State Consumer Disputes Redressal Commission
Westside, A Unit Of Trent Limited vs Sapna Vasudev on 8 April, 2019
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 36 of 2019 Date of Institution : 21.02.2019 Date of Decision : 08.04.2019 Westside, a unit of Trent Limited, Elante Mall, 178-178A, Industrial Area, Phase-I, Chandigarh - 160002, through its authorized signatory Mr. Vikram Pande, Manager - Legal. .......Appellant/Opposite Party. Versus Sapna Vasudev D/o Late Shri P. K. Vasudeva R/o H.No.634, Sector 10, Panchkula. ...Respondent/Complainant. Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 18.01.2019 passed by District Consumer Disputes Redressal Forum-I, U.T. Chandigarh in Consumer Complaint No.371 of 2018. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. RAJESH K. ARYA, MEMBER.
Argued by:
Sh. Animesh Sharma, Advocate for the appellant.
Sh. Pankaj Chandgothia, Advocate for the respondent.
PER RAJESH K. ARYA, MEMBER The appellant/opposite party has filed this appeal against order dated 18.01.2019 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short 'the Forum' only), vide which, complaint bearing No.371 of 2018 filed by the respondent/complainant 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 Complainant the amount of Rs.10/- wrongly charged for the paper carry bag;
(iii) To pay Rs.1,500/- to the complainant 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 complainant 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 she selected and purchased certain garments from the Opposite Party OP - Shop and took them to the billing counter for making necessary payment. It was further stated that at the Counter, the Cashier handed over the said items put in a paper carry bag bearing advertisement name of the shop in big letters and logo. It was further stated that on reaching home, the complainant checked the bill/invoice and was shocked to see that the Opposite Party had charged Rs.10/- for the said bag. It was further stated that the complainant had not agreed to purchase any such item and in the entire Shop premises, it was nowhere mentioned that the Opposite Party would charge for a carry bag also. 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 on Plastic bags by the Government, the Opposite Party is encouraging its customers to bring their own shopping bags and also offering paper bags to its customers on their request at nominal charges. It was further stated that the price of the carry bag was disclosed on the surface of the same and was duly mentioned in the invoice as well. It was further stated that the complainant was not compelled to purchase or take the carry bag from the Opposite Party. It was further stated that the Complainant had an option to carry her own reusable bag, if she intended to purchase the products from the store. 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 she 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. 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 further argued that after ban on polythene/plastic bags, the appellant has adopted eco-friendly practices and provide for high quality, environmentally safe paper bags in all its stores. He further submitted that purchase of paper carry bags, at all points of time, is entirely optional on the customer and the customer is not mandated to purchase the bag from the appellant/opposite party. He further submitted that the above environmentally friendly practice adopted is entirely in compliance with every law of the country and does not violate any rule or pricing regulation. It was further submitted that in adherence to the store policy across country, the purchaser was informed of the cost of carry bag by the representative at the counter and upon obtaining purchaser's consent, the respondent/complainant was provided with the store's carry bag and charged for the same. It was further submitted that cost of Rs.10/- was mentioned in the invoice/bill drawn as well as on the carry bag itself. It was further submitted that the appellant, who are selling goods, are incurring substantial cost in manufacture and distribution of the eco-friendly paper bags and therefore, are within their complete rights to charge for such paper bags to the customers. It was further submitted that there was no compulsion imposed on the respondent/complainant to purchase the store's carry bag, which like most stores around the world, had its logo on it. It was further stated that the purchaser could have refused to purchase the aid bag when her consent was sought at the counter. It was argued that purchasing a carry bag is a voluntary act by a consumer. It was further argued that there is no prohibition on the appellant/opposite party to charge for the carry bag. It was further stated that according to provisions of Plastic Waste (Management & Handling) Rules, 2011, notified vide notification dated 04.02.2011, retailers were barred from making plastic carry bags available to the customers free of cost to discourage the customers for their reuse. It was further submitted that the said rules were superseded by Plastic Waste (Management & Handling) Rules, 2018 whereby the definition of "carry bag" was altered and it now includes bags made of plastic as well as compostable plastic material. It was argued that Rules of 2018 do not lay any mandate requiring retailers to make carry bags free of cost. He also placed reliance on Kamble Sayabanna Kallappa Vs. M/s Lifestyle International Private Limited (Max Retail Division), 2015 SCC OnLine Comp AT 498 : [2015] Comp AT 201. Lastly, prayer for setting aside the impugned order has been made.
7. On the other hand, Counsel for the respondent/complainant argued that Rule 15 of Plastic Waste (Management and Handling) Rules, 2016 has already been omitted vide Notification dated 27.03.2018 and further it is nowhere displayed in the shop premises of the appellant/opposite party that the paper carry bags given by the appellant/opposite party are against payment and 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.
8. After going through the evidence on record and submission of the Counsel for the parties, we are of the opinion that the appeal is liable to be dismissed for the reasons to be recorded hereinafter.
9. 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 respondent/complainant purchased goods including the paper carry bag from the appellant/opposite party against consideration paid and as such, the respondent/ complainant is 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.
10. However, on merits of the case, it may be stated here similar controversy qua charging for paper bags came before this Commission in the case of " M/s. Lifestyle International Pvt. Ltd. Vs. Pankaj Chandgothia & Anr.', Appeal bearing No.24 of 2019 decided on 18.03.2019, wherein this Commission held in Paras 11 to 15, inter-alia, as under:-
"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......."
11. In the instant case also, it has not been disputed by the Counsel for the appellant/opposite party that the appellant/ opposite party is providing paper carry bags to its customers on payment of additional price. At the time of arguments, he also conceded to the argument raised by the Counsel for the respondent/complainant that it was nowhere mentioned in the entire Shop premises of the appellant/opposite party that it would be charging for a carry bag. As rightly held by the Forum in its order, the appellant/Opposite Party 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.
12. Counsel for the appellant/opposite party vehemently argued that the purchase of bag is entirely optional and is a voluntary act by a consumer and further the customers cannot bring their own carry bags or bags containing items/goods purchased from other shops. It may be stated here that the argument raised is totally absurd and vague and against the interest of consumers. On one hand, purchase of carry bags is made optional & voluntary and on the other hand, the consumer/customer is not allowed to enter the shop with empty carry bag or carry bag containing some goods purchased from other shop premises. By adopting above practice, the appellant/opposite party left the respondent/complainant with no other option with her but to buy the carry bag alongwith the goods purchased, to carry such goods from the shop-premises. By not allowing the customers to bring in the shop premises their own carry bags and thrusting its own carry bags against consideration, the appellant/opposite party is deficient in providing due service and also indulged into unfair trade practice. One cannot be expected to take the goods/garments purchased in hands. We are shocked to see the kind of services provided by these big Malls or Showrooms. On one side huge discounts are given ranging up-to 70% on the products by these shops/showrooms etc. and on the other hand, they are charging for a carry bag and could not give it free of cost to its worthy consumers.
13. The next argument of Counsel for the appellant/opposite party that there is no prohibition on the appellant/opposite party to charge for the carry bag is also not sustainable in the eyes of law and observations given by us in the earlier part of the judgment. As already held, charging for a carry bag is against the interest of the consumers and particularly in view of argument raised by the Counsel for the appellant/opposite party that purchase of bag is entirely optional and a voluntary act and further the customers cannot bring their own carry bags or bags containing items/goods purchased from other shops, which we have already rejected in the preceding paragraph.
14. In the light of observations made by us in the case of M/s. Lifestyle International Pvt. Ltd. (supra) and what we have held in the preceding paras, we have no hesitation to say that the Forum in Paras 10 and 11 of its order also rightly held as under:-
"10. It is noteworthy that said carry bag for which the Complainant had to shell out extra amount from her 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 it, whenever the said bag is carried by the Consumer. In this manner, the Complainant and other gullible consumers like her has certainly been taken for a ride by the Opposite Party for advertising its 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.
11. The sequence of the events of the present case, clearly establishes the high headedness of the Opposite Party 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 Forum, which further aggravated her pain & harassment. Thus, on this account, we deem it proper to penalize the Opposite Party for indulging in such activity, thereby causing not only loss, mental agony and physical harassment to the complainant, but also giving rise to undesirable litigation and thereby wasting the precious time of this Forum. Therefore, the Opposite Party is penalized with cost of Rs.10,000/- to be deposited 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."
15. However, reliance placed by the Counsel for the appellant/Opposite Party on the judgment of Competition Appellate Tribunal, New Delhi in the case of Kamble Sayabanna Kallappa (supra) is of no help to the appellant/complainant being distinguishable on facts.
16. 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.
17. No other point was raised by the Counsel for the parties.
18. For the reasons recorded above, this appeal being devoid of any merit, is dismissed with no order as to costs. The impugned order dated 18.01.2019 passed by the District Forum is upheld.
19. Certified copies of the order be sent to the parties free of charge.
20. File be consigned to the Record Room after completion.
Pronounced 08.04.2019.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT (RAJESH K. ARYA) MEMBER Ad