Chandigarh

StateCommission

A/62/2021

Reliance Retail Ltd. - Complainant(s)

Versus

Nihit Lomis - Opp.Party(s)

Sanjiv Pabbi

23 Feb 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	62 of 2021
Date of Institution	:	16.08.2021
Date of Decision	:	23.02.2022

 

1. Reliance Retail Limited, Elante Mall, Plot No.178, Shop No.247 & 248, Industrial Area, Phase-I, U.T., Chandigarh.
2. Reliance Retail Limited, RCR, STTC, Industrial Area, Tana Belapur Road, Ghansoli, Mumbai, Maharashtra-4000701, through its Power of Attorney Holder Himanshu Shekhar Jha, aged 58 years, son of Late Dr. M. P. Jha.

…..Appellants/Opposite Parties.

VERSUS

 

Nihit Lomis R/o H.No.267, Sector 16-A, Chandigarh.

…..Respondent/Complainant.

 

Appeal under Section 41 of Consumer Protection Act, 2019.

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MRS.PADMA PANDEY, MEMBER

                MR. RAJESH K. ARYA, MEMBER.

 

PRESENT: (THROUGH VIDEO CONFERENCING):

Sh. Sanjiv Pabbi, Advocate, for the appellants.

Respondent already exparte vide order dated 25.11.2021.

 

RAJESH K. ARYA, MEMBER 

                   This appeal has been filed by the opposite parties against order dated 28^th June 2021 passed by District Consumer Disputes Redressal Commission-II, U.T., Chandigarh in consumer complaint No.1182 of 2019 vide which, the said complaint was allowed and the opposite parties (appellants herein) were directed to refund Rs.5/- as cost of carry bag to the complainant (respondent herein); Rs.100/- as compensation for harassment and mental agony besides payment of Rs.1,100/- as litigation expenses. The order was to be complied with within a period of one month from the date of receipt of its certified copy failing which the awarded amounts were to carry interest @9% per annum from the date of order till its realisation.

2.                Briefly stated the fact before the District Commission were that the complainant purchased certain goods on 12^th December 2019 from opposite party No.1 vide Bill, Annexure C-1, by paying an amount of Rs.1,247.50. However, he was shocked to see that opposite party No.1 charged a sum of Rs.5/- for the carry bag. As per him, the opposite parties nowhere mentioned that they would charge for the carry bag also and having no option, the complainant paid Rs.5/- additionally for the said carry bag which according to him, was deficiency in service as well as unfair trade practices on their part.

3.                On the other hand, the opposite parties pleaded that they introduced the optional sale of the carry bag in order to protect the environment at large and also to provide convenience to the visiting customers. It was their case that charges towards the carry bag were taken only after the consent of the complainant.

4.                Now, before this Commission, the order of the District Commission has been assailed on the ground that the opposite parties encourage the customers to bring their own carry bags and in case, they do not bring the same the carry bag could be made available at these stores for a charge. It has been stated that in the information display board installed at the billing counters, it has been stated that purchase of carry bag is an option given to the customer and not a compulsion. It has further been stated that the District Commission has failed to appreciate that neither was there any deficiency in service nor the opposite parties were engaged in unfair trade practice and as such, the complaint filed by the respondent was liable to be dismissed. It has further been stated that the District Commission failed to appreciate that the purchase of carry bag cannot be termed as an unfair trade practice. It has been further stated that all the carry bags to carry other items by the customers are provided free of cost and only to put all the items in one carry bag, Rs.5/- was charged on no profit basis with the consent of the complainant only. It has further been stated that the District Commission has failed to appreciate that there was no embargo on charging for the carry bag and in the absence of any embargo, charging of carry bag was not against law. It has further been stated that the District Commission has not considered that the case of the appellants are covered under section 36 of the Sales of Goods Act and Section 14 of the Indian Contract Act 1872. Reliance was placed on the order of National Commission in Revision Petition No.1715 of 2019 titled Bata India limited versus Dinesh Prashad, whereby, the Hon’ble National Commission has stayed the order of this Commission and the said revision petition is pending for arguments for 17.11.2021.

5.                After hearing the Counsel for the appellants and going through the material available on record and the written arguments very carefully, we are of the considered view that the present appeal filed by the opposite parties is liable to be dismissed for the reasons to be recorded hereinafter. It may be stated here that it is not the first time that this Commission is dealing with this kind of issue. Earlier also, a bunch of appeals were filed by the opposite parties before this Commission, which were dismissed by this Commission vide order dated 25.10.2021, the lead case was that of Reliance Retail Limited  Vs. Amarpreet Singh, Appeal No.107 of 2020. In the said bunch of appeals, the opposite parties have assailed the order of the District Commission on similar grounds as have been raised in this appeal that the respondent failed to disclose as to how charging for a carry bag could be construed as deficiency in service; that it was only after obtaining the consent of the respondent that he had been billed for the carry bag; that the customers could bring their own bags and purchase of carry bag in the store was optional and not compulsory and that the District Commission wrongly held that the case of the appellant is covered under Section 36 of the Sales of Goods Act and Section 14 of the Indian Contract Act 1872. This Commission while dismissing the said appeals vide order dated 25.10.2021, observed in Paras 11 to 15 as under:-

“11.              In the instant case also, it may be stated here that it is not for the first time this Commission is dealing with the issue of charging for the carry bag but this issue has already been decided by this Commission in numerous cases. A similar question fell for determination before this Commission in First Appeal No.238 of 2019 titled as Big Bazaar (Future Retail Ltd.) Vs. Ashok Kumar,  decided on 18.05.2020 wherein while negating the plea taken by Big Bazaar, the appeals filed by it were dismissed and the orders passed by the District Commissions I and II were upheld by holding as under:-

“12.  Our above view is supported by 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, providing carry bags etc. shall be borne by the vendor in order to put the goods into a deliverable state.

          In the present cases also, the goods with different brands name i.e. macroni pep, dettol, oreo; cop urad etc., were put in the carry-bags by the appellant, in order to bring it in the complete deliverable state, so that its physical possession could be handed over to the respondents. The appellant has failed to prove its case that the carry-bag was separately purchased by the respondents/purchasers of their own free will, rather, the appellant has used the same for the purpose of putting the above said goods to make them into a deliverable state. Thus, all the expenses required and incurred to make the goods into a deliverable state for handing over to the purchasers thereof, were to be borne by the appellant. In this view of the matter, the appellant has no right to recover the expenses borne by it on the packing of the goods or putting the goods in a carry bag for making the same in a deliverable state.

13.    At the time of arguments, when confronted with the above situation, Counsel for the appellant with a view to buttress her cases, placed heavy reliance on provisions of Rule 10 of the Plastic Waste (Management and Handling) Rules, 2011, to contend that the appellant was not bound to provide carry bags, free of cost, to the respondents. Relevant part of the said Rule is reproduced hereunder:-

“10 Explicit pricing of carry bags. - No carry bags shall be made available free of cost by retailers to consumers. The concerned municipal authority may by notification determine the minimum price for carry bags depending upon their quality and size which covers their material and waste management costs in order to encourage their re-use so as to minimize plastic waste generation.”

          No doubt, from Rule 10 afore-extracted, it is evident that no “carry bags” shall be available free of cost by the retailers to customers, yet, when we go through Rule 3 of the said Rules, under the heading “Definition”, it is found that the said "carry bags" means bags made from any plastic material, used for the purpose of carrying or dispensing commodities but do not include bags that constitute or form an integral part of the packaging in which goods are sealed prior to use. Relevant part of the said Rule reads as under:-

"carry bags" means bags made from any plastic material, used for the purpose of carrying or dispensing commodities but do not include bags that constitute or form an integral part of the packaging in which goods are sealed prior to use;]”

          When we read the said Plastic Waste (Management and Handling) Rules, 2011, as a whole, it reveals that the said Rules have been framed with a view to enforce the provisions relating to the use, collection, segregation, transportation and disposal of plastic waste and also the conditions to be fulfilled during the course of manufacture, stocking, distribution, sale and use of carry bags and sachets, in order to save the environment. Thus, Rule 10 relates to explicit pricing of carry bags, made from any plastic material, used for the purpose of carrying or dispensing commodities, to encourage their re-use so as to minimize plastic waste generation, to save the environment. Whereas, in the present cases, as stated above, the appellant failed to deliver the goods in the complete state of delivery and on the other hand, charged for the carry bags made of jute, which was required to put the goods i.e. macroni pep, dettol, oreo; cop urad etc., in order to bring it in the complete deliverable state, so that its physical possession could be handed over to the respondents; thereby violating the provisions of Sub Section (5) of Section 36 of The Sale of Goods Act, 1930, referred to above, which says that  all the expenses with regard to packing etc. shall be borne by the vendor in order to put the goods into a deliverable state. No help, therefore, can be drawn by the appellant from the provisions of Rule 10 of the Rules 2011.

14.    It was also vehemently contended by Counsel for the appellant that the purchase of carry bag is entirely optional and is a voluntary act by a consumer. However, in the same breath, it was also contended by her that the customers cannot bring their own carry bags containing items/goods purchased from other shops.

          It may be stated here that, once we have already held that all kinds of expenses incurred in order to put goods into a deliverable state shall be suffered by the seller, as such, the contention raised does not merit acceptance. Ever otherwise, as per the contention raised by Counsel for the appellant, on the one hand, purchase of carry bags is made optional & voluntary but at the same time, the consumer/customer is not allowed to enter the shop with their own carry bags containing some goods purchased from other shop premises. We cannot expect that for every single item/article intended to be purchased by a customer, he/she needs to carry separate carry bags. For e.g. if a customer wants to purchase, say about 15 in number, daily-use goods/articles like macroni pep, dettol, oreo; cop urad, soap, toothpaste, shaving cream, pen, pencil etc., from different shops, we cannot expect him/her to take 15 carry bags from home, for the same. Thus, by not allowing the customers to carry their own carry bags by the appellant in its premises, there was no option left with them to buy the carry bags alongwith the goods purchased, to carry the same from the shop-premises. We are shocked to note the kind of services provided by these big Malls/Showrooms. One cannot be expected to take the goods like macroni pep, dettol, oreo; cop urad etc., purchased, in hands. By not allowing the customers to bring in the shop premises, their own carry bags, and thrusting its own carry bags against consideration, the appellant is deficient in providing service and also indulged into unfair trade practice. No case is made out to reverse the findings of the respective District Commission in each appeal.

15.    For the reasons recorded above, we are of the considered opinion that all these appeals are devoid of merit and the same deserve dismissal. Consequently all the above captioned appeals are hereby dismissed with no order as to costs. The orders of the District Commission in each appeal are upheld”.

 

12.              Not only above, even the bunch of Revision Petitions filed before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, the lead case being Revision Petition No.975 of 2020 titled ‘BIG BAZAAR (FUTURE RETAIL LTD.)  Versus ASHOK KUMAR’, challenging the aforesaid order dated 18.05.2020 passed by this Commission, were disposed of by Hon’ble National Commission vide order dated 22.12.2020, whereby the findings of this Commission given in Paras 14 and 15 of order dated 18.05.2020 as extracted above, were upheld. While disposing of the aforesaid bunch of said appeals, the Hon’ble National Commission further held that the Award made by the District Forum, as upheld by the State Commission, appeared just and equitable in the facts of the case  and on the face of it, nothing warrants interference with the Award in exercise of the revisional jurisdiction of the National Commission.

13.              It may also be stated here that this Commission in a bunch of nine appeals, the lead case of Big Bazaar (Future Retail Ltd.) Vs. Tanu Malik, Appeal No.14 of 2020, decided on 15.10.2020, while dealing with a similar issue of charging for the paper bags, held in Para 13, as under:-

“13.   In the present appeals also, being facts and circumstances of similar nature and against the same company, nothing new has been placed on record by the appellant, to convince this Commission to diverge from the findings given in Ashok Kumar’s case. (supra).  Despite the fact that this Commission in Ashok Kumar’s case. (supra) held that the appellant was deficient in providing service and adopted unfair trade practice by charging amount towards the carry bag, even then it did not discontinue with the said practice and have shown its courage to continue the same. The said act of the appellant needs to be deprecated.”

 

14.              The grounds raised in the instant appeal being similar ones have already been dealt with by this Commission in the cases as already decided by this Commission and as referred to in the preceding para of this order. Therefore, we reiterate our earlier view in this case also that the appellant was deficient in providing service and adopted unfair trade practice by charging amount towards the carry bag. In addition, we are of the firm view that so far as the pleas/arguments raised by the Counsel for the appellant that suitable advertisements and posters have been displayed at prominent locations in the store as the appellant environmental policy and that the carry bag was given to the respondent only upon his confirmation with respect to the purchase of the carry bag, the District Commission rightly held in Para 8 and 9 of its order as under:-

“8.     The Ld. Counsel for the Opposite Party has argued that suitable advertisements and posters are displayed at prominent locations in the store as Opposite Party is committed to follow a responsible environmental policy.  However, we are not impressed with the same, in as much as, the Opposite Party has miserably failed to produce on record any cogent, convincing and reliable piece of evidence in the shape of any rules/ instructions authorizing it to levy charge additionally for the carry bag from the gullible Consumers. Moreover, if the Opposite Party is an environmental activist, it should have given the same to the complainant free of cost. Therefore, the contention of the Opposite Party that there is no law as such which directs or binds any shop keeper to provide carry bags for free is rejected being bereft of any force. It was surely for the gain of Opposite Party and by employing unfair trade practice, Opposite Party is minting lot of money from all customers.

 

9.        Ld. Counsel for the Opposite Party further argued that the carry bag was given to the Complainant only upon confirmation from her with respect to the purchase of the carry bag. However, we are also not impressed with the same, in as much as if the Cashier informed the Complainant about the purchase of carry bag before billing, the same amounts to unfair trade practice and deficiency in service, as it would have been very odd and inconvenient for Complainant to carry the new articles in hand throughout without a carry bag. In this backdrop, charges of such things (carry bags) cannot be separately foisted upon the consumers and would amount to overcharging. It is noteworthy that in this manner, the Complainant and other gullible consumers like her has certainly been taken for a ride by the Opposite Party. Undoubtedly, the Opposite Party has several stores across the country and in the above said manner, made lot of money; 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.”

 

15.              Not only above, we may also like to add here that the argument raised is not supported by any cogent and convincing evidence on record. Moreover, it was the specific case of the respondent/complainant that there was nowhere mentioned in the entire shop that the customer would have to take his/her own carry bag. We further endorse the view held by the District Commission that the sequence of events established the high handedness of the opposite party of which the complainant became the victim and felt the brunt, as a result he was left with no alternative, except to knock the doors of the District Commission, which further aggravated her pain & harassment.”

 

6.                            Thus, the contentions of the appellants have already been dealt with in detail by this Commission in the judgments already rendered in such cases, the one in the case Reliance Retail Limited  Vs. Amarpreet Singh (supra). So far as the contention raised by the appellants that all the carry bags to carry other items by the customers are provided free of cost and only to put all the items in one carry bag, Rs.5/- was charged on no profit basis with the consent of the complainant only, it may be stated here that when the appellants/opposite parties are providing all the carry bags to carry other items by the customers free of cost, then what was the hitch for them to provide a carry bag to put those carry bags therein free of charge. This also goes to show that the carry bags provided to carry other items are not that of much quality than the one provided to put those carry bags therein. It is also not out of place to mention here that it is commonly understood that how a consumer can carry numerous carry bags of items, without there being a big carry bag to carry those numerous carry bags and when it comes to the final stage of billing, the opposite parties in order to take benefit out of their own act, are charging the petty consumers for the carry bag at the packing counter to carry those numerous carry bags of other items. It may also be stated here that the case of Reliance Retail Limited Vs. Dharam Pal & Anr., Special leave to Appeal (c) No.18376 of 2021, copy whereof has been placed on record by the Counsel for the appellants at the time of arguments, is still pending before Hon’ble Supreme Court of India and as such, the appellants cannot derive any benefit out of the said order. Here, we would again like to reiterate that the consumer, like the complainant in the instant case, should not suffer for unfair trade practices adopted by the opposite parties and the opposite parties are supposed to provide the carry bag to the consumers free of charge to carry the goods purchased from the billing counter to their vehicle etc.

7.                For the reasons recorded above, it is held that the order passed by District Commission-II partly allowing the consumer complaint did not need any interference and as such, is upheld. Resultantly, the appeal, being devoid of merit, stand dismissed with no order as to costs.

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

9.                File be consigned to Record Room after completion.

Pronounced

23.02.2022.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

MEMBER

 

 

(RAJESH K. ARYA)

MEMBER

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