereof. Learned senior counsel requests that these four substantial questions of law and the amended memorandum of second appeal may be taken on record. The request is allowed. 6. We have perused both, the twenty six (I. to XXVI) “substantial questions of law” stated in the earlier memorandum of second appeal and the four (a. to d.) “substantial questions of law” stated in the amended memorandum of second appeal. We have also perused the entire material on record, including specifically the Order dated 03.02.2020 of the District Commission and the impugned Order dated 30.09.2021 of the State Commission. 7. In the instant case the complaint was allowed by the District Commission on contest. For reasons recorded, it determined both ‘deficiency in service’ and ‘unfair trade practice’ on the part of the appellant herein (“9. - - - thus, the act of Opposite Party by forcing the gullible consumers to pay additionally for the carry bags is surely and certainly amounts to deficiency in service and its indulgence into unfair trade practice”) and ordered that Rs. 7/- wrongly charged for the carry bag be refunded to the complainant, Rs. 1000/- be paid to the complainant for harassment and mental agony, Rs. 500/- be paid to the complainant as litigation expenses and Rs. 10,000/- be deposited in the Consumer Legal Aid Account of the District Commission. The first appeal filed by the appellant herein was dismissed by the State Commission (“12. For the reasons recorded above, it is held that the order passed by District Commission-I partly allowing the consumer complaint did not need any interference and as such, is upheld. Resultantly, this appeal, being devoid of merit, stands dismissed with no order as to costs.”). 8. Here, Section 2(11) and Section 2(47) of the Act 2019, which define ‘deficiency’ and ‘unfair trade practice’, are being reproduced for reference: 2. Definitions.- In this Act, unless the context otherwise requires,- - - - (11) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes— (i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and (ii) deliberate withholding of relevant information by such person to the consumer; - - - (47) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:— - - - 9. Section 2(11) and Section 2(47) of the Act 2019 are clear in what constitutes ‘deficiency’ and ‘unfair trade practice’. In respect of Section 2(47), which defines ‘unfair trade practice’, it may be elaborated that the word “including” connotes that the list provided therein is illustrative and not comprehensive or exhaustive. That is to say, an unfair method or unfair or deceptive practice, as may be judiciously determined, on facts and reason, on fair and objective appraisal of the evidence and material on record, would qualify as ‘unfair trade practice’ within the meaning of Section 2(47). 10. A reading of the District Commission’s Order of 03.02.2020 and the State Commission’s Order of 30.09.2021 shows that the two fora, having made their respective appraisal, arrived at concurrent findings of fact, and the proved facts contain ingredients of both ‘deficiency’ and ‘unfair trade practice’ within the meaning of Section 2(11) and Section 2(47) the Act 2019. 11. The orders of the two fora below, application no. 13 of 2022 and amended memorandum of second appeal are all matter of record. Orders of both the fora below are self-contained and elaborately written. We see no use in recapitulating or re-writing the facts all over again, when the short point before us is whether or not should we admit this second appeal, and where the limited issue to be cogitated upon is whether or not this matter involves any substantial question(s) of law. On the face of it we do not see any crucial or palpable misappreciation of the evidence by the two fora below, as may make their findings perverse, nor do we see that the two fora have ignored material evidence or acted on no evidence. We also do not see that the two fora below have drawn unsustainable wrong inferences from proved facts by applying the law erroneously. Ingredients that constitute ‘unfair trade practice’ and ‘deficiency’ are manifestly evinced from the proved facts in the concurrent findings of the two fora. We do not see that the two fora have ignored or acted contrary to any applicable legal principle. It appears that the fora have not missed to see and decipher that by creating circumstances which would in all likelihood lead to the addition of Rs. 7/- with the goods purchased or with most of the goods purchased is aimed essentially to unfairly augment the profit of the trader and unreasonably replenish its business quite substantially as the number of consumers in such retail centers is obviously very large, and that the façade of “environmental concerns” appears to be only a euphemistic contrivance ingeniously used to exploit the consumers at their cost. It needs no elaboration that a question of fact or finding of fact is different from a question of law and also that a question of law too is different from a substantial question of law. Whether the appellant company should or may impel the consumers to pay extra Rs. 7/- for the carry bag or that it should itself provide for the same are the questions relating to fairness or unfairness of the conduct of the trader and its trade practice or the desirability or undesirability of such trade practice and relate to propriety of a particular trade practice being adopted by the trader. The facets of such propriety, its fairness, adequacy or imperfection all require to be seen, viewed, assessed and evaluated in perspective of peculiar facts of a case within the parameters of The Consumer Protection Act, 2019 in order to find out whether the same may be called ‘unfair trade practice’ or be called ‘deficiency of service’ or both (or none). Such a question or inferential issue scarcely qualifies to be called a question of law. 12. Section 51(3) of the Act 2019 requires that the memorandum of appeal should precisely state the substantial question(s) of law involved in the appeal. Section 51 of the Act 2019 is being reproduced for reference: 51. Appeal to National Commission.- (1) Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clauses (i) or (ii) of clause (a) of sub-section (1) of section 47 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed: Provided that the National Commission shall not entertain the appeal after the expiry of the said period of thirty days unless it is satisfied that there was sufficient cause for not filing it within that period: Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited fifty per cent. of that amount in the manner as may be prescribed. (2) Save as otherwise expressly provided under this Act or by any other law for the time being in force, an appeal shall lie to the National Commission from any order passed in appeal by any State Commission, if the National Commission is satisfied that the case involves a substantial question of law. (3) In an appeal involving a question of law, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the National Commission is satisfied that a substantial question of law is involved in any case, it shall formulate that question and hear the appeal on that question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the National Commission to hear, for reasons to be recorded in writing, the appeal on any other substantial question of law, if it is satisfied that the case involves such question of law. (5) An appeal may lie to the National Commission under this section from an order passed ex parte by the State Commission. (The articulation of Section 51 of the Act 2019 is similar to that of Section 100 of the C.P.C.) Here we may observe that the requirement of precisely stating the substantial question(s) of law, as required under Section 51(3), cannot be in the nature of experimentation or expedition, nor can a second appeal be attempted as an instrument to prolong the life or breathe new life into the lis. 13. That being as it is, it is ultimately for this Commission to be satisfied that some substantial question of law is involved in the matter, and it is for this Commission to then formulate such question and hear the appeal on that question (Section 51(4)). As has already been said, in our opinion the two lower fora have correctly determined that the proved facts contain ingredients of ‘deficiency’ and ‘unfair trade practice’. And both, ‘deficiency’ and ‘unfair trade practice’, are plainly defined in the Act 2019 itself. In the matter at hand, we do not find any such question of law which may befittingly qualify to be called a substantial question of law. We do not find it to be a case where findings may be said to have been arrived at on the basis of inadmissible material or where the fora below might have fallen into the error of refusing to consider some material declaring it to be inadmissible even though it was legally quite admissible. This is certainly not a case where it may be contended that the concurrent findings have been arrived at on the basis of no evidence. We also do not see any settled principles of law having been misapplied. In this case, the approach adopted by the fora below while dispensing consumer justice hardly deserves to be called injudicious, much less than being called perverse. 14. We find that in the facts and circumstances of the case none of the four questions stated in the amended memorandum of second appeal (vide which four “new” “substantial questions of law” were substituted for the twenty six “substantial questions of law” stated in the earlier memorandum of appeal) qualify as substantial questions of law emanating in the case at hand. 15. To conclude, we find no substantial question of law emanating in the case at hand as may be required to be framed and answered in second appeal. 16. The second appeal no. 03 of 2021, being misconceived and bereft of worth, is dismissed as such. Second appeals no. 01 of 2021; no. 02 of 2021; no. 07 of 2021; no. 08 of 2021; no. 10 of 2021; and no. 11 of 2021: 17. The second appeals no. 01 of 2021, no. 02 of 2021, no. 07 of 2021, no. 08 of 2021, no. 10 of 2021 and no. 11 of 2021 are dismissed in terms of the examination and reasons contained hereinabove apropos second appeal no. 03 of 2021 (the lead-case). Second appeals no. 01 of 2021; no. 02 of 2021; no. 03 of 2021; no. 07 of 2021; no. 08 of 2021; no. 10 of 2021; and no. 11 of 2021: 18. The Registry is requested to send a copy each of this Order to all parties and to their learned counsel immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately. | 
