STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. | | 321 of 2018 |
Date of Institution | | 26.10.2018 |
Date of Decision | | 17.05.2019 |
UBER INDIA SYSTEMS PVT LTD ., LV.13 Platinum techno Park, Plot No.17/8, Sector-30-A, Vashi, Navi Mumbai-400705 through its authorized representative.
And
UBER PORTIER B.V., Meester Treublaan 7, 1097, DP Amsterdam, The Netherlands through its authorized representative.
……Appellant
V e r s u s
- Mr.Amber Kapur Proprietor M/s Burger HUB, Kirpa Enterprises, Booth 4, Sector-15, Chandigarh.
- SHRANAV Katyal, S/o Sh.Navneet Katyal, H.No.1189, Sector-8-C, Ist floor, Chandigarh.
- Gurpreet Singh son of Sh.Sohan Singh R/o Village Gulabgarh, Tehsil Derabassi,SAS Nagar.40507
….Respondents
Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 17.09.2018 passed by District Consumer Disputes Redressal Forum-II, U.T. Chandigarh in Consumer Complaint No. 307/2018.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.
MRS. PADMA PANDEY, MEMBER
MR.RAJESH K.ARYA,MEMBER
Argued by: Mr.Sunny Deep Joneja, Advocate for the appellant.
None for the respondents.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT
Appellant/Opposite Party No.1 has filed this appeal against order dated 17.09.2018 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short the Forum only), allowing a complaint filed by the respondents No.2 & 3 /complainants.
2.. Before the Forum, it was case of the complainants that complainant No.2/respondent No.2 ordered online one Veg Thick Burger and one grilled chicken wrap from respondent No.1/OP No.2 through the appellant. The appellant/OP No.1 is an online portal through which consumers can purchase a number of eatable products etc. It was grievance of the complainants that instead of veg burger, non-veg (chicken) burger was sent. Complainant No.2 belongs to a Sikh family and is pure vegetarian. His religious sentiments were hurt. By alleging that it was a case of deficiency in providing service, a consumer complaint was filed before the Forum.
3. Despite notice, the appellant/OP.No.1 and respondent No.1/OP No.2 failed to put in appearance and they were proceeded against ex parte on 23.7.2018.
4. The Forum, believing contents of the complaint filed, documents on record and arguments addressed by counsel for the complainants, allowed the complaint by observing as under ;
“In the present case, the averments of the complaint have gone un-rebutted in the absence of the OPs who were duly served and preferred neither to appear in person, nor through its Counsel. It is established beyond all reasonable doubt that the complaint of the complainant is genuine. The OPs have committed deficiency in service by delivering both the items i.e. non veg (chicken) burgers against the order of veg thick burger and grilled chicken wrap (Annexure C-1). On the account of the lapse of the OPs and resultant consumption of non-veg burger by the complainant No.2, the religious sentiments of the complainant No.2, who is purely vegetarian and belongs to sikh family shall be definitely hurt. Keeping in view the facts of the case, we are of the considered view that an amount of Rs.2,500/- as compensation for harassment for hurting the religious sentiments of the complainant No.2 would meet the ends of justice.”
The Forum further ordered compensation to the tune of Rs.2500/- towards mental agony and harassment and Rs.2500/- towards litigation expenses. The awarded amount was ordered to be paid in a time bound manner, failing which, it was to entail penal consequences.
5. Counsel for the appellant has failed to furnish any plausible explanation for not putting in appearance before the Forum on the relevant date.
Be that as it may, it is not in dispute that eatable items were booked by the complainants through online portal managed by the appellant. It is not in dispute that the price of the product was paid through the said portal. If that was so, it was duty of the appellant to ensure that items which were booked should be delivered, however, it was not done so. The appellant tried to avoid its liability simply by stating that online portal was an intermediary and no liability can be fastened upon it. However, we are not agreed to the said contention. Online portals are like open market and to facilitate sale of products they charge from those sellers whose products are being sold. As such, online portals cannot avoid their liability in a case of deficiency in providing service.
6. As on today, on electronic media, appellant is being projecting it virtually as a seller. The general public is invited to purchase eatables/products through its website. Many incentives are offered on making such like purchases. There is nothing on record to show that the appellant is doing it free and is not charging anything from those who are putting their product for sale at its website/portal. It is expected that out of the amount paid by the consumers to purchase a product, some portion might be shared by the appellant. Counsel for appellant has failed to rebut our above expression at the time of arguments.
7. Otherwise also, as per earlier decision of this Commission in Amazon Seller Services Private Limited Vs Gopal Krishan, Appeal No.27 of 2017 decided on 27.2.2017 similar contention raised on behalf of other web portal organizer was rejected by observing as under ;
“Contention of Counsel for the appellant that as per terms and conditions of sale, no liability can be fastened upon the appellant, is liable to be rejected. An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, alongwith the manufacturer of the product. It was so held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pvt. Ltd. & Anr. Vs Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016. ”
In that case, the complainant had purchased a mobile handset through website/portal which was found defective. He came before the Forum, complaint was allowed and refund was ordered. The said view expressed by the Forum was approved by this Commission by observing as under ;
“Contention of the appellant that it cannot be burdened with liability, was rejected by the Forum, by noting that the mobile handset was purchased through the appellant, in online transaction. It was bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability.”
Amazon Seller Service Pvt. Ltd. went in revision petition before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi but ultimately the petitioner company decided not to press the revision as the other respondent complied with the order and accordingly the revision petition was disposed of by the National Commission..
8. In view of the above, we are of the opinion that the order passed by the Forum is quite justified and no case is made out to interfere in the order, under challenge. Accordingly the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
9 . Certified copies of this order, be sent to the parties, free of charge.
10. The file be consigned to Record Room, after completion.
