Haryana

Karnal

CC/221/2019

Rajesh Sharma - Complainant(s)

Versus

Vishal Mega Mart Karnal - Opp.Party(s)

Rajesh Sharma

18 Aug 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KARNAL.

 

                                                          Complaint No. 221 of 2019

                                                          Date of instt.25.04.2019

                                                          Date of Decision 18.08.2021

 

Rajesh Sharma son of Shri K.R. Sharma resident of 2248 Sector-13, Urban Estate, Karnal.

                                                 …….Complainant.

                                              Versus

 

Vishal Mega Mart Karnal 551, plot no.8, Avtaar Colony, Kunjpura Road, Karnal through its Manager/prop. Director.

                                                                        …..Opposite Party.

 

Complaint Under section 12 of the Consumer Protection Act, 1986 as amended Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

               

 

 Argued by: Shri N.K.Zak counsel for complainant.

                    Shri Gaurav Chhabra counsel for the OP.

 

                (Jaswant Singh President)

ORDER:   

                

                        The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred as to OP) on the averments that Vishal Mega Mart is India’s leading fashion hypermarket big stores/chain are spread in various cities all over India and OP is selling various kind of Products such as clothing for all, home and grocery products, kitchen utensils sports, baby care, toys stationary, appliances electronics, home furnishing. They claim to sell the products on less price as compare to open market. On 23.04.2019 the complainant went to purchase some products from the store, picked up the products and approached the counter for billing, the sales man asked complainant “bag me daal du” the complainant asked him that “bag me to daal kar he doge, varna mai haath me itna saaman kaise utha kar le jaunga.” Then sales man raised the invoice no.4012810001783 dated 23.04.2019. Being a consumer the complainant made the payment and in the store, later on, checked the bill and found that Rs.14/- has been charged for shopping bag. The complainant raised objection and said that when he has purchased good from their store, it is their duty to provide the carry bag, otherwise, it is not possible for consumers to carry the goods in hand. But employee of OP did not bother and said that they are charging for carry bag since long and consumers are paying. Complainant again raised objection that this carry bag is carrying the advertisement/endorsement of their store, it is not proper and justified on their part to charge money from consumer and print advertisement of store on carry bag. Employee standing on the gate over heard his objections, at this point of time the complainant had no other choice but was forced to buy the carry bag as its bill has already raised and moreover it was not possible for complainant to carry the good in hand. There are thousands other shops in the market but they supply such kind of carry bags free of cost on purchase of goods from them. All these branded showrooms have developed a way to extract money from the consumers by selling the carry bag. Now, they take example of Vishal Mega Mart having over 100 store all over India in different cities in which lacs of customers are visiting daily and thousands of carry bags are being sold, just think the store owners are earning lacs of rupees daily only by selling endorsed carry bag. In this way, the store is forcing the consumers to pay for carry bag. It is pertinent to mention here that the carry bag was carrying advertisement of the company/name of the store thus endorsing the name of company, which is not justified, why should the complainant advertise for company by spending his own money. It is the moral and social duty of such a shopkeeper/big store to take care all of their consumers and supply the carry bag free of cost. In this way there was deficiency in service and unfair trade practice on the part of the OP by not providing the carry bag. Hence complainant filed the present complaint.

3.             Notice of the complaint was given to OP, who appeared and filed written version raising preliminary objections with regard to maintainability and cause of action. On merits, it is pleaded that the company has never compelled its customers to purchase carry bags from its store. The company has displayed at the entry gate and prominent places in the retail store, that the customers can bring their own empty carry bags to carry the goods purchased from the store and thereby inviting customers to bring their own empty carry bags inside the store for the goods purchased from the Store. Moreover, for the sake of not facing the difficulty/inconvenience, the customer may purchase the carry bag from the store, as an option available to the customer, which is not compelled by the company. Here, it is submitted that as per Union Ministry of Environment and Forests (Ministry) mptifying the plastic Waste (Management and Handling) Rules in 2011 “no carry Bag shall be made available free of cost by retailers to consumers.” It was intended by the Ministry that due to charging of carry bags by the retailers, consumers would be discouraged to buy fresh carry bags and will prefer to bring their own bags instead of paying for the same, thereby bringing down their consumption. It is further pleaded that there is no such legal obligation on the company a retailer to provide free carry bags under the applicable laws, and the customers are free and encouraged to carry goods so purchased in their own carry bags or in any manner that suits them the best, in the absence of any law prohibiting the sale of carry bags at a charge, the company is well within the bounds of law to charge for the same. It is further pleaded that Vishal Mega Mart is India’s leading fashion hypermarket big stores/chain are spread in various cities all over India and OP is selling various kind of products such as clothing for all, home and grocery products, kitchen utensils sports, baby care, toys, stationary, appliances electronics, home furnishing etc. are not denied, but OP or its employee has never harassed any customer, at any point of time and the OP or its employees always tried their level best to maintain the respect of the customers, who come to the store for purchasing the products. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Complainant tendered into evidence his affidavit Ex.CW1/A, bill dated 23.04.2011 Ex.C1 and carry bag Ex.C2 and closed the evidence on 02.12.2019 by suffering separate statement.

5.             On the other hand, OP tendered into evidence affidavit of Rajiv Kumar Ex.OP1/A, authority letter Ex.OP1, photographs Ex.OP2 to OP4 and closed the evidence on 02.03.20220 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for the complainant while reiterating the contents of complaint, has vehemently argued that he purchased some product from the store of OP on 23.04.2019 and the bill of the same was paid against the invoice no.4012810001783. The OP put the product purchased by the complainant in a carry bag which indicate publicity of the store of the OP and OP charged Rs.14/- for the said carry bag. Complainant checked the bill and found that Rs.14/- the cost of the carry bag included in the said bill. He further argued that Rule 15 of Plastic Waste (Management and Handling) Rules, 2016 on which, reliance has been placed by the opposite party, has already been omitted vide Notification dated 27.03.2018. He also argued that it is nowhere displayed in the shop premises of OP, either at the entry gate or in the showroom that the customers can carry their own bags so that the goods purchased from the opposite party can be brought in their own carry bags or they are allowed to bring their own carry bags inside the showroom. The OP has committed deficiency in service by charging Rs.14/- for the cost of the carry bag. Learned counsel for complainant relied upon the judgment of Hon’ble State Commission in case titled as My Lifestyle International Pvt. Versus Pankaj Chandgothia on 18 March, 2019 in appeal no.24 of 2019, decided on 18.03.2019.

8.             Per contra, learned counsel for the OP while reiterating the contents of written version, has vehemently argued that an amount of Rs.14/- has been charged only after the consent of the complainant. He further argued that the OP is a retail store and as such it does not fall within the purview of the “service” as contemplated in Section 2(1)(o) of the Consumer Protection Act, 1986. He further argued that as per the Rule 10 of the Plastic Waste (Management and Handling) rules, 2011 under the heading “Explicit Pricing of carry bags, no Carry Bag shall be made available free of cost by retailers to consumers and the concerned Municipal Authority shall 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.  It was further argued that  as per rule 15 of the Plastic Waste (Management and Handling) Rules 2016, published vide notification dated 18.03.2016, issued by Ministry of Environments and Forests, retailers have been specifically barred from making plastic bags available to customers free of cost and it is mandatory for retailers to charge for plastic carry bags. He further argued that the OP has also affixed a sticker on the entry gate of store/shopping mall mentioning that customers are welcome to bring their own empty bags into our store/shopping mall to use when they purchase goods. It is further argued that on the amount collected through the sale of carry bags, the OP pays the requisite taxes to Government. Learned counsel of the OP relied upon the judgment of Hon’ble Competition Commission of India case no.05 of 2015 case titled as Shri Kamble Sayabanna Kallappa versus M/s Lifestyle International Private Ltd. and in writ petition no.274 of 2012 with writ petition no.244 of 2012 decided on 14.11.2014 case titled as Consumer Education and Research Society Versus Municipal Commissioner of Hon’ble High Court of Gujarat at Ahmedabad.

9.             Admittedly, complainant purchased certain items on 23.04.2019 from OP, vide bill Ex.C1. OP has also charged Rs.14/- for the carry bag. As per the version of complainant, OP has no right to charge the amount for carry bag and the said carry bag was purchased by the complainant under compelling circumstances.

10.           The first plea taken by the OP is that the OP being a retail store does not fall within the purview of ‘service’ as contemplated in section 2(1)(o) of Consumer Protection Act. In this regard, we are of the opinion that the complainant has purchased goods including the carry bag from the opposite party against consideration and as such, the complainant is undoubtedly consumer under section 2(1)(d) of the Act and the OP is a service provider and very much covered under the aforesaid definition of ‘service.’ Thus, this plea raised by the learned counsel for the OP stands rejected being untenable and has no force.

11.           The another plea taken by the OP is that as per rule 10 of the Plastic Waste (Management and Handling) Rules, 2011, and Rule 15 of Plastic Waste (Management and Handling) Rules, 2016,  no carry bags were to be made available free of cost by retailers to customers. In this regard, we are of the considered opinion that in the year 2016, the aforesaid Rules were amended vide notification dated 18.03.2016 to be read as Plastic Waste (Management and Handling) Rules, 2016. As per Rule 15 of Plastic Waste (Management and Handling) Rules, 2016 the mandate for retailers to charge for plastic carry bags has been omitted vide subsequent notification dated 27.03.2018 and as such, the opposite party cannot take shelter of the said rule. Thus, the contention of OP that it could charge for carry bags is totally against law and has no legs to stand.

12.           The next plea taken by the OP is that OP has also affixed a sticker on the entry gate of store/shopping mall mentioning that customers are welcome to bring their own empty bags into our store/shopping mall to use when they purchase goods, hence, the act of OP does not amount to deficiency in service. In this regard, we are of the considered view that the OP in order to prove this plea has placed on record photographs Ex.OP3 and Ex.OP4 showing the affixation of the sticker but the OP has failed to prove the fact that on the date of incident the abovesaid sticker was affixed in their store or not. Hence, it cannot be said that the said sticker was affixed prior to the incident or after the incident. Thus, the plea taken by the OP has no force.

13.           We are of the considered view that charging for carry bags is totally against consumerism. We have seen now-a-days that it has become the general practice prevalent in the market that if a person who goes to the shop/shopping mall like of the OP to buy some goods, he/she is not allowed to enter in the said shop/shopping mall with any carry bag by their security guard (s). Furthermore, the carry bag Ex.C2 shows that it bears the logo as well as name of the OP and no print rate is mentioned on it. Hence, the customer who is buying the same, in fact publicizing the brand of the OP and thereby becomes as a brand ambassador. Thus, we are of the considered view that the charging for the carry bag by the OP amounts to deficiency in service and unfair trade practice.

14.           In view of the facts and circumstances of the present case, citations relied upon by the complainant are applicable whereas the citations relied upon by the OP are not applicable.

15.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to refund Rs.14/- to the complainant being wrongly charged for the carry bag. We further direct the OP to pay Rs.4,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. It is made clear that if the abovesaid amount is not paid by the OP within stipulated period then this amount will carry interest @ 9% per annum from the date of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 18.08.2021

 

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

(Vineet Kaushik)            

                     Member