Chandigarh

StateCommission

A/113/2022

SWIGGY BUNDL TECHNOLOGIES PVT LTD - Complainant(s)

Versus

VIKAS GARG - Opp.Party(s)

ATUL SHARMA

18 Aug 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	113 of 2022
Date of Institution	:	10.08.2022
Date of Decision	:	18.08.2022

Swiggy through Authorised Signatory, having its Corporate Office at 9^th Floor, IBC Towers, Tower-D, 4/1 Banner Ghatta, Main Road, Bhawani Nagar, S.G.Palya, Bangaluru, Karnataka 560029

……Appellant/opposite party no.1

V e r s u s

Vikas Garg s/o Sh.Rishi Pal Garg, R/o H.No.168/3, Pipli Wala Town Manimajra, Chandigarh

…..Respondent/complainant

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present:-              Sh.Atul Sharma, Advocate for the appellant.

                                      

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   This appeal has been filed by the appellant/opposite party no.1, as it is aggrieved of the order dated 08.03.2022 passed by the District Commission-II, U.T., Chandigarh (in short the District Commission), whereby the consumer complaint bearing no.1026 of 2019 filed by the complainant/respondent was allowed in the following manner:-

“…..Keeping in view the facts & circumstance of the case, as discussed in the preceding paragraphs, the deficiency in service on the part of OPs is proved.  Therefore, the present the complaint is allowed and the Opposite Parties are jointly & severally directed to refund an amount of Rs.90/- to the complainant being the cost of the item so paid. They are also directed to pay a lumpsum amount of Rs.2500/- to the complainant towards compensation and litigation expenses, on account of rendering deficient services and thrusting litigation upon the complainant.

This order shall be complied with by the Opposite Parties within a period of 30 days from the date of receipt of its certified copy, failing which it shall be liable to pay additional compensation cost of Rs.2000/- apart from above relief...”

2.           Alongwith this appeal, application bearing no.611 of 2022 for condoning the delay of 73 days in refiling the same (appeal) has also been filed by the appellant. After hearing arguments of Counsel for the applicant/appellant on this application and also the reasons mentioned therein, the delay of 73 days in refiling this appeal is condoned. Resultantly, this application stands allowed and disposed of accordingly.

Appeal No.113 of 2022:-

3.           Before going into the merits of this case, it is significant to mention here that the sole purpose to enact the Consumer Protection Act is to provide protection to the interests of the consumers. In the case in hand, on 16.08.2019, the complainant-Vikas Garg placed an order through OP Company Application (App.) for Aloo Parantha X1/Kadai Paneer + One Butter Naan and paid an amount of Rs.90/- being discounted price/rate vide receipt Annexure C-1.  The said food articles were not delivered to him. However, contrary to it, the App of the opposite parties showed the status order as “delivered”. Infact, the said order was delivered on some other location. The complainant waited for the breakfast but it was not delivered to him, rather, the opposite parties expressed ‘sorry’ in the matter. On the next day, the complainant received message from the opposite parties that  “As this order is passed in our records, so compensation in any form cannot be arranged, I hope you understand our limitation”.  Therefore, the complainant filed consumer complaint before the District Commission.
4.           The complaint was contested by the opposite parties, by way of filing joint written reply, which was noted down by the District Commission in the order impugned as under:-

“……. The OPs No.1 & 2 have filed reply and while admitting the factual matrix of the case, stated that answering OP is engaged in providing online platform for ordering and delivering food and beverages from neighborhood restaurants of the customers.  It is stated that the answering OPs, operating through electronic platform, acts as an intermediary to facilitate transaction between independent third party restaurants/vendors selling, prepared food and beverages and the customers.  It is also stated that answering OPs are not seller of the food or beverages nor delivers the food on its own and therefore, they cannot be held liable for any deficiency in services arisen on the part of independent third party restaurant/vendor or delivery service providers.  It is submitted that the order placed by the complainant from said independent restaurant/vendor was not delivered to the complainant and the complainant himself admitted this fact that he gave instructions to PDP (Pick-up and delivery service providers) to deliver the food at the Karyana Store and on complainant instructions, the said PDP delivered the food at the place mentioned by complainant over call.  It is also submitted that if the complainant has any grievance, that could only be against the restaurant partner or against the independent delivery service provider/delivery vendor and not against the answering OP.  It is also submitted that the contractual agreement is on principal to principal basis and incase of any breach of any conditions of agreement, or any default by PDP is brought to the notice of the answering OPs, an enquiry is initiated, and a suitable action is taken against the said PDP including termination of the agreement.  It is pleaded that the said delivery service provider/deliver vendor is neither the employee nor agent of the answering OP but an independent service provider, who had contracted with answering OP on principal to principal basis for providing his services to answering OP.  It is also pleaded that answering OP cannot be held liable for alleged non-delivery of any food product to the complainant by an independent third party service provider and if the complainant has any grievance, it should be either against the restaurant/vendor or against the delivery service provider and answering OP has no role to play in this entire transaction. Pleading no deficiency in service and denying rest of the allegations, the OPs have prayed for dismissal of the complaint.….”

5.           The parties led evidence in support of their case before the District Commission.
6.           The District Commission after hearing the contesting parties and going through the material available on record, allowed the complaint against the appellant, in the manner stated above.
7.           Hence this appeal.
8.           Record of the District Commission has been received by this Commission.
9.           We have heard the Counsel for the appellant at the preliminary stage and have also gone through the entire material available on the record.  
10.           The appellant-Swiggy has challenged the impugned order inter alia on the grounds that the respondent himself had instructed the delivery boy to deliver the food articles at Karyana shop; that the food articles were delivered at the said location as per his instructions  and this fact has been admitted by the respondent in the telephonic conversation, as such there was no deficiency in rendering service and adoption of unfair trade practice on the part of the appellant; that the respondent has placed on record the transcript of the telephonic conversation which reveals that he himself gave instructions to the PDP (Party Pick-up and delivery Service Providers) to deliver the food articles at Karyana store, thus, he (respondent) himself was at fault and these facts have not been considered by the District Commission.
11.           To strengthen the case, Counsel for the appellant has placed reliance on telephonic conversation had between the parties and its transcript, Annexure A-5 and also part telephonic conversation Annexure DW-1/C. However, when we read the said telephonic conversations,  conjointly, it is found that the delivery agent has conveyed the respondent that he is not aware of the area. Relevant part of the said conversation is reproduced hereunder:-

“…Vikas	Location which I have mentioned, there is only mine shop, and there is no karyana shop nearby my location
Delivery agent	Sir I do not know I am not aware about the area
Vikas	Who is in the middle and who is on the conference call, there is no use of talking to you if you do not know anything. Now what I may say about this area? During chat I have suggested to make a conference call, now the person in middle position is not listening anything. What I should say and to whom, my amount has been deducted already neither I have got the order yet. It had happened because of your negligence, you were not on the exact location and there was no karyana shop…”

12.           Apart from it, there are telephonic messages-Annexure A-1 colly. (at page 36 of the paper book) which transpire that at 11.26 a.m. following messages were exchanged between the parties:-

                             “….CHAT WITH SWIGGY:-

Looking for an available customer support executive to assist you. This could take a few minutes.

 

Where is my order

 

I haven’t received my order yet

 

You are now chatting with CB-abdul

Hi Vikas I am really sorry to know that the order was marked delivered incorrectly

 

I assure you that I will do my best to assist you with your concern…”

13.           Again at page 37 at 12.28 pm and 12.30 pm, the appellant delivered the following message to the respondent:-

“……….(12.28 PM) We regret to know that you are witnessing frequent misses. We have shared all your previous feedback with the relevant team with the hope of raising our bars. We hope our efforts will keep you ordering with Swiggy.

(12.30 PM)- Sorry to say that this is the best I can do from our end….”

14.           From the facts narrated above, it can easily be said that it was the appellant who was at fault in not delivering the food articles to the complainant, as there is nothing in the messages exchanged between the appellant and the respondent that any wrong location of karyana shop was sent by the respondent to the delivery boy. In none of the conversation carried out, not even a single murmur has been made by the appellant that it has been conveyed to it, that the complainant has himself provided wrong location to the delivery boy.
15.           We are also not oblivious of the fact that in these days, the exact site location is available through google and sending and receiving the current and live location is very much prevalent and in practice.  Infact the same has become the part of human life. In this case, the location was sent by the complainant to the opposite party but delivery of food articles was made at a wrong location/address. Counsel for the appellant  submitted that it was on the request of the complainant that the food articles were delivered at RAJU Karyana Shop. However, the following telephonic conversation placed on record at page 47 of the paper book transpires that  it was not the correct location/address:- .

“………Vikas = Hello kindly check the location, every day orders are being delivered over there or not. There is Gupta General store on location, that is my shop. There is no other shop neither by the name of RAju karyana shop. Where you have delivered I do not know. perhaps you have gone to location but delivered it to someone else.

Delivery agent= Sir have you entered the location.

Vikas = Yes there is my shop on location, every orders are being delivered on the same location, customer care employees can check it every day orders are being delivered over the same location and my shop is situated over there.

Delivery agent= Sir I have an order to be delivered, I am getting late for the same. Sir kindly talk to customer care I cannot do anything in it. I have followed the same what you said.

Vikas= I cannot do anything there is only one shop. It is mine. Where you have delivered I dnot know .hello hello….”

16.           Thus, from the material available on record, we are satisfied that food articles as per the order made by the complainant, were not delivered to him, at his correct location/address. It is therefore held that the appellant by not providing the food articles at the correct location/address of the complainant, thereby depriving him of the breakfast, was negligent and deficient in providing service. The District Commission was also right in holding so.
17.           In our considered opinion, the order impugned passed by the District Commission, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission and the same stands upheld. Resultantly, this appeal being devoid of merit is dismissed at the preliminary stage with no order as to cost.
18.           Consequently, the application bearing no.612 of 2022 seeking stay of the order impugned also stands dismissed with no order as to cost, having been rendered infructuous.
19.           Certified copies of this order be sent to the parties, free of charge.
20.           The concerned file be consigned to Record Room, after completion.

Pronounced

18.08.2022

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 

(PADMA PANDEY)

          MEMBER

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 Rg.