State Consumer Disputes Redressal Commission
My Lifestyle International Pvt. Ltd. vs Pankaj Chandgothia on 18 March, 2019
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 24 of 2019 Date of Institution : 01.02.2019 Date of Decision : 18.03.2019 M/s. Lifestyle International Pvt. Ltd., Max Retail Division, Shop No.153, First Floor, Elante Mall, Plot No.178-178-A, Industrial & Business Park, Phase I, Industrial Area through its Authorised Signatory. .......Appellant/Opposite Party. Versus 1. Pankaj Chandgothia S/o Late Shri R. S. Chandgothia, SCO No.14-15, Sector 28-C, Chandigarh. 2. Sangeeta Chandgothia W/o Sh. Pankaj Chandgothia, SCO No.14-15, Sector 28-C, Chandigarh. ...Respondents/Complainants. Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 03.01.2019 passed by District Consumer Disputes Redressal Forum-I, U.T. Chandigarh in Consumer Complaint No.438 of 2018. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Argued by:
Sh. Rohan Mittal, Advocate for the appellant.
Sh. Pankaj Chandgothia (Advocate), respondent No.1 in person and husband of respondent No.2.
PER RAJESH K. ARYA, MEMBER The appellant/opposite party has filed this appeal against order dated 03.01.2019 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short 'the Forum' only), vide which, complaint bearing No.438 of 2018 filed by the respondents/complainants was allowed in the following manner:-
"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 them. The Opposite Party is directed:-
(i) To provide free carry bags to all customers forthwith who purchase articles from its Shop;
(ii) To refund to the Complainants the amount of Rs.5/- wrongly charged for the paper carry bag;
(iii) To pay Rs.1,500/- to the complainants towards compensation for harassment and mental agony.
(iv) To pay Rs.1,500/- 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 complainants 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. Before the Forum, it was case of the complainant that the complainants purchased certain articles from the opposite party -Shop and took them to the billing counter for making necessary payment. At the Counter, the Cashier handed over the said articles without putting them into a carry bag and when asked to provide the same, the complainants were told that they had to buy it for Rs.5/-. It was further stated that in the entire shop premises, it was nowhere mentioned that the opposite party would charge for a carry bag also. It was further stated that having no option left, the complainants paid Rs.5/- additionally for the said carry bag. Alleging deficiency in service and unfair trade practice on the part of the opposite party, a complaint was filed before the Forum.
3. The opposite party, in its reply, while admitting the factual matrix of the case, stated that after the ban of plastic bags by the Government, the opposite party purchased paper bags, which are much costlier than the plastic bags and started providing the same to its customers on payment basis. It was further stated that there was no legal obligation on the opposite party to provide any bag to carry purchased item for free to its customers. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite party nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
4. The complainant filed rejoinder wherein he reiterated all the averments contained in the complaint and repudiated those contained in the written version of opposite party.
5. The parties led evidence. The Forum, on analysis of pleadings of the parties, documents on record, and the arguments addressed, allowed the complaint as referred to above.
6. While laying challenge to the impugned order, the Counsel for the appellant/opposite party argued that the appellant/opposite party is a retail store and as such, it does not fall within the purview of 'service' as contemplated in Section 2 (1) (o) of Consumer Protection Act. It was next argued that as per Rule 10 of The Plastic Waste (Management and Handling) Rules, 2011, under the heading 'Explicit Pricing of carry bags, no carry bags 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. It was further argued that the main objective and intent behind such a direction was to limit and discourage indiscriminate use of plastic bags which are hazardous to our environment and as such, the direction of the Forum in directing the appellant/opposite party to provide free carry bags to all the customers was wrong and in violation of law and public policy. It was also argued that by charging for the paper bag, the appellant was only doing so in order to discourage the use of disposable bags and lessen the strain on the environment. It was next argued that the sale of paper bags by the appellant has a greater negative impact on the appellant/ opposite party itself and rather than on any consumer.
7. It was next argued that the Forum erroneously opined that the appellant/opposite party is obligated to provide a carry bag free of cost to the respondents/complainants to carry the goods purchased. It was argued that there is no such legal obligation on the appellant/opposite party and the respondents/complainants are free to carry the goods so purchased in their own carry bag or in any manner that suits him best. It was further argued that the Forum failed to appreciate that in the absence of any law prohibiting the sale of carry bags, the appellant/opposite party was well within the bounds of law to charge for the same. It was further argued that on the amount collected through the sale of carry bags, the appellant/opposite party pays the Government the requisite taxes, which fact the Forum also failed to appreciate. Lastly, prayer for setting aside the impugned order has been made.
8. On the other hand, respondent No.1/complainant No.1 on his behalf and on behalf of his wife who is respondent No.2/complainant No.2, while defending the impugned order passed by the Forum, argued that Rule 15 of Plastic Waste (Management and Handling) Rules, 2016, on which, reliance has been placed by the appellant/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 the appellant/opposite parties, either at the entry gate or in the showroom that the customers can carry the goods purchased from the appellant/opposite party in their own carry bags or they are allowed to bring their own carry bags inside the showroom. It was prayed that the appeal be dismissed and the impugned order passed by the Forum be upheld.
9. After going through the evidence on record and submissions of the Counsel for the appellant, we are of the opinion that the appeal is liable to be dismissed for the reasons to be recorded hereinafter.
10. As regards the first objection that the appellant/opposite party being a retail store does not fall within the purview of 'service' as contemplated in Section 2 (1) (o) of Consumer Protection Act, it may be stated here that the respondents/complainants purchased goods including the paper carry bag from the appellant/opposite party against consideration paid and as such, the respondents/ complainants are undoubtedly consumers under Section 2(1)(d) of the Act and the appellant/opposite party is a service provider and very much covered under the aforesaid definition of 'service'. The objection raised stands rejected being not tenable.
11. So far as reliance placed by the appellant/opposite party on Rule 10 of The Plastic Waste (Management and Handling) Rules, 2011 and Rule 15 of Plastic Waste (Management and Handling) Rules, 2016, published vide notification dated 18.03.2016, issued by Ministry of Environments and Forests is concerned, we would like to first extract the aforesaid Rule hereunder:-
"10. Explicit pricing of carry bags. - No carry bag shall be made available free of cost by retailers to consumers. The concerned municipal authority may by notification determine the minimum price for carry bags depending upon their quality and size which covers their material and waste management cost in order to encourage their re-use so as to minimize plastic waste generation."
"15. Explicit pricing of carry bags.- (1) The shopkeepers and street vendors willing to provide plastic carry bags for dispensing any commodity shall register with local body. The local body shall, within a period of six months from the date of final publication of these rules in the Official Gazettee of India notification of these rules, by notification or an order under their appropriate state statute or byelaws shall make provisions for such registration on payment of plastic waste management fee of minimum rupees forty eight thousand @rupees for thousand per month. The concerned local body may prescribe higher plastic waste management fee, depending upon the sale capacity. The registered shop keepers shall display at prominent place that plastic carry bags are given on payment."
12. It may be stated here that no doubt, as per Rule 10 of The Plastic Waste (Management and Handling) Rules, 2011, no carry bags were to be made available free of cost by retailers to consumers but thereafter, 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. It is important to mention here that the aforesaid Rule 15 of Plastic Waste (Management and Handling) Rules, 2016 was omitted vide subsequent Notification dated 27.03.2018 and as such, the appellant/opposite party cannot take shelter of the said rule. Since the mandate for retailers to charge for plastic carry bags has been omitted in March 2018, therefore, its contention that it could charge for paper carry bags is totally against law and has no legs to stand.
13. With all concern, we must say that charging for paper carry bags is totally against consumerism. First of all, it is nowhere the plea of the appellant/opposite party that it has displayed in the shop premises or at the entry gate that the customers can bring their own carry bags to carry the goods purchased from the appellant/opposite party. We have seen that in these days, it is general practice prevalent in the market that if a person who goes to the shop premises like the appellant/opposite party to buy some goods, he/she is not allowed to enter the said shop premises with any carry bag. The same are kept at the entry door by the security person standing at the door. In case, the security person standing at the entry allows to do so, he staples the same so that no other product is put in the said carry bag. A person who buys some articles/products from the shop premises like the appellant/opposite party is expected to be provided with free carry bag to carry those articles up to his car of destination or he/she should be allowed to bring his/her own carry bag inside the shop premises. Not only this, the Counsel for the appellant/opposite party failed to show any provision of law/rules/regulations, which gives such an authority to the appellant/opposite party, not to allow the customers to bring their own carry bags inside the shop premises of the appellant/opposite party.
14. Further, the Counsel for the appellant/opposite party conceded that it is nowhere displayed in the shop premises of the appellant/opposite parties, either at the entry gate or in the shop premises, that the customers can carry the goods purchased from the appellant/opposite party in their own carry bags or they are allowed to bring their own carry bags inside the showroom. However, the argument raised by the Counsel for the appellant/opposite party was that one should adopt the practice of taking articles without bag out of the shop so that even paper bags can be saved. We are surprised to hear such kind of argument.
15. Not only above, the carry bags, which are sold by the appellant/opposite party bear its logo on both sides and the customer who is buying the same is in fact publicizing the brand of the appellant/opposite party and thereby becomes a brand ambassador. On the other hand, charging for the said paper carry bag by the appellant/opposite party amounted to unfair trade practice. It is so rightly observed by the Forum in Paras 10 of its order as under:-
"10. It is noteworthy that said carry bag for which the Complainants had to shell out extra amount from their pocket, is a printed carry bag on both sides, which has a prominent display of the advertisement of the Opposite Party and is thus apparently serving as an advertisement for them, whenever the said bag is carried by the Consumer. In this manner, the Complainants and other gullible consumers like them have certainly been taken for a ride by the Opposite Party for advertising their name. Undoubtedly, the Opposite Party has several stores across the country and in the above said manner, made lot of money, thus, the act of Opposite Party by forcing the gullible consumers to pay additionally for the paper bags is surely and certainly amounts to deficiency in service and its indulgence into unfair trade practice."
16. We also concur with the findings given by the Forum in Para 10 of its order that there was highhandedness on the part of the appellant/opposite party of which the respondents/ complainants became the victim, which aggravated their pain & harassment. In our considered opinion, the Forum rightly directed the appellant/opposite party to provide free carry bags to all customers forthwith who purchase articles from its shop besides refund of Rs.5/-, which it wrongly charged from the respondents/complainants for the paper carry bag. It also rightly awarded an amount of Rs.1,500/- each towards compensation for harassment & mental agony and litigation expenses. Besides above, an amount of Rs.10,000/- has also been rightly directed to be deposited by the appellant/opposite party in Consumer Legal Aid Account.
17. Hence, we are of the opinion that the order passed by the Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity.
18. No other point was raised by respondent No.1/complainant No.1 and Counsel for the appellants/opposite parties.
19. For the reasons recorded above, this appeal being devoid of any merit, is dismissed with no order as to costs. The impugned order passed by the District Forum is upheld.
20. Certified copies of the order be sent to the parties free of charge.
21. File be consigned to the Record Room after completion.
Pronounced 18.03.2019.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad