INTRODUCTION
Following
a series of judgements in Chandigarh the additional prices levied by the
companies and retailers on carry bag from their consumers has been declared as
Unfair Trade Practice.
These judgments attract attentions towards a
larger and a more pressing issue at hand. The major reason that compelled the
companies to charge for their carry bags: plastic ban due to elephantine
increase in plastic pollution, not just at a state level but globally.
Statistics
collected by United Nations show that today we, globally produce plastic waste
up to 300 Million Tones that is equivalent to the weight of the entire human
population. This would mean that the earth is literally brimming plastic. The
next question that arises is what is being done with such hefty amounts to
plastic. United Nation states that only 9% of this plastic is being recycled,
12% is being incinerated and 79% of this waste is being dumped either in
landfills, dumps or natural environment.[1]
According
to FICCI Average per capita consumption of plastic in India is about 11kgs, and
is expected to be 20 kgs by 2020 as stated by Ministry of Petroleum and Natural
gas.[2] Polyethene bags were
banned by the National Green Tribunal in India in 2008 and fine of Rs.5,000 was
imposed in January, 2016.
Plastic
poses a major threat to us even in our day to day lives. Apart from the
humongous effect it has on the animals namely, being ingested by animals under
the impression that it is food has led to death of many animals. It also
however has detrimental effects on the heath of humans as Plastics are made up
of a variety of toxic chemicals. As such, its uses and exposure are associated
with a number of human health concerns. Chemicals leached from the plastics
contain compounds like polybrominated diphenyl ether (PBDE), bisphenol A (BPA),
and phthalates. These chemicals have been established to upset the endocrine
system and thyroid hormones and can be very destructive to women of
reproductive age and young children.[3]
All
this comes to show why plastic ban, especially banning plastic bags in
commercial use was banned by the National Green Tribunal.
Chandigarh to Beat
Plastic Pollution
In
June 2018, the theme of the swatch Baharat mission was beat plastic pollution,
in lieu of the same Chandigarh Municipal Corporation conducted various anti
plastic raids and awareness drives.[4] Various other steps such
as nuked nataks, cycle rallies, walk and talk sessions were organized
throughout the Union Territory in an event organized by Punjab
State Council for Science and Technology in collaboration with the National
Diversity Society.[5]
The
other important thing to understand is that the District Consumer Disputes Redressal Forum and The State Consumer Disputes Redressal Forum declared that charging of
additional free on carry bags is an Unfair Trade Practice.
Unfair Trade Practice
In
today’s cut throat world, where competitive edge is the main aim of companies
to enable to perform and come out on top. Unfair Trade Practice is a malpractice
that is being breaded due to this strive for an edge.
Unfair
Trade Practices extensively explains any deceitful, misleading or deceptive
exchange practice; or business deception of the items or administrations that
are constantly sold; which is disallowed by a statute or has been perceived as
significant under law by a judgment of the court. Generally unfair trade practices
may include illegally refusing any transaction, deceptively soliciting
customers, disrupting business activities of the rivals unfairly, unfairly
excluding competitors.[6]
The
judgment of Chandigarh Consumer Forum dated 09/04/2019 imposed a penalty on the
infamous shoe store BATA, for charging its consumers Rs. 3 for a shopping bag
to carry their purchases home. The evolution of the same can be traced back to
another case. The detailed study of the two has been provided below.
CASE: Mr. Pankaj Chandgothia v. M/S
Lifestyle International Pvt. Ltd. (Chandigarh Consumer District Dispute
Redressal Forum- 1)
In
this case penalty of Rs. 10,000 was imposed on the Retail Giant Lifestyle in
lieu of charging Rs. 5 as an additional cost for carry bags.
FACTS:-
·
The complaint was filed by the Complainant
Mr. Pankaj Chandgothia (hereinafter referred to as “the Complainant”) against Lifestyle
International Pvt. Ltd. (hereinafter referred to as “the Opposite Party”) in
the Chandigarh Consumer District Dispute Redressal Forum- 1 (hereinafter
referred to as “the Forum”).
·
The Opposite Party is a major retail
fashion brand which comes under the Dubai based retail and hospitality
conglomerate, the Landmark Group. In India, Lifestyle Store is a is a part of Lifestyle International Pvt. Ltd, with sister
brands Home Centre, Max, and Easybuy.[7]
·
The Complainant alleged that while buying
items from the Lifestyle Store he was asked to pay an additional amount of Rs.
5 for a carry bag. No prior information was given regarding the same, as it was
nowhere mentioned in the store that an additional cost would be imposed for a
carry bag. Aggrieved by the same a complaint was preferred to the Forum.
COMPLAINANT’S
CONTENTIONS:-
·
The Complainant asserted that nowhere in
the entire store was there a mention that the purchasers or the buyers would be
charged additionally for the carry bags and the same was informed to them only
at the cash counter.
·
The Complainant also alleged that that the
same amounts to deficiency in service and Unfair Trade Practice.
OPPOSITE PARTY’S
CONTENTIONS:-
·
The Opposite Party contended that there is
no necessity on its behalf to provide the buyers or the purchasers with a free
shopping bag.
·
The Opposite Part also alleged that the
bags were given to the Complainant or any other buyer only after confirmation
was taken from them regarding the same.
·
The Opposite Party contended that
following the plastic ban the company started to provide paper bags to the
customer, which were costlier than the plastic bags, hence it was providing the
same to the customers on payment of a certain price.
·
The Opposite Party also contended that since
there is per se no legal obligation on the Party to provide the bags free of
cost to its customers hence there is no deficiency in practice or Unfair Trade
Practice.
THE FORUM’S ANALYSIS
After
considering the contentions of both the parties the Forum remarked as follows:
·
The court first stated that the factum of
providing paper bags to its customers, on payment of additional price, has not
been disputed before the forum. The contention of the Complainant that nowhere
in the store was it mentioned that the customers would be charged additionally
for the carry bags, has neither been refuted nor admitted by the Opposite Party.
·
The Opposite Party also could not by way
of any rules/instructions show any evidence that they were allowed to levy an
additional charge for paper bags.
·
The contention of the Opposite Party that
the carry bad was given only after the assent was taken from the purchaser did
not sit well with the Forum, the Forum observed that,
“8. .….we are not impressed with the same, in as much as if the
Cashier informed the Complainants about the purchase of carry bag before
billing, the same amounts to unfair trade practice and deficiency in service as
it would have been very odd and inconvenient to the Complainants to carry the
new garments in hand throughout without a carry bag. In this backdrop, charges
of such things (paper bags) cannot be separately foisted upon the consumers and
would amount to overcharging.”
·
The contention of the Opposite
Party that the charging for paper bags was in lieu of the plastic ban was also
not accepted by the court and the same was reprimanded on the account that the
court felt that the ban of a product does not entitle the Opposite party to
charge for its substitute, it stated,
“9. The
Opposite Party has also argued that post ban of plastic bags, it started
providing paper bags to its customers on payment of its price. However, we feel
that banning of a product does not entitle the Opposite Party to charge for its
substitute and 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 hands.”
·
Another aspect pointed out by
the Forum was that the paper bags that were being provided to the customers at
an additional cost, contained the name of the brand and acted as an advertising
strategy for them, hence the forum held that this leads to exploitation of
gullible customers and indeed amounts to Unfair Trade Practice.
“10.
It is noteworthy that said carry bag for which the Complainants
had to shell out extra amount from their pocket, is a printed carry bag on both
sides, which has a prominent display of the advertisement of the Opposite Party
and is thus apparently serving as an advertisement for them, whenever the said
bag is carried by the Consumer. In this manner, the Complainants and other
gullible consumers like them have certainly been taken for a ride by the
Opposite Party for advertising their name. Undoubtedly, the Opposite Party has
several stores across the country and in the above said manner, made lot of
money, thus, the act of Opposite Party by forcing the gullible consumers to pay
additionally for the paper bags is surely and certainly amounts to deficiency
in service and its indulgence into unfair trade practice.”
·
In pursuance of the same the
Opposite Party was penalized with cost of Rs. 10,000/- and was directed to
provide free shopping bags to all its customers who purchase something from
their store, to refund the amount or Rs 5 wrongly charged from the Complainant
and also to pay the Complainant Rs. 1,500 towards compensation for harassment
and agony and Rs. 1,500 as litigation expense.
CASE: Lifestyle International Pvt. Ltd. V. Mr. Pankaj Chandgothia (State Consumer Disputes Redressal Commission,U.T., Chandigarh, March 18, 2019)
FACTS:
-
·
This was an appeal that was filed by
Lifestyle International Pvt. Ltd. against the order of the Forum passed against
it on January 03, 2019, to the State Consumer Redressal
Dispute Redressal Commission, Chandigarh (hereinafter referred to as “the State
Forum”)
·
In the said appeal Lifestyle
International Pvt. Ltd has preferred the appeal (hereinafter referred to as
“the Appellant”, against Mr. Pankaj Chandgothia
(hereinafter referred to as “the Respondent”)
·
The facts of this case are the same as
that of the previous one with no substantial addition in that regard.
CONTENTION OF THE APPELLANT:-
·
The Appellant contented that
it does not fall within the definition of “service” under section 2 (1) (o) of
the Consumer Protection Act as it is a retail store.
·
The Appellant also contended
that in light of Rule 10 of The Plastic Waste (Management And Handling) Rules,
2011, which provides:
“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."
Hence in light of the
same the Appellant contended they are under the obligation to not provide any
carry bag free of cost to any customer.
·
Another point raise by the Appellant was that the Rule 15 of The Plastic
Waste ( Management And Handling) Rules, 2016, published vide notification dated
18.03.2016, which reads as follows:
“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."
In pursuance of the same the retailers have been
barred from making plastic bags available to the customers free of cost and it
is thus mandatory for the retailers to charge the customers for plastic carry
bags.
·
The Appellant
also alleged that the impugned order passed by the Forum which opined that it
is mandatory for the retailers to provide carry bags free of cost is without
any basis and is faulty.
·
The Appellant
also alleged that that the Forum failed to appreciate that in absence of any
law prohibiting the sale of carry bags, the Appellant/opposite party was well
within the bounds of law to charge for the same. It was further contended that
on the amount collected through the sale of carry bags, the Appellant/opposite
party pays the Government the requisite taxes, which fact the Forum also failed
to appreciate.
CONTENTION OF THE RESPONDENT:-
·
The Responded
contended that the Rule 15 of The Plastic Waste (Management
And Handling) Rules, 2016 has been omitted vide notification dated March 27, 2018.
·
The Respondent also alleged
that nowhere was it mentioned that the customers will have to pay an additional
amount for the carry bags and nor was it mention that the customers are allowed
to carry their own carry bags inside the store.
THE STATE FORUM’S DECISION
While dismissing the
appeal the court opined that:
·
The State Forum stated that
the Respondent without a speck of a doubt comes under the definition of a
consumer as provided under section 2 (1) (d) of the Act hence the Appellant is
a service provider in that regard.
·
The State Forum also held that
Rules 10 and 15 of the, The Plastic Waste (Management And Handling) Rules are
concerned the same stand amended and omitted via notification dated March 18, 2016
and March 27, 2018 respectively, hence the Appellant could not take cover under
the said provisions.
·
The State Forum observed that
charging for carry bags was completely against consumerism. The State Forum
also said that, it was nowhere mentioned in the entire store that the carry
bags would be charged additionally to the purchase and nowadays it is a
prevalent practice the customers are not allowed to carry their own carry bags
into the store, the same are either taken by the guard at the entry gate or
stapled so that no additional item can be put into them.
CASE: Dinesh Prasad Raturi V. Bata India Limited. (District
Consumer Disputes Redressal Forum-I, U.T. Chandigarh, April
09, 2019)
This was a complaint
filed against the widely known Shoe Company Bata India Limited, for charging
Rs. 3 additionally, for a carry bag, in the District Consumer Disputes
Redressal Forum-I, U.T. Chandigarh. Punitive damages
amounting to Rs. 5,000 were imposed on the Company.
FACTS:-
·
The complaint
was filed by the Complainant Mr. Dinesh Prasad Raturi (hereinafter referred to
as “the Complainant”) against Bata India Limited (hereinafter referred to as
“the Opposite Party”) in the District Consumer
Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter
referred to as “the Forum”).
·
The Opposite Party is the
largest retailer and leading manufacturer of footwear in India and is a part of
the Bata Shoe Organization. The Company also operates a large non retail
distribution network through its urban wholesale division and caters to
millions of customers through over 30,000 dealers.[8]
·
The Complainant
alleged that on buying shoes worth Rs. 399 from the Bata Store he was billed an
additional amount of Rs. 3, for a carry bag, which the Complainant had no
intention of buying. The carry bag bore the name of the shop ‘BATA’ with
a tag line ‘ Bata Surprisingly Stylish’ “Barcelona Milan Singapore New Delhi
Rome”.
CONTENTION OF THE COMPLAINANT:-
·
The Complainant contended that he had no
intention to purchase the carry bag.
·
The Complainant also alleged
that the
brand name of the Opposite Party along with its tagline was printed on the
carry bag, making it a form of advertisement for which the consumers were being
wrongly charged, hence it is a form of Unfair Trade Practice.
CONTENTION OF THE OPPOSITE PARTY:-
·
The Opposite Party contended that it was in lieu
of environmental safety, that the Complainant was the carry bag at the cost of
Rs. 3.
ANALYSIS OF THE DECSION OF THE FORUM
In light of the arguments
advance of the Complainant and the Other Party the Forum opined that:
·
The Forum held that the carry bag was indeed a
form of advertisement by the company and stated,
“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 along with
sale of carry bag is not disputed as per statement put forth by Opposite
Party.”
·
The Forum also
concluded that charging Rs. 3, for the shopping bag is a form of Unfair Trade
Practice employed by the company, and stated,
“ 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 an
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.”
·
The Forum instructed
the Opposite Party to provide carry bags free of cost to all the customers who
purchase articles from their shop, to refund Rs. 3 wrongly charged from the Complainant
and to pay Rs. 3000 to the Complainant as compensation for mental and physical
harassment, and to pay Rs. 1000 for the litigation expenses. The court also
directed the Respondent to pay punitive damages amounting to Rs. 5000 to the
Consumer Legal Aid Account.
CONCLUSION
The
decision passed by the Forums raise a rather substantial question that in light
of the havoc that the plastic pollution has caused not just in our country but
globally where do decisions not promoting use of non-disposable bags stand?
Though
the catena of decisions discussed above are in the favor of the consumer but
are they in favor of the environment? Though there is an imposition on a ban of
plastic bags which forces the companies and retailers to switch to paper bags,
making these paper bags free is a double-edged sward, where it has its
benefits, it also finds some flaws.
Making
the paper bags free is a major win for the consumer as they were being used as
marketing tools, as the companies had they brand logo printed on the bags and
the same was being circulated and used by the consumers and they were
additionally being asked to pay for them. The rationale behind the decisions is
very simple and logical, when a consumer buys products from a store can he be
expected to carry all these products by hand, especially if it has not been
mentioned anywhere in the store and the consumer becomes aware of it only when he
reaches the cash counter, that he will be charged additionally for the carry
bags.
The
cons of these decisions is however that though it is not pro retailers it is
also not pro-environment. It is a settled fact that plastic is a major threat
to our environment, but it is also true that paper wastage is another leading
factor towards detriment of our environment. The previous store policy to
charge for paper bags, in a way encouraged the buyers to carry their own bags
from home when going shopping. This trend is highly prevalent in grocery stores
where no carry bags are provided, and the customers carry bags from their own
home to carry their groceries. It is not unimaginable that people develop a
habit or carrying carry bags when leaving for shopping. This would be both
pro-consumer and pro-environment.
The
decision could does lift the veil of environment protection claimed by the
companies for free or rather consumer sponsored advertisement and prevents
unnecessary harassment of the gullible consumers.
A more
consumer and environment friendly approach can be to offer other incentives to
the buyers on bringing their own carry bags, which would encourage the
customers go get their own bags.
Implementation
of such programs can be more beneficial for: the consumer, the companies and
retailers and the environment which is in congruence with our sustainable
development goal: development but not at all costs.
