Chandigarh

StateCommission

A/131/2022

VAIBHAV RAJ - Complainant(s)

Versus

SWIGGY, BUNDL TECHNOLOGIES PVT LTD CHANDIGARH - Opp.Party(s)

24 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

 

[1]

Appeal No.	:	A/131/2022
Date  of  Institution	:	06/10/2022
Date   of   Decision	:	24/04/2023

 

 

 

 

Vaibhav Raj (Vineet) S/o Sh.Raj Arora, Resident of House No. 1162/1, Sector 37-B, Chandigarh – 160036.

 

….Appellant

Vs.

 

1.     Swiggy, Bundl Technologies Pvt. Limited, 3^rd Floor No. 57-58-59, Sector 17-A, Chandigarh – 160017.

 

2.     Swiggy, Bundl Technologies Pvt. Limited, Tower-D, 9^th Floor, IBC Knowledge Park, Bannerghatta Road, Bangalore – 560029.

 

3.     Kwality Walls, Hindustan Unilever Limited, Unilever House, B.D. Sawant Marg, Chakala, Andheri (E), P.O. Box No. 1470, Mumbai – 400099.

 

4.     Sindhi Sweets, SCO 403, Sector 37-D, Chandigarh – 160036.

…. Respondents

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

 

PRESENT	:	Sh. Vaibhav Raj (Vineet), Appellant in person.
		Sh. Atul Sharma, Advocate for Respondents No.1 & 2.
		Sh. Ashim Aggarwal, Advocate for Respondent No.3.
		Respondent No.4 ex-parte.

 

[2]

Appeal No.	:	A/166/2022
Date  of  Institution	:	09/12/2022
Date   of   Decision	:	24/04/2023

 

 

 

 

 

Swiggy through Authorized Signatory, having its Corporate Office at No.55 Sy No.8-14, Ground Floor, I&J Block, Embassy Tech Village, Outer Ring Road, Devarbisanahalli Bengaluru – 560103.

….Appellant

Vs.

 

 

1.     Vaibhav Raj (Vineet) S/o Sh.Raj Arora, Resident of House No. 1162/1, Sector 37-B, Chandigarh – 160036.

 

2.     Kwality Walls, Hindustan Unilever Limited, Unilever House, B.D. Sawant Marg, Chakala, Andheri (E), P.O. Box No. 1470, Mumbai – 400099.

 

3.     Sindhi Sweets, SCO 403, Sector 37-D, Chandigarh – 160036.

…. Respondents

 

4.     Swiggy, Bundl Technologies Pvt. Limited, 3^rd Floor No. 57-58-59, Sector 17-A, Chandigarh – 160017.

 

…. Performa Respondent

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

 

PRESENT	:	Sh. Atul Sharma, Advocate for Appellant.
		Sh. Vaibhav Raj, Respondent No.1 in person.
		Sh. Ashim Aggarwal, Advocate for Respondent No.2.
		Respondent Nos.3 & 4 ex-parte.

 

PER PREETINDER SINGH, MEMBER

 

 

1.         This order shall dispose of two appeals i.e. A/131/2022 filed by the Appellant/Complainant (Vaibhav Raj (Vineet) Vs. Swiggy & Others) and Cross Appeal i.e. A/166/2022 filed by the Appellant/Opposite Party No.2 (Swiggy Vs. Vaibhav Raj (Vineet) & Ors.), against the order dated 24.08.2022, rendered by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (for brevity hereinafter to be referred as ‘the Ld. Lower Commission’), vide which it partly allowed the Consumer Complaint bearing No. CC/192/2020, filed by the Complainant - Vaibhav Raj (Vineet), qua Opposite Parties No.1 & 2 (Swiggy, Bundl Technologies Pvt. Ltd.), by passing the following order: -

10]     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP No.1 & 2 are directed as under:-

i)        to pay an amount of ₹10/- to the complainant.

ii)       to pay an amount of ₹1,000/- to the complainant as compensation for causing mental agony and harassment to him;

iii)      to pay ₹1,000/- to the complainant as costs of litigation.

11]     Since no deficiency in service or unfair trade practice have been proved against OP No.3 & 4, therefore, the consumer complaint qua it stands dismissed with no order as to costs.

12]     This order be complied with by the OP No.1 & 2 within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr. No. (i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr. No.(iii) above.

2.          Since, the issues involved in the above-said cases, except minor variations, here and there, of law and facts are the same, as such, we are of the considered opinion that these appeals can be adjudicated by passing a consolidated order.

 

3.         For the convenience, the parties are being referred to, in the instant Appeals, as position held in Consumer Complaint before the Ld. Lower Commission.

 

4.         Before the Ld. Lower Commission, it was the case of the Complainant that on 02.06.2020, he placed an order with Sindhi Sweets. In the said order Swiggy charged an excess amount of Rs.3/-. The Complainant raised his grievance with the Executive of Swiggy, but to no avail. The complainant paid for the said order partly through his Credit Card and partly through Swiggy’s voucher. It was further averred that on 06.06.2020 the Complainant placed an order with Kwality Walls, wherein Swiggy charged an excess amount of Rs.10/- + Rs.20/- and gave fake discounts to hide the same.  Further, Swiggy’s receipt & price printed on the ice cream box showed that there was a difference of Rs.10/- which according to the Complainant amounted to malpractices by Swiggy. In addition to this, Swiggy and Kwality Walls Outlet charged for packaging which again highlighted the malpractices by them as ice cream box is always delivered in packed condition by manufacturing company and the MRP of Rs.219/- was inclusive everything, then there was no point in charging for packaging from a customer. It was further averred that on 20.06.2020 again the Complainant placed an order with Kwality Walls and in the said order also, Swiggy charged an excess amount of Rs.10/- + Rs.20/-. Again there was difference of Rs.10/- on the Swiggy’s receipt & price printed on the ice cream box and likewise Swiggy and Kwality Walls Outlet charged extra for packaging which they could not because ice cream box is delivered in packed condition by manufacturing company and the MRP of Rs.155 includes everything. The complainant raised his grievance with Executives of Swiggy but neither they provide any resolution nor refunded the excess amount charged.  Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.

 

5.         In the reply filed before the Ld. Lower Commission, while admitting the factual matrix of the case, Opposite Parties No.1 & 2 pleaded that the Complainant was aware of the fact that his grievances were only against the Restaurant. The complainant ordered food from Opposite Party No.4, it was submitted that the Opposite Parties No.1 and 2 were neither a Seller nor the Manufacturer in this case. The product purchased by the complainant was sold and prepared by the Opposite Party No.4 and delivered by a Third-Party Delivery Partner. It was further submitted that advertisement with regard to price, specification, quality and description etc. were listed by the Opposite Parties No.3 & 4.  According to Opposite Parties No.1 & 2 they were only limited to providing online platform and the complainant has failed to establish any cause of action under the provision of the Consumer Protection Act. Denying all other allegations and pleading no deficiency in service, the Opposite Parties prayed for dismissal of the Complaint.

 

6.         Despite service, nobody appeared on behalf of Opposite Parties No.3 & 4 before the Ld. Lower Commission, therefore, they were proceeded ex-parte on 12.10.2020.

 

7.         On appraisal of the pleadings of the parties and the evidence adduced on the record, Ld. Lower Commission partly accepted the Complaint and issued directions to the Opposite Parties No.1 & 2 (Swiggy, Bundl Technologies Pvt. Ltd.) as noticed in the opening para of this order.  

 

8.         Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeals have been filed by the Complainant [Vaibhav Raj (Vineet)] as well as by the Opposite Party No.2 (Swiggy) in Cross Appeal No.166 of 2022.

 

9.         We have heard the Learned Counsel for the Parties and have gone through the evidence and record of the case with utmost care, along with the written arguments advanced on behalf of the parties.
10.         It is the case of the Complainant that the Ld. Lower Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding.  

 

11.         The Complainant has argued that the Ld. Lower Commission wrongly dismissed his contention regarding overcharging by Swiggy for Sindhi Sweet’s order bearing No. 74179921655 dated 02.06.2020. We have perused the said bill which is available on record.  On comparing, Sindhi sweets bill & Swiggy's bill for this order, at first glance it looks like Swiggy's bill was Rs.5/- less when compared to Sindhi sweets bill as the price of Channa Burfi was Rs.150/- on Sindhi's bill & Rs.145/- on Swiggy's bill, but the fact is that the first part of Sindhi's Bill shows the price of the individual items that was inclusive of the taxes and the second part of Sindhi's Bill shows the breakdown in the form of price of the items and tax charged, but that breakdown does not show the price of individual items (Items value Rs 165.7+ utgst Rs 4.1 + cgst Rs 4.1 = 174); whereas Swiggy's Bill for this order reads the price of individual items exclusive of the taxes and afterwards total cost of items and tax has been calculated (Item total Rs 169 + Taxes Rs 8.45).  However, to straighten the things, we need to look at the total price of the items exclusive of the taxes in both the bills. Total price of the items in Sindhi's Bill without tax reads Rs.165.7/-; whereas, the total price of the same items in Swiggy's Bill without tax for this order reads Rs.169/-. This shows a clear overcharging of Rs.3.3/- by Swiggy for this order.  The Ld. Lower Commission has, therefore, wrongly held that there was no deficiency in service or unfair trade practice on the part of OP No.4.

 

12.         Pertinently, Opposite Party No.4 (Sindhi Sweets) neither entered appearance before the Ld. Lower Commission nor does it appeared before this Commission in the present proceedings, to defend itself, and rather preferred to proceed against ex-parte.  This goes a long way to prove that Opposite Party No.4 has nothing to say in its defence against the allegations made by the Complainant and all the averments of the complaint go unrebutted against it.

 

13.         The Complainant has further argued that he was overcharged by Rs.10/- + Rs.20/- each time for two ice cream orders viz Order no. 74499331861 dated 06.06.2020 & Order no. 75713777308 dated 20.06.2020 (Rs.10/- excess price for ice cream + Rs.20/- packaging charges).  Learned Counsel for Opposite Parties No.1 & 2 defended the cause by saying they acted as an intermediary and a medium to restaurants/merchants to sell their products to users on its platform. All applicable taxes and levies, the rates thereof and the manner of applicability of such taxes on the bill are being charged and determined by merchants. So, there is no deficiency in service and unfair trade of practice on their part. However, we are not impressed with the same, in as much as, the Opposite Parties No.1 & 2 cannot be allowed to defend themselves by saying that it has no role to play in the entire transaction of the sale and purchase of food between the complainant and the restaurant/merchant. Swiggy is an online shopping portal and works as a link between the buyer and seller to collect orders from consumers and forward those to the seller/vendor concerned for the purpose of delivery; it is certainly not a charitable organization. 

 

14.         Importantly,  the impugned order passed by the Ld. Lower Commission shows that it took cognizance of overcharging for only one such order and that too for Rs.10/- price difference of the ice cream and failed to take cognizance of overcharging for the second order of Kwality Walls ice cream viz Order no. 75713777308. Apparently, the Ld. Lower Commission failed to take cognizance of unnecessary charging of Rs.20/- for packaging each time on above two occasions.

 

15.         It is pertinent to point out here that the manner in which such packing charges are collected is a classic case of the Swiggy and the Trader (Kwality Walls) colluding and shifting their operating costs to gullible consumers. Compared to the amount the Complainant would pay for the same items at the counter, to our mind, the price he paid was about 15-20% higher. In this manner, the consumers ended up paying a higher price for the same product online as the same additionally included operating expenses to the bill, which to our mind, tantamount to unfair trade practices.  The price of the product or the service includes all operating costs involved in the making and the delivery of the product/service. Yet, online traders and many others continue to resort to ‘Unfair Trade Practices’, adding illegal and operating costs to the bill separately over and above the price of the product sold online.

 

16.         This Commission, per material available on record, is of the view that prima-facie the Complainant was charged excess amount on three different occasions i.e. Rs.3/- for Order No. 74179921655 dated 02.06.2020, Rs.10/- + Rs.20/- for Order no. 74499331861 dated 06.06.2020 & Rs.10/- + Rs.20/- for Order no. 75713777308 dated 20.06.2020, which the Opposite Parties are liable to refund, along with interest, to the Complainant.  

 

17.         The Complainant in his arguments has specifically alleged that the Kwality Walls ice creams delivered to him were expired products which endangered his health as well the health of his family. However, the Ld. Lower Commission while passing the impugned order has escaped this vital aspect.  To our mind, the onus was upon the Complainant to prove that he and his family members fell ill after consuming the product; however, there is nothing on record to substantiate the same.  But the fact remains that the ice creams delivered to the Complainant were expired ones. In this view of the matter, the important question which falls for consideration is, “is it squarely the responsibility of a consumer to be prudent enough to check the manufacture and expiry date of a product? To our mind, the answer to the questioned post is in negative.

 

18.         For the sake of repetition, it is pertinent to add here that Swiggy is an online platform/shopping portal and works as a link between the buyer and seller and collected orders from consumers and forwarded those to the seller/vendor concerned.  It is a matter of fact that the Complainant chose Kwality Walls outlet on Swiggy's app, then it shall be the responsibility of Kwality walls to ascertain that non expired items are available in their outlet for sale.  Pertinently, nobody appeared on behalf of Opposite Party No.4 (Kwality Walls) despite service before the Ld. Lower Commission, due to which it was proceeded ex-parte.  In this backdrop, the onus lies on Swiggy to clarify as to from which Kwality Walls outlet, the orders of the Complainant were delivered.  At any rate, to our mind, Kwality Walls shared the responsibility of delivery of optimum quality ice creams from its outlet.  In the like manner, it was Swiggy’s executive responsibility to check the quality of the Ice creams and get it packed. The selling of food products beyond their expiry date is nothing, but an unfair trade practice, for which the Complainant needs to be suitably compensated.  The Ld. Lower Commission has, therefore, wrongly held that there was no deficiency in service or unfair trade practice on the part of OP No.3.

 

19.         It is well settled that the word ‘Compensation’ is of very vide connotation and once the Court is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate him/her for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. On the question of determination of compensation for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon’ble Supreme Court in “Charan Singh v. Healing Touch Hospital & Ors.”, - (2000) 7 SCC 668 are also apposite:

“While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”

20.         In Lucknow Development Authority v. M K Gupta, (1994) 1 SCC 243 also, the Hon’ble Supreme Court held that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court, while explaining the ambit of the jurisdiction of the adjudicatory Fora under the Consumer Protection Act observed that “…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done”.  Under these circumstances, the complainant is entitled to get, special, exemplary and aggravated damages. In this view of the matter, the order passed by the Ld. Lower Commission, granting meager compensation needs modification. 

 

21.         This Commission, therefore, is of the opinion that the impugned order passed by the Ld. District Commission is not based on the correct appreciation of the material on record. Resultantly, the present appeal filed by the Complainant stands partly accepted. The order of the Ld. Lower Commission is modified and Respondents No.1 to 4/Opposite Parties No.1 to 4, are directed as under:-

(i)     To refund the excess amount of Rs.63/- to the Complainant along with interest @9% p.a. from the respective dates of payment, till realization.

        (ii)    To pay Rs.10,000/- as compensation for mental agony and physical harassment to the complainant.

        (iii)   To pay Rs.5,000/- as costs of litigation.

 

22.         The above order shall be complied with by the Opposite Parties, jointly & severally, within thirty days from today, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% p.a. from the date of filing of the Complaint, till realization, apart from compliance of direction at Sr.No.(iii) above. 

 

23.         No other point was urged by the Counsel for the Parties.

 

24.         Now coming to the cross appeal bearing No.166 of 2022 filed by the Appellant/Opposite Party No.2 (Swiggy Vs. Vaibhav Raj (Vineet) & Ors.), it may be stated here that as an offshoot of above discussion, no case is made out, in favour of the Appellant. Consequently, the cross appeal bearing No.166 of 2022 being lame of strength is hereby dismissed. However, before parting with the order, we impose cost of Rs.5,000/- upon the Appellant/ Opposite Party No.2 to be deposited in the “Consumer Legal Aid Account” No.32892854721, maintained with the State Bank of India, Sector 7-C, Madhya Marg, Chandigarh in the name of Secretary, Hon’ble State Commission UT Chandigarh. The said amount be deposited in the account aforesaid, within thirty days from the date of receipt of its certified copy, failing which the same will carry interest @ 12% p.a. from the date of this order till its deposit.

 

25.         Certified copy of this order be placed in Cross Appeal No.166 of 2022.

 

26.         All the pending application(s), if any, also stands disposed off accordingly.

 

27.         Certified Copies of this order be sent to the parties, free of charge.

 

28.         A copy of this order be also sent to the Secretary (SCDRC), U.T. Chandigarh, for necessary action.

 

29.         The file be consigned to Record Room, after completion.

Pronounced

24^th April, 2023                                                                 

                                         Sd/-                         

                                                                (PADMA PANDEY)

PRESIDING MEMBER

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”