National Consumer Disputes Redressal Commission (NCDRC): The Bench of Dinesh Singh (Presiding Member) observed that:
“Consumer has the right to know, before he exercises his choice to patronize a particular retail outlet, and before he makes his selection of goods for purchase, that additional cost will be charged for carry bags, and also the right to know the salient specifications and price of the carry bags.”
In the present matter, petitioner, Big Bazaar (Future Retail Ltd.) was the Opposite Party before the District Forum.
Condonation of Delay
The petition was filed with self-admitted delay of 60 days and the reasons laid down for condonation of delay were with regard to the managerial inefficiency and perfunctory and casual attitude to the law of limitation.
Though the above-stated reasons were illogical and unpersuasive, yet in the interest of justice, delay was condoned in light of providing fair opportunity.
Charging additional cost (Rs 18 in this case) for ‘carry bags’ to carry the goods purchased by the complainant was concluded as an unfair trade practice on the part of OP by the two Fora below.
hence, OP Co. was directed to refund the cost of ‘carry bags’ and pay compensation of Rs 100 along with the cost of litigation which was Rs 1100 and Rs 5000 to be deposited in the Consumer Legal Aid Account.
The instant revision petition was filed by the OP Co. under Section 58(1)(b) of the Consumer Protection Act, 2019 before this Commission.
[The jurisdiction of this Commission under both sections i.e. Section 21(b) of the Act 1986 and Section 58(1)(b) of the Act 2019 is the same (the articulation in both is identical)]
Bench noted the fact that earlier OP was providing ‘carry bags’ made of polythene without charging additional costs and later when it started providing cloth carry bags it started charging additional cost.
In light of the above, the Commission expressed that:
Prominent prior notice / signs / announcement / advertisement / warning to the consumers, before the consumers exercised their choice to make their purchases from the outlets of the Opposite Party Co., that additional cost will be charged for carry bags, was not there.
In the present case, the consumers were not allowed/were not in a position to/did not have prior notice or information to take their own ‘carry bags’. In fact, after the purchase was completed and at the time of making the payment, they were being charged additionally for the cost of ‘carry bags’.
The Forums below appraised the case and returned with concurrent findings of deficiency and unfair trade practice.
Notice issued by Co-Ordinate Benches
The argument made by Senior Counsel, in the hearing on admission on 01-12-2020, that in “similar” cases of other traders notice has been issued by co-ordinate benches of this Commission, is not tenable.
Mere issuance of notice by a co-ordinate bench in “similar” cases of other traders is not a binding precedent.
Cloth Carry Bags
Carry bags of undisclosed specifications were forced on the consumers at the price as fixed by the Opposite Party Co., the consumers were forced to accept the carry bags, of undisclosed specifications, at the price fixed.
Adding to the above, Bench stated that a mere notice at the payment counter or consumer being informed at the payment counter that additional cost will be charged for ‘carry bags’ after the purchase from the store concerned has been made, should not be the case.
“It also cannot be that carry bags of (undisclosed) specifications and of price as fixed by the Opposite Party Co. are so forced on the consumer.
Such notice 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 his unfettered right to make an informed choice of patronizing or not patronizing a particular outlet at the initial stage itself and before making his selection of goods for purchase.”
Therefore, the Commission found such practice of disclosing the price of carry bags at the payment counter to be unquestionably ‘unfair trade practice’ under Section 2(1)(r) of the Act 1986 [corresponding Section 2(47) of the Act 2019].
Right to Know
As a matter of Consumer rights, the consumer has the right to know that there will be an additional cost for ‘carry bags’ and also to know the salient specifications and price of the carry bags, before he exercises his choice of patronizing a particular retail outlet and before he makes his selection of goods for purchase from the said retail outlet.
Commission in very clear words expressed that:
“…arbitrarily and highhandedly deviating from its past practice, deviating from the normal, not giving adequate prominent prior notice or information to the consumer before he makes his choice of patronizing the retail outlet, and before he makes his selection for purchase, imposing the additional cost of ‘carry bags’ at the time of making payment, after the selection has been made, forcing carry bags without disclosing their salient specifications at price as fixed by the Opposite Party Co., putting the consumer to embarrassment and harassment, burdening the consumer with additional cost, in such way and manner, is decidedly unfair and deceptive.”
Hence, the Commission directed OP to discontinue its unfair trade practice of arbitrarily and highhandedly imposing an additional cost of carry bags on the consumer at the time of making payment, without prominent prior notice and information before the consumer makes his choice of patronizing its retail outlets and before the consumer makes his selection of goods for purchase, as also without disclosing the salient specifications and price of ‘carry bags’.
The above order is made under Section 39(1)(g) of the 2019 Act. However, the Commission made it explicitly clear that:
“It is made explicit that the critique apropos the Opposite Party Co. and the order under Section 39(1)(g) of the Act 2019 to the Opposite Party Co. have been made inter alia considering that it is a company with the wherewithal and inter alia considering the way and manner in which it conducts its business of retail. As such, nothing in the critique and in the order made under Section 39(1)(g) of the Act 2019 can be (mis) construed to be made applicable to differently / lesser placed traders, the applicability can only be made on similarly / better-placed traders, similarly / better situate, having similar way and manner of conducting their business.” [Big Bazaar (Future Retail Ltd.) v. Ashok Kumar, 2020 SCC OnLine NCDRC 495, decided on 22-12-2020]
Advocates who appeared before the Commission:
For the Petitioner: Sudhir K. Makkar, Senior Advocate along with Saumya Gupta, Advocate and Yogita Rathore, Advocate.