Case BriefsDistrict Court

District Consumer Disputes Redressal Commission-II, Hyderabad: A three-Member Bench of Vakkanti Narasimha Rao, President, and P.V.T.R Jawahar Babu and R.S. Rajeshree, Members, ordered More Megastore Retails Ltd. to payback Rs 3 (with interest) that were charged from the complainant as the cost of the carry bag with company’s name and logo printed on it. The Commission also ordered More Megastore pay a compensation of Rs 15,000 to the complainant.

Complaint

The complainant purchased a certain product from More Megastore. It was submitted that a plastic carry bag was supplied by More Megastore on collecting Rs 3 towards its costs. This bag had the company’s name and logo printed on it. It was alleged that More Megastore used the complainant as its advertising agent, that too at the cost of the complainant. Further, it was alleged that this amounted to unfair trade practice under Section 2(1)(r) of the Consumer Protection Act 1986.

Reliance was placed on the decision of Chandigarh Consumer Court Dinesh Prasad Raturi v. Bata (India) Ltd. (CC/64/2019), which held that “the Bata Company has used the Consumer as if he is the advertisement agent of the opposite party”.

More Megastore’s Stand

The Megastore refuted all the allegations and argued that the complaint was liable to be dismissed in limine. It was submitted that More Megastore never compelled the complainant to purchase the carry bag as alleged in the complaint. It was argued that the present complaint had only been filed as a means to harass More Megastore and is being used as money-making scheme.         

Issues

The following three questions arose for determination by the Commission:

  1. Whether any deficiency of service is there or any unfair trade practice is made out upon the part of More Megastore?
  2. Whether the complainant is entitled for the relief sought?
  3. What relief?

Decision

On Points 1 and 2:

The Commission considered that the only dispute was that More Megastore had been using its consumers as its advertisement agents, by selling the carry bags to the customers with their logo without prominent prior notice and information before the customer makes his choice of patronising its retail outlets and before the customer makes his selection of goods for purchase and also without disclosing the specifications and price of the carry bags.

It was held that disclosing the price of carry bags at the payment counter seems to be undoubtedly an “unfair trade practice” under Section 2(1)(r) of the Consumer Protection Act, 1986 [corresponding Section 2(47) of the Consumer Protection Act, 2019]. The Commission said that:

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 silent specifications and price of the carry bags, before he exercises his choice of patronising a particular retail outlet before he makes his selection of goods for purchase from the said retail outlet.

Reliance was placed on the decision of the National Consumer Disputed Redressal Commission in Big Bazaar (Future Retail Ltd.) v. Ashok Kumar, 2020 SCC OnLine NCDRC 495.

Points 1 and 3 were finally answered by stating More Megastore is selling the plastic bags having their company logo and using the customers as tool of their advertisement that leads to adoption of unfair trade practice apart from deceptive nature of services and committal of spurious acts that are highly objectionable.

On Point 3:

The Commission directed More Megastore to:

  1. Provide free carry bags to all customers if in case they printed their company logo on the carry bags.
  2. However, More Megastore is at liberty to charge for the plain carry bags, with prior intimation and consent of consumers and by displaying the information at conspicuous places in the business premises.
  3. Pay back Rs 3 which were charged to the complainant with interest at the rate of 12% p.a. from 1-6-2019 (the date of purchase) till its realisation.
  4. Pay Rs 15,000 towards compensation for collecting Rs 3 from the complainant for the cost of carry bag having the company logo, for which the opposite party utilised the complainant as tool of their advertisement, which amounts to adoption of unfair trade practice with deceptive nature apart from spurious act.
  5. Pay Rs 1500 towards costs of the proceedings.

[Baglekar Akash Kumar v. More Megastore Retail Ltd., Consumer Case No. 310 of 2019, dated 19-2-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

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.

Issue

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.

Revision Petition

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’.

Fora Below

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.

Case BriefsDistrict Court

District Consumer Disputes Redressal Forum, U.T. Chandigarh: The Bench of Rattan Singh Thakur (President) and Surjeet Kaur and Suresh Kumar Sardana (Members) recorded a firm finding in the present case against the footwear brand “BATA”, stating that it involved in “unfair trade practice.”

In the present case, the complainant stated that, on visiting the shop premises of “BATA”/OP in order to purchase a pair of shoes. The complainant’s bill on purchasing a pair of shoes came out to be of Rs 402. Cashier of “OP” handed over the shoes in a paper carry bag bearing the advertisement name of the shop “BATA”. Complainant stated that it had no intention to purchase the carry bag and it was OP’s duty to provide the carry bag. But complainant was forced to pay for the same.

Hence the complainant submitted that it was unfair trade practice and prayed for punitive damages.

Opposite Party has contested that for the purpose of environmental safety, the complainant was given carry bag at the cost of Rs 3.

The forum stated that if the OP is an environmental activist, he should have given the carry bag to the complainant free of cost. It was a gain of OP. By employing unfair trade practice, OP is minting a lot of money from all customers.

Thus, the forum was of the view that the present complaint deserves to succeed against the OP and further directed OP with the following directions-

  • 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;
  • To refund to the complainant the amount of Rs 3 wrongly charged for the paper carry bag;
  • To pay Rs 3,000/- to the complainant towards compensation for mental and physical harassment;
  • To pay Rs 1,000 as litigation expenses;
  • By way of punitive damages, to deposit Rs 5,000 in the “Consumer Legal Aid Account”

Certified copies of the above order were directed to be sent free of cost. [Dinesh Parshad v. Bata (I) Ltd., Consumer Complaint No. CC/64/2019, Order date 09-04-2019]