Haryana

Panchkula

CC/165/2019

RAJESH KUMAR. - Complainant(s)

Versus

VISHAL MEGA MART. - Opp.Party(s)

COMPLAINANT IN PERSON.

23 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                              

Consumer Complaint No	:	165 of 2019
Date of Institution	:	13.03.2019
Date of Decision	:	23.02.2021

 

Rajesh Kumar, aged about 38 years, son of Shri Kashmiri Lal, resident of H.No.46, Ravindera Enclave Phase-II, Baltana, Zirakpur, District Mohali (SAS Nagar).

    ..….Complainant

Versus                                                                  

Vishal Mega Mart through its Store Manager, SCO No.104-105, Near Fountain City Garden Sector-5, Panchkula(Haryana)

                                                                                   ……Opposite Party

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:    Complainant in person.

                            Sh.Kamaljeet  Dahiya, Advocate for OP.

                          

ORDER

(Satpal, President)

1.               The brief facts of the present complaint as alleged are that on 25.02.2019, the complainant went to the store of Opposite party to purchase some handkerchiefs and undergarments for himself. The said articles were selected and same were taken to the billing desk of the opposite party by the complainant. The bill was prepared and a total amount of Rs.1169.50 was paid by the complainant through his credit card. Further, a bill no.381050000989 dated 25.02.2019 was issued by the opposite party for the said purchase. The complainant noticed that an amount of Rs.12.50 for polyester cloth bag has been charged in the said bill. The complainant opposed the said illegal action of the opposite party but he never got any clear or definite answer from the officials of opposite party. The complainant also met Shri Sarubh, Store Manager and got enumerated his grievance and they said that they always charge for the carry bags and they have been instructed by their higher officials to do so. The complainant asked that whether they have displayed anywhere in the store that carry bags shall be charged extra, then the answer was in negative. Due to the act and conduct of the OP, the complainant has suffered a great mental agony, physical harassment and financial loss.   The OP has also committed deficiency in service and unfair trade practice. Hence, the present complaint.

2.               Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless and false. On merits, it is stated that complainant has never approached to the OP for resolution of any grievance. Since, the said carry bag was added in the bill only upon the complainant choosing to purchase the polyester cloth bag, which was priced@ 12.50 by his voluntarily will and after looking at the sizes of all the available carry bags.  It is also stated that OP has displayed at the entry gate that the customers can bring their own empty carry bags in the store to carry the goods purchased from the store. It is further stated that it has always endeavored to follow the principles of environment protection in its business practices. Thus, the intent of the opposite party is to limit and discourage indiscriminate use of carry bags which are hazardous to our environment and as such, by providing free of cost carry bags to all the customers, it would be indirectly contributing to worsen the environmental issues, which shall also cause irreparable damage to all flora and fauna. In particular, the plastic carry bags are the biggest contributors of littered waste, and every year, millions of plastic bags end up in to the environment vis-à-vis soil, water bodies, water courses, etc. and it takes an average of one thousand years to decompose completely. Therefore, to address the issue of plastic waste management, the Plastic Waste (Management and Handling) Rules, 2011, were notified in 2011 by the Central Government, which implemented the concept of plastic waste minimization, segregation, recycling and management. The Union Ministry of Environment and Forests notified the Plastic Waste (Management and Handling) Rules in 2011 which interalia, under rule 10 of Rules 2011 finds mention that no carry bags shall be made available free of cost by retailers to consumers. Thus, there is no deficiency in service on the part of Op and the complainant has not suffered any harassment or agony and prayed for dismissal of the present complaint.

3.               Replication to the written statement of the OP was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OP.

 4.              The complainant has tendered affidavit as Annexure C-A along with document Annexure C-1 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP has tendered affidavit Annexure R/A along with documents Annexure R/1 to R/4 and closed the evidence

5.               We have heard the complainant and learned counsel for the OPs and gone through the entire record including the written arguments filed on behalf of the complainant and OP, minutely and carefully.

6.               The sole grievances of the complainant in the present complaint is with regard to the charging of a sum of Rs.12.50 from the complainant by the OP vide bill dated 25.02.2019 for the polyester cloth/carry bag. The complainant has disputed the charging of carry bag stating that it was nowhere displayed in the entire showroom that the carry bag would be provided to the customers on basis of chargeability of amount.

7.               On the other hand, the OP has justified its act with regard to chargeability of the carry bag on several grounds. The first ground is that due notices were given to all customers by way of affixation of notice in the shape of Annexure R-1 and R-2 in the premises of the Mall/Store. It is contended that the complainant was aware of the fact that carry bags would be provided on the chargeable basis. It is also contended that option was given by OP to its customers including the complainant to bring their own empty bags while purchasing the goods from the store of the OPs. In this regard, the learned counsel invited our attention towards Annexure R-1 & R-2 which reads as under:

         Annexure R-1        

                     Carry Bags available on chargeable basis

                     Small            Rs. 9 each

                     Medium         Rs.12.50 each

                     Large             Rs. 14 each

         Annexure R-2

Customers are welcome to bring their own empty bags into our

store to use when they purchase goods.

 

8.               The learned counsel emphasized that the complainant had paid for the purchase of carry bag out of his sweet will and free consent and that he used and consumed the bag for his requirement to carry the goods to his home and that the complainant was at liberty to deny to make the payment of Rs.12.50 on account of carry bag.  It is vehemently contended that the complainant was never forced and duped to buy the carry bag from the store.

                  The aforementioned plea is not acceptable to us. The complainant had agitated the charging of amount of Rs.12.50 on account of carry bag by meeting with Sh.Sarubh, Store Manager. It is the specific and categorical assertions of the complainant that said Sh.Sarubh, Store Manager replied in negative with regard to chargeability of carry bag. In view of the specific and categorical assertions of the complainant it was imperative upon the OP to adduce the documentary evidence, in the shape of affidavit, of the said Store Manager so as to negate and falsify the assertions of the complainant that no prior notice with regard to the chargeability of the carry bag in the shape of signages was given to him. It is not the case of OP that said store manager has left its services or his whereabouts are not known to it. Therefore, in the absence of cogent, satisfactory and credible evidence, the plea of the OP that carry bag was purchased by the complainant out of his free will and consent, is rejected.

9.               The next plea of the OP is that no carry bag shall be made available free of cost by retailers to the customer as per provisions contained in the Plastic Waste(Management and Handling) Rules in 2011, wherein interalia, under rule 10 of Rules, 2011, it is provided that no carry bags shall be made available free of cost by retailers to consumers. This plea is rejected in view of the fact that the mandate for retailers to charge for plastic carry bags has been omitted in March 2018. This plea has been rejected by the Hon’ble State Commission, Chandigarh vide its order passed in appeal no.24 of 2019 in titled as M/s Lifestyle International Pvt. Ltd.Vs. Pankaj Chandgothia & Another decided  on 18.03.2019.                   

 10.            Further, Reliance has been placed on behalf of OP upon the following orders/judgments/case laws:-

1.  Complaint case no.251 of 2018 & complaint case no.252 of 2018  decided on 28.01.2019 by District Consumer Disputes Redressal Forum (Central) ISBT Kashmere Gate Delhi in case titled as Radha krishnan.R vs. Westside, Karol Bagh & Anr.(Annexure R-3 and Annexure R-4).

 

2. Bikaji Kumar Basu Vs. Dilip Kumar Sinha & Ors.(2006) 1 CALLT 624(HC).

 

3.  Snapdeal Vs. Nikhil Bansal in Revision Petition No.697 of 2016  decided on 30.05.2016 ordered by Hon’ble National Commission, New Delhi  

                 

The aforesaid orders/judgments/case laws are of no avail to the OP as  the main controversy with regard to chargeability of Rs.12.50 on account of carry bag has been settled at rest by the Hon’ble State Commission, U.T., Chandigarh while disposing of appeal No.160 of 2019 vide its order dated 12.12.2019 holding that the sellers are under a legal obligation to put the goods in a deliverable state as per provisions of sub section 5 of Section 36 of the Goods Act, 1930 before handing over the same to its customer. The relevant paras of the aforesaid order are reproduced as under:-

“1.     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.

2.        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.

3.        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. 

4.        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.

5.        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.”

11.              The ratio of law as laid down by the Hon’ble State Commission, U.T. Chandigarh, in case supra  is fully applicable to the facts and circumstances of the present case as admittedly, the OP has charged Rs.12.50 on account of carry bag in the present case.

12.             Moreover, the Hon’ble National Commission, New Delhi  in Revision Petitions No.975 of 2020 to 988 of 2020 vide its order 22.02.2020 has deprecated the practice of chargeability of carry bags as adopted by the service provider.

13.             The aforementioned factual as well as  legal proposition clearly establish the highhandedness of the OP of which the complainant  became the victim and felt  the burnt,  as a result, the complainant  has been left with no alternative, except  to knock  the doors of this Commission, which further aggravated his pain & harassment. Therefore, the complainant is entitled to relief.

14.             In the light of above observations, we are of the considered view that the present complaint of the complainant deserves to succeed against the OP and the same is hereby partly allowed with the following directions to the OP:-

1. To refund Rs.12.50 to the complainant, which has been wrongly charged on account of carry bag, to the complainant along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
2. To pay a lump sum amount of Rs.5,000/- to complainant on account of mental agony, harassment and cost of litigations charges.

 

15.             The OP shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, 2019 against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 23.02.2021

 

 

 

           Dr.Sushma Garg          Dr. Pawan Kumar Saini      Satpal

                    Member                    Member                            President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                  Satpal

                                                President