BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 28^th DAY OF JULY 2023

ORDER

SMT. SUMA ANILKUMAR, MEMBER

The complainant has filed this complaint U/S 35 of Consumer Protection Act 2019 against OP for following reliefs:-

A) To direct the OP to refund the excessive charges paid by the complainant in the form of order packing charges, amounting to Rs.19+GST along with an interest at the rate of 18% per annum from the date of raising the invoice till the date of the amount is refunded.

B) To direct the OP to pay Rs.5,00,000/- as damages to the complainants towards the mental duress, medical expenses and losses suffered by the complainants.

C) To pass any such orders as this Hon’ble Forum deems fit on the facts and circumstances of the case and in the interests of justice and equity.

2. Brief facts of this case are as follows:-

Complainant purchased food item (Parata) from the OP through a 3^rd party aggregator platform (Swiggy) for which OP itself has raised invoice on the complainant. The said invoice included service component ( i.e. order packing packages) over the price of the said item. The complainant here claims that there is deficiency of service by OP as the said facility. The complainant claims that according to the notification issued by the Department of Consumer Affairs (Ministry of Consumer Affairs food & public Distribution) dated 21.04.2017 [Notification No.J/24/9/2014-CPO (pt)] which states that the pricing of product in required to cover both goods and service component, and placing an order by a consumer amounts to his/her agreement to pay the prices displayed on the menu card along with applicable taxes and any other charges imposed would require the express consent of the custom. The complainant has suffered financial loss due to fraudulent act of OP, and substantial mental agony due to the demand made by OP upon the customer. In the interest of justice and equity the complainant, filed legal notice to OP on 14.12.2016 and claims for compensation and refund along with interest. OP fails to pay said amount to the complainant.  Hence, this complaint filed by complainant on 25.11.2022.

3. On the issue of notice to the OP, OP appears and filed his version.

4. In the version of OP, the OP submits that the case is misconceived and is not maintainable under law or facts. The case filed is barred by limitation as proved under Consumer Protection Act. The above case is paid for non-joinder of necessary party as the order was placed by complainant through online party i.e Bundl Technologies Pvt. Ltd.( Swiggy ) who have not been made as party to this complaint. The complainant has suppressed the actual facts. There is no privacy of contract between the OP and complainant, there is no contractual obligation between the complainant and OP. The order placed by the complainant was delivered on time and was with discount of Rs.71.52/-, the said order was accepted by the complainant without any resistance by paying sum of Rs.100/-. The OP has performed their part of contract prudently, there is no deficiency of service. OP submits that the notification relied upon by the complainant is for service charges and this consumer complaint and prayer is on packing charges. Wherefore the complainant has miserably failed to prove his case and it is also pertinent to submit that there are no documents establish and grant the prayer as sought by this Hon’ble commission. The complainant has induced, confused, mislead and misdirected the OP by issuing legal notice dated 17.01.2022. The acts of the complainant are dishonest, illegitimate, un-lawful and constitute unfair competition and false representation. The complainant contends amounts to fraudulent, misrepresentation and cheating the OP. The complainant has resorted legal and unethical actions with sole intention of injustly enriching himself on the cost of OP.

5. The OP (Hygiene Bigbite Pvt. Ltd.) has been one of the foremost players in food industry which are valued, effective, safe and consistent, has gained significant presence in major markets and foot prints across India. Due to this extinctive out reach in food industry, OP’s brand name and goodwill has traversed various business circles receiving acclaiming for the products and services offered by them. The OP has successfully curved a nitch in the industry as India’s one of the best food industry by virtue of high quality professional coupled with extensive research development and innovation of unique products and services. OP meticulously protected and ensured not only their brand value but also their quality, efficiency and timeline service of each of their brand name of the products. Due to such vide spread recongnisation and distinction, OP also won various awards since its inception. OP submits that the entire averment made in the complaint are false and baseless and the complainant is put to strict proofs of the same. OP further submits that entire transaction is contractual obligation between the parties to this consumer case is civil in nature.. Hence the case may be dismissed.

6.  On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OP?

ii) Whether complainant is entitled for the relief?

iii) What order?

7.  Our answers to the above points are as follows:-

Point No.1:- In the partly affirmative

Point No.2:- Partly affirmative

Point No.3:- As per the final order

                  REASONS

8. Point No.1&2:- These two points are interrelated and hence they are taken up for common discussion.

9. The invoice copy produced by the complainant clearly shows that, complainant ordered Aloo Parata from Hygiene Bigbite Pvt. Ltd. through swiggy which priced at Rs.149/- with an offer discount of Rs.71.52/-, Aloo Parata at the cost of Rs.77.48/- with packing charges Rs.19/-, CGST 2.5% i.e Rs.1.94/-, SGST 2.5% i.e Rs.1.94/- with a total bill amount of Rs.100.48. The order No.F24/9/2014-(PUCPT) issued by ministry of consumer form, food and public distribution, (Department of common affairs) mentions about the service charges and not about the packing charges. The copy of the medical certificate issued by Dr. Vijay Mehtry of the complainant seems to be regarding to other ailments of the complainant, and not seem to be caused by Rs.19/- taken extra as packing charges from the complainant by the OP.

10. Considering the Swiggy as mentioned by the OP, it is online service provider of delivering orders as a mediator between complainant and OP, and is not liable to any deficiency in service as the service provided by swiggy is satisfying.

11. As OP is an online cloud kitchen which is an online food delivery brand and is responsible to delivering the food to the consumer who order the food. The OP delivered food to the complainant with an advertisement of its brand product as (follow us on instragram @parata.hv.in ) as seen in the copy of the photo produced by the complainant. The OP used his logo name for advertising, his product on the delivered package box. Therefore considering that the OP has printed his product name on the box delivered by OP during the order shows unfair trade practice by the OP. Therefore the OP is liable to refund the Rs.19/- to the complainant and compensation of Rs.3,000/-  and Rs.2,000/- towards cost of litigation.

 12. The OP is liable to pay penalty by way of punitive damages of Rs.10,000/-, apart from compensation and costs imposed for unfair trade practice committed by OP. The office is directed to remit the punitive damages in to the Consumer Welfare Fund account maintained by Karnataka State Consumer Dispute Redressal Commission, KSCDRC on complaint for utilizing the same for the Welfare of Consumers in the State of Karnataka.

13. Point No.3:- In view of the above discussion referred, we proceed to pass the following order:-

ORDER

i) The complaint allowed in part.

ii) The OP is directed to refund an amount of Rs.19/- to the complainant within 30 days from the date of this order.

iii) The OP is further directed to pay compensation of Rs.3,000/- for mental agony and harassment and Rs.2,000/- towards the litigation expenses.

iv)   Punitive damages of Rs.10,000/- is imposed on OP and the OP is directed to deposit the same to the Consumer Welfare Fund account maintained by the Karnataka State Consumer Dispute Redressal Commission, Bangalore, Karnataka within 45 days from the date of this order.

v) Furnish the copy of the order to both the parties without cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^th day of JULY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL