Chandigarh

StateCommission

A/160/2019

M/s Dominos, Jubilant Foodworks Limited - Complainant(s)

Versus

Pankaj Chandgothia - Opp.Party(s)

Kshitij Sharma, Saurabh Gulia, Balwinder Singh, Rohan Jain Adv.

12 Dec 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	160 of 2019
Date of Institution	30.07.2019
Date of Decision	12.12.2019

 

M/s Dominos, Jubilant Foodworks Limited, SCO 3, Sector 8, Chandigarh, through its Manager.

 

                        …..Appellant/ opposite party.

                        Versus

Pankaj Chandgothia son of Lt. Sh.R.S.Chandgothia, SCO 14-15, Sector 28-C, Chandigarh.

…..Respondent/complainant.

Argued by:

 

Sh. Kshitij Sharma, Advocate for the appellant.

Sh. Pankaj Chandgothia, respondent/ complainant in person.

 

Appeal No.	252 of 2019
Date of Institution	22.10.2019
Date of Decision	12.12.2019

 

Pankaj Chandgothia s/o Late Sh.R.S. Chandgothia, C/o SCO No.14-15, Sector 28-C,Chandigarh.

Email ID: pankajchandgothia@gmail.com

…..Appellant/complainant.

                        Versus

M/s Dominos, M/s Jubilant Foodworks Limited, SCO 3, Sector 8, Chandigarh, through its Store Manager.

Email ID : guestcaredominos@jublfood.com.

.…..Respondent/opposite party.

 

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                             MRS. PADMA PANDEY, MEMBER

                             MR. RAJESH K. ARYA, MEMBER

 

Argued by:

 

Sh. Pankaj Chandgothia, appellant/complainant in person.

Sh. Kshitij Sharma, Advocate for the respondent.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                This Commission would like to dispose of above captioned two appeals, bearing No.160 of 2019 (filed by the opposite party) and bearing No.252 of 2019 (filed by the complainant), against the order dated 25.06.2019, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’ only), vide which, it allowed Consumer Complaint No.594 of 2018 against the opposite party, with the following directions: -

“12.        In the light of above observations, we are of the concerted view that the present complaint of the Complainant deserves to succeed against the Opposite Party, and the same is allowed, qua it. The Opposite Party is directed:-

(i)     To provide free carry bags to all customers forthwith who purchase articles from its Outlet;

(ii)    To refund to the Complainant the amount of Rs.13.33/- (say Rs.14/-) wrongly charged for the paper carry bag;

(iii)   To pay Rs.100/- to the complainant towards compensation for harassment and mental agony.  Compensation imposed on lower side as mental agony of parting with Rs.14/- could only be caused to this extent.

(iv)   To pay Rs.500/- as litigation expenses.      

      (v) To deposit Rs.10,000/- in the “Consumer Legal Aid Account” No.32892854721, maintained with the State Bank of India, Sector 7-C, Madhya Marg, Chandigarh in the name of Secretary, Hon’ble State Commission UT Chandigarh.

                This order shall be complied with by the Opposite Party within one month from the date of receipt of its certified copy, failing which, it shall be liable to pay the amount at Sr.No.(ii) to (iv) to the complainant along with interest @ 12% p.a. from the date of filing of the present Complaint, till its realization, besides compliance of directions as at Sr.No.(i). The amount mentioned at Sr.No.(v) be deposited in the account aforesaid, within one month from the date of receipt of its certified copy, failing which the same will carry interest @ 12% p.a. from the date of this order till its deposit. A copy of this order be also sent to the Secretary (SCDRC), U.T. Chandigarh, for necessary action.”

2.             Stating succinctly, the facts necessary for the disposal of the appeals in hand are that complainant Sh.Pankaj Chandgothia (appellant herein in appeal No.252 of 2019 and respondent in appeal No.160 of 2019) on 13.11.2018 purchased two regular pizzas from the outlet of opposite party through his driver, namely, Yashpal for a sum of Rs.305.89 vide bill (Annexure C-1). The opposite party  delivered the eatables (two Pizzas) to said Yashpal packed in a paper carry-bag. The packing material i.e. paper carry-bag was bearing the advertisement/insignia of Dominos on both sides (Annexure C-2). When the complainant saw the bill, he was shocked to see that the opposite party had charged Rs.13.33/- for the said carry-bag i.e. packing material. It has been alleged that in the entire restaurant premises, it was nowhere mentioned that the opposite party would charge for a carry-bag also. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the opposite party.

3.         The opposite party contested the complaint by filing its reply, inter alia, admitting the basic facts of the case. It has been pleaded that after the ban of plastic bags by the Chandigarh Administration, the opposite party purchased the paper bags, which are much costlier than the plastic bags, and started providing the same to its customers on payment of its price. It has been further asserted that there was no legal obligation on the opposite party to provide any bag to carry purchased item for free to its customers. Pleading that there is no deficiency in service or unfair trade practice on its part, as such, the opposite party has prayed for dismissal of the complaint.

4.          The complainant filed rejoinder to the written reply of the opposite party, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the opposite party. 

5.         The parties led evidence, in support of their case.

6.          After hearing the complainant and Counsel for the opposite party and on going through the evidence and record of the case, the Forum, allowed the complaint vide the impugned order, as sated above.

7.         Feeling aggrieved, both the parties filed separate appeals i.e. appeal bearing No.160 of 2019 (filed by the opposite party) and appeal bearing No.252 of 2019 (filed by the complainant), before this Commission, as stated above.

8.         We have heard the Counsel for M/s Dominos and respondent/complainant, and have gone through the evidence and record of the case, carefully.

9.         The Counsel for the opposite party in appeal bearing No.160 of 2019 argued that the Company i.e. Dominos are not liable to provide any carry-bag to the respondent/complainant as the goods i.e. pizza was delivered to him in a cardboard box itself. He further argued that the impugned order passed by the Forum is not sustainable in the eyes of law and the same is liable to be set aside and that the complaint deserves dismissal.

10.        On the other hand, the complainant (appellant in appeal bearing No.252 of 2019) has contended that the compensation awarded by the Forum is highly meagre and the same be enhanced equal to the relief as awarded in the case of Jitender Bansal Vs. Domino’s Jubilant FoodWorks Limited, Consumer Complaint No.94 of 2019 decided by District Forum-II, UT, Chandigarh on 04.06.2019.

11.        This Commission has considered the rival contentions and meticulously gone through the material available on the record.

12.        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.

13.        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.

14.        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. 

15.        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.

16.        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.

17.        In view of above, the appeal filed by the opposite party bearing No.160 of 2019 deserves dismissal.

18.        Now coming to the appeal filed by the complainant i.e. bearing No.252 of 2019, it may be stated here that in a similar case of Jitender Bansal (supra), the District Forum-II, UT, Chandigarh has awarded the following relief :-

25]      From the above discussion, facts & circumstances of the case, the complaint stands allowed against Opposite Parties  and exercising the powers conferred under the above referred provisions of Section 14(1)(f) of The Consumer Protection Act, 1986, (as amended upto date), we hereby direct the Opposite Parties as under:-

1. To stop the unfair trade practice of charging extra money for the carry bags from consumer(s);
2. To refund to the Complainant the amount of Rs.12/- wrongly charged for the paper carry bag;
3. To pay Rs.1500/- to the complainant towards compensation for harassment and mental agony as well as litigation expenses.

26]      Undoubtedly, the Opposite Parties have several outlets across the country and in the above said manner, are minting money by selling the carry bags along with the purchased food items. The Opposite Parties are getting themselves enriched by such unfair means at the cost of innumerable gullible consumers, so they warrants a stringent action against them.  In such like situations, the District Forum under the proviso added to Clause (d) Section 14 of The Consumer Protection Act, 1986 has the power to grant punitive damages in such circumstances as it deems fit.  This provision has been inserted by the Act 62 of 2002, Section 10 (w.e.f. 15.3.2003).  The said proviso, along with sub-clause (d) is reproduced as under:-

14(1)(d)           to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.

Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit.  

        In addition, Section 14(1)(hb) of The Consumer Protection Act, 1986 also provides as under:-

(hb)     to pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently:

Provided that the minimum amount of sum so payable shall not be less than five per cent. of the value of such defective goods sold or service provided, as the case may be, to such consumers:

Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed;

         In recourse to the combined reading of the above referred provisions, we are imposing a penalty of Rs.Five Lacs upon the Opposite Parties in the interest of justice, which they shall deposit in the Poor Patient Welfare Fund (PPWF) of PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh and submit the receipt thereof with this Office.  

27]      This order shall be complied with by the OPs within the period of 30 days, failing which they shall also be liable to pay additional compensatory cost of Rs.5,000/- to the complainant, apart from complying with the above relief. The complainant shall ensure the complete compliance of this order having remedy under relevant provisions of the Consumer Protection Act, 1986.”

19.        In the instant case, in our opinion, the compensation awarded by the Forum is inadequate and it should be equal to the relief granted in the case of Jitender Bansal (supra) on the basis of doctrine of equality and stare decisis which requires that in both the complaints, equal relief be granted as the facts in both the complaints are akin to each other. In Jitender Bansal case (supra), District Forum-II, UT, Chandigarh has awarded an amount of Rs. 5 lakhs as penalty to be paid to Poor Patient Welfare Fund (PPWF) of PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh, whereas, in the instant case, the District Forum-I, UT, Chandigarh has awarded an amount of Rs.10,000/- to be deposited in the Consumer Legal Aid Account No.32892854721, maintained with the State Bank of India, Sector 7-C, Madhya Marg, Chandigarh in the name of Secretary of this Commission. This Commission, while applying the principle of equity is of the view that Rs.10,000/- be deposited by M/s Dominos in the aforesaid Consumer Legal Aid Account and Rs.4,90,000/- be deposited in the Poor Patient Welfare Fund (PPWF) of PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh.

20.        For the reasons recorded above, the appeal bearing No.160 of 2019 filed by M/s Dominos stands dismissed with cost of Rs.2,500/-, which shall be paid to the complainant (respondent herein), whereas, the appeal bearing No.252 of 2019 filed by the complainant is accepted with cost of Rs.2,500/- which shall be payable by the opposite party to the complainant. Thus, the impugned order under appeal bearing No.252 of 2019 stands modified in the following manner:-

            The opposite party (M/s Dominos) is directed to:-

(i)     provide free carry-bags to all customers forthwith who purchase articles from its outlet/selling centres;

(ii)    refund to the complainant the amount of Rs.13.33/- (say Rs.14/-) wrongly charged for the paper carry- bag;

(iii)   pay Rs.1,500/- to the complainant towards compensation for harassment and mental agony as well as litigation expenses.

(iv)  deposit Rs.10,000/- in the “Consumer Legal Aid Account” No.32892854721, maintained with the State Bank of India, Sector 7-C, Madhya Marg, Chandigarh in the name of Secretary of this Commission.

(v)   However, it is made clear that statutory deposit made by the opposite party at the time of filing or during the pendency of the appeal shall be adjusted towards the total decretal amount.

(vi) deposit Rs.4,90,000/- in the Poor Patient Welfare Fund (PPWF) of PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh and submit the receipt thereof with this Commission.

21.        This order shall be complied with by the opposite party within a period of 30 days from the date of receipt of its certified copy, failing which, the opposite party shall be liable to pay additional compensatory cost of Rs.5,000/- to the complainant, apart from complying with the above relief.

22.        Certified copy of this order be sent to the parties as well as Director, PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh.

23.        Certified copy of this order be also placed in the file of appeal bearing No.252 of 2019.

24.        After compliance, file be consigned to record room.

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

Pronounced.

12.12.2019

                       

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

                                                        [PADMA PANDEY]

        MEMBER

 

 

[RAJESH  K. ARYA]

MEMBER