State Consumer Disputes Redressal Commission
Bata India Ltd. vs Harjas Singh on 18 May, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 75 of 2021 Date of Institution : 17.06.2019 Date of Decision : 18.05.2022 Bata India Limited having its registered office at 27B, Camac Street, 1st Floor, Kolkata 700016; having corporate office at 418/02, Sector 17, Mehrauli Gurgaon Road, Gurugram, Haryana; also at Shop No.32, Sector 22-D, Chandigarh. ......Appellant/Opposite Party. Versus Harjas Singh S/o Late Sh. Gian Chand R/o Village Behlolpur, District Mohali, Punjab. .....Respondent/Complainant. Present:- Sh. Neeraj Grover, Advocate for the appellant. Sh. Pranab Bansal, Advocate for the respondent (on VC). BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MRS. PADMA PANDEY, MEMBER
MR. RAJESH K. ARYA, MEMBER PER RAJESH K. ARYA, MEMBER This appeal has been filed by the opposite party, namely, Bata India Limited (appellant herein), against order dated 26.02.2021 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short 'District Commission'), whereby consumer complaint bearing No.240 of 2020 filed by the complainant, namely, Harjas Singh (respondent herein) has been allowed and the appellant was directed to refund Rs.4/- i.e. cost of paper carry bag to the respondent besides paying Rs.1,100/- towards compensation for harassment and mental agony & Rs.5,000/- as litigation expenses. The appellant was directed to comply with the order within one month from the date of receipt of its certified copy, failing which, the appellant was made liable to pay the aforesaid amounts of Rs.4/- & Rs.1,100/- along-with interest @9% p.a. from the date of order till realization besides litigation expenses.
2. The facts in brief, as culled from the impugned order passed by the District Commission, were as under: -
"1. The facts of the case as alleged by the complainant are that he purchased two pairs of kids articles for Rs.799/- and Rs.299/-. The second article namely Youth Acer was exchanged with a new size and design for which the OP had charged difference of the price i.e. Rs.200/- in addition to Rs.299/- already paid. It has further been averred that the OP also charged a sum of Rs.4/- towards carry bag despite his protest because it was illegal to charge for the carry bag/paper bag. 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. Hence, the present consumer complaint.
2. In its written statement, the OP took certain preliminary objections. On merits, it has been pleaded that an option to purchase a paper carry bag was given to the complainant by the store manager and only after obtaining the consent of the complainant, the charges for the paper carry bag was added in the invoice and the same was provided to take away the purchased article. It has further been pleaded that the paper carry bag provided to the complainant did not contain any advertisement, branding or publication and was a blank carry bag. It has further been pleaded that the shoes sold by the OP are sold in its primary packaging being a rectangular mono cartoon which can easily be carried by a consumer even without a carry bag more specially when a consumer is purchased only one or two pair of shoes. It has further been pleaded that there is no law or regulation requiring any manufacturer or retailer to mandatorily provide a secondary or an additional packaging or a carry bag to enable the customer to carry the goods. It has further been pleaded that manufacturer of the paper bags involves consumption of substantial quantity of water and three times additional manufacturing of paper bags caused three times additional damage and degradation of the environment, besides avoidable wastage of water which is a scarce resource. It has further been pleaded that the charges for the carry bag was in consonance with the order dated 11.10.2019 passed by the Hon'ble National Commission. 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."
3. The order of the District Commission has been assailed on the ground that the District Commission passed the impugned order in a mechanical manner without considering the facts and circumstances as pleaded by the appellant. It has further been stated that District Commission has failed to appreciate that the partial costs of the plain paper bags, which were optional for a customer, were being charged in terms of the liberty granted by Hon'ble National Consumer Disputes Redressal Commission, New Delhi (in short 'National Commission' vide order dated 11.10.2019 passed in case titled ' Bata India Limited Vs. Dinesh Parshad Raturi', Revision Petition No.1715 of 2019, which the District Commission failed to take note of. It has further been stated that the District Commission failed to appreciate that there was no mandate by any Act/rules/regulations making it mandatory for the manufacturers/retailers to provide a carry bag in addition to the primary packaging, without charging any cost and thus, there is no prohibition for the appellant to charge such amount. It has further been stated that the District Commission erred in presuming that the appellant does not allow its customers to bring their own carry bags. It has further been stated that the appellant had, in fact, duly pleaded in its written reply in Para 16.5 that the appellant encourages its customers to bring their own carry bag and does not restrict such carry bags to be brought inside the store. It has further been stated that relevant display pictures of the stores showing such posters were also placed on record, which the District Commission failed to consider. It has further been stated that reliance placed by the District Commission on judgment dated 18.5.2020 passed by this State Commission in FA/238/2019 was distinguishable on facts as the said judgment related to a departmental store selling goods like pencils, pen, dals, macroni, detol, soap, toothpaste, shaving cream etc., which are not packed in primary packaging or non cartons and some are even sold loose whereas the product manufactured by the appellant are sold in its primary packaging being a rectangular mono cartoon which can easily be carried by a consumer even without a carry bag. It has further been stated that the District Commission failed to appreciate that the paper carry bag was given to the respondent after his consent and a bill for the same was generated and duly given. It has further been stated that the District Commission failed to appreciate that vide Rule 10 of The Plastic Waste (Management and Handling) Rules, 2011, under the heading 'Explicit Pricing of carry bags', it was provided that 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 cost in order to encourage their re-use so as to minimize plastic waste generation. It has further been stated that as per Rule 15 of aforesaid Act, published vide notification dated 18.03.2016, issued by Ministry of Environments and Forests, retailers were specifically barred from making plastic bags available to customers free of cost and made it mandatory for retailers to charge for plastic carry bags. It has further been stated that the District Commission failed to appreciate that there was no profiteering being done and the bag provided by the appellant to its customers is a fine quality bag, which itself costs much over Rs.4/- to the appellant, however, a nominal charge is charged from the customers in fact to discourage them from asking for the carry bag as a freebie and also discouraging the reckless and unnecessary consumption and wastage of paper. It has further been stated that the District Commission failed to appreciate that the appellant being one of the responsible corporate and concerned towards environmental degradation, is actively involved in the activities, which are beneficial for the environment and has initiated various steps for the protection of the environment. It has further been stated that the impugned order is a regressive step and is against the global trend towards the protection of environment and is regularly endorsed by the Hon'ble Supreme Court of India and the Hon'ble National Green Tribunal. It has further been stated that the impugned order is against the ultimate interest of the consumer as in case such order is allowed to prevail, the manufacturers/retailers would include the cost of bags in the cost of the article where-in-after the consumer would still pay for the cost of the paper bag but will not be in a position to opt out from purchasing the bag. It has further been stated that such approach will not only be against the interest of the consumer but will also damage the environment, natural resources like trees and scarce water and will lead to unnecessary and avoidable burden on the disposal process of such bags. Lastly prayer for setting aside the impugned order has been made.
4. On the other hand, on behalf of the respondent/complainant (Harjas Singh), it has been stated that this Commission, earlier in umpteen number of cases, has already decided the issue involved in the present case, one being that of ' Big Bazaar (Future Retail Ltd. Vs. Ashok Kumar', First Appeal No.238 of 2019, which went up to the Hon'ble National Commission in Revision Petition No.975 of 2020, wherein the Hon'ble National Commission observed that "It cannot be that a notice is displaced at the payment counter or that the consumer is informed at the time of making the payment that additional cost will be charged for carry bag, after the consumer has already made his selection for purchase and has already made payment or is in the process of making the payment for the selected goods. Such notices 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 is unfettered right to make an informed choice of patronizing or not patronizing a particular outlet at the initial state itself and before making his selection of goods for purchase." It has further been stated that the judgment of Hon'ble National Commission in the case of Bata India Limited Vs. Dinesh Parshad Raturi (supra) has no binding in the present matter as the appellant has never followed the policy of allowing their customers to bring their own carry bags in their shop which is the condition precedent in the afore-cited judgment. It has further been stated that it not only causes harassment to the consumers but also force them to change their mind for buying requisite goods. It has further been stated that the goods sold to the respondent were not sold in any mono-carton box, as the goods purchased were slippers, which were being hung by the appellant in the display section of their shop and such goods are not sold in any box. It has further been stated that the appellant's business is supposed to be selling foot wears and not carrying out a whole sale business by forcing their customers into purchasing carry bags. It has further been stated that no consent was given by the respondent for purchasing carry bag and also the carry bag, without any advertisement, boarding or publication, cannot be charged. It has further been stated that appeal has been filed just to harass and cause mental agony to the respondent, which may be dismissed with costs.
5. We have heard the arguments of the contesting parties, and have also gone through the entire record of the cases and written arguments also very carefully.
6. After giving our thoughtful consideration to the contentions and pleadings of the parties; as well as findings available on the record, this Commission is of the considered view that this appeal filed by the appellant/opposite party (Bata India Limited) deserves to be dismissed for the reasons to be recorded hereinafter. It may be stated here that no doubt, this Commission, in umpteen number of cases, has held that charging for a paper carry bag by the seller is a deficiency in rendering service and unfair trade practice on its part but while placing reliance on order dated order dated 11.10.2019 passed in the case of ' Bata India Limited Vs. Dinesh Parshad Raturi' (supra), it was vehemently argued on behalf of the appellant that the Hon'ble National Commission vide the said order has stayed the operation of the impugned order in the said case, passed by the District Forum, as affirmed in Appeal by this State Commission, in so far as it directed the Petitioner (Bata India Ltd.) to provide free carry bags to the customers who purchase articles from its shops. In this regard, it may be stated here that recently, the Hon'ble National Commission, dismissed a bunch of Second Appeals filed before it, the lead case being Reliance Retail Limited Vs. Diksha Goel, Second Appeal No.01 of 2021 vide order dated 31.01.2022, wherein similar issue qua of charging additionally for the carry bag was involved. Briefly stated the background of the said case, District Commission allowed the complaint filed by Diksha Goel and determined both 'deficiency in service' and 'unfair trade practice' on the part of the Reliance Retail Limited by forcing the gullible consumers to pay additionally for the carry bags and ordered that Rs.7/- wrongly charged for the carry bag be refunded to the complainant besides awarding other relief. The first appeal bearing No.87 of 2020 filed by Reliance Retail Limited was dismissed by this Commission vide order dated 11.05.2021, which it impugned before the Hon'ble National Commission in the Second Appeal No.01 of 2021 as aforesaid. While dismissing the said bunch of Second Appeals being misconceived, the Hon'ble National Commission held in Paras 9 to 11 as under:-
"9. Section 2(11) and Section 2(47) of the Act 2019 are clear in what constitutes 'deficiency' and 'unfair trade practice'. In respect of Section 2(47), which defines 'unfair trade practice', it may be elaborated tha the word "including" connotes that the list provided therein is illustrative and not comprehensive or exhaustive. That is to say, an unfair method or unfair or deceptive practice, as may be judiciously determined, on facts and reasons, on fair and objective appraisal of the evidence and material on record, would quality as 'unfair trade practice' within the meaning of Section 2(47).
10. A reading of the District Commission's order of 03.02.2020 and the State Commission's Order of 30.09.2021 shows that the two fora, having made their respective appraisal, arrived at concurrent findings of fact, and the proved facts contain ingredients of both 'deficiency' and 'unfair trade practice' within the meaning of Section 2(11) and Section 2(47) the Act 2019.
11. The orders of the two fora below, application no.13 of 2022 and amended memorandum of second appeal are all matter of record. Orders of both the fora below are self-contained and elaborately written. We see no use in recapitulating or re-writing the facts all over again, when the short point before us is whether or not should we admit this second appeal, and whether the limited issue to be cogitated upon is whether or not this matter involves any substantial question(s) of law.
On the face of it we do not see any crucial or palpable misappreciation of the evidence by the two fora below, as may make their findings perverse, nor do we see that the two fora have ignored material evidence or acted on no evidence. We also do not see that the two fora below have drawn unsustainable wrong inference from proved facts by applying the law erroneously. Ingredients that constitute 'unfair trade practice' and 'deficiency' are manifestly evinced from the proved facts in the concurrent findings of the two fora. We do not see that the two fora have ignored or acted contrary to any applicable legal principle. It appears that the fora have not missed to see and decipher that by creating circumstances which would in all likelihood lead to the addition of Rs.7/- with the goods purchased or with most of the goods purchased is aimed essentially to unfairly argument the profit of the trader and unreasonably replenish its business quite substantially as the number of consumers in such retail centers is obviously very large, and that the façade of "environmental concerns" appears to be only a euphemistic contrivance ingeniously used to exploit the consumers at their cost.
It needs no elaboration that a question of fact or finding of fact is different from a question of law and also that a question of law too is different from a substantial question of law.
Whether the appellant company should or may impel the consumers to pay extra Rs.7/- for the carry bag or that it should itself provide for the same are the questions relating to fairness or unfairness of the conduct of the trader and its trade practice or the desirability or undesirability of such trade practice and relate to propriety of a particular trade practice being adopted by the trader. The facets of such propriety, its fairness, adequacy or imperfection all require to be seen, viewed, assessed and evaluated in perspective of peculiar facts of a case within the parameters of The Consumer protection Act, 2019 in order to find out whether the same may be called 'unfair trade practice' or be called 'deficiency in service' or both (or none). Such a question or inferential issue scarely qualifies to be called a question of law."
7. The Hon'ble National Commission further in Para12, quoting the provisions of Section 51of the Act 2019 relating to "Appeal to National Commission" observed, inter alia, as under:-
12.......Here we may observe that the requirement of precisely stating the substantial question(s) of law, as required under Section 51(3), cannot be in the nature of experimentation or expedition, nor can a second appeal be attempted as an instrument to prolong the life or breathe new life into the lis.
8. Further in Paras 13 to 15, the Hon'ble National Commission held as under:-
"13. That being as it is, it is ultimately for this Commission to be satisfied that some substantial question of law is involved in the matter, and it is for this Commission to then formulate such question and hear the appeal on that question (Section 51(4)).
As has already been said, in our opinion the two lower fora have correctly determined that the proved facts contain ingredients of 'deficiency' and 'unfair trade practice' And both 'deficiency' and 'unfair trade practice', are plainly defined in the Act 2019 itself.
In the matter at hand, we do not find any such question of law which may befittingly qualify to be called a substantial question of law. We do not find it to be a case where findings may be said to have been arrived at on the basis of inadmissible material or where the fora below might have falled into the error of refusing to consider some material declaring it to be inadmissible even though it was legally quite admissible. This is certainly not a case where it may be contended that the concurrent findings have been arrived at on the basis of no evidence. We also do not see any settled principles of law having been misapplied. In this case, the approach adopted by the fora below while dispensing consumer justice hardly deserves to be called injudicious, much less than being called perverse.
14. We find that in the facts and circumstances of the case none of the four questions stated in the amended memorandum of second appeal (vide which four "new" "substantial questions of law" were substituted for the twenty six "substantial questions of law" stated in the earlier memorandum of appeal) qualify as substantial questions of law emanating in the case at hand.
15. To conclude, we find no substantial question of law emanating in the case at hand as may be required to be framed and answered in second appeal."
9. Thus, in view of the recent pronouncement of Hon'ble National Commission in the case of Reliance Retail Limited Versus Diksha Goel (supra), we are of the concerted view that the reliance placed on the stay order in case Bata India Limited Vs. Dinesh Parshad Raturi (supra), cannot be considered as a precedent or model stay in all similar cases pending adjudication. Thus, this Commission endorse the view of District Commission that if the appellant (Bata India Limited) claims itself to be responsible and environmentally conscious, then it should have given the carry bags to the customers free of cost as the price of the carry bag has generally been included by them in the profit margins of the product(s), which was for gain of the appellant and by employing unfair trade practice, the appellant has been minting lot of money from the gullible customers from all their stores situated across the country. Admittedly, the goods sold to the respondent (Harjas Singh) were not sold in any mono-carton box as the goods purchased were slippers which were being hung by the appellant in the display section of their shop and such goods are not sold in any box. 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. A consumer is not supposed to take those slippers, without any carry bag, in his/her hands out of the showroom. A carry bag is must to carry those slippers/goods. Same principle applies to the mono-carton boxes, wherein shoes are packed and sold by the shopkeepers/retailers, as it give very ugly and bad impression of carrying mono-carton of shoes and slippers in hands. Not only above, loose articles cannot be taken from the billing counter up-to the destination/home or parking lot. They have to be taken in a carry bag, which in our concerted view, have to be provided free of charge by the shopkeepers/retailers to the consumers, who are still charging them at their whims and fancies, without considering the interest of the consumers. On one hand, the appellant has stated that it, being one of the responsible corporate and concerned towards environmental degradation, is actively involved in the activities, which are beneficial for the environment and has initiated various steps for the protection of the environment and on the other hand, it is charging for the paper-carry bags from the gullible consumers. An argument was raised by the Counsel for the appellant that its carry bag does not have the name of the appellant and as such, it does not contribute to any kind of advertisement of the goods sold by the appellant and in support of this contention, the appellant cited Reliance retail Limited Vs. Dharam Pal & Anr., S.L.P (C) No.18376 of 2021, wherein vide order dated, on similar issue, the Hon'ble Apex Court while issuing notice, also appointed one of the Senior Counsel as Amicus Curiae in the matter to assist the Court. In this context, it may be stated here that whatever will be the outcome of the said case before the Hon'ble Apex Court that will be the law of the land and binding on all the subordinate Courts/Commission.
10. Summing up all, this Commission is of the concerted view that the questions of facts and law raised by the appellant in the present appeal comes to rest and the appellant has failed to make out any ground for interference in the well reasoned order of the District Commission under challenge.
11. For the reasons recorded above, the appeal being devoid of any merit fails and as such, dismissed with no orders as to costs.
12. Certified copies of this order be sent to the parties free of charge.
13. The files be consigned to Record Room, after completion.
Pronounced 18.05.2022.
[RAJ SHEKHAR ATTRI] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad