Haryana

Kaithal

21/21

Rosy Gupta - Complainant(s)

Versus

A2S Restaurant & Hotel,Parish Palaza - Opp.Party(s)

Sh.Ajay Kumar Gupta

05 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No.21 of 2021.

                                                               Date of institution:  25.01.2021.

                                                               Date of decision:     05.01.2024.

 

Rosy Gupta w/o Shri Ajay Kumar Gupta, age about 47 years, r/o H.No.276, HUDA, Sector-20, Kaithal.

                                                                                      …Complainant.

                                                        Versus

 

1. A2S Restaurant & Hotel, Paris Plaza, Gandhi Nagar, Dhand Road, Kaithal, through its Manager.
2. A2S Restaurant & Hotel, Paris Plaza, Gandhi Nagar, Dhand Road, Kaithal, through its owner.
3. Zomato Media Pvt. Ltd., through its Manager, Kaithal, Main Road, Arjun Nagar, Kaithal.
4. Zomato Private Limited (Formerly known as Zomato Media Pvt. Ltd.), 139P, Sector-44, Gurgaon-122003.

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

                  

Present:       Shri Vipul Singla, Advocate for the complainant.   

                   Shri H.S. Duhan, Advocate for Opposite Parties No.3 & 4.

                   Opposite Parties No.1 & 2 ex-parte.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT

        Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’), against the OPs.

2.                It is alleged in the complaint by the complainant that on 09.01.2021, she had ordered Veg. Gravy Manchurian and one plain roti from OPs No.1 & 2 through OPs No.3 & 4 after paying Rs.116.98 online by Paytm. That when the order was placed, she found that Veg. Manchurian to be dry and not Gravy and on contacting the Restaurant, she received a cold reply from the Restaurant that they denied to replace the same and asked to give sometime and they will revert back after talking to the owner. That thereafter, she started consuming the same and after consuming some portion of the Veg. Manchurian and plain Roti, a little pain started in her stomach and she stopped her husband from consuming the same. After sometime, a lot of pain started in her stomach and she vomited and also had loose stools many a times. Since by that time, it was mid-night, she and her husband went to Janta Multispecialty Hospital, Kaithal for treatment next day, where, she was admitted and she vomited and had loose stools many time. After consultation from the doctor, she came to know that this condition of her is because of food poisoning caused by food, which she ate that was prepared and delivered by OPs. Due to all this, her blood pressure dropped to 100/60 mmHg, pulse raised to 92 beats per minute and she also had temperate. To cure her, doctors gave her injections and glucose I.V. infusion and even after she was discharged, by prescribing many medicines. She spent Rs.5000/- on her said treatment. Due to negligent act and deficiency in services of A2S Restaurant and Hotel, she had suffered physical and mental agony as well as financial loss, constraining her, to file the present complaint, against the OPs, before this Commission.

3.             Upon notice of complaint, OPs No.3 & 4 appeared before this Commission and filed their written statement, whereas, OPs No.1 & 2 failed to appear before this Commission, on the date fixed i.e. 15.03.2021, despite issuance of notices by this Commission, as such, they were proceeded against ex-parte, by this Commission, on that date.

4.                OPs No.3 & 4, in their written statement stated that OPs No.3 & 4 operate as an Online restaurant search and discovery platform which allows users to inter alia place orders online with a variety of restaurants listed with the OPs. OPs No.3 & 4 acts as a conduit between users and the restaurant and is therefore not responsible for the acts, omissions and commission on the part of them. The “Terms of Service (Term) of OPs No.3 & 4 clearly stipulate that OPs No.3 & 4 shall not be responsible for any deficiency in service, wrong delivery of order, quality of food and delay in delivery of order etc. on the part of restaurant. It is clarified that order was delivered to complainant on 09.01.2021 at 14:16 PM. The complainant has stated in her complaint that she had started to eat the dish i.e. Veg. Manchurian and plain roti and after eating the same, she started stomach pain and after sometime, she vomiting and loose stools many a times. The complainant has failed to disclose as to how the complainant has suffered harassment and mental agony at the hands of OPs No.3 & 4. The alleged concern raised by the complainant was duly attended to and the Chat support had in good faith offered to credit an amount of Rs.100/- at 10:03 PM on 09.01.2021 as Zomato Credits to the complainant. The OPs were merely a conduit between the complainant and the OPs No.1 and 2 and only provide a platform to deliver food at the door step of the person who uses the Zomato Platform to place an order. OPs No.3 & 4 has not been deficient in any manner caused any harassment and mental agony to the complainant and prayed for dismissal the present complaint.  

5.                To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 & Annexure-C2.

6.                On the other hand, OPs No.3 & 4 did not lead any evidence in its defence.

7.                We have heard the learned counsel for the parties and perused the record carefully.

8.                Learned counsel for the complainant has argued that on 09.01.2021, the complainant had ordered Veg. Gravy Manchurian and one plain roti from OPs No.1 & 2 through OPs No.3 & 4, after paying Rs.116.98 online by Paytm. He further argued that when the order was placed, the complainant found that Veg. Manchurian to be dry and not Gravy and thereafter, the complainant started consuming the same and after consuming some portion of the Veg. Manchurian and Plain Roti, a little pain started in her stomach. He further argued that after sometime, a lot of pain started in stomach of complainant and she vomited and also had loose stools many a times and the complainant and her husband went to Janta Multispeciality Hospital, Kaithal for treatment next day, where, she was admitted and she vomited and had loose stools many time. He further argued that after consultation from the doctor, the complainant came to know that this condition of her is because of food poisoning caused by food, which she ate that was prepared and delivered by OPs. He further argued that due to all this, blood pressure of complainant dropped to 100/60 mmHg, pulse raised to 92 beats per minute and she also had temperate and to cure her, doctors gave her injections and glucose I.V. infusion and even after she was discharged, by prescribing many medicines. He further argued that the complainant spent Rs.5000/- on her said treatment and due to negligent act and deficiency in services of A2S Restaurant and Hotel, the complainant had suffered physical and mental agony as well as financial loss. In order to support his contentions, he placed reliance upon case laws titled Rediff Com India Limited Versus Ms. Urmil Munjal, Revision Petition No.4656 of 2012, Date of Decision 11.04.2013 (NC) and Amazon Seller Services Private Vs. Dinesh, Appeal No.21 of 2018, Date of Decision 16.02.2018 (State Commission, UT, Chandigarh).

9.                On the other hand, learned counsel for OPs No.3 & 4 has argued that OPs No.3 & 4 operate as an Online restaurant search and discovery platform which allows users to inter alia place orders online with a variety of restaurants listed with the OPs. He further argued that the OPs No.3 & 4 act as a conduit between users and the restaurant and is therefore not responsible for the acts, omissions and commission on the part of them. He further argued that the “Terms of Service (Term) of OPs No.3 & 4 clearly stipulate that OPs No.3 & 4 shall not be responsible for any deficiency in service, wrong delivery of order, quality of food and delay in delivery of order etc. on the part of restaurant. He further argued that the complainant has failed to disclose as to how the complainant has suffered harassment and mental agony at the hands of OPs No.3 & 4. He further argued that the alleged concern raised by the complainant was duly attended to and the Chat support had in good faith offered to credit an amount of Rs.100/- at 10:03 PM on 09.01.2021 as Zomato Credits to the complainant. He further argued that OPs No.3 & 4 have not been deficient in any manner caused any harassment and mental agony to the complainant.

10.              It is alleged by learned counsel for the complainant that on 09.01.2021, the complainant had ordered Veg. Gravy Manchurian and one plain Roti, from OPs No.1 & 2, through OPs No.3 & 4, after paying Rs.116.98 online by Paytm, which was delivered by OPs No.3 & 4 to the complainant and this fact has also not been denied by the only appearing OPs i.e. OPs No.3 & 4.

11.              Learned counsel for the complainant has further alleged that after consuming some portion of the Veg. Manchurian and plain Roti, lot of pain started in the stomach of complainant and on next day i.e. 10.01.2021, complainant admitted in Janta Multispecialty Hospital, Kaithal and after consultation from the doctor, complainant came to know that this condition of her is because of food poisoning, caused by food, which she ate that was prepared and delivered by OPs and she spent Rs.5000/- on her treatment in the said hospital.

12.              In order to support his above allegations, complainant produced her OPD/Prescription Slip dated 10.01.2021 of Janta Multispeciality Hospital, Kaithal as Annexure C-1 and Certificate issued by said hospital regarding receiving Rs.5,000/-, from the complainant, for her treatment. Complainant also produced receipt of Rs.116.98, which was paid by him, through online mode to OPs No.1 & 2 as Mark-X.

13.              From the above pleadings, we found that OPs No.1 & 2 A2S Restaurant & Hotel had prepared the food items in question and OPs No.3 & 4 had delivered those food items, to the complainant, after taking the same from OPs No.1 & 2. From Prescription Slip Annexure C-1, it is clear that after consuming those food items, complainant suffered food poisoning and pain started in her stomach and she admitted in Janta Superspeciality Hospital, Kaithal and spent Rs.5000/- there for her treatment. From receipt Mark-X, it is also evident that OPs No.1 & 2 i.e. A2S Restaurant, Kaithal had received the amount of Rs.116.98, for booking of said order, from the complainant directly and thereafter, hired/taken the services of OPs No.3 & 4, for delivering the food items, to the complainant. As such, OPs No.3 & 4 has no direct role in the matter in question and it works under the guidance of OPs No.1 & 2.

14.              Contrary to it, learned counsel for OPs No.3 & 4 has specifically contended that OPs No.3 & 4 operates as an Online restaurant search and discovery platform which allows users to inter alia place orders online with a variety of restaurants listed with OPs No.3 & 4. He further contended that OPs No.3 & 4 acts as a conduit between users and the restaurant and is therefore not responsible for any deficiency in service, wrong delivery of order, quality of food and delay in delivery of order etc. on the part of restaurant. This Commission convinced with the above contentions of OPs No.3 & 4, because, OPs No.3 & 4 had only delivered those food items to the complainant, which were got prepared/cooked, by OPs No.1 & 2, and OPs No.3 & 4 has no direct or indirect role regarding good/bad quality of those food items, to whom after consuming, the complainant suffered food poisoning. Now, the burden was upon OPs No.1 & 2 to prove that the food items, which were got prepared/cooked, by them, and consumed by the complainant, was not of bad quality. But it is pertinent to mention here that instead of appearing before this Commission, to deny the above allegations of the complainant regarding quality of those food items, OPs No.1 & 2 did not appear before this Commission, despite receipt of notice, from this Commission, and opted to be proceeded against ex-parte. So, in this way, this Commission has no option, except to accept the above allegations leveled by the complainant, against OPs No.1 & 2.

15.              So, keeping in view the above facts and circumstances of the case, this Commission has no hitch to say that, due to consuming the bad quality

 of food items, got prepared/cooked by OPs No.1 & 2, complainant suffered food poisoning and pain in her stomach and admitted in Janta Superspeciality Hospital, Kaithal, where she spent Rs.5000/- on her treatment. The above act and conduct of OPs No.1 & 2 amounts to gross deficiency in service, on their part, due to which, the complainant has suffered huge mental agony, physical harassment as well as financial loss. So, in this way, OPs No.1 & 2 are liable to refund the amount of Rs.5000/- (which were spent by the complainant on her treatment) along with compensation amount of Rs.30,000/-, total Rs.35,000/- along with litigation expenses, to the complainant. Since OPs No.3 & 4 has no role about the quality of those food items, therefore, complaint qua OPs No.3 & 4 are liable to be dismissed. The case laws, produced by the complainant, are not applicable to the case in hand, being rested on different footings.                   

16.              In view of our above discussion, we accept the present complaint against OPs No.1 & 2 and dismiss the same against OPs No.3 & 4. We direct OPs No.1 & 2 to pay Rs.35,000/- (Rs.5000/- as treatment charges + Rs.30,000/- as compensation) along with litigation expenses of Rs.5000/-, to the complainant, within a period of 45 days, from the date of preparation of certified copy of this order, failing which, the total award amount shall carry interest @6% simple per annum, from the date of this order, till its actual realization.

17.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:05.01.2024.

                                                                                      (Neelam Kashyap)

                                                                                       President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

 

 

 

 

 

Typed by: Sham Kalra, Stenographer.