Haryana

Panchkula

CC/468/2021

RAJENDER SINGH RANAWAT. - Complainant(s)

Versus

ZOMATO. - Opp.Party(s)

IN PERSON.

06 Nov 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	468 of 2021
Date of Institution	:	15.11.2021
Date of Decision	:	06.11.2024

 

 

Rajender Singh Ranawat, aged about 41 years, son of late S. Bishan Singh, resident of House No.3, Sector -18, Panchkula, Haryana.

                                                                           ….Complainant

Versus

1.     Zomato #13-P, Sector-44, Gurgaon-122003 through its     authorized signatory/proprietor/ Manager.

2.     Delhi Paranthewali Gali, Booth No.2458, Sector 22-C,       Chandigarh through its authorized signatory/proprietor/     Manager.

                                                                                  ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President

                        Dr. Sushma Garg, Member

                        Dr. Suman Singh, Member

                       

 

For the Parties:   None for the complainant.

                        Ms.Kusum Kaushik, Advocate for the OP No.1

                        Sh.Chetan Gupta, Advocate for the OP No.2   

                               

ORDER

(Satpal, President)

1.             The brief facts, as per pleadings and documentary evidence placed on record by the parties,  on record, are, that  an order no.2723763391 was placed by the complainant on 15.10.2021 on the website i.e. www.zomato.com of opposite party no.1 (hereinafter referred to as OP No.1) seeking the delivery of  six eatables  items i.e. 2 Parantha of potato, I parantha of onion, 1 parantha of methi and 1 parantha of mix and one Chana Bhatura (hereinafter referred to as ‘food items’) by making the payment of Rs.291.50 online; an invoice dated 15.10.2021 amounting to Rs.291.50 was issued by the OP No.1; the OP No.1 did not send the eatable items as per the order given by the complainant and further, stale food items were delivered to him in response to the order placed by him. It is averred that the issue qua the improper delivery of the food items was raised with Ops and in response thereto, the OP No.2(hereinafter referred to as OP No.2) asked the complainant to place the fresh order by making extra payment. It is averred that the complainant and his family members, after eating the food items as received from the OPs, had got stomach infection, due to which  they had to take the treatment i.e. medicines. The issue was raised with the OP No.1 as well as OP No.2 but no satisfactory reply was received from them. Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OP-1 appeared through its counsel and filed the written statement, wherein under the heading of preliminary submissions, it is submitted that the OP No.1 is a well reputed consumer-centric company and has a very large customer base and amongst others, manages and operates the website i.e. www.zomato.com and mobile application, namely, “Zomato”, where thousands of independent third-party restaurants have listed their food items for sale and where any independent third-party restaurant, including OP No.2 is free to list their food items for sale and the User i.e. the complainant  is free to choose and order any food item from any such independent third party restaurant selling their food items on the online ordering  platform and there is no  interferences of the OP No.1 in the said process. Therefore, the OP No.1 is merely an intermediary between the concerned Users and the concerned restaurant partners. It is stated that the OP No.1 is not responsible for the acts/omissions on the part of the concerned restaurants including the preparation of the food or its packaging. The ‘Terms of Service’ and ‘ Terms of Conditions’ of the website and mobile application(as expressly available on the website and mobile application) and specifically agreed by the customer’s state that the OP No.1 is only an intermediary/online ordering platform  and cannot be a party to or control  in any manner any sale transaction on the website. The OP No.1 is an online ordering platform entity 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 service provider & the consumer and thus, exempted from liability under sub-Section(1) of Section 79 of the Information Technology Act, 2000. Since the complainant having agreed to the terms and conditions of the user agreement as well as term of services, no liability can be fastened upon the OP No.1 qua any deficiency in service on the part of service provider i.e. OP No.2 restaurant. It is submitted that the OP No.1 had provided proper services qua the delivery of the food items after receiving the same from the OP No.2. It is submitted that the OP No.1 being an intermediary is not liable for any sub-standard preparation and packaging of the order in question. The OP No.1 is only an e-commerce marketplace entity for placing and transmitting the concerned orders and it has no role to play in the preparation and packaging of food items, which is the sole prerogative of the concerned restaurant i.e. OP  No.2 in the present case. It is submitted that the concerned delivery personnel due to hygienic and security issues, are instructed to strictly abstain from opening/ tampering with the concerned order; hence, without prejudice, the substandard preparation and packaging, if any, was done at the behest of the OP No.2 and the liability qua the same cannot be shifted upon the OP No.1. The complainant is not a consumer of OP No.1 as the food items were prepared and packed by OP No.2 and the food has been bought by the complainant from the independent third-party restaurant, listed on the website and the mobile application operated by the OP No.1. Accordingly, the complainant does not fall within the definition of ‘consumer’ vis-a-vis the OP No.1. The complainant has failed to file any proof on record to prove that stale food items were sent to him and the packaging of the same was not proper. No cause of action has accrued in favour of the complainant and against the OP No.1.

                 On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1; as such, the present complaint is liable to be dismissed.

3.             Upon notice, the OP No.2 appeared through counsel and filed the written statement by raising the preliminary objections that the complaint is false and baseless as the complainant has failed to prove any deficiency on the part of OP No.2 and in the absence of the same, the present complaint is liable to be dismissed. The complainant has not approached the Commission with clean hands. There is no privity of contract between the complainant and the Op  No.2 as no consideration amount was paid to it. Further, the mandatory report as required vide Section 38 of the Consumer Protection Act has not been placed on record by the complainant in support of his contentions. In parawise reply, the averments made by the complainant, has been denied and prayer has been made to dismiss the present complaint being frivolous, baseless and meritless.

4.             To prove the case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 & C-2 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP No.1 has tendered affidavit as Annexure R-1/A along with document as Annexure R-1/1 into evidence and closed the evidence. The learned counsel for the OP No.2 has tendered affidavit as Annexure R-2/A and closed the evidence.

5.             We have heard the learned counsels for the OP No.1 as well as OP No.2 and gone through the entire record available on the file, minutely and carefully.

6.             The OP No.1 has contested the complaint on several grounds. The main submissions as made by the OP No.1 in its reply are summarized as under:-

i.      That the OP No.1 manages and operates the website i.e.   www.zomato.com, wherein thousands of independent 3^rd party     restaurant list their food items and the complainant had placed the order on 15.10.2021 on its website seeking the         delivery of some food items from the OP No.2, which were duly     delivered to him after receiving the same from the OP No.2 restaurant; thus the complainant is not consumer of OP No.1.

ii.      That it has merely acted as an intermediary between the complainant and the OP No.2 restaurant and thus, is exempted   from any liability under Section 79 of IT Act.

iii.     That no liability can be fastened upon the OP No.1. as per the    terms of service and terms of conditions, qua any deficiency pertaining to the quality as well packaging of the food items as      alleged on the part of OP No.2.

iv.     That no documentary evidence including the mandatory report of any laboratory/expert as per Section 38(2)© of the        Consumer Protection Act, 2019 has been placed on record by     the complainant in support of his allegations.

7.             The No.2 has contested the complaint almost on the similar grounds. The learned counsel on behalf of the OP No.2, during arguments, reiterated the averments as made in the written statement as also in Annexure R-2/A and contended that the complainant had not brought the alleged issue in the notice of OP No.2 qua the wrong delivery of the food items or the improper packaging thereof. It was argued that if the complainant had brought the matter into the notice of OP No.2 qua any deficiency about the food items as delivered to him, the same would have been resolved immediately by the OP No.2. It was argued that no credible proof has been placed on record by the complainant in support of his contentions that the food items were not delivered to him as per the order and that the packaging of the same was not proper. It was argued that the OP No.2 had only prepared and packaged the food items but the same was delivered to the complainant by the delivery boy of OP No.1.  

                Lastly, the learned counsel argued that neither the order was placed by the complainant with the OP No.2 nor the payment qua the food items was made to it(OP No.2)  and thus there existed no relationship of consumer and service provider between the complainant on one hand and the OP No.2 on the other hand; as such  the present complaint is liable to be dismissed qua it being not maintainable.  

8.             The grievances of the complainant are that the OPs had not delivered the food items to him as per order no.2723763391 placed by him on 15.10.2021 on the website of OP No.1 and that stale food items were sent to him and the packaging of the same was also not proper.

9.             The OP No.1 has denied its liability taking the plea that it has merely acted as an intermediary and there was no relationship of consumer and service provider between it and the complainant.

                The aforesaid plea taken by the OP No.1 have no weight and the same is liable to be rejected because the order was placed on its website and the payment of Rs.291.50 was also made by the complainant to it(OP No.1). Further, the food items were picked up by its delivery boy from OP No.2 who had delivered the same to the complainant; thus, no merit is found in the submissions of OP No.1 that it had merely acted as an intermediary.

10.            Admittedly, the issue qua the improper delivery of the food items was raised by the complainant with OP No.1 by sharing the photos of the delivered items but the OP No.1 did not take up  the matter with the OP No.2(restaurant) and left the issue unresolved; thus, the OP  No.1 was deficient, while rendering services to the complainant.

11.            Coming to the liability of OP No.2, it is an admitted factual position that the food items were prepared and packed by it and the same were handed over by it to the delivery boy of OP No.1 for onward delivery of the same to the complainant but it(OP No.2) had  committed error in not delivering the food items  as ordered by the complainant as is evident from the whatsapp chat(Annexure C-2) between the complainant and the OP No.1,  which leaves no scope of any doubt in any manner as to the fact that the OP No.2 had failed to send the eatable items to the complainant as per the order placed by him.

12.            Even, no plausible justification has been placed on record by the OP No.2, while not sending the eatable items to the complainant as per the order placed by him. It is not the case of OP No.2 that there was any confusion or ambiguity qua the ordered items; thus, the OP No.2 is not entitled to take the plea that the OP No.1 had delivered the items to the complainant and that the order was not directly placed with it; thus, the deficiency on the part of OP No.2 is also attributable.

13.            Pertinently, there has been close tie-up between the Zomato Pvt. Ltd.(OP No.1) and the OP No.2(restaurant) in connection with delivery of food items to the consumers at their residence; thus, both i.e, OP No.1 as well the OP No.2 were deficient while rendering services to the complainant, for which, they are liable, jointly & severally, to compensate the complainant.

14.            In relief, the complainant has claimed the refund a sum of Rs.291.50 i.e. the price paid by him qua the eatable items. Further, he has claimed of Rs.1,00,000/- and Rs.10,000/- on account of mental agony, harassment and litigation charges.         

15.            As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The OPs No.1 & 2 are directed to make the payment of lump-sum compensation of Rs. 5,000/- to the complainant on account of mental agony, harassment and litigation charges.

16.            The OPs No.1 & 2 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs No.1 & 2 failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

 

Announced on:06.11.2024

 

 

 

 

        Dr.Suman Singh          Dr.Sushma Garg            Satpal

             Member                    Member                   President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                Satpal

                                          President