Date of Disposal:        29.04.2022

Sri P. Surya Rao, President

The fact of the case in brief is that the Complainant has filed this Consumer Complaint under Sec. 12(1)(a) of the Consumer Protection Act, 1986 alleging deficiency in services and unfair trade practice by the Opposite Parties (in short Ops) and for Redressal of his grievance before this Commission.

The facts of the case as averred by the complainant is that he purchased some articles from the shop of the OP No.1 and went to the billing counter for payment and at the time of billing, the cashier told him that he was required to pay Rs.3/- on account of carry bag for carrying the articles. He resisted and told the cashier that it was illegal to charge for a carry bag but to no effect. It has further been averred that the Opposite Party has committed deficiency in service as also indulged into unfair trade practice by charging for the carry bag and also the Ops have misbehaved inside the premises which is tantamount to deficiency in services. This bag had the company’s name and logo printed on it. It was alleged that Bazar Kolkata used the complainant as its advertising agent, that too at the cost of the complainant. Further, it was alleged that this amounted to unfair trade practice under the Consumer Protection Act 1986. Hence, the present consumer complaint.

In its written version, the OPs while admitting the factual matrix of the case has pleaded that the amount which Opposite Parties have charged to the Complainant for the carry bag was rightly charged as the same was displayed in the store counter of the Opposite Party. It has been urged that the Opposite Party provides paid carry bags as per instruction of the Government order to control pollution in the environment. The price of the said cloth bag was duly displayed and after understanding the same the Complainantpurchased the said shopping bag from the Opposite Party. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.

ACTS:           

• Consumer Protection Act, 1986 / Consumer Protection Act, 2019
• Provisions of Rule 10 of the Plastic Waste (Management and Handling) Rules, 2011.

Citation:        

• State Consumer Disputed Redressal Commission, U.T., Chandigarh in Big Bazaar (Future Retail Ltd.) v. Ashok Kumar,  case no.: A/238/2019.
• State Consumer Disputed Redressal Commission, U.T., Chandigarh in Dinesh Prasad Raturi v. Bata (India) Ltd.,(CC/64/2019).
• National Consumer Disputed Redressal Commission in Big Bazaar (Future Retail Ltd.) v. Ashok Kumar, .

Points for Determination:

On perusal of the material available on record the points to be answered for determination are:-

1. Whether there is any deficiency of service on the part of Opposite Parties?
2. Whether the Opposite Parties adopted any unfair trade practice to the detriment of consumers?
3. Whether the complainant is entitled for the relief sought?
4. To what relief?

We have heard the learned Counsels for the parties and have gone through the documents on record. The factum of charging additional price for providing carry bags to its customers has not been disputed by the OPs. The argument put forward by the OPs is that the rates of the carry bags are displayed at payment counter display board in the store.TheOpposite Parties have 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. In this backdrop, charges of such things (carry bags) cannot be separately foisted upon the consumers and the same would amount to unfair trade practice on the part of the OPs. Besides this, if the Opposite Party claims itself to be responsible and environmentally conscious, then they should have given the carry bags to the customers free of cost because in our considered view, the price of the carry bag has generally been included by them in the profit margins of the product(s). It was for gain of the OPs. By employing unfair trade practice, the OPsare minting lot of money from the gullible customers from all their stores situated across the country, and also using it as a method of advertising their company.

Keeping in mind the provisions of Rule 10 of the Plastic Waste (Management and Handling) Rules, 2011, which says that no carry bags shall be provided free of costs by retailers to the consumers. He further submitted that the Ops have stopped using plastic carry bags for the sake of saving the environment; that the OPsare now purchasing cloth bags or non-woven bags and its cost is being passed over to the customers; and that the complainant himself chose to purchase the said carry bags from the OP no.1. He further submitted that the consumer complaint is not sustainable in the eyes of law and the same is liable to be dismissed in limine. On the other hand, Counsel for the Complainant in the Complaint contended that the carry bag has been given for the purpose of packing of the purchased articles without the asking or demand of the complainant in the instant case; and that the OP has no right to charge for the carry bags.

This Commission has considered the rival contentions and meticulously gone through the material available on the record. It may be stated here that it washeldin State Consumer Disputes Redressal Commission, U.T., Chandigarh in Big Bazaar (Future Retail Ltd.) v. Ashok Kumar,  case no.: A/238/2019, that seller is obliged to deliver the goods in the complete state of delivery. 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. The packing of goods is also a state in putting the goods in the deliverable state. All kinds of expenses incurred in order to putting goods into a deliverable state, shall be borne by the seller. 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 case also, the goods with different brands were put in the carry-bags by the OP no.1, in order to bring it in the complete deliverable state, so that its physical possession could be handed over to the Complainant. The OPs have failed to prove its case that the carry-bag was separately purchased by the complainant/purchaser of their own free will; rather, the OPs have 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 OPs. In this view of the matter, the OPs have 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. Further, in the present case, as stated above, the OPs failed to deliver the goods in the complete state of delivery and on the other hand, charged for the carry bags made of some other materials, which was required to put the goods in order to bring it in the complete deliverable state, so that its physical possession could be handed over to the Complainant; 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.

At the time of argument, when confronted with the above situation, Counsel for the OPs with a view to buttress his case, placed heavy reliance on provisions of the Plastic Waste (Management and Handling) Rules, 2011, to contend that the OP no.1 was not bound to provide carry bags, free of cost, to the Complainant. Relevant part of the said Rule is reproduced hereunder:-“Rule – 10: No carry bags shall be made available free - Explicit pricing of carry bags of cost by retailers to consumers”. The concerned Government 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.”And in the instant case, the Ops are miserably failed to produce the notification of the Government/local Municipal Corporation Authority about determine the minimum price for carry bags depending upon their quality and size to sale in the Mall/Stores/Retail Shops, etc., in accordance to the Rule 10 of Plastic Waste (Management and Handling) Rules, 2011 before this Consumer Commission. So charging of additional cost for carry bag by the Opposite Parties is in violation of the Plastic Waste (Management and Handling) Rules, 2011.

The Commission also considered the further dispute that Baazar Kolkata, the OPs had been using its consumers as its advertisement agents, by selling the carry bags to the customers with their logo without prominent prior notice and information before the customer makes his choice of patronising its retail outlets and before the customer makes his selection of goods for purchase and also without disclosing the specifications and price of the carry bags.

The contention of the complainant inter-alia is that the OP’s using the money of their customer for the advertising which is unfair trade practice. Using business or company logo at the expense of the consumer is aunfair trade practice. Marketing is an essential element in the life-cycle of the product. Efficient marketing technique enhances the life of a product. The finish product of any company by themselves will not fetch prospective consumer. It has to come to the knowledge of the consumer. In other words, the consumer should know the existence of a product and the features in the market. The product knowledge will help the consumer to choose the products among the line of similar products available in the market. There are five stages of product life cycle. They are introduction, market penetration, consumer acceptance, saturation and decline. Marketing is important factor and marketing management is basic strategy in deciding the product life-cycle. Marketing management includes advertising, personal selling, promotions, etc. there are four P’s in marketing management.

The company has to spend huge amount of money on advertisement and marketing management. It helps a new product to penetrate into market and ultimate consumers acceptance which decides the longevity of product life-cycle.

Using money of the consumers for advertising, brand or company is itself amounts to unfair trade practice because the company is not going to share its profits with the consumers’for their contribution towards marketing the product of the company. The Four P’s of marketing management revolves round the consumer to get in his favour. Here in this case, we notice that the consumer revolving round the Four P’s of marketing to favour the business organisation. The practice of using logo or brand name in the bags at the cost of the consumer is not only unethical trade practice but also prohibited by law.

Perusal of the MO-I reveals that it includes its name Baazar Kolkata, Phone Number and website address and it includes logo of the Baazar Kolkata and depicts the pictograph of Kolkata. It also includes that the company is having 75 stores in 8 states as depicted in the bag. Furthermore, it is depicted over 15 years of experience in fashion retail. Thus it is quite clear from MO-I that, the Ops adopted all marketing techniques to enhance its goodwill and at the same time attempted to influence the prospective consumers towards its product at the cost of the complainant and other consumers. Hence the Ops definitely adopted unfair trade practice taking valuable cooperation from the customers and creating goodwill for the company without sharing the profits with them which is undoubtedly is unfair trade practice which needs to be discouraged in the domain of perfect competition. Hence the points of determination isanswered accordingly.

Reliance was also placed on the decision of Chandigarh Consumer Commission in Dinesh Prasad Raturi v. Bata (India) Ltd. (CC64/2019),by this Commission, which was held that, “the Bata Company has used the consumer as if he is the advertisement agent of the opposite party.”The Commission relying on the above point finally answered by stating Bazar Kolkata is selling the carry bags having their company logo and name and other information in the carry bag using the customers as tool of their advertisement that leads to adoption of unfair trade practice apart from deceptive nature of services and committal of spurious acts that are highly objectionable.

It was held that disclosing the price of carry bags at the payment counter seems to be undoubtedly an “unfair trade practice” under Section 2(1)(r) of the Consumer Protection Act, 1986. The Commission said that:

“As a matter of consumer rights, the consumer has the right to know that there will be an additional cost for carry bags and also to know the silent specifications and price of the carry bags, before he exercises his choice of patronising a particular retail outlet before he makes his selection of goods for purchase from the said retail outlet.”

The Commission further reliance was placed on the decision of the National Consumer Disputed Redressal Commission inBig Bazaar (Future Retail Ltd.) v. Ashok Kumar, by this Commission that, “such notice or information at the time of making payment not only causes embarrassment and harassment to the consumer and burdens him with additional cost but also affects his unfettered right to make an informed choice of patronizing or not patronizing a particular outlet at the initial stage itself and before making his selection of goods for purchase.”Therefore, the present Commission found such practice of disclosing the price of carry bags at the payment counter to be unquestionably ‘unfair trade practice’ under Sec. 2(1)(r) of the Consumer Protection Act, 1986.

In view of the above discussions, the present consumer complaint is deserved to succeed against the Opposite Parties, and the same is accordingly allowed.

Hence, the complainant’s case is allowed on contest against the Opposite parties.The Opposite Parties are jointly and severally are liable -

1. To pay Rs.1000/- (Rupees One Thousand) to the complainant towards compensation for collecting Rs.3/- from the complainant towards the cost of a carry bag.
2. The opposite parties are jointly and severally liable to pay Rs.1000/- (Rupees One Thousand) as litigation expenses to the complainant.

This order shall be complied with by the Opposite Parties 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.: (i) & (ii) to complainant along with interest @ 12% p.a. from the date of the order, till its realization and the complainant is at liberty to take appropriate steps in accordance to the Consumer Protection Act for realisation of all dues.

Certified copy of this order be communicated to the parties free of cost.

A copy of this order be also sent to theSecretary, State Consumer Disputes Redressal Commission, Odisha, Cuttack and a copy of same is to be sent to the server of www.confonet.nic.in for posting in internet. After compliance the case record be consigned to the record room.

This order is pronounced on 29^th April 2022 in open Commission.

PRESIDENT

I agreed           MEMBER

I agreed           MEMBER (W)

1. a.   Evidence affidavit of the Complainant is filed as PW-1.

2. A written argument of the complainant is filed.

2. a.   Evidence affidavit of the opposite parties was filed through Sri

VarunKohli who is their Manager Legal & Company Secretary of

M/s Baazar Retail Ltd. as DW-1.

List of Exhibits:-

On behalf of the Complainant:

Ext.I - Tax Invoice of Baazar Kolkata Dated: 03.11.2019.

On behalf of the Opposite Parties:

NIL.

List of MO:-

On behalf of the Complainant:

MO-I - Original Carry Bag of Baazar Kolkata filed by the Complainant

On behalf of the Opposite Parties:

NIL.