Date of Filing 11.12.2023

                                                                                                             Date of Disposal: 14.03.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                          …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIUR.P.MURUGAN, M.Com, (ICWA), BL.,                                                                     ……MEMBER-II

CC.No.01/2024

THIS THURSDAY, THE 14^th DAY OF MARCH 2024

Mr.S.Sujith Sundar,

Residing at C-68, West End Road,

Thiruvengada Nagar,

Ambattur,Chennai 600 053.                                                                   ......Complainant.

                                                                                   //Vs//

Swiggy Corporate Office,

Rep. by its Managing Director,

No.6, AVS Compound,

80 feet Road Ejipura,

Koramangala, Bengaluru 560 047.                                                     ……Opposite party.

Counsel for the complainant                                                 : Ms.V.Akshaya, Advocate.

Counsel for the opposite party                                             : Exparte.

This complaint coming before us on various dates and finally on 08.03.2024 in the presence of Ms.V.Akshaya, counsel for the complainant and opposite party was set exparte for non appearance and upon perusing the documents and evidences of complainant’s side this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with regard to an improper delivery made by the opposite party against the order placed by the complainant along with a prayer to direct the opposite party to refund a sum of Rs.40/- being the cost of Kwality walls Double Chocolate Ice-Cream and to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.50,000/- towards litigation expenses.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that he placed an order with the opposite party for Kwality walls Double Chocolate Ice-Cream and Kurkure Chaat Paapdi Chips for a cost of Rs.50/- on 29.10.2023 through order No.157557104370396.  The complainant made the order at around 07:21pm and received a notification that his order was accepted by Swiggy Instamart located near Ambattur and that his order would be delivered in 31 minutes. The complainant upon receiving his order found that the products delivered to him were different from what he had ordered that the Ice-Cream delivered to him was Amul Tri Cone Choco Crunch Ice-Cream and not Kwality Walls Double Chocolate Ice-Cream. When complainant asked the delivery person, the delivery person told him to raise an issue in the mobile application would receive a quick. Also, the product was melted when it was delivered to the complainant. On raising the issue the complainant was asked to attach the photos of the product which has been wrongly delivered which was done by the complainant. Complainant sent an email also to the Support Team stating the issue faced by him and asked to refund the cost of the Ice-cream for which the complainant received an email after several conversations from Mr.Ashutosh from Instamart Support Team on 31.10.2023 stating that they were unable to initiate a replacement or a refund for the order.  Thus aggrieved by the act of the opposite party alleging deficiency in service and unfair trade practice the present complaint was filed to direct the opposite party to refund a sum of Rs.40/- and to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with Rs.50,000/- towards litigation expenses.

3. On the side of the complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A6 were submitted. Though notice was served to the opposite party he did not appear before this commission to file any written version and hence he was called absent and set exparte on 21.02.2024 for non filing of written version within the mandatory period as per the statute.

Points for consideration:-

1)    Whether the alleged act of deficiency in service on the part of opposite party in delivering a different product against the order placed by the complainant has been successfully proved by the complainant by admissible evidence?

2)    To what relief the complainant is entitled?

 Point No.1:-

4. Heard oral arguments of complainant and perused the material evidences produced by him.

5. The crux of the oral arguments adduced by the complainant is that the opposite party failed to deliver the product ordered by him i.e. Kwality walls Double Chocolate Ice-Cream which cost Rs.40/- on 29.10.2023.  However, it had delivered Amul Tri Cone Choco Crunch Ice-Cream that too in a melted condition which was not edible to consume.  When he sought for refund or replacement the opposite party denied the same.  Thus he sought for the complaint to be allowed as prayed for.

Finding on Deficiency in Service:-

6. On perusal of the material evidence and pleadings, the complainant had filed sufficient proof for placement of order, delivery of order and the pictures of the product which was wrongly delivered to him clearly establishing that he had placed an order with the opposite party.  Further he also filed Ex.A4 in which he raised an issue with the opposite party in their mobile application informing about the improper delivery.  He had also sent photos about the wrong product delivered to him.  Further it is seen that the opposite party had mentioned that they do not have any option to initiate any replacement or refund for the wrong delivery.  Thus the factum of an issue or dispute arose on account of wrong delivery was clearly established by the complainant.

7. In the said circumstances this commission proceeded to determine as whether the act of opposite party amounts to deficiency in service and whether they could be held liable for the deficiency in service committed by them. By admitting that a wrong product was delivered, but denying to provide any relief to the customer citing the reason that they do not have any refund or replacement policy clearly amounts to deficiency in service and unfair trade practice.

Liability of opposite party:-

8. In such scenario the opposite party could not be absolved from their liability by merely considering them as platform service providers to the Restaurants to enable delivery of food items prepared by Hotels and Restaurants from their location to the third parties.  Further it is seen that in the present case the opposite party had delivered the product from one Swiggy Instamart.  The terms between Swiggy and Instamart shall not be binding upon the consumer.  It is clearly found in the communication made with the complainant that it is made in the name of Swiggy Instamart.  Therefore the opposite party could be safely held responsible for the wrongful delivery of the product.  Further the opposite party did not appear before this commission to dispute their liability.  Thus merely stating that they do not have a refund or replacement they could not escape from their liability in such a way to defeat the interest of gullible customers.  Thus we answer the point accordingly in favour of the complainant and as against the opposite party holding opposite party responsible for the wrong delivery of product.

Our view was supported by an order passed by the District Consumer Disputes Redressal Commission, Bathinda, Punjab in Mohit Gupta Vs Swiggy in CC.No.20/84 dated 03.03.2020 wherein it has been held as follows;

“as complainant has availed the services of the opposite party and paid consideration amount to the opposite party. If the opposite party has further contract with restaurant or PDP, it is the responsibility of the opposite party to get the job done and provide proper service to the customer with whom it has made contract or received charges on behalf of restaurant or PDP.”

Also in another recent order passed by the Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh in Vaibhav Raj  Vs Swiggy, Bundl Technologies Private Limited in Appeal No.A/131/2022 dated 24.04.2023, it has been held as follows:

“For the sake of repetition, it is pertinent to add here that Swiggy is an online platform/shopping portal and works as a link between the buyer and seller and collected orders from consumers and forwarded those to the seller/vendor concerned.  It is a matter of fact that the Complainant chose Kwality Walls outlet on Swiggy's app, then it shall be the responsibility of Kwality walls to ascertain that non expired items are available in their outlet for sale.  Pertinently, nobody appeared on behalf of Opposite Party No.4 (Kwality Walls) despite service before the Ld. Lower Commission, due to which it was proceeded ex-parte.  In this backdrop, the onus lies on Swiggy to clarify as to from which Kwality Walls outlet, the orders of the Complainant were delivered.  At any rate, to our mind, Kwality Walls shared the responsibility of delivery of optimum quality ice creams from its outlet.  In the like manner, it was Swiggy's executive responsibility to check the quality of the Ice creams and get it packed. The selling of food products beyond their expiry date is nothing, but an unfair trade practice, for which the Complainant needs to be suitably compensated.  The Ld. Lower Commission has, therefore, wrongly held that there was no deficiency in service or unfair trade practice on the part of OP No.3.”

Point No.2:-

9. As we have held above that the complainant had clearly established the deficiency in service on the part of the opposite party, this commission feels that he should be adequately compensated along with the refund of the amount paid by him towards the purchase of Kwality walls Double Chocolate Ice-Cream. Thus we order a compensation of Rs.10,000/- and also cost Rs.5,000/- towards litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite party directing them

a) To refund the cost of Kwality walls Double Chocolate Ice-Cream Rs.40/- (Rupees forty only) within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony and hardship caused to the complainant;

 c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

d)  Amount in clause (a) & (b) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 12% will be levied on the said amounts from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 14^th day of March 2024.

   Sd/-                                                            Sd/-                                                         Sd/-                                                                                                                                                                                                                                                                                         

 MEMBER-II                                        MEMBER-I                                              PRESIDENT

List of document filed by the complainant:-

  Sd/-                                                               Sd/-                                                      Sd/-

MEMBER-II                                              MEMBER-I                                      PRESIDENT