Haryana

Panchkula

CC/293/2019

ABHISHEK GARG. - Complainant(s)

Versus

M/S BUNDL TECHNOLOGIES PVT.LTD. - Opp.Party(s)

ABHISHEK GARG.

05 Jul 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

Abhishek Garg, resident of House No. 740, Sector-2, Panchkula, Haryana-134109.

                                                                                   ….Complainant

Versus

M/s Bundl Technologies Private Limited(operating as Swiggy) having its office at third floor (Internally designated as 4^th floor) Maruthi Chambers, Survey No.17/9B, Roopena Agrahara Bangalore-560068

….Opposite Party

COMPLAINT UNDER SEC. 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before:                Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

For the Parties:    Complainant in person.     

Sh. Amit Mahajan, Advocate, counsel for the OP.

ORDER

(Sh. Satpal, President)

1.               The brief facts of the present complaint are that the complainant had ordered food from Swiggy application  installed in his phone, one cheesy garlic stick of Rs.144/- and Coke(500ml) three in quantity, of MRP of Rs.30/- each. Therefore, total MRP of coke(500ml) comes out to be Rs.90/- vide order no.16478472573 on 04.8.2018 at 10:51 pm. The above said order was placed for restaurant named as La Pino’z Pizza, Panchkula via Swiggy application and it had charged extra GST of 5% amounting to Rs.4.50 on coke(three in quantity) with total MRP price of Rs. 90/-making a total purchase of Rs.197/- paid by the complainant in cash. He also stated that MRP is inclusive of all taxes and no shopkeeper including restaurants selling MRP based sealed item can charge any tax over and above MRP; not even GST because MRP is the maximum rate allowed for a particular commodity. The matter was brought to the notice of the OP via twitter account of the complainant posted the same on twitter on dated 05.08.2018 and they mailed to the complainant and acknowledged that fact that GST was charged on MRP item. By charging GST on MRP, which is inclusive of all taxes, from the complainant, the OP results in deficiency of services as well as unfair trade practices on the part of the OP. Hence, the present complaint.

2.               Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless and false; suppressed true facts material and cause of action. On merits, it is stated that the OP only acts as an intermediary through its web interface

3.               Replication to the written statement of the OP was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OP.

4.               To prove his case, the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-11 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP has tendered affidavit Annexure R-A alongwith document Annexure R-1 and closed the evidence.

5.               We have heard the complainant and the learned counsel for the OP as well as written arguments filed by the complainant and gone through the entire record available on record, minutely and carefully.

6.               The sole grievance of the complainant is with regard to the charging of Rs.4.50 as GST over the Maximum Retail Price (hereinafter referred to as MRP) i.e. Rs.90 of coke, which is allegedly not legally permissible as per the provisions of the Consumer goods (Mandatory Printing of Cost of Production and Maximum Retail Price) Act, 2006(hereinafter referred to as Maximum Retail Price Act, 2006). On the other hand, the OP while not justifying its action of charging of GST over and above the MRP of the product in question has denied its liability in the matter on several grounds, which may be summarized as under:-

1(a)   That the OP has no role to play in the entire transaction of the sale and purchase of food between the complainant and third party restaurant as the OP only facilitates the placing of the order and enabling delivery of the ordered food. It is contended that the OP cannot be held liable for the GST charged, if any, by the restaurant/merchant as the prices are solely decided by the merchant and the OP as an intermediary merely facilitates the transaction and have no role to play in determining the price.  

b)      That  the OP only acts as an intermediary through  its web interface

                  It is vehemently claimed that the OP is exempted from the liability in view of the provisions as contained in Section 79 of Information Technology Act, 2000. In this regard, ld. Counsel placed reliance upon the law laid down by the Hon’ble Supreme Court of India in the case titled as Sachanyani Savings Investment (I) Ltd and ors Vs. State of West Bengal (Civil Appeal No.5168 of 2000) & further upon the case titled as Intex Technologies Vs. Jasper Infotech Pvt. Ltd. CS(COMM0 34/2015, decided by Hon’ble High Court, Delhi and the case of Shreya Singhal vs. Union of India.

c)      That no liability can be fastened upon the OP for any service or goods provided by the vendors restaurant as per Clause 6.10, 6.13 and 13.8 of bookings  and financial terms.

d)      That the complainant does not fall under the category of consumer qua OP. There is no privity of contract between the complainant and OP as no consideration amount has been received by OP from the complainant. Further, the OP is neither the manufacturer nor the seller of the product in question. The Op is not engaged in sale of any product on its own but merely facilitates various sellers to list their product for sale on its online platform i.e. Myntra Design Pvt. Ltd and the buyers/users of the website to buy the product from the sellers out of their own free will and choice.

 7.              Before going into the afore-mentioned pleas/objections, we deem appropriate to look into the definition of MRP which is defined in Section 2(F) of Maximum Retail Price Act, 2006 as under:-

         2(f)    “Maximum retail price” means such price at which the product shall be sold in retail and such price shall include all taxes levied on the    product.

         As per provisions of the aforementioned Act, it is not permissible for anyone to sell any product at the rate exceeding or beyond the MRP.

8.               Now, We take up the above mentioned objections for discussion in the same seriatim.

1. Vide Ist objection the OP has stated that it has no role in the transaction in question. This objection is liable to be rejected in view of the fact that invoice dated 04.08.2018 vide which Rs.4.50 has been charged as GST over the MRP, has been issued by OP itself. The said invoice dated 04.08.2018 (Annexure C-2) for the sake of clarity and inconvenience is reproduced as under:- facilitate  

          Thanks for choosing Swiggy, Abhishek Garg! Here  are your order details:

Order No:#16478472573                                     Delivery to:

Order placed at:04/08/2018, 10:51PM                Abhishek Garg

Order delivered at:04/08/2018, 11:25PM            House No.740, Sector-2, Panchkula ,Sector-2, Panchkula Haryana-134109,

Order status: Delivered

Ordered From:

La Pino’z Pizza

SCO-346,First Floor,Sec-9, Panchkula

Item Name                                  Quantity                                     Price

Cheesy Garlic Sticks                          1                                             Rs.144

-Cheese Dip                                                                                     Rs.  25

Coke (500 ml)                                   3                                             Rs.  90

                                                                        Item Total:              Rs.234

                                                                                 GST:              Rs.   9.36

                                                               Delivery Charges:              Rs.   0

                                                              Discount Applied:                Rs.  46.8

                                                              Grand Total                        Rs.197

         Besides above, it is pertinent to mention here that food product duly sealed with the sticker of the Swiggy are being delivered by a delivery boy wearing the T-shirt having the logo of Swiggy on a specific vehicle belonging to Swiggy. Thus, the plea taken by the OP that it has no role in the matter carries no weight and is hereby rejected.

         b)      Regarding exemption from liability of intermediary in certain  cases, Section 79(2)(c) of IT Act cast a duty on the intermediary to observe due diligence while  discharging its duty under the Act and also to follow the other such guidelines as Central Government may prescribed in this behalf.

                  Admittedly, the OP has failed to adhere to the provisions of the Maximum Retail Price Act, 2006 as a sum of Rs.4.50 over and above the MRP of Coke has been charged by the OP from the complainant, which is in clear violation of provisions of the Maximum Retail Price Act, 2006. Therefore, the OP is not entitled to claim the exemption from liability on the ground of its being intermediary.

         c)      Vide objection mentioned at serial no.c, the OP has claimed the exemption from the liability on the basis of Clause No.6.8, 6.10 and 6.13 of the Booking and Financial Terms. No doubt, the aforesaid clause no.6 and 13 of Booking and Financial terms provides protection to the OP but the same is available subject to the condition that it has not contravened any provisions of the law.

                  In the present case, it has been found that a sum of Rs.4.50 over the MRP has been charged in utter violation of the provisions of the Maximum Retail Price Act, 2006, therefore, the OP cannot take the shelter of clause No. Clause 6.10, 6.13 and 13.8 of Booking and Financial Terms.

         d)      The next objection as mentioned at serial no.d above is also rejected in view of the fact that the invoice dated 04.08.2018(Annexure C-2) charging a sum of Rs.4.50 from the     complainant has been issued by the OP itself.

9.               Moreover, the OP has admitted its lapse and deficiency on its part vide e-mail dated 24.08.2018(Annexure C-3) which may be produced as under:-

Swiggy: Regarding the incorrect GST on your bill

Shovan Hazra [ccescalation@swiggy.in]                                    Fri, Aug 24,2018 at 6:22 PM

Reply-To:Shovan

Greetings from Swiggy!

This email is in regard to your order number-16478472573 from La Pino’s. Kindly accept our sincere apologies for the delay and any inconvenience this may have caused to you.

We tried reaching you at 9465465345 but it must have been the wrong timing and your phone number was out of coverage area. We would like to inform you that we were doing our best to resolve this issue and the issue has been resolved.

Initially, the GST was getting charged on all the items in the cart. Now, we have changed the system in such a way that the GST is being charged only on non-MRP items. We would like to thank you for bringing this into our notice.

10.             Further, we do not agree with the contention of OP that it merely acts as a market place for the sale and purchase of the various products. It is an admitted case of the OP that it is an online shopping portal and it works as a link or chain between the buyer and seller and the job of OP includes the collection of orders from the various consumers just like the present complainant and then forward those orders to the concerned seller/vendors for the purposes of the delivery and dispatch to the consumers. It is not the case of OP that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not the case of OP that it is a charitable organization and involved in e-commerce with no business returns for itself, therefore, the plea raised by OP that it is neither the manufacturer nor the supplier of the articles is of no avail to it and therefore, the OP cannot claim exoneration in the present matter.

11.             Lastly, it has been claimed that food item was delivered by the restaurant concerned i.e. La Pino’s Pizza and hence, OP is not responsible. This plea is also rejected in view of the fact that the complainant has no grievance in respect of the quality and quantity as well as price of the product in question and thus, the complainant has no grouse against the restaurant.

12.             The aforementioned discussion speaks volume about the unfair and deficient services rendered by the OP to the complainant; hence the complainant is entitled to relief.

13.             As a sequel to above discussion, we partly allow the present complaint with the following directions to the OP:-

1. To pay a sum of Rs.4.50/- to the complainant along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
2. To pay a lump sum amount of Rs.10,000/- to the complainant on account of mental agony, harassment and litigation charges.
3. That the opposite party, undoubtedly, has been doing its business all across the country and thus are minting money by adopting the unfair trade practice at the cost of innumerable gullible consumers, so taking the deterrent punitive action, the opposite party is further directed to deposit a sum of Rs.10,000/-, under the intimation of this Commission, in the account of Haryana State Council for Child Welfare,#650, Sector-16D, Chandigarh, the details of which are as under:-

i)  Bank Name                   Punjab National Bank, SCF 1-2,

                                             Sector-22D, Chandigarh

ii) Bank Branch Code         009500

iii) IFSC  Code                   PUNB 000 9500

iv) Bank Account No.          0095000100483394

v) Bank Branch MICR        160024016

     Code    

vi) PAN No.                         AAATH3003J

14.             The OP shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:05.07.2021

Dr.Sushma Garg           Dr. Pawan Kumar Saini          Satpal           

           Member                           Member                     President

Note: Each and every page of this order has been duly signed by me.

                                               Satpal     

                                            President