INTRODUCTION C onsumer rights have been a prominent issue of discussion since 1991. In 1991, the New Economic Policy, also known as the Liberalization, Privatization, Globalization Policy, was introduced. This policy brought with itself a wider range of products and a competitive market structure, benefiting the end-user with lowest price and maximum quality. It wouldn’t be a stretch to claim that the concept of ‘caveat emptor’ (let the buyer beware) was turned to ‘caveat venditor’ (let the seller beware).
With the increase in consumer rights litigation, there was a pressing need to amend laws and increase awareness around consumer rights amongst the common public. To ensure this, several programs were run and the new Consumer Protection Act, 2019 (“COPRA 2019”) was put in place.
A burning issue that has gathered attention in the past few years in the consumer rights’ litigation is that of ‘unfair trade practices’. According to Section 2(47) of the COPRA 2019 (which is pari materia to definition of unfair trade practices in COPRA 1986), the term ‘unfair trade practices’ means “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 including any of the following practices”. The legislation mentions several practices as unfair trade practices, one of which is of our concern in this article.
The definition of unfair trade practices includes an act which “materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made…”
A new debate that has arisen in the arena of unfair trade practices is that of charging the consumers for the shopping bag provided by the retailer in stores. While this may sound like a small issue, considering that a bag provided by the retailers/stores cost somewhere around Rs. 3/- to Rs. 5/-, however, the matter doesn’t revolve around the cost. Rather, it circles the idea of consumer awareness and consumer rights.
This matter has been raised at several instances by consumers before several competent authorities, like District Consumer Disputes Redressal Commission (“DCDRC”), State Consumer Disputes Redressal Commission (“SCDRC”) and National Consumer Disputes Redressal Commission (“NCDRC”).
JUDICIAL PRONOUNCEMENTS
In the celebrated case of Big Bazaar (Future Retail Ltd.) v. Ashok Kumar [2020 SCC OnLine NCDRC 495], a revision petition was filed under Section 58(1)(b) of the COPRA 2019. In the present case, the consumer was charged for the carry bag without giving him prior notice or intimation of the cost and thus, he was given no chance to make a choice.
In this case, the bench of Dinesh Singh (Presiding Member) said that “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.”
The Commission observed 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.”
In a nutshell, the Commission clearly expressed 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 another order in case of Big Bazaar (Future Retail Ltd.) and Ors. v. Somanshu Sharma and Ors. [MANU/SF/0025/2020] by the Chandigarh DRC, the Commission heard the question of charging amount for carry bag. In the case of], the retailer took the refuge of Rule 10 of the Plastic Waste (Management and Handling) Rules, 2011 which states that “Explicit pricing of carry bags.- No carry bags 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 costs in order to encourage their re-use so as to minimize plastic waste generation.”
In response to this, the Commission observed that the purpose behind the Plastic Waste (Management and Handling) Rules, 2011 is to reduce the usage of plastic in order to save the environment. The commission cited Section 36(5) of the Sale of Goods Act, 1930 and said that it was the duty of the seller to provide the goods to the buyer in a deliverable state and shall be responsible to bear any costs involved in the same. Thus, it is the responsibility of the seller to provide the goods in deliverable state without levying additional cost on the consumer.
Furthermore, the policy of the retailer was that the customer cannot carry their own bags having goods/items bought from other shops. According to the commission, this act of not allowing the customer to bring their own carry bags equated to deficiency in service and unfair trade practice.
In the case of Dinesh Parshad Raturi v. Bata India Limited [MANU/ SF/0005/2019], the retailer charged the customer a sum of Rs. 3/- for the carry bag and claimed before the court that it was done in an attempt to extend environmental safety. Furthermore, the bag bore the logo of the company along with its tagline. In this case, the Chandigarh SCDRC ruled against Bata India Ltd. by stating that the Respondent used the complainant as an advertising agent since the bag had the particulars of the Respondent company, and that such practice is not permissible.
The commission also observed that, “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 a 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.”
Another case whereby a similar question was dealt with is Baglekar Akash Kumar vs. More Megastore Retail Limited [MANU/ OT/0005/2021], wherein District Consumer Disputes Redressal Commission-II, Hyderabad stated in clear words that a consumer has the right to know any additional cost payable by him for carry bag and the price of the same before he exercises his choice of buying goods from the said retailer. Additionally, if the customer is made to buy a carry bag bearing the retailer’s logo, without prior notice of patronization and price of carry bag, it is equivalent to unfair trade practices as mentioned under Section 2(47) of the COPRA 2019.
The Commission also stated, while ruling against the retailer, that “22. … the opposite party is selling the plastic bags having their Company Logo due to which Acts of them, they are using the complainants as tool of their Advertisement that leads to adoption of un-fair-trade practice apart from deceptive nature of services and committal of spurious acts that should be highly objectionable…”
CONCLUSION
In light of the law and the above-mentioned judgments, it can be construed that the consumer has a right to receive the goods in a deliverable condition from the retailer and if any cost is involved for the purchase of the carry bag, then it is the duty of the retailer to give the consumer prior notice of the same. Additionally, the retailer cannot charge the consumer for a carry bag bearing the name and/or logo of the retailer, as it has been noted in several judgments that the same would amount of advertising at the cost of the consumer.
If the retailer indulges in any of the above acts, then such act would be termed as an unfair trade practice under the COPRA 2019. Through these judgements, the consumer forums have given a wider definition of unfair trade practices. While this expansion of the scope will certainly aid the consumers in realizing their rights, the same has been taken in bad taste by the retailers.