Date of Filing     12.03.2024

                                                                                                             Date of Disposal: 25.07.2024

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

CC.No.114/2024

THIS THURSDAY, THE 25^th DAY OF JULY 2024

Mr.Anand Sekar,

S/o.Sekar,

1/40, Pillayar Kovil Street,

Poonamallee,

Parivakkam,

Thiruvallur District 600 056.                                                                   ......Complainant.

                                                                            //Vs//

The Signatory Authority,

Zomato,

Ground Floor, 12A,

94, Meghdoot,

Nehru place,

New Delhi 110 019.                                                                              .…..Opposite Party.

Counsel for the complainant                                :    M/s.H.Yugashree, Advocate

Counsel for the opposite party                            :    M/s.A.Naveen Kumar, Advocate.

This complaint coming before us on various dates and finally on 15.07.2024 in the presence of M/s.H.Yugashree, counsel for the complainant and M/s.A.Naveen Kumar, counsel for the opposite party and upon perusing the documents and evidences of both sides 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 non delivery of the food items ordered by the complainant along with a prayer to direct the opposite party to refund a sum of Rs.497.75/- cost spent by the complainant and to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with a cost of the proceedings to the complainant.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that he ordered Chappati Kurma, Special Dosa, Dinner Combo1 and Uthappam Combo through online with the Zomato food delivery app from Aksheyy Bhavan located at Thiruverkadu vide order ID: 5121170084 on 21.08.2023 at 9.53PM. But the opposite party delivered only two items around 10.30PM. When the complainant tried to reach the Zomato support team, they did sufficient enquiry but came upon with the reply that they were not able to reach the Restaurant at 10.52PM by one Ms.Vijayalakshmi Zomato support executive and without giving any information she closed the chat and made him to wait for another support agent. Complainant got connected to another support agent Mr.Dinesh and the complainant also tried to reach out the restaurant but again came up with same reply. Complainant was compelled to go and search for a restaurant for food and brought it for his family.  On 22.08.2023 at 9.40Am again tried to reach the support team of Zomato to help him out with the issue but the opposite party’s concern never helped him out and again said the same reply that the opposite party’s were not able to contact the restaurant partner and closed the chat. It had been three days but the opposite party’s concern never turned up and helped him out with the issue. The opposite party failed to deliver the correct service and subsequent denial of  the complainant’s request have resulted in significant financial as well as emotional repercussions since it was extremely crucial for the complainant to receive the correct service in a timely manner. The opposite party had miserably failed in providing right and proper service despite the complainant had paid the full amount to the opposite party authority and thereby causing deficiency in service. Thus aggrieved by the act of the opposite party the present complaint was filed for the relief as mentioned above.

  The crux of the defence put forth by the opposite party:-

3. the opposite party filed version disputing the complaint allegations contending inter alia that the opposite party operates as an online restaurant search and discovery platform, through its website www.zomato.com and mobile application “Zamato Platform” under the brand name of ‘Zomato’ and merely acts as an intermediary/facilitator wherein thousands of independent third-party restaurants can list their food items. The opposite party does not sell “goods” such as foods items, consumables, etc., but only provides a “service” in relation to facilitating the consumer of foods items to place orders with restaurants.  Accordingly any grievances or complaint in relation to the quality of the food supplied rests solely with the concerned restaurant and not with the opposite party in any manner whatsoever.  It was categorically mentioned that the Terms of Service and Terms of Condition of the opposite party very specifically read that the opposite party was not liable for any act of the restaurants. The opposite party does play any role whatsoever in the preparation of the foods items and hence not in a position to control the food quality or quantity and therefore the reliefs sought by the complainant need to be solely restricted to and directed towards the restaurant Partner, and not towards the opposite party. The opposite party had no direct relation to the present complaint and has been implicated by the complainant only to arm-twist the opposite party to extract illegal monies. The opposite party was not required to verify the contents, quality or quantity of the item to be delivered or open the package and verify whatsoever as per the Terms of Service and terms of Conditions of the opposite party which the complainant agreed upon at the time of creating the account on the platform of the opposite party. Under Clause 1(c) it was specifically mentioned that the customer’s request to order food and beverages from a restaurant partner on the platform of the opposite party will constitute an unconditional and irrevocable authority issued in favour of the opposite party to place order for food and beverages or products against the Restaurant partner(s)/Store(s) on Customer’s behalf.  The opposite party had been provided with the unconditional authorization by the complainant to place orders for food and beverages or products against the Restaurant Partner who has not been made a party to the present proceedings and therefore the liability could be extended to that extent only and the opposite party could not be made liable for the quality of the food delivered by Restaurant Partner. In the present set of facts, not delivering the items ordered by the complainant was because of the negligence and deficiency on the part of the concerned Restaurant Partner the liability of which cannot be fastened on the opposite party. The complainant had read and accepted the terms and conditions and was fully aware of the rights and responsibilities of the parties.  The present complaint is liable to be dismissed against the opposite party as the same was nothing but a malafide attempt on the part of complainant to harass the opposite party.  The opposite party was an E-Commerce Marketplace under Rule 3(g) of the Consumer Protection (E-Commerce) Rules 2020 which provides a technology platform on a digital or electronic network, acting as an intermediary between the concerned customer and the concerned Restaurant Partner and is therefore entitled to exemption from liability under Sub-Section (1) of Section 79 of the Information Technology Act, 2000. The opposite part does not modify any information, including the names, pictures, prices, additions or item description thereunto and the same was the sold prerogative of the Restaurant Partner.  Hence the opposite party could not be held liable for the alleged misrepresentation or delivering the deficient quantity of the food ordered in view of Sub-Secrion2 of Section 79 of the IT Act and without prejudice the liability of the same could only be fastened upon the opposite party, if any. There exists no privity of contract between the opposite party and the complainant with respect to the quality and quantity of the food product/items ordered by the complainant and the opposite party is simply responsible for effectuating the facilitation process between the complainant and the concerned restaurant Partner and as such, the complainant does not qualify to be a Consumer of the opposite party as per the definition provided under Section 2(7) of the Act. Complainant had failed to provide even an iota of evidence to prove the negligence on the part of opposite party.  That opposite party being an intermediary and working on the model of principal to principal basis with the Restaurant Partners could not held liable and accountable for the negligence in the services proved by the Restaurant partners. Thus they sought for the dismissal of the complaint.

4. On the side of complainant Proof Affidavit was filed along with documents marked as Ex.A1 to Ex A7. On the side of opposite party proof affidavit was filed along with documents marked as Ex.B1 to Ex.B4.

Points for consideration:-

1. Whether the complaint allegations as to non delivery of the food items ordered by the complainant with the opposite party amounts to deficiency in service on the part of the opposite party and whether the same has been successfully proved by the complainant by admissible evidence?
2. If so, to what reliefs the complainant is entitled?

Point No.1:-

5. Heard both Learned Counsels appearing for the complainant and the opposite party.

            6. The learned counsel appearing for the complainant argued that in the food items ordered through the opposite party, 2 items were missing and when contacted the opposite party did not respond properly and did not provide any solution.  Thus alleging deficiency in service the complainant sought for the complaint to be allowed.

7. On the other hand the learned counsel appearing for the opposite party argued that they could not be held liable for any deficiency in service on the part of the Restaurant as they acted on the basis of principal to principal.  Further it was submitted that they offered to refund and also some other offers which was not accepted by the complainant. Thus by citing the terms and conditions it was argued by them that they could not be held responsible and it was also argued that in not joining the Restaurant as a party to the proceedings the complaint to be dismissed for non joinder of necessary parties.

8. On perusal of the pleadings and entire material evidences produced before this commission we deduce the following reasonings;

1. On perusal of the terms and conditions it has been stated that under clause 1(c) it is specifically mentioned that the customer’s request to order food and beverages from a Restaurant Partner on the platform of the opposite party will constitute an unconditional and irrevocable authority issued in favour of the opposite party to place orders for food and beverages or products against the Restaurant partner(s)/Stores(s) on your behalf. Therefore, it could be interpreted that even as per the terms and conditions the entire authorization was given to the opposite party in respect of placing orders and that they assumes the entire responsibility for the delivery of the products ordered through them;
2. It was contended that the complainant was not a Consumer.  However, on Ex.A2 the receipt issued by the opposite party it is seen that delivery charges Rs.73/- was collected from the complainant undertaking to deliver the order as per the terms and conditions.  Therefore when consideration of Rs.73/- was received by the opposite party from the complainant now they could not contend that the complainant is not a Consumer who availed services from them;
3. Further, it is contended that when the Restaurant was not made a party to the proceedings the complaint was bad for non joinder of necessary parties.  The said defence could not be entertained for the reason that there is no privity of contract between the complainant and the Restaurant. The complainant had ordered food only on the basis on the services rendered by the opposite party. The allegation therefore pertains to the delivery of the food and hence the Restaurant was not a necessary party to determine the real dispute/issue that arose in the present consumer complaint;
4.  The opposite party contended that they contacted the Restaurant.  However, they did not respond properly and hence no liability could be fixed upon them.  However, no proof was submitted by them except the bald statement to show that they contacted the Restaurant with the complaint raised by the complainant to provide effective solution for the grievances raised by the complainant;
5. The complainant has availed the services of the opposite party and had paid the consideration amount of Rs.349.342/-only to the opposite party.  If the opposite party has any further service contract with the Restaurant it is their responsible to get the Job done and to provide proper service to the customers with whom it has made contract or received charges on behalf of the Restaurant.  Further the service contract with the restaurant was not produced by the opposite party;
6. In the Consumer Protection Act, 2019 the concept of Product liability has been defined as the responsibility of the manufacturer or seller to pay compensation to the customers/consumers for damage caused by a defective goods or service.  Therefore the concept of product liability could be imposed upon a Service Provider too when the consumer is injured by the delivery done by the Service provider like the opposite party;
7. The opposite party’s terms and conditions states that they ensure timely delivery of the food. Therefore when there was defective service they should held liable as there was breach of their contractual obligations. Further the offer given by the opposite party to refund of Rs.497.75/- and also Rs.1000/- clearly leads to the presumption that they are also responsible;
8.  The defence as to protection under the Information Act, 2000 was also not available to the opposite party as the complaint was filed before the consumer commission relates to sale of goods and not under Information Technology Act.
9. The opposite party initially requested for time to resolve the issue but thereafter evaded responsibility simply by stating that “we have attempted to validate your claim with our restaurant partner but have not been able to reach out to them”.  No other effective solution was provided to the complainant.

For the above reasoning we hold that the opposite party had committed deficiency in service and held liable for non delivery of the items which were ordered by the complainant.  Thus we answer the point accordingly in favour of the complainant and as against the opposite party. 

Point No.2:-

9. As we have held above that the opposite party had committed deficiency in service we award a compensation of Rs.10,000/- for the mental agony and hardship caused to the complainant along with refund of Rs.497.75/- to the complainant.  We also award Rs.5,000/- towards litigation expenses.

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

a) to refund a sum of Rs.497.75/- to the complainant 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) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 9% per annum will be levied on the said amount 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 25^th day of July2024.

     -Sd-                                                                                                                      -Sd-

 MEMBER-I                                                                                                        PRESIDENT

List of documents filed by the complainants:-

List of documents filed by the opposite party :-

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MEMBER-I                                                                                                           PRESIDENT