Paper Bag costs Bata a lot Shoed, and nailed, ot its own laches - State Commission UT Chandigarh upholds Forums penalty on charing for paper bag
No one can take advantage of a welfare regulation for exploitation, is the lesson from this Ruling. I am astonished the way the pleading is done by Bata's counsel. Of course sans substance but could have put forth at least valid defense
It is a pity still the local counsels adapt techniques of irritating the forum by using needless needling on tech issues like, the credit slip holder and the complainant, relying on slippery grounds like the circular on plastics, reading it piece mill.
The objective of the Government on banning plastics is of paramount importance to one and all and it can't be exploited any more to harass the public, or exploitation.
The MRP for retail goods is not regulated by the government and the industry has freedom to fix it basis costs, profit target and market forces, if one can fix an MRP he can as well build the bare cost of the bag rather than charging additional.
What should be brought as an awareness and voluntary can never be forced on consumers
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
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Appeal No. |
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98 of 2019
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Date of Institution |
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17.05.2019
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Date of Decision |
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22.07.2019
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Bata India Limited, having its registered office at 27B, Camac Street, 1st Floor, Kolkata 700016,.
Having corporate office at Bata House, 418/02, MG Road, Sector 17, Gurgaon, Haryana 122001
And also at Shop No.32, Sector 22-D, Chandigarh – 160022.
…..Appellant/Opposite Party.
Versus
Dinesh Parshad Raturi S/o Shri Lalit Parshad Raturi, R/o H.No.1745-A, Sector 23-B, Chandigarh.
...Respondent/Complainant.
Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 09.04.2019 passed by District Consumer Disputes Redressal Forum-I, U.T. Chandigarh in Consumer Complaint No.64 of 2019.
BEFORE: JUSTICE JASBIR SINGH [RETD.], PRESIDENT.
MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Argued by:
Sh. Neeraj Grover, Advocate for the appellant.
Sh. Devinder Kumar, Advocate for the respondent.
PER RAJESH K. ARYA, MEMBER
In this appeal, the appellant/opposite party has challenged order dated 09.04.2019 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’) vide which, the complaint filed by the respondent/complainant was allowed in the following manner:-
7. In the light of above observations, we are of the view that the present complaint of the complainant deserves to succeed against the Opposite Party and the same is allowed qua it. The Opposite Party is directed:-
(i) To provide free carry bags to all customers forthwith who purchase articles from its Shop and stop unfair trade practice i.e. to charge for carry bag;
(ii) To refund to the complainant the amount of Rs.3/- wrongly charged for the paper carry bag;
(iii) To pay Rs.3,000/- to the complainant towards compensation for mental and physical harassment;
(iv) To pay Rs.1,000/- as litigation expenses;
(v) By way of punitive damages, to deposit Rs.5,000/- 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 Consumer Disputes Redressal Commission, U.T., Chandigarh.
8. 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 direction 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 on order becoming final, necessary steps for execution of order be taken. A copy of this order be also sent to the Secretary (SCDRC), U.T. Chandigarh, for necessary action.”
2. To lay challenge to the order passed by the Forum, the first argument raised by the Counsel for the appellant/opposite party was that the credit card slip filed by the respondent/complainant with the complaint revealed that the goods were purchased by one Ms. Poonam, however, the complaint before the Forum was filed by one Mr. Dinesh Parshad Raturi (respondent/complainant). He argued that as such, there was no relation of consumer and service provider between the appellant/opposite party and the complainant/respondent and the respondent/complainant had no locus-standi to file and pursue the complaint before the Forum.
3. In this regard, it may be stated here that the plea now raised at this stage in appeal was never raised before the Forum. Perusal of Invoice and HDFC Bank Payment Receipt (Annexure C-1 colly.) on record of Forum reveals that payment of Rs.402/- was made by using credit card of one Poonam for the purchase of articles in question. During the course of arguments, it was stated at bar by the Counsel for the respondent/complainant that Sh. Dinesh Parshad Raturi and Ms. Poonam are husband and wife and being beneficiary, the complainant, namely Sh. Dinesh Parshad Raturi filed the complaint. Counsel for the appellant/opposite party did not dispute the statement made at bar by the Counsel for the respondent/complainant. Otherwise also, Section 2(1)(d) (ii) of Consumer Protection Act, 1986 comes for rescue of the respondent/ complainant, which clearly stipulates as under:-
“(d) "consumer" means any person who—
(i) xxxxxxxx
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;”
Thus, in view of aforesaid provisions of the Act, being the beneficiary, the respondent/complainant is definitely a consumer and as such, the argument raised in this regards stands rejected.
4. The next argument raised by the Counsel for the appellant/opposite party was that the sale of paper carry bag is optional purely at the discretion of the consumer and further there is no prohibition on the appellant/opposite party to charge for the carry bag. To support his argument, he referred to a document (Annexure – F), which is a photocopy of one of such notice saying that ‘purchase of carry bags is optional and not necessary/mandatory’.
5. Qua aforesaid contentions, it may be stated here that similar contentions were raised before this Commission in the case of Westside, a unit of Trent Limited Vs. Sapna Vasudev, Appeal No.36 of 2019 decided on 08.04.2019, wherein this Commission held in Paras 12 & 13 as under:-
“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.”
6. Elaborating his argument to contradict the afore-extracted observations made by this Commission, Counsel for the appellant/opposite party submitted that in case, the respondent/ complainant was not willing to buy the carry bag, he could bring his own carry bag. To say so, reliance was placed on document (Annexure-F). It may be stated here that the argument raised totally baseless as the aforesaid document was never placed in evidence before the Forum during the pendency of the complaint. Not only this, the appellant/opposite party has miserably failed to prove on record that the said notice saying that the carry bags are optional, was there in the premises of the appellant/opposite party on the relevant date and time when the respondent/complainant purchased the shoes from it. Had such like notices been there, still the appellant/opposite party, was expected to and in future also, supply a paper carry bag free of cost. By relying upon such like document and raising such a flimsy ground, the appellant/opposite party cannot run away from its duty to supply a paper carry bag free of cost to a consumer who buys goods from it against consideration paid. The respondent/complainant cannot be expected to take the shoes in hand without a carry bag from the billing counter up to his or her destination or vehicle. Thus, reliance placed on document (Annexure-F) is an afterthought as no credence can be given to it. It is purely and simply an attempt on the part of the appellant/opposite party to cover up the lacunas. Consumerism should prevail and such kind of practice of charging for paper carry bags should be stopped immediately, which have to be supplied free of cost to the consumers.
7. We may also state here that firstly charging for a paper bag and secondly, putting its logo i.e. “Bata Surprisingly Stylish” on the same is a clear cut unfair trade practice on the part of the appellant/opposite party. In our recent judgment in the case of Westside, a unit of Trent Limited Vs. Sapna Vasudev, referred to above, this Commission has already held the act of charging for a paper bag and putting Company’s Logo on it, to be an act of unfair trade practice on the part of the seller. Relevant Paras 10 to 11 of the judgment reads thus:-
“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.
8. In our opinion, the Forum has also rightly held in Paras 5 and 6 of its order as under:-
“5. We had also a glance to the carry bag which is annexed with the consumer complaint in which advertisement of Bata Company was being published as it has been printed in red words “Bata Surprisingly Stylish” which shows that Bata Company is stylish in nature and used the consumer as if he is the advertisement agent of Opposite Party. The purchase of the item alongwith sale of carry bag is not disputed as per statement put forth by Opposite Party.
6. Per this evidence brought on record, we record a firm finding that there is unfair trade practice on the part of Opposite Party in compelling the complainant to purchase the carry bag worth Rs.3/- and if the Opposite Party is a environmental activist, he should have given the same to the complainant free of cost. It was for gain of OP. By employing unfair trade practice, OP is minting lot of money from all customers.”
9. In view of above, 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 and stop unfair trade practice i.e. to charge for carry bag. It also rightly ordered refund of an amount of Rs.3/- wrongly charged by the appellant/opposite party for the paper carry bag besides payment of Rs.3,000/- to the respondent/complainant towards compensation for mental and physical harassment and Rs.1,000/- towards litigation expenses.
10. 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.
11. No other point was raised by the Counsel for the parties.
12. For the reasons recorded above, this appeal being devoid of any merit, is dismissed with no order as to costs. The impugned order dated 09.04.2019 passed by the District Forum–I, U.T., Chandigarh in Consumer Complaint No.64 of 2019 is upheld.
13. Certified copies of the order be sent to the parties free of charge.
14. File be consigned to the Record Room after completion.
Pronounced
22.07.2019.
[JUSTICE JASBIR SINGH (RETD.)]
PRESIDENT
(PADMA PANDEY)
MEMBER
(RAJESH K. ARYA)
MEMBER
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