Chandigarh

DF-I

CC/538/2022

Jyoti Thakur - Complainant(s)

Versus

M/s Uncle Jacks - Opp.Party(s)

Ujjval Bhasin

01 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

Jyoti Thakur residence of Vikas Bhawan Vashisht Colony, Rabon Saproon, Solan, HO-173211, presently residing at H. no. 863, Sector 38-A, First floor, near Santokh Hospital, Chandigarh 160036.

-Complainant

Versus

1. M/s Uncle Jack's Through its authorized person SCO No. 461-462, Sector 35-C, Chandigarh

2nd Address:-

Corp Office Plot no. 38-B, Industrial Area, Phase II, Chandigarh 160002.

2. Swiggy India Through its representative, main office 6 AVS Compound, 80 Feet road Ejipura, Kormangla, Bengluru 560047, Karnataka, India 2nd Address:-

Deepak Tower, SCO No. 154-155, Forth floor, Opposite DC Office, Sector 17-C, Chandigarh 160017.

....Opposite Parties

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OPs). The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that on 26.4.2022 the complainant ordered one veg hotdog and cold coffee classic shake (hereinafter to be referred as subject food items) from swiggy  i.e. OP No.2 vide order No.11 by paying Rs.306/- through online and the copy of screen shot of order is annexed as Annexure C-1. After about 10-15 minutes the complainant received the delivery of the above subject food item  at her residence. The complainant had strictly demanded veg-hotdog but when the complainant received the order she found that the food was spilled all over its box.  The complainant made a complaint to Swiggy   to this effect  and they refunded Rs.130/- to the complainant  Thereafter when the complainant tasted the hotdog she felt very strange as the taste was not of the veg hotdog and quickly left the same and tried to enquire about the quality and mode of the subject food item and found that there was some pieces of chicken in the hotdog.  Immediately the complainant registered a complaint vide Annexure C-2 with swiggy OP No.2 regarding the said non-veg food items as the same were found different  from what  she had ordered.  But OP No.2 swiggy refused to accept any request of the complainant and asked the complainant to upload the photo of the wrong items.  Thereafter the complainant sent the photo of the subject food items to OP No.2.  Since the complainant is a pure vegetarian and belongs to a religious Hindu Family and never thought about eating of any non-veg food, the OPs maligned the sentiments  and belief of the complainant by sending non-veg food item.  Due to eating of the aforesaid food item,  the complainant suffered from health issue  as she suffered from vomiting and loose motion. The complainant has already reported the matter to the OPs but no action has been taken by the OPs till date and in this manner the aforesaid act of the OPs amounts to deficiency in service. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. Despite of giving ample opportunity to file written version, the OP No.1 failed to file the same within the stipulated period as provided in the Act and as such its defence was struck off vide order dated 21.2.2023.
3. OP No.2  resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of facts. However, it is admitted that the complainant had ordered veg hot dog and one cold coffee. It is alleged that in fact the OP No.2  has no role to play in the entire transaction of sale and purchase of food items between the complainant and OP No.1  restaurant except  facilitating the placing of the order and delivery of the same and the answering OP cannot be held liable for any alleged mistake committed by OP No.1 restaurant by delivering any alleged non-veg   item to the complainant. It is further alleged that immediately without accepting any liability that the package food was spilled, the answering OP as a goodwill gesture  refunded Rs.133/- to the complainant vide Annexure R/1.  It is further alleged that  the answering OP has acted upon the issue as a top priority  and has constantly followed up with OP No.1 restaurant  but no response  whatsoever   has been received on its end.  The copy of email sent by OP No.2 to OP-1 is annexed as Annexure R/2. In fact the answering OP only acts as  intermediary through its web interface

2. In order to prove their case, contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the OP No.2 and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the contesting parties that  the complainant had placed an order for the subject food items i.e. one veg hotdog and cold coffee classic shake  from OP No.2 on 26.4.2022  by paying an amount of Rs.306/-  as is also evident from copy of screen shot Annexure C-1 and after receiving the  delivery of the subject food items,  the complainant found that non-veg hotdog  was delivered in place of veg hotdog which was actually ordered by the complainant and the complainant made a complaint immediately to OP No.2 and OP No.2 had refunded an amount of Rs.133/- to the complainant and the  subject food items were packed by OP No.1 and delivered by OP No.2, the case is reduced to a narrow compass as it is to be determined if  the aforesaid act of OPs amounts to deficiency in service  and the complainant is entitled for relief as prayed for or if the complaint of the complainant being not maintainable against OP No.2 is liable to be dismissed as is the defence of the OP No.2.
   2. Perusal of Annexure C-1 clearly indicates that the complainant had ordered the subject food items i.e. the loaded dog veg x 1 and cold coffee classic shake x 1 and made payment for the same. Annexure C-2 and C-3  clearly indicate that the complainant uploaded the photograph of the hotdog  received from the OPs showing some pieces of chicken in the hotdog  making clear that the OPs have   delivered a non-veg hot dog contrary to the order of the complainant as the complainant has ordered one veg loaded hot dog as is evident from Annexure C-1, which is clear cut deficiency in service and negligence on the part of the OPs  especially when  the evidence led by the complainant regarding delivery of  non-veg hot dog by the OPs is unrebutted by the OPs including OP No.1 whose defence  has already been struck off . Thus, it is proved on record that the both the OPs are deficient in rendering proper service.
   3. No doubt in its written versions  OP No.2 had come with the defence that there is no deficiency in service or unfair trade practice on its part as it is only an intermediary to facilitate transactions between the seller and the buyer, however, admittedly the subject order was ordered and delivered through OP No.2, thus, OP No.2 cannot escape from its liability, especially when it is duty bound to provide  proper service to the consumer as provided under The Consumer Protection (E-Commerce) Rules, 2020. Thus both the OPs are jointly liable for providing deficient and improper service to the complainant.
   4. So far as the quantum of compensation is concerned as the complainant has come with specific plea that he is a pure vegetarian belongs to religious Hindu family  and by delivering the non-veg food items  which was tasted by the complainant the OPs not only maligned the religious sentiment  of the complainant but also caused health issue to her as she suffered from vomiting and loose motion due to taste of the non-veg item, thus it would meet end of justice if we grant compensation of Rs.15000/- to the complainant for mental agony and harassment. 
4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to pay an amount of ₹15000/- to the complainant as compensation for causing mental agony and harassment to him;
2. to pay ₹10,000/- to the complainant as costs of litigation.

5.    This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amount mentioned at Sr.No.(i) above, with interest @ 12% per annum from the date of this order apart of from compliance of direction at Sr. No. (ii) till realization.

6.       Pending miscellaneous application(s), if any, also stands disposed off.

7.    Certified copies of this order be sent to the parties free of charge. The file be consigned.