Haryana

Karnal

CC/630/2019

Amit Sharma - Complainant(s)

Versus

Aditya Birla Fashion & Retail Limited - Opp.Party(s)

Pashant Pahwa

28 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 630 of 2019

                                                          Date of instt.13.09.2019

                                                          Date of Decision 28.02.2020

 

Amit Sharma son of Shri Rampal Sharma resident of House no.255, street no.8, R.K. Puram, Karnal.

                                                 …….Complainant.

                                              Versus

 

1. Aditya Birla Fashion & Retail Limtied, Skyline Icon Business Park, 701-704, 7^th floor, 86-92, off. A.K. Road Marol village Andheri East, Mumbai-400059 through its Managing Director.

2. Aditya Birla Fashion & Retail Limited, 98-99, Kunjpura Road near Civil Hospital Chowk Karnal-132001 through its Manager.

                                                                         …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri Parshant Pahwa Advocate for complainant.

                   Shri Kuldeep Kumar Advocate for opposite parties.

                 

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant had visited Aditya Birla Fashion & Retail Limited Pantaloons Division 98-99, Kunjpura Road, near Civil Hospital Chowk, Karnal with a view to purchase of apparel and purchased apparel worth Rs.2103/- as on 27.07.2019. It is alleged that the billing counter person compelled the complainant to purchase the paper bag to carry the apparel and charged Rs.5/- for the same. The complainant never intended to purchase carry bag and it was to be provided by the seller i.e. OPs. It was an essential item for the same. The paper bags bears the advertisement of the OPs ‘Pantaloons’ in dark green colour and advertisement covers half of the portion of paper bag alongwith tagline and official website of the OPs i.e. brand ‘Pantaloons’. The complainant had no option other than to purchase the paper bag to carry the purchased apparel to his home. The act of the OPs clearly shows that there is unfair trade practice on the part of the OPs in compelling the complainant to purchase the carry bag worth Rs.5/- and it should be given free of cost. OPs are mining a lot of money from all customers by employing unfair trade practice. In this way there was deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, who appeared and filed written version raising preliminary objections with regard to maintainability. On merits, it is pleaded that charge of the carry bags in accordance with the notification and guidelines framed by ‘Retailers Association of India (RAI), Retailers Association of India is an Indian retail trade association and it represents the rights of Indian retailers. RAI has been awarded membership to the Forum for International Retail Association Executives (FIRAE) of NRF, United States of America. It is further pleaded that OPs being a socially responsible corporate and knows its duty & responsibility that indiscriminate use of disposable plastic/paper carry bags is a burden on our environment and poses a substantial risk to our ecosystem. In order to contribute its bit towards sustainable development vis a vis environmental impact and also in-line with the guidelines issued by Ministry of Forest & Environment, Government of India, OPs encourage its customers to bring in their own carry bags while shopping with it. In cases, where the customer still wishes to buy a disposable carry bag, OPs charge a normal price towards it, which is intended to discourage such blatant use of disposable carry bags. It is further pleaded that paper bags are purchased by the OPs. Thus, the OPs charged for paper bag. However, it is pertinent to mention here that buying such bag is purely discretion of customer and the cashier of the OPs obtained the consent of each customer who buys bag. Further, the carry bag is sold by the OPs and purchased by customers as any other branded product. It is further pleaded that there is no legal/statutory obligation on the OP to provide any bag (paper or cloth or any other material) to carry purchased item for free to its customers. Further it is submitted that the OPs have paid GST to the government on the sale of paper bag. It is further pleaded that OPs as per standard policy always explain to every customer before customer makes a purchase to enable to the customer to take his decision with respect to purchase of paper bag with fee will and wisdom. It is submitted that the paper bag is billed only when customer is willing and once he/she consent to purchase the same and the same is displayed behind the billing counter. Further, it is submitted that there is no compulsion on any of the customers to buy the paper bag from the OPs. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 and Ex.C2 and closed the evidence on 06.01.2020.

4.             On the other hand, learned counsel of OPs made suffered a statement that their written statement be read as part and parcel of the evidence of the OPs and closed the evidence on 12.02.2020.

5.             We have heard the complainant and learned counsel of the OP and have gone through the record available on the file carefully.

6.             The case of the complainant, in brief, is that complainant had purchased an apparel worth Rs.2103/- as on 27.07.2019. The billing counter person compelled the complainant to purchase the paper bag to carry the apparel and charged Rs.5/- for the same. The complainant never intended to purchase carry bag and it was to be provided by the seller i.e. OPs. The paper bags bears the advertisement of the OPs ‘Pantaloons’ in dark green colour and advertisement covers half of the portion of paper bag alongwith tagline and official website of the OPs i.e. brand ‘Pantaloons’. The complainant had no option other than to purchase the paper bag to carry the purchased apparel to his home. The act of the OPs clearly shows that there is unfair trade practice on the part of the OPs in compelling the complainant to purchase the carry bag worth Rs.5/- and it should be given free of cost.

7.             On the other hand, the case of the OP, in brief, is that complaint is totally frivolous and complaint has been filed to challenge the charging of Rs.5/- for a carry bag. The said charges were taken only after the consent of the complainant.

8.             Admittedly, complainant purchased apparel worth Rs.2103/- on 27.09.2019, vide bill Ex.C1. OP has also charged Rs.5/- for a carry bag. Carry bag is Ex.C2. As per the version of complainant OPs have no right to charge the amount for carry bag and the said carry bag was purchased by the complainant under compelling circumstances.

9.             Learned counsel for OPs argued that charge of the carry bags in accordance with the notification and guidelines framed by ‘Retailers Association of India (RAI), Retailers Association of India is an Indian retail trade association and it represents the rights of Indian retailers. RAI has been awarded membership to the Forum for International Retail Association Executives (FIRAE) of NRF, United States of America. Further, OPs being a socially responsible corporate and knows its duty & responsibility that indiscriminate use of disposable plastic/paper carry bags is a burden on our environment and poses a substantial risk to our ecosystem. In order to contribute its bit towards sustainable development vis a vis environmental impact and also in-line with the guidelines issued by Ministry of Forest & Environment, Government of India, OPs encourage its customers to bring in their own carry bags while shopping with it. In cases, where the customer still wishes to buy a disposable carry bag, OPs charge a normal price towards it, which is intended to discourage such blatant use of disposable carry bags.

10.            Learned counsel for OP argued that the OP is a retail store and as such it does not fall within the purview of the “service” as contemplated in Section 2(1)(o) of the Consumer Protection Act, 1986. He further argued that as per the Rule 10 of the Plastic Waste (Management and Handling) rules, 2011 under the heading “Explicit Pricing of carry bags, no Carry Bag 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?

11.            Further, it was next argued that by learned counsel for the OPs that it is not obligated to provide a carry bag free of cost to the complainant to carry the goods purchased. There is no such legal obligation on the OPs and the complainant are free to carry the goods so purchased in their own carry bag or in any manner that suits him best. It is further argued that on the amount collected through the sale of carry bags, the OPs pays the requisite taxes to Government. Learned counsel of the OP relied upon the judgment of Hon’ble Competition Commission of India case no.05 of 2015 case titled as Shri Kamble Sayabanna Kallappa versus M/s Lifestyle International Private Ltd. and in writ petition no.274 of 2012 with writ petition no.244 of 2012 decided on 14.11.2014 case titled as Consumer Education and Research Society Versus Municipal Commissioner of Hon’ble High Court of Gujarat at Ahmedabad.

12.            Pre-contra, the learned counsel for the complainant argued that Rule 15 of Plastic Waste (Management and Handling) Rules, 2016 on which, reliance has been placed by the 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 OP, either at the entry gate or in the showroom that the customers can carry their own bags so that the goods purchased from the opposite party can be brought in their own carry bags or they are allowed to bring their own carry bags inside the showroom. Learned counsel for complainant relied upon the judgment of Hon’ble State Commission in case titled as My Lifestyle International Pvt. Versus Pankaj Chandgothia on 18 March, 2019 in appeal no.24 of 2019, decided on 18.03.2019.

13.            As regards the first submission that the OP being a retail store does not fall within the purview of ‘service’ as contemplated in section 2(1)(o) of Consumer Protection Act, the complainant has purchased goods including the carry bag from the opposite party against consideration paid and as such, the complainant is undoubtedly consumers under section 2(1)(d) of the Act and the opposite party is a service provider and very much covered under the aforesaid definition of ‘service.’ The submission raised by the learned counsel for the OP stands rejected being untenable.

14.            Reliance placed by the OP on rule 10 of the Plastic Waste (Management and Handling) Rules, 2011 and Rule 15 of Plastic Waste (Management and Handling) Rules, 2016. As per Rule 10 of the Plastic Waste (Management and Handling) Rule 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. As per Rule 15 of Plastic Waste (Management and Handling) Rules, 2016 was omitted vide subsequent notification dated 27.03.2018 and as such, the 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, the contention of OP that it could charge for carry bags is totally against law and has no legs to stand.

15.            In view of the facts and circumstances of the present case, authorities relied upon by the complainant are applicable whereas the judgments relied upon by the OP are not applicable.

16.            We are of the considered view that charging for carry bags is totally against consumerism. It is nowhere mentioned in the plea of opposite party that it has displayed either in the shop premises or at the entry gate that the customers can bring their own carry bags to carry the goods purchased. We have seen now-a-days that it has become the general practice prevalent in the market that if a person who goes to the shop premises like of the OP to buy some goods, he/she is not allowed entering the said shop premises with any carry bag by their security guard (s). Furthermore, the carry bag Ex.C2 shows that it bears the logo as well as name of the OPs and no print rate is mentioned on it. Hence, the customer who is buying the same, in fact publicizing the brand of the OPs and thereby becomes as a brand ambassador. Thus, we are of the considered view that the charging for the carry bag by the OP amounts to deficiency in service and unfair trade practice.

17.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to refund Rs.5/- being wrongly charged for the carry bag to the complainant. We further direct the OP to pay Rs.4,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. It is made clear that the abovesaid amount is not paid by the OP within stipulated period then this amount will carry interest @ 9% per annum from the date of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:28.02.2020

                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

       

(Vineet Kaushik)          (Dr. Rekha Chaudhary)

          Member                             Member