| Final Order / Judgement | DISTRICTCONSUMER DISPUTES REDRESSAL FORUM, PATIALA. Complaint Case No.195 of 3.6.2019 Date of Decision : 23.01.2020 Manisha Aggarwal aged 29 years D/o Sh.Narinder Kumar, presently working in Rajindra Hospital, Patiala as General Surgeon and residing in New PG Girls Hostel in Govt. Medical College and Rajindra Hospital, Patiala. ..... Complainant. Versus Bundl Technologies Pvt. Ltd aka SWIGGY, Regd.Office 3rd floor (internally designated as 4th floor), Maruthi Chambers, Survey No.17/9B, Roopena Agrahara, Hosur Road, Bangalore (560068) through its Managing Director/Chairman/Authorized Representative. ..... Opposite Party. Complaint under Section 11 to 14 of The Consumer Protection Act. Quorum:- Smt.Inderjeet Kaur : Member. Sh.B.S.Dhaliwal : Member. Present:- For complainant : In person. For OP : Sh.Puneet Gupta, Advocate. ORDER B.S.Dhaliwal,Member - This is the complaint filed by Manisha Aggarwal (hereinafter referred to as the complainant) against Bundl Technologies Pvt. Ltd. aka SWIGGY (hereinafter referred to as OP) under Sections 11 to 14 of the Consumer Protection Act,1986(hereinafter referred to as the Act).
- It is the case of the complainant that she is working in Rajindra Hospital, Patiala as General Surgeon and residing in New PG Girls Hostel in Govt. Medical College and Rajindra Hospital, Patiala. While residing at the above address, the complainant ordered food via the OP online on 4.4.2019 at 4.09 pm from Brewbakes, Patiala. She paid for the food online. The order initially accepted and later on cancelled due to non availability of the items. Thereafter, complainant placed another order from Hungry Point, Patiala and paid online for the order. While waiting for the order, complainant received a call from the designated delivery partner inquiring about the address. During conversation, delivery boy started talking rudely. She made request to OP to change the delivery boy, but her request was not considered and it was refused multiple times. With no option left, complainant decided not to take the order fearing misbehaviour by the delivery boy. She did not take delivery, but it was shown as delivered online. Complainant tried to contact OP regarding the non-delivery of the order, but they did not acknowledge it questioning her integrity. She raised the issue multiple times to assure them that the order has actually not been delivered. Due to this poor service of the OP, the complainant had to go back to her duties without any food.
- It is pleaded that complainant filed a complaint with National Consumer Forum online through their app via grievance No.1242117 on 4.4.2019 at 10.45 pm. On the advice of the Forum, the complainant sent an email to grievances@swiggy.in on 18.4.2019. Thereafter, complainant received emails from two OP executives. They also failed to resolve the issue and tried to mislead the complaint by putting the entire blame on the delivery boy and shunning from taking any responsibility. It amounts to unfair trade practice and deficiency in service on the part of OP. Due to the act and conduct of the OP, complainant has suffered mental agony and trauma. Complainant has prayed for Rs.1,00,000/- as damages from OP alongwith written apology. Hence this complaint.
- Upon notice, OP appeared through counsel and filed reply pleading that complainant has suppressed true facts and presented all cooked stories, hence complaint is not maintainable and liable to be dismissed. The company is engaged in providing online platform for ordering and delivering food and beverages from neighbourhood restaurants of the customers. It operates through online portal which enables interactions between customers and restaurants/merchants providing/dealing in preparing food and beverages and arrange for delivery of the ordered food/beverages from the merchants to its customers at the address provided to them. It acts as an intermediary to facilitate transactions between independent third party restaurants. The independent third party restaurants use swiggy platform to list, advertise and offer to sell their prepared food products to the customers/visitors/users/buyers who visit the swiggy platform. The offer to sell is made by the merchant and product details including price are decided by the merchants. OP, similar to contracting with merchants, has also contracted with various third party pick-up and delivery partners (PDPs) on principal to principal basis, who pick-up ordered food or beverages from the concerned restaurant/merchant and deliver the same to the customers. Once a customer accepts the offer and orders the food, restaurant/merchant and third party pick-up and PDPs of that area are intimated electronically. Concerned restaurant/merchant is required to ensure that ordered food/beverages are made available to the delivery person in accordance to the order specifications provided by the customer. Concerned third party pick-up and PDPs is required to ensure that the ordered food and beverages are picked up from the concerned restaurant/ merchant and deliver the same at the address provided by the customer. OP is not seller of the food or beverages nor delivers the food on its own. Therefore, OP cannot be held liable for any deficiency arising out of non-delivery of order by the restaurant.
- It is pleaded that complainant is a user of swiggy platform and made an order for food from the independent third party seller through the platform of the OP. The address mentioned by the complainant is of Govt. Hospital Girls Hostel and PDP was not allowed to deliver the order and it was the complainant who refused to accept the order. The OP has no role to play in the entire transaction of sale and purchase of the food between the complainant and OP, except facilitating the placing of the order and delivery of the ordered food. The reason for the non-delivery of the product was that the PDP was not allowed to enter into the premises due to which he called up the customer for delivery of ordered product, complainant refused to accept the order, therefore, OP cannot be held liable for non-delivery of any food and that too when the food is prepared by a third party and delivered by another independent delivery partner.
- It is also pleaded that OP only acts as an intermediary through its web interface www.swiggy.com and provides a medium to various restaurants/merchants at selected cities in India to offer for sale and sell their products to the users of the swiggy platform. These are managed by differed persons/stake holders. OP does not directly or indirectly accept any order or sells any food products on swiggy platform. OP neither offers nor provides any assurance to the customers about the quality of food and beverages or the delivery terms. It is merchant who is responsible for accepting offers and to deliver the product to the buyers as per agreed delivery terms. Further legal objections are that complainant has no cause of action to file the complaint. The complaint is bad for mis-joinder of party. Complaint is totally false, frivolous and vexatious and has been filed with malafide intentions. Averments are baseless and are made only with the intentions to defame the OP and extorting money in illegal manner. Complainant is not entitled to any relief and lastly that terms of use available on swiggy platform clearly provide that OP shall never be held liable for any service or goods provided by the vendors/ restaurants. There is no deficiency in service or unfair trade practice on the part of the OP, as such, complaint is liable to be dismissed.
- On merits, it is submitted that complainant has wrongly arrayed the OP. In further version, OP has reiterated its stand as taken in the legal objections and as detailed above. It is further submitted that PDP was not allowed to enter the premises and this fact was duly communicated to the complainant by the OP and price of the ordered product was immediately refunded into the source account of the complainant.. OP has denied the order allegations of the complainant and prayed for dismissal of the complaint.
- In order to prove the case, complainant tendered Ex.C-1 to Ex.C-7, alongwith self attested affidavit Ex.CA and closed evidence. On the other hand, OP tendered Ex.OP-1 to Ex.OP-3, alongwith affidavit of Mr.Panduranga Acharya Edx.OPA and closed evidence.
- Parties submitted written arguments.
- We have heard the complainant and learned counsel for the OP and have gone through the file.
- Parties have reiterated their stand as taken in their respective pleadings and as detailed above.
- From the facts and circumstances of the case, evidence on the file and the arguments advanced by the parties, it emerges that the complainant had ordered food on 4.4.2019 from OP-Swiggy. It is not disputed that first order was cancelled and refund was generated by OP vide refund history Ex.OP-2. The fact regarding cancellation and refund is also mentioned on the screen shot Ex.C-1 placed by the complainant on the file. Thereafter, complainant placed second order the same day from OP-Swiggy, but she had not received the order on that day. But the screen shot Ex.C-2 shows order delivered on April 4 of 2019 at 5.07 pm, whereas, in the written version, OP has categorically mentioned that the reason for non-delivery of the product was that PDP was not allowed to enter into the premises. It is also on the record that the OP has refunded a sum of Rs.99/- to the complainant vide refund receipt Ex.OP-3. It is clear that OP has taken a contradictory stand. From the evidence placed on file, it stands proved that the complainant has not received the ordered food and she had to get back to her duties without any food. Deficiency in service on the part of the OP stands proved. The stand taken by the OP-Swiggy that they are only intermediary through its web for delivery of packed food through pick-up and delivery partners who provide their services to Swiggy on principal to principal basis and they are not responsible for any deficiency or negligence in services, does not find any force. It is well known that OP (Swiggy) is India's largest and most valuable online food ordering and delivery platform. It enables interactions between the customers and restaurants and arrange for delivery of the ordered food from the merchants to its customers. Mere plea that Hungry Point is not impleaded as party in the complaint does not absolve the OP from it’s accountability/responsibility towards the complainant in any manner as it(OP) provides services on commission basis. 'Chat with Swiggy' placed on file by the complainant as Ex.C-3 to C-5 shows that complainant was in touch with swiggy continuously. During conversation in Ex.C-4, OP has infact felt sorry to know that order was marked delivered incorrectly. It is also mentioned 'he will check the status with the delivery partner'. From this it is clear that whether the delivery agent is on the payroll of the food aggregator or not, it does not exempt the company (principal) from holding the responsibility. As such, we are of the considered view that it is a bonafide mistake on the part of the opposite party by showing the status of order 'delivered' but in fact it was not delivered. Nutshell is that the deficiency in service is proved on the part of the OP.Complainant was compelled for this forced litigation. She is liable to be compensated for mental agony and harassment.
- Resultantly, complaint is allowed. OP is directed to pay Rs.5,000/- as compensation. Compliance of the order be made by the OP within 45 days from the date of receipt of the copy of the order. Certified copies of this order be sent to the parties free of cost and thereafter file be consigned to the record room.
PRONOUNCED: Dated:23.1.2020 B.S.Dhaliwal Inderjeet Kaur Member Member | |
