BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.309 of 2021
Date of Instt. 09.09.2021
Date of Decision:03.12.2024
Rajesh Kapil son of Subhash Chander resident of House No.606, St. No.12/B, Avtar Nagar, Jalandhar.
..........Complainant
Versus
1. Burger King through its Manager, 291-A, Lajpat Nagar, Guru Nanak Mission Chowk, Jalandhar.
2. The Managing Director/Director Burger King Pvt. Ltd. Corporate Office: Mittal Commercial, Chimatpada Hasan Pada Road, Andheri (East) Mumbai.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Jatinder Arora, Adv. Counsel for Complainant.
Smt. Harleen Kaur, Adv. Counsel for OPs.
Order
Dr. Harveen Bhardwaj(President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant ordered food through Swiggy from OP No.1 on 04.07.2021 and 08.07.2021 vide invoice No.249940040051947 and 249940040052506 respectively and the OPs charged Rs.33/- each as restaurant handling charges in both the bills. The complainant went to the outlet of OPs and requested the officials of OPs that he cannot charge the amount as cash handling charges as the same is unfair trade practice but the person sitting on the cash counter misbehaved with the complainant and openly told him that if he dare to take any action he would face the dire consequences. There is great deficiency and negligence in services on the part of OPs and due to that the complainant has suffered a great mental tension, agony and harassment apart from humiliation and as such, as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay Rs.1,00,000/- for deficiency in service and negligence and Rs.33,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the complainant was wrongly impleaded the as OP No.2 as they have no role in the day to day functioning and operations of the business, including the unit in question, nor are respondents in any manner for the issue involved in the present complaint, and are therefore required to be deleted from the array of parties. The company is herein after referred to as the answering OP. It is further averred that the above cited complaint is not maintainable as the averments made therein fail to show any willful defect, fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the OPs in any manner whatsoever in relation to any goods or any fault, imperfection, short-coming 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 as was undertaken to be performed by the OPs in pursuance to its contract with the complainant or otherwise in relation to the services provided by the answering OP. It is further averred that the complainant has deliberately not impleaded the food aggregator company Swiggy as a party in the above cited complaint with the malafide intent of suppressing the true and material facts pertaining to process of placing orders and communication of all charges in advance, through their app/online portal. The complaint is required to be dismissed on the ground of non-joinder of necessary party. It is further averred that the complainant has not approached this Court with clean hands and thus, the above cited complaint is liable to be dismissed on this ground alone. On merits, it is admitted that the complainant has ordered the food from Swiggy, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder not filed by the complainant.
4. In order to prove their respective version, the counsel for both the parties has produced on the file their respective version.
5. We have heard the Ld. Counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the complainant very minutely.
6. The complainant has alleged that he ordered food through Swiggy from OP No.1 on 04.07.2021 and 08.07.2021. The invoices have been proved as Ex.C-1 and Ex.C-2. He has submitted that as per Ex.C-1 and Ex.C-2, the OPs have charged Rs.33/- as restaurant/handling charges, which is wrong and illegal. It has been alleged that the OP cannot charge the amount as restaurant handling charge and same is unfair trade practice.
7. On the other hand, the OPs have alleged that there is no unfair trade practice nor any deficiency in service by the OPs. The OPs have charged rightly as restaurant/handling charges. The charges have been taken by the OP after the complainant was fully knowing about the charges. The breakup of charges was transparently communicated by Swiggy before accepting the online order by the complainant. The complainant has placed the order and consumed the food articles on 04.07.2021. Once again, he had placed an order on 08.07.2021 fully understating that the charges are levied by the OPs, again he consumed the food articles. There is no unfair trade practice. It has further been submitted by the OPs that the Swiggy was the necessary party, but the same has not been made a party. The OP has relied upon the law laid down by the Hon'ble Supreme Court in a case titled as ‘Brigade Enterprises Ltd. Vs. Anil Kumar Virmani’ 2021 SCC Online SC 1422. Further, the OP has relied upon a law laid down by the by the Hon'ble Supreme Court, in a case titled as ‘Ludhiana Improvement Trust, Ludhiana and Ors. Vs. Shakti Co-opertaive House Building Society Ltd.’ (2009) 12 SCC 369.
8. The complainant has admittedly stated in the complaint that he had placed an order through Swiggy on 04.07.2021 and 08.07.2021, but he has not made ‘Swiggy’ as a party rather he has made the ‘Burger King’ as a party. There are separate rules and regulations and terms and conditions, if one places order online. At the time of placing the order on 04.07.2021, the complainant paid the charges of Rs.33/- as restaurant/handling charges. He was knowing fully well that the restaurant/handling charges are being levied for placing the order. Again he had placed the order on 08.07.2021 i.e. after four days through Swiggy only and again paid Rs.33/- as handling/restaurant charges. This is alleged to be platform fee by the OPs. The complainant has not challenged the acts of the OP immediately after paying the amount of Rs.33/- on 04.07.2021 rather has placed the order again on 08.07.2021 and filed the present complaint after two months of consuming the food. The complainant has failed to prove on record as to how the charges levied by the OP are wrong and illegal. No rules have been filed by the complainant proving deficiency in service by the OPs. Moreso, the Swiggy was the necessary party as the platform fee has been charged by the OPs for Swiggy and the order was received by the complainant and delivered by the Swiggy, which was necessary party, but he has not made the party. Thus, the complainant has failed to prove any deficiency in service on the part of OPs and the complaint of the complainant is without merits and the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr.Harveen Bhardwaj
03.12.2024 Member Member President
