Punjab

Ludhiana

CC/18/670

Sunita Ghai - Complainant(s)

Versus

Zomato Media Pvt.Ltd - Opp.Party(s)

RK Sooden Adv

22 Feb 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 670 dated 30.10.2018.                                                        Date of decision: 22.02.2022.

Sunita Ghai, aged about 62 years wife of Tilak Raj Ghai, resident of House No.26, Professor Avenue, Pakhowal Road, Phullanwal, Ludhiana-141013.                                                                                              ..…Complainant 

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1. Zomato Media Private Limited through its Director/Partner/Proprietor/ Incharge /Concerned Person having its Head office at 139-P, Sector-44, Gurgaon (Haryana)-122002.
2. Domino’s Pizza India through its Director/Partner/Proprietor/Incharge/ Concerned Person, AF 1-3, AF-46, 47, Aditya City Central Mall, Plot No.C/GH-3, Vaibhav Khand, Indira Puram, Ghaziabad-201014 (U.P.).
3. Domino’s Pizza India through its Director/Partner/Proprietor/Incharge/ Concerned Person having its Branch Office at S.C.F. 21, Main Market, Sarabha Nagar, Ludhiana.                                                                                                                                            …..Opposite parties 

Complaint under Section 12 & 14 of Consumer Protection Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Amandeep Singh, Advocate.

For OP1                         :         Exparte.

For OP2 and OP3          :         Ms. Shalini Joshi, Advocate.

ORDER

PER K.K. KAREER, PRESIDENT

1.                Shorn of unnecessary details, the case of the complainant is that the complainant was the gold member of OP2 and paid a sum of Rs.800/- to OP1 for gold membership. On 21.09.2018, the complainant placed an order of two Pizza i.e. one veg. loaded, one veg. paradise along with garlic bread and cheesy dip with OP3. The order was placed online by the complainant using her mobile No.99144-55223. The order was placed at 09.22 PM and the advance payment was made. The complainant waited for a long time. When no response was received either from OP1 nor from OP2, the complainant made a call to the delivery boy regarding the status of her delivery. The delivery boy of OP1 informed the complainant that he was on the way and would reach within 5-7 minutes. Again on 10.30 PM when the order was not delivered, the complainant sent a message to OP1 and she was told that the order would be delivered soon. Ultimately at about 11.00 PM, the delivery boy of OP1 gave a call to the complainant that he was not able to deliver the food as the food is not delivered in the area for which it was ordered. The complainant tried to convince that previously she has been getting orders delivered at the same address, but to no avail. The complainant was astonished by the behavior of OP1 and OP3 who instead of solving the problem of the complainant refused to deliver the order and caused huge embarrassment to the complainant as she had to serve the food to the guests in the house and after 11.00 PM, the food could not be arranged from anywhere else. This amounts to deficiency of service on the part of the OPs. Hence the complaint whereby it has been requested that the OPs be made to pay a sum of Rs.1,00,00/- as compensation and Rs.22,000/- as litigation expenses.

2.                Upon notice, OP1 did not appear despite service and was proceeded against exparte.

3.                The complaint has been resisted by the OP2 and OP3. In the joint written statement on behalf of the OP2 and OP3, it has been, inter alia, pleaded that the complainant has no cause of action against the OPs and the complaint is liable to be dismissed as against them. Moreover, the complainant has suppressed the material facts while filing the complaint. According to OP2 and OP3, the complainant placed an order on 21.09.2018 at 09.22 PM through the app of Zomato. The delivery of any order placed by the customer is always subject to certain terms and conditions which are expressly mentioned on the website of the OPs. The complainant mentioned the place of delivery as B-7, Professor Colony, Ludhiana. The order was assigned to OP3 being the nearest restaurant for the said delivery address. In pursuance of the order, the articles were prepared and the delivery personnel reached the delivery place well within time. Upon reaching the address, the delivery personnel called the complainant to confirm the exact delivery location. However, the complainant asked the delivery person to deliver the order at her Professor Avenue address. Although Professor Colony is defined delivery area of OP3, but Professor Avenue, Ludhiana was not the defined area of OP3. In the given circumstances, the delivery personnel expressed his inability to deliver the order at Professor Avenue as it was outside the trade area. The complainant refused to come or send somebody to collect the order and instead preferred to cancel the same. Even though the order could not be delivered on account of wrong address, yet the OPs accepted the cancellation and refunded the money to the complainant. Therefore, the complainant herself was at fault and despite the complainant having been herself at fault, the OPs have refunded the amount of the order. Thus, there is no deficiency of service on the part of the OPs. The other allegations made in the complaint have been denied as wrong and a prayer for dismissal of the complaint has also been made.

4.                In evidence, the complainant submitted her affidavit as Ex. CA along with documents Ex. C1 to Ex. C3 and closed the evidence.

5.                On the other hand, learned counsel for the OP2 and OP3 tendered affidavit Ex. RA of Sh. Sandeep, authorized person of OPs along with document Ex. R1 and Ex. R2 and closed the evidence.

6.                We have heard the learned counsel for the parties and have also gone through records.

7.                During the course of arguments, the counsel for the complainant has contended that it is a clear cut case of deficiency of service on the part of the OPs. The order in question was placed on 21.09.2018 at 09.22 PM. The advance payment of Rs.352/- was paid, but the order was not delivered till 11.30 PM and after more than 2 hours of the order, the OPs expressed their inability to deliver the order at the given address. In this regard, the counsel for the complainant has further pointed out that previously the order dated 16.09.2018 was delivered at the same address. Copy of the said order is Ex. C2. Therefore, non-delivery of the order on the same address on 21.09.2018 clearly makes a strong case of deficiency of service on the part of the OPs for which they must be penalized as prayed for in the complaint.

8.                On the other hand, the counsel for OP2 and OP3 has pointed out that the complainant placed order for location B-7, Professor Colony but later on asked the delivery boy to deliver at different location i.e. Professor Avenue which was not possible for OP3 to deliver.  Hence no case of deficiency of service is made out against OP2 and OP3 and the complaint is liable dismissed with costs.

9.                We have thoughtfully considered the contentions raised by the counsel for the parties and have gone through the record carefully.

10.              It has been further categorically mentioned in para no.5 of the written statement that the order was placed for delivery at B-7, Professor Colony, Ludhiana, but when the delivery personnel reached the given address and called the complainant, she asked the delivery person to deliver the order at Professor Avenue address which was different address than the one given in the order Ex. R2. It has further been clearly stated in the written statement that Professor Colony is defined area of OP3 whereas Professor Avenue is not a defined area of OP3 and, therefore, the order could not be delivered at the said address. All these facts categorically stated in paras no.5 and 6 of the written statement have not been controverted as the complainant did not file any replication or rejoinder to the written statement. Even in the affidavit Ex. CA submitted by the complainant the afore-mentioned facts in the written statement have not been controverted. Even in the affidavit Ex. CA, the complainant has given her address as house No.26, Professor Avenue, Pakhowal Road, Phullanwal, Ludhiana-141013 whereas the delivery address given in the order Ex. R2 is House No.7-B, Professor Colony, Ludhiana having PIN code of 141001 whereas the PIN code of the address given in the complaint is 141013, which is obviously a different location. In the given circumstances, when the order was placed for delivery for a different address and later on when the complainant herself asked the delivery boy to deliver at some other place than the one give in the order itself, cannot be said to be a case of deficiency of service on the part of OP2 and OP3 if the order was delivered at the changed address as that was not the defined area of OP3  Therefore, no case is made out for deficiency of service on the part of OP2 and OP3.

11.              As regards OP1, the complainant has herself placed on record the copies of text messages exchanged by the complainant and in one of the messages it is clearly mentioned that the Domino’s delivery are not managed by Zomato and the complainant was requested to get in touch with Domino’s at their helpline number. This shows that the Domino’s deliveries must not be managed by Zomato and the Dominos might be having their own delivery mechanism. It is a matter of common knowledge that there must be many Domino’s outlets in Ludhiana and OP3 being only one of them. It appears that online orders are regulated by OP2 and OP2 must be allocating orders to its different outlets as per the delivery address specified in each order which must be nearer to the outlet concern. Therefore one particular outlet is supposed to deliver in its defined zone only. Since the complainant herself gave a different address and asked the delivery boy to deliver at different address which was not within the same zone, no case of deficiency of service can be said to have been made out if the order was not delivered. 

 12.             As a result of above discussion, the complaint fails and same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:22.02.2022.

Gobind Ram.

Sunita Ghai Vs Zomato Media Pvt. Ltd.                                   CC/18/670

Present:       Sh. Amandeep Singh, Advocate for complainant.

                   OP1 exparte.  

                   Ms. Shalini Joshi, Advocate for OP2 and OP3.

 

                   Learned counsel for the OP2 and OP3 closed evidence after tendering affidavit Ex. RA along with documents Ex. R1 and Ex. R2.

                   Arguments heard. Vide separate detailed order of today, the complaint fails and same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:22.02.2022.

Gobind Ram.