DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.342/2019

Vibhor Sharma Kaushal

S/o Brig. (Retd.) R.K. Kaushal/

Ms. Sunanda Sharma (IES)

R/o C-I/17, Bapa Nagar

Behind Delhi High Court

New Delhi-110003.                                                      .…Complainant

                                                 VERSUS

Sriharsha Majety CEO of Swiggy

GO1 O4U Services, 890 Udyog Vihar

Phase-1

Gurugram, Haryana-122001.       

Sriharsha Majety CEO of Swiggy

60, Sarhaul Abadi Village, Sector 18

Gurugram, Haryana-122008.

Sriharsha Majety CEO of Swiggy

Tower D, 9^th Floor, IBC, Knowledge Park

Bannerghatta Road

Bangalore-560029.

Ms. Rita Teaotia, Chairperson

Food Satefy and Standards Authority of India (FSSAI)

3^rd and 4^th Floor, FDA Bhawan

Kotla Road Near Bal Bhawan

New Delhi-110002.                                                      ….Opposite Parties

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Present:    Adv. Naved Khan proxy counsel on behal of Adv. Kanishka Rana for complainant.

Present:    Adv. Aakash Sharma for OP-2.

ORDER

Date of Institution:09.12.2019

Date of Order       :04.11.2024

President: Ms. Monika A Srivastava

Complainant has filed the present complaint seeking refund of cost of the food paid by him i.e. Rs.1343/-; to pay Rs. 1,50,000/- as compensation towards mental and physical harassment; to pay Rs.50,000/- as litigation cost. OP is Swiggy.

1. The complainant stated that on the night of 21.07.2019 the complainant used the OP App of the OP to order food at his residence C-I/17, Bapa Nagar, Behind Delhi High Court, New Delhi-110003.  The complainant chose their premium section with the expectation that the food would be prepared at an extremely hygienic, healthy, sanitised, sterile, germ-free, sanitary and high-quality standard restaurant for which premium charges are being asked for by the OP.

2. It is stated that the order number was 46723570433 and the restaurant name was given as Spice Market.  The complainant ordered for 1 Jeera Rice (Rs.350), 1 Dal Makhani (Rs.450), 1 Kashmiri Dum Aloo (Rs.450).  The GST charges wereRs.62.50 delivery charges were Rs.30.  The total amount of Rs.1343/- was paid in advance by the complainant. This amount was paid by the complainant via online card system which is annexed as annexure-1.

3. It is stated that after the delivery boy of OP delivered the abovesaid food items at the residence of the complainant and left, the complainant immediately noticed the following:-

1. No printed bill or copy of bill whatsoever on proper letter head of restaurant/OP was issued to him for total money paid by him and break up of items of food ordered by him.

2. There were no restaurant details in any printed manner on either the food containers or the packet in which they were put.  There was no mention of restaurant name, restaurant address, restaurant contact number, restaurant trademark sign/logo which is annexure-2. Thus, there was no indication of the source from where these food items had come. Whether it came from any well-known, standard, reputed, good quality restaurant.

3. There was no proof of any license FSSAI – Food Safety and Standard Authority of India License; Health Trade License of the Municipal Corporation Act (1957); “Eating House License”, “Shop & Establishment Act License”; “GST Registration” evidence; there was no “Signage License”, etc.

4. Google search of the said restaurant name did not show any photos of any such restaurant.

4. It is further stated that in view of the mentioned serious violations and causes of immense concern, the complainant did not take the extreme risk and danger of consuming food from a thoroughly unknown and entirely dubious source.  The complainant despite being a heart patient and a patient of High Blood pressure and Broncho-constriction was therefore forced to go hungry that night causing him great physical agony, mental torture and extreme distress. 
5. Immediately thereafter the complainant spoke to the customer care number of OP)  and the conversation lasted 32 minutes and 32 seconds.  The complainant elucidated all his concerns and requested for (i) an immediate refund of total money paid by him i.e. Rs.1343/- and (ii) collection by OP of the food items delivered to him.  The representative of OP bluntly refused to either collect the dubious food items or initiate the refund of Rs.1343/-.
6. Then the complainant requested the representative of OP to immediately escalate his complaint to their seniors failing which he would be constrained to initiate legal action. The representative of OP was least concerned about the harassment that the complainant was going through past midnight. Complainant kept the food items aside in the complainant’s house thoroughly untouched to be returned back to the OP.
7. It is further stated by the complainant that on 26.07.2019 the complainant wrote an email to OP and informed the OP in writing about their representative failing to respond and their refusal to refund his money. They apologised for their wrongdoings but refused point blank to refund his money.

8. On 27.07.2019 a representative of OP wrote to the complainant and apologised for the trouble he had experienced.  On 28.07.2019 another representative also apologised for the unpleasant experience.

9. Complainant has further stated that OP is deficient in service by delivering sub-standard food without any information as to the source of the food and no bill containing letter head of source for the money paid by the consumer coupled with the fact that no redressal was provided to the complainant when the complainant complained to the OP repeatedly. It is stated that the OP has indulged in cheating and indulged in cheating and fraud, and have duped the complainant of his of Rs.1343/-. 
10. It is further stated by the complainant that complainant on 05.09.2019 filed an official complaint with the DDRS (Regd) Deptt. of Law, against the OP however, OP did not attend nor respond to the summons.  It is stated that on the limited dates on which the OP appeared at the mediation centre steadfastly refused to accept any fault on its part.  The OP via its advocate indulged in blame game by putting the responsibility on the dubious eatery which supplied the food items the whose owner, called Rm. Gulati was also present on two occasions.
11. It is stated that the OP along with its dubious eateries are using the FSSAI License and under its garb and façade are indulging in heinous and atrocious crimes against innocent, trusting consumer.
12. OP, in its reply has stated that complainant has suppressed true facts of the transaction from this Hon’ble Forum and is the entire complaint is based on surmises and conjunction and on the face of it is misleading and wholly misconceived.  A plain reading of the complaint makes it amply clear that the present complaint has been filed to unnecessarily harass the OP being fully aware of the fact that there is no privity of contract between the OP and the complainant and that the OP is neither a necessary nor proper party to the present proceedings.

13. It is the case of the OP that it operates through an online portal and a mobile application under the brand name Swiggy. It is stated that the OP operating through the aforesaid platform acts as an intermediary to facilitate transactions between independent third-party restaurants/merchants selling prepared food and beverages and the customers.  The independent third-party restaurants uses its platform to list and offer to sell their prepared food products to the customers/visitors/users/ buyers who visit the OP’s platform.

14. It is stated that the role of the OP is limited to act only as intermediary, providing platform to facilitate transaction between the independent third-party restaurants/merchants and customers and pickup and delivery partners (PDPs).  It is pertinent to note here that OP is not seller of the food or beverages nor deliver the food or beverages on its own and therefore the OP cannot be held liable for any deficiency arising out of quality of food of the restaurant.

15. It is further stated that in the instant complaint the complainant is user of its Platform.  OP cannot be held liable for any alleged mistake committed by the restaurant i.e the Spice Market as the OP is just an intermediary merely facilitating the transaction between the complainant and the restaurant.
16. It is further stated that that the instant complaint is liable to be dismissed for mis-joinder of necessary parties as the complainant has not arrayed the Spice Market Restaurant as OP in the complaint.  It is stated that the Spice Market is necessary party for effective adjudication of the complaint.
17. It is stated that any kind of assurance, whether in terms of specification or quality of food product or beverages, price, discounts, delivery, promotional offers or otherwise are offered and provided by the restaurant/merchants offering the particular food product or beverages on its platform.  The OP being an intermediary neither offers nor provides any assurances to the customers of the quality of food product or beverages or the delivery items.
18. The business of OP falls within the definition of an “intermediary” under section 2(1)(w) of the Information Technology Act, 2000 which is reproduced as under:-

“intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes;”.

24. It is further stated that OP is protected by the provision of Section 79 of the Information Technology Act, 2000 which is reproduced hereunder:-

“79…..

1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) (3), an intermediary shall not be liable for any third party information, data or communication link made available or hosted by him.

2. The Provisions of sub-section (1) shall apply if –

1. the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
2. the intermediary does not –

1. initiate the transmission,
2. select the receiver of the transmission, and
3. select or modify the information contained in the transmission;

3. the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribed in his behalf.
   25. OP has relied on Shreya Singhal Vs. Union of India where the Hon’ble Court held that company being an intermediary should not be proceeded against the acts of the default of restaurant as this tantamount to the instance of misjoinder of the parties. 

26. OP has reiterated that the complainant does not have any cause of action against the OP under the provisions of the Consumer Protection Act as neither there is any privity of contract between the complainant and the OP nor the item/food product is sold by OP and therefore, it is submitted that the complainant has wrongly arrayed OP in the present complaint and hence the complaint is bad for misjoinder of party and restaurant have not been impleaded in the array of parties despite being necessary party to the complaint hence the complaint is non-joinder of parties.

27. The OP stated that the terms and use available on its Platform clearly provide that the OP shall never be held liable for any service or goods provided by the Vendors/restaurants.  Clause 6 of the bookings and financial terms:

6.13 The transaction is bilateral between the merchant and buyer and therefore Swiggy is not liable to charge or deposit any taxes applicable on such transaction.

28. It is stated that the bookings and financial terms available on the its platform also provide that OP cannot be held for any direct, indirect, consequential or otherwise damages or loss resulting from any services provide by third party or vendors. Extract of Clause 13 of the terms of use as available on website of the OP is reproduced herein for reference:

“Clause 13.8”

          In no event will be (Swiggy) be liable for any damages (including without limitation, direct, indirect, incidental, special, consequential or exemplary damages, damages arising from personal injury/wrongful death, and damages resulting from lost profits, lost data or business interruption, resulting from any services provided by any third party or vendor accessed through the services, whether based on warranty, contract, tort, or any other legal theory and whether or not we are advised of the possibility of such damages.

29. It is stated that the terms of Use available on the OP’s platform clearly provides that OP shall never held liable for any service or goods provided by the vendors/restaurants for any direct, in direct, consequential or otherwise damages or loss resulting from any services provided by third party or vendors.  A copy of terms and conditions is annexed as annexure - D1.

30. OP has further stated that it has promptly responded to the query of the complainant and has provided clarification and hence there is no deficiency in services on the part of OP.

31. In his rejoinder, complainant has mostly denied the allegations made by the OP in its reply and has reiterated the allegations made by him in his complaint.  It is reiterated by the complainant that OP has delivered a sub-standard, unhygienic, unknown sourced food against the regulations and has harassed the complainant of refusing to refund his amount which amounts to deficiency in service other than grave moral turpitude.  Complainant has placed reliance and guidelines issued by FSSAI 2006. The complainant had also filed an application seeking amendment of the prayer clause to include litigation expenses however it was never pressed.

32. Both the parties complainant as well as OP have filed their evidence affidavits, however only the complainant has filed his written arguments.

Complainant has placed reliance on the judgments passed by the Hon’ble NCDRC in M/s Halo Travels Vs. Harish C. Jain 2020 SCC Online NCDRC 615, Amazon Seller Services Pvt. Ltd. Vs. Director, FA 21/18 and ASSPL Vs. Gopal Krishan FA 27/17.  Complainant has  also placed reliance on Yum Restaurant Vs. Kishan Hegde 2020 SCC Online NCDRC 8, Vaibhav Raj Vs. Swiggy SCDRC Chandigarh FA 131/22 and judgments of DCDRC Nand Nagri and Rangareddy, Prasad Kanade Vs. Swiggy, DCDRC Ahmedabad, Ankur Kr. Roy Vs. Mukesh Hyundai, SCDRC Ritesh Kumar Goel Vs. Max Hospital, Dr. Meera Malik Vs. State of UP Allahabad High Court, Barnali Cha Vs. Woodlands Medical Centre 03.04.2023, Poonam Verma Vs. Ashwin Patel 10.05.1996 passed by Hon’ble Supreme Court.

This Commission has gone through the entire material on record. Complainant has not been able to prove that the platform of the OP  offered some premium service however he has been able to prove that he did place an order and that he raised the grievance regarding the quality of the food provided to him. It is also not brought out with clarity whether the complainant researched about the quality of food or the restaurant Spice Market before ordering the food which he alleged that quality was not standard quality.

OP after taking money from the complainant cannot take refuge by saying that it is an intermediary and in our view is definitely responsible for certain actions even as per their own website which provides

 Swiggy is only providing a platform for communication and it is agreed that the contract for sale of any of the products or services shall be a strictly agreement between the merchant and the buyer. In case of complaints from the buyer pertaining to efficacy, quality or any such other issues, Swiggy shall notify the same to merchant and may also redirect the buyer to the consumer call centre of the merchant. The merchant shall be liable for addressing buyer complaints. In the event you raise any complaint on any merchant accessed using our platform we shall assist you to the best of our abilities by providing relevant information to you such as details of the merchant and the specific order to which the complaint relates to enable satisfactory resolution of the complaint.

In the present case a complaint was raised by the complainant regarding the quality and the efficacy of the food that was received through the OP but the OP has failed to provide relevant information to the complainant relating to the merchant, as stated by them on their own website and it has not clarified as to what steps were taken to redress the grievance of the complainant, whether the details of the merchant were shared with the complainant.  To this extent, OP is held liable for deficiency in service and is directed to refund amount of Rs.1,343/- to the complainant along with the compensation of Rs.10,000/-. This amount is of Rs.1,343/- is to be paid within three months from the date of pronouncement of the order failing which OP would be liable to pay interest at the rate of 6% per annum till realisation.

  Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.