KUNDAN KUMAR KUMAI

This is an appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the judgement dated 14/08/2023 passed by the Ld. DCDRC, Jalpaiguri, in CC/33/2022.

The Appellant’s case in brief is that, the Respondent/Complainant had visited the Appellant’s Retail Outlet at Sealpara under Ward No.17 of Jalpaiguri Municipality, PS – Kotowali, Jalpaiguri, on 03/04/2022, for the purpose of purchasing some of her essential articles. After taking the articles to the Billing Section of the said Retail Outlet it was found that an amount of Rs.361.17 (Rupees three hundred sixty-one point one seven) only, had been generated and on payment of Rs.400/- (Rupee four hundred) only, Rs.39/- (Rupee thirty-nine) only, had been refunded. On closure perusal of the bill, it was found that the Appellant had also charged an amount of Rs.6/- (Rupees six) only, for the “Non-Woven P P Red Bag 24*24 IN 40 GSM” with the Appellant/Company’s Logo embossed upon it. Thus, the Appellant/Company was using the consumers for their advertisement, free of cost, by collecting unlawful pecuniary gains. When the Respondent/Complainant, objected to the levy of Rs.6/- (Rupees six) only,  for the carry bag, the cashier of the Appellant/Company not only refused to refund the amount, but rather insisted that the Respondent/Complainant leave her purchased articles and vacate the spot, causing embarrassment, humiliation and discomfort to the Respondent/Complainant, in the presence of large public. The Appellant/Company had therefore not only violated the State and Central Government orders for charging of carry bags, only in carry bags without the Logo of the Company, but also unwillingly induced the consumers to advertise on their behalf. That apart by selling such carry bags the Appellant/Company had been extracting handsome amounts from the consumers, at large, thus indulging in unfair trade practices. On 19/04/2022, the Respondent/Complainant issued a Legal Notice for refund of the amount of Rs.6/- (Rupees six) only, charged for the carry bags, but despite receiving the same, the Appellant/Company, failed and neglected to respond. Finding no alternative, the Respondent/Complainant, lodged this claim case, before the Ld. DCDRC, Jalpaiguri, with necessary prayers.

The Appellant/Company appeared to contest the claim, by filing written version, wherein they have mainly denied the claim case. It was further stated that the Respondent/Complainant had knowingly purchased their chargeable carry bags therefore the Respondent/Complainant’s claim does not stand. Moreover, the Company had never supported the instance of providing carry bags and had insisted that the consumers should bring their own shopping bags. Thus, the Respondent/Complainant, while paying the amount had given valid consent, for the charges of the carry bag, which was an item for sale. The Appellant/Company had therefore never compelled the Respondent/Complainant, nor forced her to purchase the bags. Therefore, the case of unfair trade practice does not arise.

After going through the materials and evidence on record, the Ld. DCDRC, Jalpaiguri passed the impugned order restraining the Appellant/Company, from collecting extra costs from the customers by selling carry bags, bearing their Company Logo. The Appellant/Company was further directed to refund the amount of Rs.6/- (Rupees six) only and was directed to pay a sum of Rs.30,000/- (Rupees thirty thousand) only, to the Respondent/Complainant as compensation for mental pain and agony and litigation cost. The Appellant/Company was further directed to deposit Rs.10,000/- (Rupees ten thousand) only to the Consumers’ Legal Aid account. The above directions were to be complied within 30 (thirty) days, from the date of the order.

Being aggrieved by the impugned order, the Appellant/Company preferred this instant appeal, on the ground that the Ld. DCDRC, Jalpaiguri, had erred in law and facts, while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellant, at the time of final hearing, had argued that the Appellant/Company never supported the sale of carry bags, as the Company insisted on the consumers to bring their own shopping bags and providing the carry bags, as an emergency measure. Moreover, the Appellant/Company sold carry bags as any other items in the store and therefore the Respondent/Complainant had willfully given consent to the cashier, at the time of billing and that consent was a binding agreement, as per the Indian Contract Act. Moreover, the Appellant/Company had stopped selling of bags with Company Logo before the impugned date i.e. 03/04/2022. It was further argued that the Special Leave Petition No.18376/2021 had been disposed of on 16/01/2024 by the Hon’ble Supreme Court in a similar matter, by setting aside the judgement passed by the Hon’ble NCDRC, where the Appellant/Company had been held responsible for conducting unfair trade practice. It was finally prayed that the impugned order be set aside.

Ld. Advocate for the Respondent/Complainant, on the other hand, had argued that the Appellant/Complainant was profiteering from such sale of carry bags, as even hundred bags sold by the Appellant/Company, would yield a transaction of Rs.2,19,000/- (Rupees two lakhs nineteen thousand) only, per year from the single outlet. That apart the impugned judgement did not suffer from any material irregularity.

The fact of the sale of the carry bag, is not disputed. The only point of dispute is that with regard to the charge of the amount of Rs.6/- (Rupees six) only, for the sale of the carry bag having Logo of the Appellant/Company. In this regard, the order passed by the Hon’ble Supreme Court of India in Special Leave Petition No.18376/2021on 16/01/2024, wherein the impugned order of the Hon’ble NCDRC had been set aside and liberty had been granted to reframe the substantial questions of law or to frame fresh substantial questions of law, which may arise having regard to the facts and circumstances of the case and to dispose of the second appeal in accordance with law. However, even though the liberty had been given to reframe the substantial questions of law or to frame fresh substantial questions of law, but in the body of the judgement it transpires that the above directions arose when the questions regarding to deficiency of service as well as any unfair trade practice had not been answered by the Hon’ble NCDRC, but to determine the deficiency of service as well as unfair trade practice would mean to interpret the factual position of the case. Under the circumstance, there being no bar and the facts of this case, being different, has to be decided on the facts of this case. As already noted above, the facts being undisputed, the question of selling carry bag with the Appellant/Company Logo, obviously points to the Appellant/Company to not only profit from the sale of the carry bags with a Company Logo, but also to getting benefits of the advertisement by the display of such carry bags, by the unintending consumers.

As to the argument that the carry bags were kept as an item for sale in the Appellant/Company’s Store, there is neither any evidence to back it nor any logic, as to why any consumer would purchase such a carry bag with the Company Logo. Hence, for the reasons and observations made aforesaid there appears no ground to interfere with the impugned order, passed by the Ld. Commission below. As a result, the instant appeal fails.

It is therefore,

ORDERED

That the instant appeal be and the same is dismissed on contest, but without cost.

The impugned order is hereby upheld. The Appellant/Company is directed to comply with the directions passed in the impugned order within 45 (forty-five) days from the date of receipt of this order, failing which interest @ 9% p.a., would be levied.

Copy of the order be sent to the parties, free of cost. 

Copy of the order be sent to the Ld. DCDRC, Jalpaiguri, for necessary information.

Statutory deposits, if any, be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC, Kolkata, to do the needful.