Can I be charged extra for a carry bag?

Siddharth Tatiya, Co-Author: Sayantani Rakshit
Author:

ABSTRACT

A problem that almost every shopper has faced at some point or another, not to mention that there are compulsive buyers who end up buying loads only to realize they are not carrying a bag while waiting at the billing counter. This results in requesting for one or more carry bags and paying extra. While most do not mind this, however in recent years there has been an increase in cases being filed in the Consumer Courts. The reason for many of these is a simple carry bag.

Though simple, there are several laws surrounding this carry bag which has become the major cause of confusion on the issue. This paper analyses how did the humble bag[1] become the sole reason for the battle between the retailers and the consumers in India while discussing the law surrounding this issue. The inter-disciplinary study from various angles like the environmental factor, the contractual factors and the consumer rights factor along with various judgments have been elaborately discussed.

INTRODUCTION - HOW IT ALL STARTED?

The Plastic Waste (Management and Handling) Rules, 2011 explicitly stated that “No carry bags shall be made available free of cost by retailers to consumers”.[2]However, it must be kept in mind that the term ‘carry bags’ has used in the Plastic Waste (Management and Handling) Rules, 2011 means ‘plastic carry bags’[3]. This was an effort on the part of the Government through the Union Ministry of Forests and Environment to bring about a regulatory framework for the management of plastic waste in the country and the shopkeepers were mandated to provide only those plastic carry bags which were in conformity with the set standards.

These standards were set with a view to encourage the consumers to lessen the usage of plastic bags and to encourage consumers to bring their own bags. Under the rules, the concerned civic body was empowered to formulate rules and regulate the usage of carry bags.[4]

However, the Plastic Waste (Management and Handling) Rules, 2011 were amended numerous times and the said provision was removed[5]giving rise to the ongoing battle between the retailers and the consumers. Following this, the Indian Government imposed the ban on plastic since 2016 and as a result, the shopkeepers switched to paper bags totally and started charging for them. They were of the opinion that no law stated it is illegal to charge for the paper bags and the additional chargers were made for paper bags thus contributing to the environmental cause.

Without any specific law or rule addressing the problem clearly, the question remained as to whether it is legal to charge additionally for the carry bags or not? The authors have analyzed this question on the basis of the applicable laws on the subject matter.

THE INDIAN CONTRACT ACT, 1872

According to the Indian Contract Act, ‘An agreement enforceable by law is a contract’[6]. However, all contracts are agreements but all agreements are not contracts. To make an agreement into a contract, there are certain essentials that need to be present. One of them being, the presence of a lawful consideration.[7]

However, for a contract to be considered valid, there are certain other essentials that need to be present. One of them is a free consent.[8]Consent or ‘consensus ad idem’ i.e. when two or more persons agree upon one thing in the same context. The term ‘free consent’ has been defined under Section 14 which states that a consent which is not caused by coercion (Section 15), undue influence (Section 16), fraud (Section 17), misrepresentation (Section 18) or mistake ( Sections 20, 21, 22) can be termed as free consent.

Now a legitimate question may crop up, what does free consent in the Indian Contract Act have to do with the charging of extra amount for carry bags by the retailers?

In the case of Anil Sharma v Big Bazar[9], the complainant sought compensation from the opposite party as he was charged an extra amount of ₹22 for the carry bag. The important fact in this case is that the consumer was not forced or compelled in any way to buy the carry bag and he had voluntarily consented on buying it as he was not carrying a bag of his own despite the store displaying messages throughout and encouraging the consumers to carry their own bags. The Forum decided the case in favour of the opposite party and it was here that it brought in the angle of the Indian Contract Act. The Forum, in its judgment, concluded that the complainant was given the carry bag only after necessary consent was given by him. It was held that the consent given by the complainant was indeed a free consent as described under Section 14 of the Indian Contract Act, 1872. Hence, it was held that the opposite party had in no way tried to compel the complainant to buy the carry bags and that when he consented voluntarily to buy the carry bag, that gave rise to a valid contract between the two parties and hence the complainant cannot seek any damages.

This argument on a valid contract between the parties was partly negated in the recent judgment of the National Consumer District Redressal Commission (NCDRC) case, Big Bazaar (Future Retail Ltd.) v Ashok Kumar[10]. In this case, the Opposing Party, a retail outlet, displayed and requested consumers to carry their own bags and clearly stipulated that separate charges will be payable. However, the yardstick of “prior notice” was modified and made stricter in favour of the consumers by the NCDRC. The Forum observed that the 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. He also has a right to know the salient specifications and price of the carry bags. The Forum suggested that prominent prior notice and information should also be there at the entrance of the retail outlet and not merely at the billing counter. Hence, the issue of consent is no more res integra as the aforesaid recent precedent of NCDRC in currently binding on all the district and state consumer forums across the country.

Another interesting angle that still is a grey area even after the NCDRC judgment is the state of the goods purchased and if they were in a deliverable state and if they were, will the charges of delivery be borne by the opposite party? This leads us to another applicable law -

THE SALE OF GOODS ACT, 1930

In order to answer the question posed above, one must take a look at the Sale of Goods Act, 1930. It governs the contracts relating to, as the name suggests, the sale of goods. However, it must be kept in mind that these contracts for the sale of goods are subject to the general principles of the law relating to contract law[11]of the country.

The famous pizza outlet Domino’s was also dragged in the extant dispute on the accusation of charging extra for carry bags. In the case of Jitender Bansal v Domino’s[12], the complainant was charged ₹12for the carry bag provided by the store which also bore the name of the store on both sides. Challenging the same, the Complainant alleged deficiency in service and indulgence in unfair trade practices on the part of Dominos. Dominos stated that they were under no legal obligations to give out carry bags for free and that the paper bags were something they bought in order to fulfill their part in the safeguard of the environment. However, the Forum decided to uphold the contentions of the complainant. It pointed out that the opposite party's argument of charging as per the Plastic Waste (Management and Handling) Rules, 2011 cannot be taken as they were withdrawn and neither were they able to provide any evidence to show that it was legal on their part to charge for the carry bags from the consumers. Additionally, the carry bags having the name of the store printed on both sides meant that the consumers were made to pay for the advertising cost of the company. The cost of printing, and advertisements are included in the “Maximum Retail Price” fixed by the company and charging the gullible consumers for the same amounted to unfair trade practices.

Furthermore, the Forum found it rather illogical on the part of the opposing party (in this case, Domino’s) to think that a person could carry the hot pizzas in just the fragile cardboard box that they had provided. Had the complainant sat in the store and consumed the pizza, the cardboard box would have sufficed and even if the pizzas were delivered at the doorstep of the complainant, the cardboard box would have been enough. But when it comes to the question of a take-away, one cannot possibly expect a person to carry the pizzas without a carry bag. Hence, it was held that the goods were not in a deliverable state under any circumstances and hence, it was a violation of the ‘deliverable state’[13]provision under the Sale of Goods Act, 1930. Thus, the expenses to put the goods in the deliverable state should have been borne by the opposing party-retailer and that means providing a carry bag to all the consumers for take-away orders. Since the opposing party chose to charge money for those carry bags, it was a serious violation of Section 36 (5).Consequently; the forum directed the opposite party to refund the amount of carry bag and additionally awarded a compensation with costs of Rs. 1500 to the complainant. Additionally, the forum in the interest of justice imposed punitive damages/ penalty to the tune of Rs. 5 lakhs under the erstwhile Section 14(1)(d)[14]of The Consumer Protection Act, 1986 upon the opposite party and directed to deposit the same in the Poor Patient Welfare Fund (PPWF) of PGIMER (Post Graduate Institute of Medical Education & Research), Chandigarh.

A very similar situation was dealt with by the Chandigarh Forum in the case of Pankaj Chandgothia v Domino’s[15]. While the Forum did give the judgment in favour of the complainant, after the Jitender Bansal case[16], the complainant chose to appeal to the State Consumer Dispute Redressal Forum as he felt that the compensation given to him was not enough and there should be uniformity in the judgments delivered. The appeal was taken up by the State Consumer Dispute Redressal Forum and it was held that relief given by the District Forum was not enough. Consequentially, the forum directed Dominos to refund Rs.13.33 wrongly charged, Rs.1500 to the complainant for compensation for mental agony and litigation expenses, Rs. 10,000 in the Consumer Legal Aid Account and deposit Rs. 490,000 in the PPWF.

Recently, the NCDRC in its Big Bazaar judgment[17], although upheld the decision of the lower forums by directing Big Bazaar to refund and pay compensation for charging for carry bags, however, the Forum was of the opinion that if the retailer had given prominent prior notice to the customer, then the refund could have been avoided. However, the NCDRC did not specifically delve into the argument of “deliverable state” under Section 36 (5) of the Sale of Goods Act as stressed upon earlier.[18]While this judgment was ruled in favor of the consumer, the argument of goods being in deliverable state or notis still left unanswered by the NCDRC.Another common allegation by consumers on the subject matter is that of “unfair trade practice”, the same has been dealt next.

THE CONSUMER PROTECTION ACT, 2019

The Consumer Protection law was enacted with a view to provide simpler and quicker redressal to the consumers and protect them from being exploited by the suppliers. The Act had introduced the concept of ‘consumer’ for the first time and conferred additional rights on him. Many consumers have filed cases against various retailers and companies at the Consumer Forum with regards to the system of charging extra for the carry bags.

Unfair trade practice (UTP) 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 practices[19]. The definition of UTP has been broadened in the Consumer Protection Act, 2019 wherein online misleading advertisements have also been included.

One common question was whether the carry bags for which consumers were charged, were making the consumers look like advertisement agents for the company as that bags have their logos printed on them and whether that would result in UTP.

In the case of Lifestyle International Pvt. Ltd. V Pankaj Chandgothia & Another[20], it was held that even if consumers carry their own bags, the store does not allow outside bags to be carried into the store and the same needs to be deposited at the entrance which is often far away from the billing area. The appellant in question did not have any displays anywhere in the shop or at the entry gates that the consumers can carry their own carry bags inside. Thus the appellants practically forced the consumers and left them with no other choice other than to purchase the carry bags at the billing counters. Charging for carry bags was against consumerism. Additionally, the bags provided by the appellants have the logo of the store which was clearly visible making the buyer an advertising agent unbeknownst to him which amounts to unfair trade practice as established under Section 2(47) of the Consumer Protection Act, 2019.

Another common grievance in most of the cases was that charging extra for the carry bags amounted to unfair trade practices. Before the NCDRC judgment in the Big Bazaar case[21], there were conflicting decisions[22] in the consumer fora on the issue whether charging for the bags can be considered as an ‘unfair trade practice’ under the law or not.

However, the Big Bazaar case[23]has cleared the ambiguity by holding in unequivocal terms that the action to charge extra for a carry bag without a prominent prior notice before the consumer exercises his choice to patronize a particular retail outlet and before he makes the selection of goods for purchase, amounts to ‘unfair trade practices’ not only under the erstwhile S. 2 (1) (r) of the 1986 Act but also Section 2(47) of the 2019 Act.

In the latest judgment, in the case of Baglekar Akash Kumar v More Megastore Retail Ltd,[24]the Hyderabad District Forum directed the opposite party to refund the amount charged for carry bags, along with interest. Following the Big Bazaar case of NCDRC[25]the forum held that using the consumers as advertising agents would amount to ‘unfair trade practice” under the law.

Though with the recent judgment by the NCDRC there has been some clarity on the issue, however, there are still a few questions which have been left unanswered. If there are boards displayed at the entrance and yet the consumer chooses to not bring their own bags, can the retail stores charge them in that case? Is there an inherent obligation on part of the retailer to provide a free carry bag?

Moreover, is it a wise decision to encourage the consumers to use non-disposable bags? Though there has been some instances of ban on single use plastic (including carry bag), therefore it an interesting study to figure out if there is a way to strike a balance between the consumer rights and the safety of the environment.

THE ENVIRONMENTAL FACTOR

Plastic has been a prime reason for the deteriorating condition of the environment and India too like many other countries are taking on a road to reduce plastic consumption for the sake of the environment. The need for the protection and preservation of the environment is something that is reflected in the constitutional framework of India.[26]

Besides the provision mentioned in the Constitution of India, the Environment Protection Act of 1986 empowers the Central Government to take necessary measures to protect and improve the quality of the environment. Exercising such powers[27], the Government introduced and passed Plastic Waste (Management and Handling) Rules in 2011. These rules mandated that the retailers to not use plastic bags unless they were of the specified standards and that they are not to give the standardized plastic carry bags for free to any consumer and that the concerned municipalities of the states will determine the pricing of the bags. However, the no uniform system of charging for the carry bags was developed and as a result, the consumers had to extra for the bags. This was undertaken to encourage the consumers to carry their own non-disposable bags which will, in turn, put less demand on the manufacture of the plastic bags and in turn be helpful for the environment. The Nagpur Municipal Corporation had fixed a price of Rs. 5 per carry bag but this did not seem to decrease the number of consumers who were asking for the bags. Hence the price was increased to ₹ 10 per bag. There were many other initiatives undertaken through tout the country as well; for example, the Rent A Bag initiative in Sanjay Nagar, Bangalore where the consumers had to deposit a certain amount in case they want to tale a carry bag and once they return the same, they can collect the money back.

However, the 2011 Rules were soon withdrawn and replaced by the Plastic Waste (Management and Handling) Rules, 2016 which changed the rules of charging for the carry bags. This was the same year India implemented the strict Plastic Ban which is still in effect. However, the retailers took advantage of this and shifted to giving out paper bags for a price which was higher than the plastic ones with their reasons being that they were being environment friendly. Soon after, the Rules went through another amendment; Plastic Waste Management (Amendment) Rules, 2018, and the charging for the bags were done away with. But this did not stop the retailers from charging extra for the carry bags provided by them. This led to the massive opinion divide of the public.Also, while the Plastic Waste (Management and Handling) Rules of 2011 did lie down the rule that no carry bags should be given free of cost, those were supposed to be plastic ones. The retailers have often charged innocent consumers for paper bags. Adding to that, the Plastic Waste (Management and Handling) Rules, 2011 has undergone amendments and the rule to charge carry bags have been removed.

The most prominent case in this category was the Bata India Limited v Dinesh Prashad Raturi[28], wherein a complaint was filed against Bata India Limited alleging that the opposing party had charged Rs. 3 extra for the carry bags which had the logo of Bata and its tagline. It was argued that the complainant had no intention to buy the paper bag and that he was being used in the advertisement for which he was being wrongly charged amounting to unfair trade practices. The Opposite party had contended that they were providing paper bags instead of plastic ones in lieu of the protection of the environment and they were charging so that the consumers are encouraged to carry their own bags which are non-disposable for the betterment of the environment. However, both of the contentions of the complainant were upheld by the Forum and the Opposite Party was instructed to provide carry bags free of cost to all the consumers who purchase articles from their shops. The Forum was of the opinion that the paper bag had logo and tagline of the Opposite Party which as contented used the consumer as if he an advertisement agent of the company. Also, the Forum noted that if the Opposite Party was so keen on saving the environment then they should give out the paper bags for free to all the consumers and not charge for the carry bags in the mask of ‘plastic-ban regulation’ to churn out more money from the consumers.

Resultantly, one limb of the argument is that retailers should not be charging for the carry bags as they, under the shelter of environmental protection were churning out money from the gullible consumers by making them pay for the carry bags which often bears the logos, names or taglines of the stores which means they are also using the consumers to advertise their own brands. Additionally, the charges of the carry bags are usually taken into account while calculating the business profit margins and hence, making the consumers pay for them is unethical. The other argument being, charges on the carry bags will encourage the consumers to make sure that they are carrying their personal bags. Carry bags, be it plastic or paper, both put immense pressure on the natural resources and the consumers should do their part in saving the environment by not demanding for carry bags at the billing counter. The nature of the consumers is to violate what is available for free and some people believe that nothing should come for free. And that is what is happening with the case of the carry bags. If the consumers are charged for the bags, it will encourage them to not ask for one after their shopping unless it is absolutely necessary.

SUGGESTIONS AND CONCLUSION

The Apex Consumer body with its recent judgment[29]has set a precedent which will be binding on lower consumer forums and has also tried its best to put an end to various conflicting decisions. However, there are still a few aspects which were not dealt with or were kept open ended; for example, the issue of goods being in deliverable state or not. It will be tested in time, that in case there are prominent display boards would that entitle the retailers to charge extra? The authors would like to suggest a few policy and legislative changes on the issue -

a) It cannot be denied that both the paper bags and the plastic bags put a lot of pressure on the environment both while their manufacture and disposal. Clearly, the Government's attempts at encouraging people to use personal carry bags did not bring the intended results. Better yet, it resulted in an all-out legal battle between the consumers and the retailers. Hence, what is needed is a better awareness to educate the consumers about the harmful nature of the carry bags and why they should be carrying their own. Initiatives like “Rent a Bag” should be promoted so that consumers too can get into the habit of not being dependent on the retailers for carry bags every time they go shopping.

b) If retailers start giving out free carry bags, the dream of a healthier environment can be tossed out of the window. To counter, a fine or penalty system can be introduced on a test run basis. Psychologically, human beings tend to be ashamed to pay a fine and will try their best to not put themselves in a situation like that, but when it comes to purchasing the bags, they are more than willing to do it. A simple change in the nomenclature of the cost associated with the carry bags while keeping in the mind the consumer psychology may also help.

c) For the manufacturers, they could simply add the expense to the MRP (Maximum Retail Price) of the products instead of making the retailers charge extra for the carry bags. This would single-handedly bring peace to numerous litigations across the country between consumers and retailers. Something to be kept in mind with regards to this point is that the MRP of a single product should be counted in. So if a person buys multiple products, the cumulative expense should not be included.

d) In most multi brand stores, retail outlets and shopping malls, consumers are asked to deposit their bags at the entrance which happens to be very far from the billing counter. In such cases, even if a consumer is carrying a personal bag, they are forced to buy a carry bag as it is not possible to carry all the items of purchase by hands and then put them in the bag. The stores should allow the consumers to carry their bags with them inside the store or at least allow them to take the shopping cart out of the store after billing so that they can transfer all of it into their personal bags. A simple uniform approach in all stores can resolve this practical problem.

e) The government should promote reused and recycled carry bags and accordingly incentivize the self-help groups, non-government organizations, etc. to undertake the activity of manufacturing such carry bags. This would have twin effects of reducing waste from the environment and also give employment to unskilled population of the country.

We hope some of the aforesaid suggestions will be implemented in the future and bring an end to the ongoing battle between the consumers and retailers.

[1]Pushpa Girimaji, Are Retailers Allowed to Charge for Carry Bags, HINDUSTAN TIMES (4 September, 2020, 7.02 pm) https://www.hindustantimes.com/india-news/are-retailers-allowed-to-charge-for-carry-bags/story-oleYyo0IbPhZwf8xwfyGnN.html

[2]Rule 10 ‘Explicit Pricing of Carry Bags’, Plastic Waste (Management and Handling) Rules, 2011

[3] Rule 3 (b), Plastic Waste (Management and Handling) Rules, 2011

[4]Section 4 (b), Plastic Waste (Management and Handling) Rules, 2011

[5]Plastic Waste Management (Amendment) Rules, 2018

[6]Section 2 (h), Indian Contract Act, 1872

[7]Section 2 (d), Indian Contract Act, 1872 ‘Consideration’- When, at the desire of the promisor, the prmisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing something, such an act, or abstinence or promise is called consideration for the promise.

[8]Section 13, Indian Contract Act, 1872 ‘Consent’- Two or more persons are said to consent when they agree upon the same thing in the same sense.

[9] District Consumer Forum, Dharamshala, Himachal Pradesh , Anil Sharma v Big Bazar, CC/115/2018

[10]Big Bazaar (Future Retail Ltd.) v Ashok Kumar 2020 SCC Online NCDRC 495.

[11]The Indian Contract Act, 1872

[12]District Consumers Dispute Redressal Forum-II, UT Chandigarh, Jitender Bansal v Domino’s, CC/94/2019

[13]Supra Note 11

[14]To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to negligence of the opposite party.

[15]District Consumers Dispute Redressal Forum-I, UT Chandigarh, PankajChandgothia v Domino’s CC/594/2018

[16]Supra note 16

[17]Supra Note 10

[18]Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state shall be borne by the seller.

[19]As per Section 2(47) ‘unfair trade practice’ means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely-

(i) making any statement whether orally or in writing or by visible representation including by means of electronic record, which-

(a) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

(b) falsely represents that the services are of a particular standard, quality or grade;

(c) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;

(d) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;

(e) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;

(f) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

(g) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof.

[20]State Consumer Disputes Redressal Commission UT Chandigarh, Lifestyle International Pvt. Ltd. v Pankaj Chandgothia & Another, Appeal No. 24 of 2019

[21]Supra Note 10

[22]Himanshu Saini v Westside (Unit of Trent Ltd) Delhi State Commission, First Appeal No.493 of 2019 (not a UTP); Lifestyle International Pvt. Ltd. v Pankaj Chandgothia& Another,Appeal No. 24 of 2019, State Consumer Disputes Redressal Commission UT Chandigarhand Westside v Sapna Vasudev, Appeal No.36 of 2019, StateConsumer Disputes Redressal Commission UT Chandigarh (held to be UTP).

[23]Supra Note 10

[24]District Consumer Disputes Redressal Commission II, Hyderabad, Consumer Case No. 310 of 2019.

[25]Supra Note 10

[26]As per Article 51A in Part IV-A of the Indian Constitution, it is a Fundamental Duty of the citizens to protect and improve the environment. Additionally, as per Article 48A of the Directive Principles of State Policies , the State is obligated to protect and improve the environment.

[27]Supra Note 3

[28]State Consumer Disputes Redressal Commission UT Chandigarh, Bata India Limited v Dinesh PrashadRaturi, Appeal No. 98 of 2019

[29]Supra Note 10