Published on: August 02,2021 11:30 IST
By Khushi Agarwal
People go to Restaurants to enjoy their food and have a pleasure time. But imagine instead of having a pleasurable time, they ended up getting sick due to contaminated food that the Restaurant served to them. Or imagine the food people ordered at home was contaminated or was unpacked or spat in due to calls made to the delivery persons.
These all acts are examples of negligence committed by the Restaurants and Delivery Persons. In today’s time people are so heavily relied upon these Restaurants and online food deliveries.
Therefore, it becomes the duty of the providers to provide safe and hygienic food and to avoid any kind of negligence.
This article deals with legal remedies against negligence by restaurants and delivery personnel.
Emergence of Restaurants and Food Delivery System
Food chains and Restaurants started gaining attention in India after the 1991 Policy of Globalization, which increased the competition in the market.
With increased competition, businessmen looking at the needs of people, started coming with new inventions and ideas such as providing quick-readymade food, providing dining table to sit and enjoy the food and so on.
Due to all these things, people started going to Restaurants and food industry began to excel. At present, there are 53,000 Hotels and around 70 lakh Restaurants in Organized sector. Besides these, there are 2.3 crore Restaurants in Unorganized sector[1]. National average of Indians dining out is 6.6 times very month[2].
This data clearly shows the heavy impact of food industry. People in today’s time need no reason for going to Restaurants. Many people go because they are busy and therefore, need quick-readymade food, others go because they want to enjoy some family time.
Due to today’s customer-oriented market, each and every business owner is trying to find new ways to provide their customer full convenience and satisfaction.
It was due to this reason that led to the invention of food delivery system. This system had gained a big pace in recent years.
Covid-19 pandemic added on to this and now three in every four customers is seen ordering food at home rather than going to restaurants. Now almost every restaurant has delivery system but two major players in food delivery system which emerged in 2020 are Zomato and Swiggy.
The Indian online food delivery market reached a value of US$ 4.35 billion in 2020[3]. The online food delivery system is expected to generate revenue of INR 1,334.99 billion till 2024[4].
What is Negligence?
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do[5].
Any act or omission which resulted in any damage or injury to other can be termed as a negligent act. Few essentials need to be proved in order to file a case for negligence, which are:
- That the defendant had a duty of care.
- Defendant breach that duty.
- Plaintiff suffered damages as a result.
What all constitutes as negligent acts by restaurants?
Restaurants owe a duty of care to all the customers coming to their place. The owners, managers and employees must ensure that no customer is getting hurt or sick due to their negligent act.
It is the duty of Restaurant owners and managers to keep the restaurant in good repair, follow state and local safety regulations, and warn customers about any dangerous conditions.
There have been many instances where people have suffered due to the negligence of the restaurants or delivery persons. Negligence committed by the restaurants can be:
- Serving contaminated food, or
- Not serving fresh food, or
- Making dishes in unhygienic conditions, or
- Not cleaning the tables and chairs, or
- Using expired spices and things in their food, or
- Not proving safe and clean place to eat, etc.
The restaurant owner is responsible for keeping the dining room, waiting area, kitchen, entrance, and restrooms in a safe condition so that no customer suffers any injury. The restaurant may also be responsible for parking lot safety and walkways to the entrance.
Not adhering or following any of the above can be termed as Negligence on the part of the Restaurants as by not doing so, they are breaching the duty of care which they have towards their customers.
Recently there had been a case in 2020, where a man with his two friends went to a popular restaurant in Connaught place for a dinner. He while eating his food, found a lizard in sambhar and was shocked as he already had eaten some of his food and half of the lizard was missing[6].
This was clearly the case of negligence on the part of the restaurant owners and managers. They had the duty of care towards that customer who they breached by serving food which had lizard in it. This act could even have taken that person’s life.
In case of Vineet Vs Om Sai Ram Hotel[7], the complainant, Vineet went to the hotel where he ate the food and paid Rs. 50. After reaching home, he started vomiting. After seeing the doctor, he got to know that he is suffering from food poisoning. He was not able to work for two weeks.
He filed the petition in the Court against the Hotel. The Court held that it was due to the deficiency of the Hotel and their negligent act that the petitioner suffered mental pain and agony.
Therefore, the petitioner was awarded a sum of Rs. 30,000 as compensation.
What are negligent acts by Delivery Persons?
In the same way, enterprises engaged in food delivery system also have a duty of care towards their customers which they must not breach.
Also, persons employed for the delivery of the food have that duty of care towards the customers. Negligent acts in food delivery system can be:
- Not providing healthy food, or
- Providing unpacked food, or
- Adding something in food while delivering by the delivery person, or
- Behaving badly with customers, etc.
It is the duty of the food delivery enterprises to tightly pack the food and ensure that no one should open it in the middle, to ensure timely delivery and also to make sure that the food reaches to the customers in a safe and hygienic condition.
In 2018 a video went viral, where a Zomato delivery boy wearing Zomato t-shirt was being recorded. That delivery boy opened the food pack, which was meant to be delivered to a customer, eats it and seals it back[8].
Another case of Zomato which gained public’s attention was in March 2021 where a city-based model alleged that the delivery boy hit her over the argument of late delivery[9].
In March 2021 a woman, who was a pure vegetarian, moved Supreme Court asking for 1 crore compensation as she ordered a vegetarian pizza on the occasion of the festival of Holi but instead of delivering that she was delivered a non-vegetarian pizza[10].
Doing such acts can definitely be termed as Negligence and can lead to damages to the customers such as customers eating unhealthy food can get sick or may get hurt such as the woman who was assaulted by the Zomato delivery boy got hurt.
In case of Govind Tiwari Vs Swiggy[11], Govind Tiwari was a pure vegetarian who on the occasion of Ram Navmi ordered some food items trough Swiggy. However, it was alleged that among those items, he received one non-vegetarian item which he ate.
Due to this he suffered a trauma for one whole week and was not able to eat anything on that day. The smell of the food resided in his memory and as a result, he suffered mental pain and agony.
The Court held that it was the mistake of the defendant to not supply the food up to the mark and hence was a negligent act on their part. Therefore, the Court ordered Rs. 10,000 as compensation to the Plaintiff besides the cost of litigation.
Can Restaurants and Food Delivery Companies be sued for their Negligent Acts?
Customers who got hurt or suffered any injury in Restaurants or due to any acts of Restaurants can sue and claim for damages.
However, they must make sure that the damages they suffered were not because of their own act or because of any third party’s act.
For example, the employee of the Restaurant warned Mr. A not to go to the restricted area which was under construction. However, Mr. A ignored that warning and went to that area. Consequently, he falls into a pit and suffered injury.
In this case, Mr. A cannot sue the Restaurant for negligence as it was due to his own act that he suffered injury.
In order to successfully sue a Restaurant for its negligent act, customer must prove the following essentials:
- The defendant had a duty of care towards the plaintiff.
- Defendant breached that duty by doing negligent act or omission.
- The plaintiff suffered damages because of that act or omission.
Defendant’s negligence must be a substantial or immediate factor that led to the damages suffered by the plaintiff. If these conditions are fulfilled, act of negligence can be successfully brought up and Restaurants and Food Delivery Enterprises can be sued.
Damages that plaintiff can suffer due to negligent act of the restaurants or delivery persons can be:
- Slip and fall injuries, or
- Food poisoning, or
- Assault and battery, or
- Knockdowns in parking lot, etc.
Who can be sued for Negligence?
If the negligent act is caused in the Restaurant or due to the act of Restaurant, then either the Restaurant owner or the Manager can be held liable.
However, if the negligent act is being caused by the employee or the delivery person, then the case can be filed against the employer or the company for whom that person is working. This is due to the concept of Vicarious Liability.
According to this concept, employer is being held liable for the negligent acts of the employee, provided:
- Act must be committed by the employee, and
- He must be working within the scope of his employment.
Conclusion
There are so many people who are dependent on these restaurants and especially food delivery system as they due to some reasons cannot make food own their own.
For example, old people who are living alone have no other option but to order food at home as they themselves can neither make food nor can go to restaurants.
Therefore, enterprises engaged in providing food must ensure that they do not commit any negligent act which can cause damage to other. They must ensure that their customers get safe and healthy food.
References
- Saurabh Sinha, 70% of hotels and restaurants could close in 45 days, warns FHRAI after no relief from Govt. available at:timesofindia.indiatimes.com (Last visited on June 10th, 2021) ↑
- Swapna Raghu Sanand, More Indians dine out than ever! Delhiites throng to restaurants the most, available at: .financialexpress.com(Last visited on June 10th, 2021) ↑
- India Online Food delivery Market: Industry Trends, Share, Size, Growth, Opportunity and Forecast 2021-20126 available at: imarcgroup.com (Last visited on June 10th, 2021) ↑
- Online food delivery market in India 2020, available at: researchandmarkets.com (Last visited on June 10th, 2021) ↑
- Jacob Mathew Vs State of Punjab 2005 AIR SC 3180 ↑
- Delhi: Lizard found in food at CP eatery, police register case of negligence, available at:
timesofindia.indiatimes.com/(Last visited on June 10th, 2021) ↑ - Vineet Vs Om Sai Ram Hotel Consumer Case no. 105/2014 ↑
- Zomato delivery boy opens food pack, eats, seals it back. Video goes viral. Company says sorry, available at: indiatoday.in (Last visited on June 10th, 2021) ↑
- Zomato delivery personnel assaults model; arrested by police, available at: economictimes.indiatimes.com (Last visited on June 10th, 2021) ↑
- Woman moves consumer court over delivery of non-veg pizza, seeks ₹1 crore compensation, available at: hindustantimes.coml (Last visited on June 10th, 2021)
- Govind Tiwari Vs Swiggy Consumer Case no. 239/2019 ↑