The Complainant has filed this case against the O.P. on 11.05.2022 under section 35 of the Consumer Protection Act, 2019 praying for following Order/ Relief :-
i) Direction against the O.P. to return and /or refund the Complainant, the extra additional cost to the tune of Rs. 6/- (Rupees Six Only) collected by the Opposite Party Retail Sales Outlet towards the “NON WOVEN P. P. RED BAG 24*24 IN 40GSM” bearing the Logo of the Opposite Party Company.
ii) Direction against the O.P to pay Rs. 2,19,300/- (Rupees Two Lakhs Nineteen Thousand Three Hundred Only) p.a. unlawfully earned by the O.P. from the Complainant and the public at large being the punitive damages suffered by the Complainant and public at large in a year and to be deposited before the State Consumer Welfare Fund.
3) Direction against the O.P to pay an amount to the tune of Rs, 1,00,000/- (Rupees One Lakh Only) to the Complainant for mental pain, agony and suffering sustained by the Complainant in the hands of the O.P.
4) Direction against the O.P to pay the Complainant an amount to the tune of Rs. 50,000/- (Rupees Fifty Thousand Only) towards cost of litigation.
5) Direction against the O.P to restrain the O.P. to stop collecting the extra additional cost collected by the O.P. retail sales outlet towards the “NON WOVEN P. P. RED BAG 24*24 IN 40GSM” bearing the Logo of the O.P. Company during pendency of the case.
6) Direction against the O.P to pay interest @ 11 % p.a. on entire amount.
Total claim amounting to Rs. 3,69,006/- ( Rupees Three Lakhs Sixty Nine Thousand Six Only).
BRIEF FACTS OF THE COMPLAINANT
- The Complainant is a law abiding and peace loving citizen of India having her residence within the jurisdiction of Kotwali Police Station Under Ward No. 07 of Jalpaiguri Municipality and the O.P. is the Retail Outlet running its retail business under the Name & Banner of Reliance Smart having its place at business of Seal Para under Ward No. 17 of Jalpaiguri Municipality which also lies within the jurisdiction of this Commission.
- The Complainant visited the Outlet of the O.P. on 03.04.2022 for the purpose of purchasing some of her essential commodities and purchased some articles listed in the Complaint serial no. 3 (1 to 10).
- After purchasing the articles from the Retail Outlet of the O.P. when the Complainant stepped into the billing section where the cashier of the O.P. Retail Outlet prepared the bill for the products purchase by the Complainant the cashier handed over Tax Invoice No. TRI910622507672, bill no. 46, Salesman I D 53562, dt. 03.04.2022 amounting to Rs. 361.17/- to the Complainant / The Complainant on receipt of the Tax Invoice (bill) handed over Rs. 400/- in cash to the cashier / the cashier returned an amount of Rs. 39 back to the Complainant.
- On scrutiny of Tax Invoice (bill) the Complainant found that the O.P. Retail Sales Outlet had charged an amount of Rs. 6/- for the “NON WOVEN P. P. RED BAG 24*24 IN 40GSM” from the Complainant.
- The O.P. Retail Outlet supplied the said carry bag to the Complainant after receiving a sum of Rs. 6/- though the bag contained the Logo of the O.P. Company and by that way used the Complainant along with other customers as if their advertisement agent at the cost & expenses of its regular customers and the Complainant being one of them amongst all.
- That, by using the customers by the O.P. as an advertisement agent at the cost of the customers the O.P. Retail Outlet has / has been willfully extracting / collecting unlawful pecuniary gains from the public at large.
- That, the Complainant at that time orally objected to and refused to pay the additional cost of Rs. 06/- collected by the O.P. Retail sales Outlet, but, the cashier present there neither refund the sum of Rs. 06/- collected from the Complainant rather misbehaved with her and ask her to leave aside her entire products that had been purchase, by her and vacate the spot which caused enormous humiliation, discomfort and disgrace to the Complainant before the public at large.
- That the O.P. Retail Outlet willfully and merrily using the customers as if their advertisement agent and that too at their cost and expenses which tantamount to unfair trade practice on the part of the O.P.
- That by selling the carry bags bearing the Company Logo of the O.P. has been extracting handsome amounts with lakhs of annual monetary turn over by using its consumers as advertisement agent at their costs which is also an unfair trade practice on the part of the O.P.
- The Complainant sent notice on 19.04.2022 through her Ld. Advocate to the O.P. asking to return and / or refund the Complainant extra additional cost of Rs. 06/- collected by the O.P. towards the “NON WOVEN P. P. RED BAG 24*24 IN 40GSM” / Legal Notice was received by the O.P. on 21.04.2022 but neglected to comply with the instructions mentioned in the Legal Notice.
- That the cause of action arose on 03.04.2022when the Complainant went to the Retail Outlet of the O.P. for purchasing some of her essential articles and thereafter on 19.04.2022 when the Complainant sent Legal Notice to the O.P. by Registered Post with A/D and finally on 21.04.2022 when the Legal Notice of the Complainant was duly acknowledge by the O.P. and the said cause is still continuing.
To prove the case the Complainant files the following documents :-
- Photocopy of Tax Invoice no: TRI910622507672, Bill no: 46, Salesman ID: 53562, dated 03.04.2022, time 15:51:57.
- Photocopy of the red coloured carry bag containing the opposite party company logo in it.
- Photocopy of Legal Notice dated 19-04-2022 with Postal Receipt.
- Photocopy of Postal Acknowledgement Receipt dated 21.04.2022.
Notice was sent from this Commission. On receipt of notice the O.P. appears before this Commission, filed Written Version, and denied all the material allegations of the Complainant.
WRITTEN VERSION OF THE OPPOSITE PARTY:-
The present Complaint is not maintainable in its present form and nature / The Complainant is misconceived, malafide and motivated / The Complaint is barred by estoppels, waiver & acquiescence / The Complaint is vague and incorrect / The Complainant has no cause of action to file this case against the O.P. / The contents of the complaint are totally false, fabricated / The cashier of the O.P. Store informs its every customer about the carry bags are available on chargeable basis before the billing at every cash counter and the Complainant was very much aware of the chargeable carry bags / The store never supports the provision of bags and on the contrary Reliance store is of opinion that every Consumer should bring shopping bag with them or may carry the same / providing bag is like a emergency measure in case when it is seen that the Customer inspite of the notice of bringing bag, has failed to comply such notice and acted in such a manner so as to require the store to provide measures for carrying goods in a bio degradable manner and in a manner which is permissible in law / The O.P. sell carry bags as any other items of the O.P. store / The cashier always asked the Customers whether he / she wants to buy carry bags from the O.P. store and the Customers are at discretion to accept or reject the carry bag as any other item / The Complainant willfully gave consent to the O.P. at the time of billing and after taking valid consent from the Complainant the O.P. sold the carry bag to the Complainant as an item in the way and manner as was offered for sale / The said offer for purchase of the bag in said manner was accepted ad-item by the Customer and there was binding agreement and thereafter only the consideration followed and agreement was concluded / They have set up one notice at the store stating “ Bring your own bag” / The O.P. is selling carry bag on a certain amount as if any of the Customer slipped his / her mind to bring their own bag / The O.P. never force any of its customer to purchase the carry bags / As the carry bag is an item of O.P. hence the Logo of the O.P. Company is printed on it and the Complainant gave consent in purchase of the same in way and manner as it stood there was a contract. The O.P. has also stated that, one Special Leave to Appeal No / 18376 / 2021 is pending before the Hon’ble Supreme Court in similar matter. The O.P. praying for dismissal of this case.
Perused the plaint, Written Version and documents filed by the parties. On perusal of the Material available on record the points to be answered for determination are :-
Points for consideration :-
- Whether the Complainant is a Consumer?
- Whether the case is maintainable under the Consumer Protection Act 2019?
- Whether there is any deficiency in service on the part of the O.P. asalleged by the Complainant?
- Whether the Complainant is entitled for the relief sought? Decision with reasons :-
All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.
At the time of argument Ld. advocate of the Complainant argued that,the Complainant has been able to prove its case against the OP not only through the evidence of the Complainant but also by producing the documents including the Tax Invoice (Bill) before this Commission. He prays for necessary direction against the O.P.
Ld. Advocate of the O.P. during argument submits that the Complainant has filed this case on some false allegation only to extort money from the O.P. He also argued that the Complainant has failed to prove the case against the O.P.
Having heard, the Ld. Advocate of both the side and on perusal of the evidence of the parties, documents filed, questionnaires of the parties including its reply it reveals that, the Complainant is a Consumer of the O.P. which is admitted. It is also admitted fact that, the Complainant went to the Retail Outlet of the O.P. for purchasing essential articles. It is also admitted fact that, the Retail Outlet of the O.P. collected Rs. 6/- from the Complainant towards the cost of carry bag having Logo of the O.P. It is also not denied by the O.P. that, the cashier of the Retail Outlet did not issue Tax Invoice (Bill) admitting the receipt of Rs. 6/- as cost of the carry bag.
Only dispute under the case in hand is that, the opposite parte has been using its esteemed customers as its Advertisement against, by selling the carry bags to the Customers with the Logo of the O.P. Company without prior notice and information before the customer makes her choice of patronizing its Retail Outlets and before the Customer makes her selection of goods for purchase and also without disclosing the specifications and price of the carry bags or not.
According to the provision laid down in section 2 (47) of the Consumer Protection Act 2019 disclosing the price of carry bags at the payment counter by the cashier seems to be undoubtedly an “ Unfair trade practice”. Because the consumer has the right to know that there will be an additional cost for carry bags and also to know the specifications and price of the carry bags, before he / she exercise his / her choice of patronizing a particular retail outlet before he / she makes selection of goods for purchase from the said retail outlet.
In the brief notes of argument it is contended by the O.P. that, “ The bag shown was obviously a bag purchased before the day impugned and there is thus no document to show that the bag was purchased by Complainant and the bill showing purchase of bag by Complainant was having no printed Logo and the bill is not of the bag annexed” .
But from the record it reveals that the Complainant has filed the Tax Invoice (Bill) as Annexure-A and Photo Copy of red colouredcarry bag containing the Logo of the O.P. Company as Annexure-B.
The Complainant on 13.07.2023 produced the original carry bag before this Commission by a firisti and they also produced that original Tax Invoice (Bill). From the said original carry bag we find that, the carry bag bears the Logo of the O.P. Company.
Accordingly the claim of the O.P. for non production of Tax Invoice (Bill) showing receipt of Rs. 6/- and non production of original carry bag by the Complainant is not correct.
It is also the claim of the O.P. that, they have set up one notice at the store stating “Bring your own Bag”. It is also claim of the O.P. that, after taking valid consent from the Complainant the O.P. sold the carry bag to the Complainant as an item in the way and manner as was offered for sale. But from the four corner of the record we do not find any such evidence in support of the claim of the O.P. Regarding that claim of the O.P. they have failed to produce on record any cogent, convincing and reliable piece of evidence in the shape of any instructions authorizing it to levy charge additionally for the carry bag from the customers.
Moreover, it is specific case of the Complainant that there was no where mentioned in the entire shop that the customer would have to take own carry bag.
It was therefore surely for the gain of the Opposite Party and by employing unfair trade practice.
Considering all we are of the view that, the Retail Outlet of the Opposite Party is selling carry bags having their company Logo due to which acts of them, they are using the Complainant / Customers as tool of their Advertisement that leads to adoption of unfair trade practice apart fromdeceptive nature of services. Accordingly we are also of the view that, the Complainant has been able to prove its case against the O.P.
It is primary responsibility of the seller to ensure that, the goods are given to a buyer in a deliverable state and all expenses are to be borne by the seller. Therefore, retail outlet store cannot charge a Consumer for carry bag.
No stay order is received either from the National Consumer Disputes Redressal Commission, New Delhi or from the Hon’ble Supreme Court in Connection with this Case.
Hence, it is therefore,
O R D E R E D
That, the instant Consumer Case being in No. 33/2022 is hereby allowed in part, on contest.
The O.P. is permanently restrained from collecting extra cost from the Customers by selling carry bags bearing Logo of the Opposite Party Company.
The O.P. is directed to refund Rs. 6 (Rupees Six) Only to the Complainant which was received from her as cost of the carry bag.
O.P. is also directed to pay a sum of Rs. 20,000/- (Rupees Twenty Thousand) Only to the Complainant for mental pain, agony & suffering sustained by the Complainant.
O.P. is also directed to pay a sum of Rs. 10,000/- ( Rupees Ten Thousand ) Only to the Complainant as litigation cost and Rs. 10,000/- ( Rupees Ten Thousand ) Only to the Consumer Legal Aid Account of this Commission.
The O.P. is directed to pay the above stated amount within 30 days from this day in default the Complainant may take proper steps as per law.
Let a copy of this order be given to the parties free of cost.