Delhi

North

CC/95/2021

SIDHARTH NARAYAN - Complainant(s)

Versus

ZOMATO LIMITED - Opp.Party(s)

SHREYA NARAYAN & AMITABH NARAYAN

01 Feb 2023

ORDER

                                                           District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.: 95/2021

                                               

1. Mr.Sidharth Narayan

S/o Mr.Amitabh Narayan, Advocate

44, Darya Ganj, Ground floor

New Delhi-110002                                                                   …Complainant                                           

 

                                                         VS

 

1. Zomato Limited

Ground floor, 12A

94, Meghdoot Nehru Place

New Delhi-110019                                                         ….…Opposite party

( Deleted vide order dated 16/03/2022)

2. Bercos Melody House

(A partnership firm consisting of Mr. Kabir Advani

Sameer Advani and Mr.Amit Advani)        

E-42/43, Rajiv Chowk

Block E, Connaught Place

New Delhi-110001                                                         ….…Opposite party

3. Mr. Kabir Advani

E-42/43, Rajiv Chowk

Block E, Connaught Place

New Delhi-110001                                                          ….…Opposite party

4. Mr. Sameer Advani

E-42/43, Rajiv Chowk

Block E, Connaught Place

New Delhi-110001                                                         ….…Opposite party

 

5. Mr.Amit Advani

E-42/43, Rajiv Chowk

Block E, Connaught Place

New Delhi-110001                                                         ….…Opposite party

                                      

ORDER

01/02/2023

Harpreet Kaur Charya, Member:-

Jurisdiction of this Commission has been invoked by Sh. Siddharth Narayan, the Complainant against Zomato Ltd., as OP-1; Bercos Melody House as OP-2 ; Mr. Kabir Advani, Mr. Sameer Advani and Mr. Amit Advani, (the Partners of  OP-2) as OP-3 to OP-5, with the allegations of deficiency in services.

Briefly stated, the facts of the present complaint are that the complainant purchased membership of ‘Zomato Pro’ for a period 20.08.2020 to 19.08.2021 from Zomato Limited (OP-1), an Indian Multinational Restaurant aggregator and food delivery company.

On 25.04.2021, on the occasion of his mother’s birthday, the complainant  at 21:03 hrs ordered food through OP-1 from the Restaurant, OP-2 for food items comprising of “vegetarian chilli garlic crispy vegetables and vegetarian chilli garlic noodles” for which bill No. E000877 for Rs. 579/- was issued.

The Complainant has stated that only ‘vegetarian food’ was ordered but due to the negligence of OPs the wrong order consisting of ‘non-vegetarian’ snacks and Hakka Noodles were delivered. It has been further stated that the household of the Complainant is a completely vegetarian household and never in his life did non-vegetarian food enter his home. OP-1 was promptly informed with respect to the delivery of wrong food items.

As the food was ordered on the occasion of his mother’s birthday and due to the act of OPs his religious beliefs and family tradition have got hurt. The Complainant has also stated that as OP-2 to OP-5 have charged Rs. 30/- for packing, therefore they were under duty of care to make sure that the food items delivered were in accordance with the order placed.

Legal notice dated 02.05.2021 was served to OPs via e-mail ,calling them to pay damages on account of deficiency in services; delivery of non-vegetarian food, hurting the religious beliefs, teachings, family traditions and mental pain and agony which was duly replied by OP-1 vide email dated 23.05.2021.

However, no reply was received from OP-2 to OP-5, hence, the present complaint with the prayer for directions to OPs to remove the deficiency in services by paying punitive damages for Rs.1,00,000/- (Rupees One Lakh Only) for deficiency in service; delivery of non-vegetarian food to the Complainant’s household; hurting the Complainant’s religious beliefs, teachings, family traditions; mental pain and agony and Rs. 50,000/- as cost of litigation.

The Complainant has annexed the copy of the bill no. E000877 dated 25.04.2021, true copy of “Zomato Chat” dated 25.04.2021 regarding the complaint for delivery of wrong order which included non-vegetarian items; Legal notice dated 02.05.2021 along with communication through emails between the Complainant and OP-1,  true copy of the Screen shot of the messages received from Zomato regarding partial refund of the order.

Since, none appeared on behalf of OP-2 to OP-5 despite service, neither any reply was filed on their behalf hence, they were proceeded Ex-parte vide order dated 12.10.2021.

During the pendency of the complaint, the Complainant moved an application for considering Zomato, OP-1, as Pro forma party. The said application was allowed vide order dated 16.03.2022.

16.03.2022

Present: Sh. Amitabh Narayan, Ld. Counsel for the Complainant.

     Sh. Ajay Mishra, Advocater for OP-1.

      None for OPs-2 to 5 (Ex-Parte vide order dated      12.10.2021)

 

     Ld. Counsel for the Complainant states that he has moved an application dated 04.12.2021 to take OP-1 as a Pro forma party as the Complainant does not have any grievance against OP-1 and the Complainant is not willing to press the complaint qua OP-1.

Ld. Counsel for OP-1 states that he does not have objection if the said application is allowed. He also states that if the complainant does not have any grievance against OP-1 then OP-1 may be deleted from the array of parties.

In view of the fact that the Complainant does not have any grievance against OP-1, OP-1 is deleted from the array of parties at the risk of the Complainant. The application filed by the complainant is allowed to this extent.

Complainant is directed to file Amended Memo of Parties.

As other OPs have already Ex-parte. Ex-parte Evidence by way of Affidavit has already been filed by the Complainant.

List this matter for final arguments on 29.04.2022.

 

Evidence by way of Affidavit was filed on behalf of the Complainant where he has repeated the contents of his complaint. He has got exhibited the copy of the bill No. E000877 dated 25.04.2021 as Ex.CW1/1; copy of the ‘Zomato chat’ dated 25.04.2021 regarding the complaint in relation to the delivery of wrong order including non-vegetarian items as Ex.CW1/2.

The Complainant has stated that OP-2 to OP-5 proclaim to take all safety precautions while delivering the food and has got the same exhibited as Ex.CW1/3. Copy of the legal notice served via email and reply thereof are Ex.CW1/4 and Ex.CW1/5 respectively. The Complainant has further deposed that it was only after the receipt of legal notice, a partial refund for Rs. 336.48/- out of the total amount of Rs. 579/- was initiated. The copy of intimation of refund is Ex.CW1/6. The said refund was accepted by the Complainant vide e-mail dated 04.05.2021 without prejudice to and subject to the Legal notice, and same is Ex.CW1/7.The reply of OP-1, dated 23.05.2021 to the Legal notice issued by the Complainant is Ex.CW1/8 and the consumer complaint as Ex.CW1/9.

 We have heard the submissions made by the Ld. Counsel for the Complainant and have gone through the material placed on record.

The Complainant is aggrieved by the act of delivery of ‘non-vegetarian’ food items instead of the ‘vegetarian food’ ordered by him on the occasion of his mother’s birthday. The Complainant has alleged that OP-2 to OP-5 have not only hurt the religious beliefs and family tradition but are also deficient in services. Though, the Complainant has alleged that OP-3 to OP-5 are the partners of OP-2, they have not filed any document in support of their averment.

 As, OP-1 has been deleted from the array of parties, what remains to be decided is whether OP-2 was deficient in services or not.

If we look at the Section 2 (11), of the Consumer Protection Act, 2019, which defines deficiency:

“deficiency means  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-

1. Any act of negligence or omission or commission by   such person which causes loss or injury to the consumer; and
2. Deliberate withholding of relevant information by such person to the consumer;

To decide the controversy we need to look at the bill dated 25.04.2021 (Ex.CW1/1), it shows that the Complainant had ordered ‘chilli garlic crisp vegetables and Veg Chilli garlic noodles’ for which he paid Rs. 579/- (after discount, packaging charges and taxes). At the same time if we go through the Zomato chat (Ex.CW1/2), which is of the same date, where the Complainant has contacted the Zomato customer care regarding the delivery of NON-VEG DISH instead of CHILLI GARLIC CRISP VEGETABLES.

If we go through the reply of OP-1 which is of date 23.05.2021, to the Legal notice issued by the complainant, which reads:

“With respect to Your Client’s order Wherein Your Client has raised a concern that out of the two items ordered by him from the participating restaurant “Bercos” (“Participating Restaurant”), he had received a non-vegetarian item instead of ‘chilli garlic crispy vegetable’ and had received ‘hakka noodles’ in place of ‘chilli garlic noodles’, we would like to inform you that it appears that the Participating Restaurant inadvertently packed wrong item for delivery for Your client. Further, we would like to inform you that at the time we received a complaint through chat support, for the order placed by your Client, our chat associate had provided assistance and had promptly initiated refund of INR 336.48 to Your Client’s source account and had added promo code worth INR 150, as a gesture of goodwill, for the wrong item delivered to Your Client by the Participating Restaurant.”

          Further, the screenshots of the messages on 25.04.2021 received by the Complainant it is clear that a refund of Rs.336.48 had been initiated and another message dated 02.05.2021 states that the refund of the above mentioned amount had been processed. As OP-2 to OP-5 have been proceeded Ex-parte, the allegations levelled against them have remained unrebutted.

          These communications between the Complainant and OP-1, support the case of the Complainant that OP-2 had delivered “Non-Vegetarian food items instead of Vegetarian food” as ordered by the complaint. Once, the OP-2 received an order, it was their duty to take utmost care not only with respect to the quality but also to make sure that only the items ordered by the Complainant are handed over for delivery. The act on part their part in dispatching Non-Vegetarian items instead of Vegetarian food items amounts to imperfection and fault.

Therefore, the fault on the part of OP-2, in delivery of wrong order and subsequently failure in rectifying the fault amounts to deficiency in services. Further, the act/ omission and negligence on part of OP-2 in taking due care in delivering the correct order, which has not only spoiled the celebrations of the occasion of complainant’s mother’s birthday and that too delivery of non- vegetarian items to a person/household which is vegetarian has definitely offended the religious and cultural sensibilities/ sentiments of strict vegetarian and caused mental agony and hurt the religious and family beliefs of the Complainant.

 Therefore, in the facts and circumstances of the present complaint, we direct OP-2 to pay a compensation of Rs.25,000/- on account of mental agony and harassment suffered by the Complainant on account of deficiency in services , inclusive of litigation expenses. 

This order be complied within 30 days from the receipt of this order else Rs.25,000/- shall carry interest @9% p.a. from the date of order till realization.

          Office is directed to supply the copy of this order to the parties as per rules.  Order be also uploaded on the website. 

Thereafter, file be consigned to the record room.

 

 

 

(Harpreet Kaur Charya) Member

(Divya Jyoti Jaipuriar) President