BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                               : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU  V.R.                                             : MEMBER

C.C.No. 08/2021 Filed on 11/01/2021

ORDER DATED: 04/10/2024

ORDER

SRI.P.V. JAYARAJAN, PRESIDENT:

This is a complaint filed under section 35 of Consumer Protection Act 2019 and the matter stood over to this date for consideration.After hearing the matter the commission passed an order as follows:

2. This is a complaint filed by the complainant against the opposite party alleging deficiency in service on the part of the opposite party.  After admitting the complaint notice was issued to the opposite party to appear before this Commission on 22/02/2021.  After accepting the notice the opposite party entered appearance and filed written version denying the allegation raised by the complainant. 
3. The case of the complaint in short is that on 04/12/2020 the complainant ordered one set of Parotta, Chicken Fry Combo + 4 extra parotta from the opposite party’s mobile application namely “ZOMATO” vide order no.2055913356 for Rs.133/-.  The opposite party’s delivery boy duly delivered aforesaid order within half an hour. The complainant opened the food package which the complainant received and found that Chicken Fry and 3 Parotta is missing from the order.  Without chicken fry, the complainant could not consume the rest of the food items which the complainant received.  Hence the complainant has thrown away the same.  Thereafter, on 05/12/2020 the complainant raised a grievance with the opposite party in this regard through their email.  The complainant’s email grievance was duly acknowledged by the opposite party vide reference no.6748264.  However, the complainant did not receive any response from the opposite party.  Subsequently on 09/12/2020 the complainant registered a complaint before the National Consumer Helpline with a demand for refund of amount paid by the complainant.  The complainant received an email from the opposite party that they are unable to grant him refund because their delivery partner and restaurant partner confirmed that they delivered the complainant the complete order.  The fact is that the aforesaid food items in the order are missing due to the restaurant’s negligent packaging or delivery boy’s careless handling.  The opposite party considered their restaurant partner’s version only for rejecting the complainant’s refund request and thereby closing the complainant’s grievance.  Hence there is a clear deficiency on the part of the opposite party.  Hence the complainant approached this Commission for redressing his grievances.             
4. The opposite party filed written version contending that this complaint is based on vague and baseless assumption of the complainant.  The opposite party further contended that this complaint is liable to be dismissed for non joinder of necessary party.  According to the opposite party the restaurant who delivered the food articles is a necessary party to this proceedings.  This opposite party operates as an online restaurant search and discovery platform (Zomato Platform), which allows users to inter alia place orders online with a variety of restaurants listed with the opposite party.  The opposite party is only an intermediary between users and the restaurant partners and is therefore not responsible for the acts, omissions and commission on the part of the restaurant partners.  The opposite party further submitted that the complainant placed his order at 15:19 hours on 4^th December, 2020 for Paratta Chicken Fry Combo and 4* Parotta for Rs.133.2/-.  The complainant on that day did not raise any complaint with the opposite party and he chose to raise the complaint only on 05/12/2020 at 3.48 p.m.  It is submitted that the online platform of this opposite party provides with an option to raise any complaint regarding the order at the time of delivery itself.  However, in the present case, the complainant failed to raise any complaint upon delivery of the items ordered.  The said order was placed on 04/12/2020 and the complainant raised the complaint only on 05/12/2020.  According to opposite party this clearly shows that the alleged complaint was raised as an afterthought.  The opposite party enquired with the restaurant regarding the missing items in complainant’s purchase order.  But to the utter dismay of the opposite party, the restaurant confirmed that the delivered items were correct and complete.  It was conveyed to the complainant that the opposite party shall share feedback with the restaurant.  It was informed that the opposite party will not be able to refund any amount unless the restaurant agrees to d the same.  Upon receiving the complaint from the complainant the opposite party enquired with the restaurant.  The restaurant confirmed that the product delivered was correct and complete items were delivered.  It is submitted that there was no deficiency in service or negligence or unfair trade practice on the part of the opposite party.  It is reiterated that as per the terms of service, this opposite party is not liable for the acts or omissions on part of the restaurant partner / order mismatch, quality, incorrect pricing, deficient quantity etc.  According to the opposite party the complainant is not entitled to any of the reliefs sought for in the complaint and the complaint is liable to be dismissed.       
5. Evidence in this case consists of PW1 and Ext.P1 to P4 from the side of the complainant.  The authorized representative of the opposite party sworn an affidavit as DW1 and Ext.D1 to D4 were marked from the side of the opposite party.
6. Issues to be considered:

1. Whether there is any deficiency in service and unfair trade practice

               on the part of the Opposite Party?

2. Whether the complainant is entitle to the relief claimed in the
3.  
4. Order as to cost?

7. Heard.  Perused affidavits, documents and connected records.  To substantiate the case of the complainant, the complainant himself sworn an affidavit as PW1 and Ext.P1 to P4 were produced and marked.  Ext.P1 is the copy of the email invoice dated 04/12/2020 issued by the opposite party to the complainant.  By producing Ext.P1 the complainant has proved that he had paid Rs.133/- for the food items delivered to him from Thampi’s catering service.  Ext.P2 is the copy of email communication to the opposite party by the complainant.  Ext.P2 reveals that the complainant has preferred a complaint to the opposite party on 05/12/2020 stating that the Chicken Fry and 3 Parotta are missing from the food package due to restaurant’s negligence.  Ext.P3 is the copy of the NCH grievance history.  Ext.P3 proves that the complainant has approached National Consumer Helpline with grievances and the same was disposed.  Ext.P4 is the email reply dated 11/12/2020 received from the opposite party.  From Ext.P4 it is evident that the opposite party has informed the complainant that the opposite party will not be able to refund the amount.  On the other hand the authorized representative of the opposite party sworn an affidavit on behalf of the opposite party and Ext.D1 to D4 were produced and marked.  Ext.D1 is the power of attorney dated 02/03/2021 in favour of the authorized representative.  Ext.D2 is the copy of the relevant clause of the terms of service.  Ext.D3 and D4 are the responses from the side of the opposite party in respect of a complaint raised by the complainant.  Here in this case the complainant alleges that some of the items ordered by him is missing from the food package delivered to him on 04/12/2020.  On the other hand the opposite party contended that as per the enquiry made by the opposite party, all the items ordered by the complainant were delivered to him as per the information gathered by the opposite party from the restaurant.  According to the opposite party there is no deficiency in service or unfair trade practice from the side of the opposite party.  It is well settled legal preposition that the onus of proof is on the party who alleges a fact.  Now the question to be considered is whether the complainant has succeeded in establishing his case or not.  Placing order for food from Thampi’s catering service through opposite party is admitted.  Complainant alleges missing of food items. The opposite party denies the same. Hence, it is the burden of the complainant to prove the fact of missing of food articles.  Except the averment in the complaint as well as in the affidavit filed by the complainant, there is no evidence regarding the missing of food items from the side of the complainant. The documents produced by the complainant proves the fact that he has placed order for food and he has raised the complaints with regard to the missing of food items from the package.  The mere allegation cannot be considered as evidence in the absence of any supporting materials.  The complainant has not produced the photographs or videos of the food package to show that the food items are missing. The complainant also not shown any person as witness at the time of opening the food package.  The Hon’able Supreme Court of India in Dolphin International Ltd. Vs. SGS India Ltd., reported as LL 2021 SC 544 held that “the onus of proof of deficiency in service is on the complainant under the Consumer Protection Act.  It is the complainant who had approached the Commission, therefore without any proof of deficiency in service, the opposite party could not be held responsible for deficiency in service”.  Likewise the Hon’able Supreme Court of India in Ravneet Singh Bagga Vs. KLM Royal Dutch Air Lines and another reported in (2000) 1 SCC 66, held that “the burden of proving the deficiency in service is up on the person who alleges it”.  From the available evidence before this Commission, we find that the complainant has failed to prove his case against the opposite party by producing cogent evidence.  In view of the above discussion and in view of the dictum laid down by the Hon’ble Supreme Court of India in the above referred cases, we find that this is a fit case to be dismissed for want of evidence. 

                             In the result the complaint is dismissed.  There will be no order as to cost.

     A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 04^th day of October,  2024.

08/2021

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:

5. COURT EXHIBIT:

                        NIL