Before the District Consumer Disputes Redressal Commission, Rohtak.
Consumer Complaint No. 561
Instituted on : 22/09/2021
Decided on : 02.09.2024
Varun Kaushik, age 21 years son of Sh. Bharat Bhushan Sharma Resident of H.No. 1816, New Housing Board Colony, Sector-1, Rohtak.
………..….Complainant
Vs.
- Zomato Head Office, Zomato Media Pvt. Ltd., 139-P, Sector-44, Gurugram, Haryana-122002 through its Managing Director.
- Zomato Office, Block-A, Industrial Area, Sector-62, Noida, U.P-201309 through its Manager
- Do Bhai Bhojanalya, Delhi Road, Opp. Axis Bank, Near Ashoka Chowk, Rohtak through its Proprietor.
………..….Opposite parties.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT, 2019.
BEFORE: SH. NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJDENER SINGH, MEMBER.
Present: Sh. Surender Laura, Adv. for Complainant.
Sh. Gaurav Arya, Adv. for OP no.1 and 2.
Sh. M.K. Munjal, Adv. for Op no.3.
ORDER
SH. NAGENDER SINGH KADIAN, PRESIDENT:
1. The present complaint has been filed by complainant against the opposite parties under section 35 of The Consumer Protection Act, 2019. Brief facts of the present complaint are given as under:-
2. The complainant ordered “2 Dal Makhan Fry, 11 Butter Tandoori Roti” to the opposite parties vide order ID 3678849150 dated 19.09.2021 through application of Zomatofor supplying at H.No. 256/22, Vikas Nagar, Rohtak. He received the parcel after some time and when the complainant opened the parcel, the food was found spread spillage.He informed on the application of the opposite parties regarding the fact but they did not give any response. When the complainant started to eat the said food with his family members, they suddenly saw that there were insects on the rotis. He again informed on the application of opposite party regarding this fact but this time also, no response was received. The complainant and his family members are pure vegetarian, so, they got sick after eating this unhygienic food and they had to go to the emergency department of the Civil Hospital, Rohtakfor treatment. As such, there is negligence and clear cut deficiency on the part of the opposite parties who are supplying the food with insects to their pure vegetarian customers and due to this illegal act of opposite parties the complainant has suffered mental agony, harassment and financial loss.Hence this complaint and it is prayed that the opposite parties may kindly be directed to pay a sum of Rs.1,50,000/- as compensation on account of deficiency in service, unfair trade practice, for mental pain, agony, harassment and financial loss suffered by the complainant with litigationexpenses of Rs. 25,000/-besides any other relief, which this Commission may found deem fit and proper.
3. After registration of complaint notices were issued to the opposite parties. Opposite partyNo. 1&2 filed their written statement submitting therein that Zomato is a well reputed consumer centric company and has a very largecustomer base amongst others, manages and operates the website www.zomato.com and mobile application namely, “Zomato”. It operates as an online restaurant search and discovery platform and merely acts as an intermediary/e-commerce marketplace, wherein thousands of independent third-party restaurants can list their food items. The opposite party is not responsible for the acts/conducts/omissions on the part of the concerned restaurants including the preparation of the food or its packaging.Upon the acceptance of ‘Terms of Service’, a legally binding contract was created between the complainant and the opposite party and therefore both the parties became bound by the conditions mentioned therein.It is further contended that admittedly, the subject matter of the present dispute is restricted to alleged substandard food and packaging,which was prepared and packed by the opposite party no.3, in a dismal condition due to which the prepared food was spoiled and there was no salt in food as alleged by the complainant. Being an intermediary, the assigned delivery partner duly reached the restaurant of the opposite party no. 3, picked-up the order as handed over by the opposite party no.3 and the same was duly delivered to the complainant in the same condition as provided by the opposite party no.3. Hence, no liability of the order can be shifted upon the opposite party for substandard food/ order quality supplied by the opposite party no.3 as the opposite party No.1 & 2 have duly provided able assistance to the complainant.The complainant has also admitted the fact that the said order was timely delivered to the complainant on 19.09.2021, for which the complainant had used the answering opposite party’s website/ mobile application. Hence, at no stretch of the imagination, any cause of action arose qua the answering opposite party. The complainant has been miserably failed to prove his false averments of spillage issues and substandard quality food provided by the opposite party no.3 and has presented twisted facts in a shrewd manner to mislead this Hon’ble Commission stating that the food was spilled and later he has alleged that after eating he got to know that there are insects on the Tandori Roti. The complainant has also miserably failed to produce any evidentiary proof of the same.There is no negligence or deficiency in service on the part of opposite party no. 1 & 2 and dismissal of complaint qua opposite party No.1 & 2 has been sought.
4. The opposite party no. 3 while filing its separate written statement admitted the fact that the complainant ordered “2 Dal Makhan fry, 11 Butter Tandoori Roti” to opposite party no.3 vide order ID 3678849150 dated 19.09.2021 through application of Zomato but denied other averments of the complaint of the complainant stating that when the complainant opened the parcel, the food was found spread spillage, that the complainant ever informed through application of the opposite parties regarding any type of complaint in food etc. It was also denied that the family members of complainant got sick by eating insects foodsupplied by the opposite party and they have to go to Civil Hospital Rohtak in emergency department. Hence, there is no deficiency in service on the part of the opposite party No.3 and dismissal of complaintqua opposite party No. 3has been prayed.
4. Learned counsel for the complainant in his evidence has tendered affidavits Ex.CW1/A to Ex. CW1/C and documents Ex.C/1 to Ex.C/54 and closed his evidence on 05.04.2023. Ld. Counsel for opposite party Nos. 1 & 2 tendered affidavit Ex.RW1/A, documents Ex.R1/1 to Ex.R1/5 and closed the evidence on 05.06.2023. Learned counsel for the opposite party no.3 also closed his evidence by tendering affidavit Ex.RW3/A and documents Ex. R3/1 to Ex. R3/3 on dated 05.06.2023.
5. We have heard the arguments of learned counsel for the parties, perused the written arguments filed on behalf of opposite party No.1 & 2, documents placed on record and have gone through the material aspects of the case very carefully.
6. As per document Ex.C/51, order has been placed on dated 19.09.2021 at 8:00 PM by the complainant for ‘Dal Makhan fry-2, Butter Tandoori Roti 11”. As per the complainant there were insect on the rotis and after consuming the food, the complainant and his family members fell ill and approached to Civil Hospital Rohtak for treatment. To prove this fact complainant has placed on record document Ex.C1 to Ex.C3 i.e. OPD Card of complainant and two other family members namely Renu and Jogender, copy of complaint Ex.C/52 and photographs of food Ex.C/53 and Ex.C/54. Complainant has also placed on record screenshots of orders placed by the complainant through opposite party No.1 & 2. Ld. Counsel for the complainant has also placed reliance upon the judgment of Hon’ble District Commission, Bangalore, decided on 31.12.2022 titled as Mr.Abhishek Vs. M/s Zomato Foods Pvt. Ltd. Perusal of documents placed on record by the complainant shows that he order 130 times from the website of opposite party No.1 & 2 from August 2021 to February 2022 and gave 70 times 5 star rating, 17 times 4 star rating, 9 times 3 star rating and 7 times one star rating to the services and food provided by the respondent no. 1 &2. The alleged screenshot shows that a number of times 4and 5 star ratings were given by the complainant to respondent no.3. But this time the unhealthy food was provided by the opposite party No.3. Complainant made a complaint to the opposite parties which is proved from the chat history Ex.C/52, as per which opposite party No.1 & 2 had replied that they came to know about the bad experience faced by the complainant with the alleged order. We have also perused the photographs Ex.C/53 and Ex.C/54, which shows that there is some insect on the roti. Hence from the documents placed on file it is itself proved that unhealthy food was provided by the opposite parties to the complainant. But opposite party No.1 &2 have not placed on record any document to prove that on the complaint of complainant, whether any action was taken by them against the ‘Do Bhai Bhojanalya’ i.e. opposite party No.3. Zomato is a brand name company, henceit is the prime duty of the Zomato toensure that good quality of food should be delivered to its customers. It has also the liability to take action against the restaurants listed on their website, in case of serving unhealthy food by them. Hence there is deficiency in service on the part of opposite parties and they are liable to compensate the complainant. The law cited aboveMr.Abhishek(Supra) is fully applicable on the facts and circumstances of the case.
7. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.3 to refund the amount of Rs.333/-(Rupees three hundred and thirty three only) paid by the complainant on account of food items, to pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service to the complainant and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Opposite party no.1 & 2are also directed to pay a sum of Rs.5000/-(Rupees ten thousand only) as compensation on account of mental agony & harassment to the complainant. Order shall be complied within one month from the date of decision, failing which opposite party No.1 & 2(jointly & severally) as well as opposite party No.3 shall be liable to pay Rs.50/- per day respectivelyto the complainant from dated 03.10.2024 till its realization to the complainant.
Announced in open court:
02.09.2024.
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Nagender Singh Kadian, President
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TriptiPannu, Member.
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Vijender Singh, Member
