The complainant Mohit Gupta (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against Swiggy, Bangalore (here-in-after referred to as opposite party).
Briefly stated the case of the complainant is that he ordered some eatables i.e. one Veg Roll and one Afghani Chapp Roll through website of the opposite party vide order No. 58809229470 on 7-12-2019 at 9.23 p.m. The total cost of order was Rs. 248/- including delivery charges and GST. The complainant paid Rs. 148/- via Net-banking from his account and Rs. 100/- by applying discount coupon.
The complainant alleged that as per advertisement and claim made by the oppoiste party, the opposite party has shown to deliver the ordered food within 30 months from the order. When complainant did not receive his order, he started making a telephone call at No. 7228953485, given by opposite party at the time of placing order. The complainant kept on trying to call at given number but company's boy did not attend the call and again & again cut the phone call.
The compainant further alleged that opposite party cancelled the said order at 10.09 p.m. without any delivery and response and refunded only Rs. 74/- in the bank account of the complainant. The remaining amount of the complainant has been deducted by the opposite party without any reason.
The complainant also alleged that when he contacted customer care of the opposite party by making phone call to inquire about deduction made by them, customer care executive misbehaved with the complainant. The complainant alleged that he contacted the opposite party many times and requested to refund his entire amount, but to no response. The complainant also got issued legal notice in this regard, but to no effect. The complainant has alleged that there is deficiency in service and unfair trade practice on the part of the opposite party and gross violation of 'Act'.
On this backdrop of facts, the complainant has prayed for directions to the opposite party to remove misleading advertisement; refund entire amount of Rs. 144/- with interest @18% w.e.f. 7-12-2019 and pay compensation to the tune of Rs. 20,000/- alongwith litigation expenses amounting to Rs. 11000/-.
Upon notice, the opposite party put an appearance through counsel and contested the complaint by filing written reply raising preliminary submissions that the complainant has suppressed true facts of the transaction from this Commission and presented all cooked stories. That the opposite party, Bundl Technologies Private Limited is a company duly registered under the provisions of the Companies Act, 1956, and having its registered office at Bengaluru. The company is engaged in providing online platform for ordering and delivering food and beverages from neighbourhood restaurants to the customers. The opposite party operates through an online portal "www.swiggy.com" and a Mobile Application under the brand name "Swiggy" (hereinafter collectively referred to as "Swiggy Platform"), which enables interactions between customers and restaurants/merchants providing/dealing in prepared food and beverages of neighborhood areas and arrange for the delivery of the ordered food and/or beverages from the merchant to its customers at the address provided by them.
It has been pleaded that the opposite party, operating through the aforesaid electronic platform, acts as an intermediary to facilitate transactions between independent third party restaurants/ merchants selling prepared food and beverages. The customers can place order from the variety of products listed and offered by numerous individual neighborhood merchants, using the Platform. The opposite party, similar to contracting with merchants, has also contracted with various third-party pick-up and delivery partners (PDPs) on principal to principal basis, who pick-up the ordered food or beverages from the concerned restaurant and deliver the same to the customer. Once a customer accepts the offer made by the third-party restaurant/merchant on the Swiggy Platform and order the food and beverages according to his preferences, the restaurant/merchant and third party pick-up & delivery Partners (PDPs) of that area are intimated electronically. Thereafter, the concerned restaurant/merchant is required to ensure that the ordered food or beverages are made available to the delivery partner in accordance to the order specifications provided by the customer. The concerned third party pick-up & delivery Partners (PDPs) is required to ensure that the ordered food or beverages are picked up from the concerned restaurant/merchant and deliver the same at the address provided by the customer.
It has been further pleaded that opposite party is neither the seller of the food or beverages nor delivers the food or beverages on its own and therefore, the opposite party cannot be held liable for any deficiency arising out of non-delivery of order either by the restaurant or by the delivery partner.
The opposite party has also pleaded that the complainant is a user of Swiggy Platform and made an order for food from the independent third party seller through the platform of the opposite party. As alleged the order placed by the complainant was not delivered to the complainant by the PDP at the address provided by the complainant. The PDP tried number of times to reach out to the complainant in order to locate but complainant was not responding to the calls and after multiple attempts to connect with the complainant, PDP had no other option but to cancel the order. The order was cancelled by the PDP due to the reason that the complainant was not picking up the calls. The opposite party has no role to play in the entire transaction of sale and purchase of food between the complainant and the opposite party except facilitating the placing of the order.
The opposite party has further pleaded that the reason for the non-delivery of the product was that the said PDP was not able to locate the address of the complainant and when he called the customer/complainant for delivery of ordered product, complainant didn't respond to PDP calls. Therefore, opposite party cannot be held liable for non-delivery of any food product to the complainant and that too in the circumstances when the food is prepared by a third party and delivered by another independent delivery partner and cancelled due to negligence of not picking up of the calls on the part of complainant.
The opposite party has also pleaded that it does not directly or indirectly accept any order or sell any food products on Swiggy Platform. Rather, all the food products on Swiggy Platform are sold by third party restaurants/merchants, who avail online market place services provided by the opposite party, on terms decided by the respective restaurants/merchants only. Any kind of assurance, whether in terms of specification or quality of food or beverages, price, discounts, delivery, promotional offers or otherwise, are offered and provided by the restaurant/merchants offering the particular food or beverages on Swiggy Platform, The opposite party, being mere an intermediary, neither offers nor provides any assurance to the customers about the quality of the food or beverages or the delivery terms. It is the merchant who is responsible for accepting offers made by the visitors and to deliver the product to the buyers as per agreed delivery terms.
Further preliminary objections are that the complainant does not have any cause of action against the opposite party. That the complainant has wrongly arrayed opposite party in the present complaint and hence the complaint is bad for mis-joinder of party. That the complaint is totally false, frivolous and vexatious and has been filed with malafide intention to cause harassment to the opposite party. The averments made in the complaint are baseless and are made only with the intentions to defame the opposite party and to extort money in illegal manner. That the Terms of Use available on the Swiggy Platform also provides that opposite party shall not be held liable for any direct, indirect, consequential or otherwise damages or loss resulting from any services provide by third party or vendors.
The opposite party has further pleaded that complainant had placed order for delivery of the product from one of the restaurants listed/registered on the Swiggy Platforms, which is admitted by complainant. The opposite party is not involved in the entire transaction between the seller and the complainant. The opposite party had only provided a platform to facilitate the transaction between the buyer (the Complainant) and the seller. The grievance of the complainant should have been only against the restaurant or PDP for alleged non-delivery of the product. The opposite party, being mere an intermediary and not the seller of the product sold to the complainant herein, in no way, assumes liability for any deficiency arising out of any alleged non-delivery of product. The opposite party is neither owner nor controller nor partner with restaurant or PDP in the present complaint.
On merits, the opposite party has reiterated that the role of the opposite party was limited to provide Platform Services to restaurant and enable delivery of food item prepared by the restaurant from his location by third party. The PDP had reached to the spot for delivering the order within the prescribed time however due to non-picking up of the call by the complainant, the PDP was not able to deliver the order. The Pick-up & Delivery Partner (PDP) is an independent service provider who have contracted with Swiggy on principal to principal basis and has to log-into the App/Swiggy platform to make himself available/detectable. Once an order is placed by a customer on the Platform, opposite party will intimate the restaurant and the PDP, nearest to the Restaurant by automated system. Basis on the intimation, PDP will reach out to the restaurant and pick-up the order from the restaurant and deliver it to the customer.
The opposite party has also pleaded that the mobile number showing in a screenshot of call logs attached by complainant neither belongs to the Swiggy nor to the PDP. The opposite party refunded the amount of Rs.74/- immediately to the source account of complainant after deduction of Rs.74/- for the food which got wasted since complainant was not responding to the PDP calls. After controverting all other averments of the complainant, the opposite party prayed for dismissal of complaint.
In suport of his complaint, the complainant has tendered into evidence his affidavit (Ex. C-1) and the documents (Ex. C-2 to Ex. C-8).
In order to rebut the evidence of complainant, the opposite party has tendered into evidence affidavit of Mr. Satyavrat Sharma (Ex. OP-1/1) and photocopy of authority letter (Ex. OP-1/2).
The learned counsel for the parties reiterated their stand as taken in their respective pleadings.
We have heard learned counsel for the parties and gone through the record.
In nut-shell the case of the complainant is that on 7-12-2019 at 9.23 p.m. he ordered eatables/food i.e. one Veg Roll and one Afghani Chaap roll on online platform provided by opposite party for total consideration of Rs. 248/- out of which Rs. 148/- were paid by complainant to the opposite party through net-banking and Rs.100/- were given as discount by the opposite party. The food was not delivered to the complainant and at 10.09 p.m. the opposite party cancelled the order and refunded only Rs. 74/- to the complainant.
The submission of learned counsel for the opposite party is that the opposite party cannot be held liable for non-delivery of any food product to the complainant and that too in the circumstances when the food is prepared by a third party and delivered by another independent delivery partner and cancelled due to negligence of not picking up of the calls on the part of complainant.
The opposite party has pleaded in its written version that it has provided only online platform but the food is provided by the restaurant and delivery is being made by Pick-up and Delivery Partner (PDP). This contention of the opposite party is not tenable 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.
The reason for non-delivery of product was given by the opposite party in its written reply is that said PDP was not able to locate the address of the comlainant and when he called the customer/complainant for delivery of ordered product, complainant didn't respond to calls of PDP. To prove that delivery boy/PDP made many calls to complainant and complainant did not respond, the opposite party has not placed on file even a single document. No details of calls made by PDP/delivery boy to complainant is placed on file. Neither opposite party has mentioned in written reply the name of PDP/delivery body who went to deliver the food to complainant nor produced on file any affidavit/statement of that person. In such circumstances, when no evidence is produced on file, the version of the opposite party cannot be believed that PDP/delivery boy made many calls and complainant did not respond due to which opposite party could not manage to get the ordered food delivered to complainant. Thus, there is deficiency in service on the part of the opposite party in not delivering the food/eatables to complainant despite charging for the same thereafter not refunding the whole amount to him.
In the result, this complaint is partly allowed against the opposite party with Rs.11,000/- as cost and compensation ( Lump-sum on all counts including refund of deduted amount).
The compliance of this order be made by the opposite party within 45 days from the date of receipt of copy of this order failing which awarded amount shall carry interest @8% p.a. from the date of this order till realization.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
