This article has been written by Adv. Shantanu Lakhotia, Practising in Delhi
The National Consumer Dispute Resolution Commission (“NCDRC”) recently in the matter of Big Bazaar (Future Retail Ltd.) v. Ashok Kumar has upheld the decision of the District Consumer Commission (“DCC”) and the State Consumer Commission (“SCC”) of Chandigarh directing Big Bazaar to refund the cost of the carry bag and to pay compensation to the complainant. The NCDRC, by upholding the decision of the two lower forums, seems to have fortified the position of law that retailers are not entitled to charge their customers for a carry bag. However, even though from a bird’s eye view, it may seem like a win for consumers, a closer look at the judgement would showcase the opposite. In this context, the present article aims to throw a light on how the NCDRC has, via its judgement, weakened the earlier position of law laid down by the judicial pronouncement of various District and State Consumer Commissions across the country.
Position of Law before the NCDRC ruling:
The first case to lay down the rule that a retailer is barred in law from charging its customers for a carry bag was by the DCC Chandigarh in the matter of Pankaj Chandgothia v. M/s Lifestyle International Pvt Ltd. In this case, Mr. Chandgothia had purchased certain articles from Lifestyle. While he was making the necessary payments at the billing counter, he had requested for the articles to be kept in a carry bag.He was informed by the counter clerk that the same would have to be purchased by him for Rs. 5/. Aggrieved by this, Mr. Chandgothia filed a consumer complaint before the DCC Chandigarh. It was contended by Mr. Chandgothia that no such information regarding levying of additional charge on a carry bag was displayed at the shop. However, Lifestyle, in turn, raised the defense that there was no legal obligation on it to provide free carry bags to its customers. The DCC Chandigarh ruling in favor of Mr. Chandgothia held that, “charges of such things (paper bags) cannot be separately foisted upon the consumers and would amount to overcharging”. Additionally, it held that the “Opposite Party and all other shops like it are obliged to provide carry bags free of cost to carry the purchased items to their customers, as the customers cannot be expected to carry the items in hand” and directed Lifestyle “to provide free carry bags to all customers forthwith who purchase articles from its Shop”.
The judgement of the DCC Chandigarh was appealed by Lifestyle, and the matter came before the State Consumer Commission (“SCC”) Chandigarh. While upholding the judgement of the DCC Chandigarh, it was categorically stated by the SCC Chandigarh that “With all concern, we must say that charging for paper carry bags is totally against consumerism”. It further affirmed the direction of the DCC Chandigarh that Lifestyle shall provide free carry bag to all customers forthwith.
It is to be noted that the M/s Lifestyle judgment however, raised an interesting question as to whether Lifestyle could have charged its customers for a carry bag if it had informed its customers before-hand about the same? Based on the direction of the SCC Chandigarh, ordering Lifestyle to provide free carry bag to all its customers, it can be safely said that the answer to this question could only be implied to be in the negative.
The position of law was made explicit by SCC Chandigarh in the matter of Bata India Limited v. Dinesh Parshad Paturi wherein it was stated, “Not only this, but the appellant also/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 shoed from it. Had such like notice been there, still the appellant/opposite party, was expected to and in future also, supply a paper carry bag free of cost”. The SCC Chandigarh had gone ahead to categorically state that, “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 customers.”
Thus, it is important to note that the SCC Chandigarh had declared charging for carry bag under any circumstance to fall within the definition of ‘unfair trade practice’ as given in the Consumer Protection Act, i.e.,“a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice”. This was subsequently followed by the SCC of Haryana in the matter of Vishal Mega Mart v. Paramjeet Kaur.
Position of Law as laid down by the NCDRC; The Weakening:
Now coming back to the case at hand, it shall be noted that the NCDRC, in its judgment, has held that if the retailer has given prior notice to the consumer, before he begins selecting good for purchase at the shop, regarding the levying of additional charge on carry bag as well as the salient specifications of the carry bag, in such a situation the retailer is entitled to charge for a carry bag. Thus, the NCDRC, by removing the blanket restriction on retailers from charging for a carry bag, has weakened the position of law, laid down initially by the SCC Chandigarh and followed by various other SCC and DCC of the country.
Consequences of the NCDRC ruling:
Even though the NCDRC had specified in its judgement that charging for a carry bag is a deviation from past practice as well as the normal, it has allowed for the same. A primary reason for the same is that unlike the earlier judicial pronouncement of various DCC and SCC, the NCDRC considers carry bags to itself be a ‘good’ and thus allows the selling of the same as any other commodity of the shop. Treating a carry bag as a good would, in my opinion, be inconsistent with Section 36(5) of the Sales of Goods Act, 1930, which states that, “Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state shall be borne by the seller”. A perusal of the aforementioned section would indicate that it is the primary responsibility of the seller to ensure that the goods are given to a buyer in a deliverable state and all expenses are to be borne by the seller. The SCC Chandigarh in the matter of M/s Dominos v. Pankaj Changothia had also upheld this position of law by stating that, “It is not the case of the opposite party that the carry-bag was separately purchased by the complainant/purchaser, rather the opposite party has used the same for the purpose of its own advertisement as well as to put the things into a deliverable state”. Thus, if a consumer purchases 15 items from a shop, it cannot be expected of him to carry all of this to his car in his hand. The 15 items would be in a deliverable state only if it is put in a carry bag. Hence, a carry bag cannot be considered a simple commodity or a ‘good’ of the shop, but a means to put the goods purchased from the shop in a deliverable state. It should amount to an ‘unfair practice’ if the retailer/seller can wiggle out of their responsibility of putting the commodities purchased by a customer in a deliverable state by charging for their own brand of carry bag.
Additionally, the decision of the NCDRC has to be read in the light of the fact that there is a silence in the judgement regarding whether this would apply even if a person brings his own carry bag from home. Thus, a situation could arise that even though a customer carries his own carry bag, the shop keeper, by way of prior notice, could not allow the same and thus, in effect, could push for the shop’s own brand of carry bag on its customers. This, in my opinion, would directly be an ‘unfair practice’.
Thus, it can be safely concluded that the judgment of the NCDRC though seems to strengthen the consumers’ position, goes against the very spirit of consumerism and leaves the customers/consumers at the mercy of the shopkeeper’s prior notice.
The author would like to express his sincere gratitude to Ms. Prapti Kumar, a graduate of Kamala Nehru College, University of Delhi for her useful comments that went into writing this article