West Bengal

Siliguri

CC/2014/144

Sri Pratap Kumar Mundhra, - Complainant(s)

Versus

1. M/s VCC Health Care Ltd., - Opp.Party(s)

05 Apr 2019

ORDER

  J U D G E M E N T

 

Sri Subhabrata Chaudhuri, Ld. President.

  The case of the complainant, in brief, is that complainant joined at M/S VLCC Health Care Ltd., 112 Sevoke Road, Siliguri Dist.- Darjeeling (OP No.2) for the purpose of losing his weight/reduction of body weight under weight loss programme and agreed to follow the weight loss programme of the OP No.2 being supervised and controlled by the OP-Company No.1 by depositing a sum of Rs. 40,000/- and to that effect complainant also paid a sum of Rs. 2,200/- for DNA test in the said month of August, 2012 and as per inducement of the OP No.2 the complainant had also paid a sum of Rs. 8,000/- to OP No.2 for face fermentation.  Prior to this weight loss programme the complainant had his body weight around 88kgs and when he completed his last session on 16^th July, 2014 his body weight was around 92kg.  Moreover complainant had taken two sessions for the purpose of face fermentation and after that the representative of the OP-Company informed that it would not be possible to continue the said fermentation due to some problem and they would not be able to help the complaint to improve his face condition.  Complainant for reducing his body weight as per advice and instruction of the OP took all the measures and steps from time to time regularly but instead of reduction of his body weight even to some extent the same was increased to 92ks from 88kgs.  Complainant sent one letter dtd. 01.08.2014 to the OP-Company and also sent reminder through e-mail dtd. 14.08.2014 and requested to refund the said amount of Rs. 50,200/- which he had paid to the company (Rs. 40,000+2,200+8,000).  The OP-Company after receipt of those letters through e-mail did not come forward in any way to refund the said amount or even did not respond to reply such letters.  Thereafter complainant sent one legal notice dtd. 24.09.2014 to the OP-Companies and again requested to refund the said amount of Rs. 50,200/- within a period of seven days but OPs did not respond that request in any way.  It is further stated in the petition of complaint that the OPs had induced the complainant the join the said programme with dishonest and fraudulent intention for the purpose of its illegal and wrongful gain and thus OPs committed unfair trade practice upon the complainant.  Complainant suffered monetary loss and in addition to that he suffered physical harassment as well as affected with mental pain and agony and it is further contended in the complaint that there was negligence and deficiency in service of the OP-Company towards the complainant where no fault was there on the part of the complainant and due to such deficiency in services and negligence of the OP-Company the complainant compelled to take shelter of the law envisaged with the C.P. Act 1986, hence, this case against the OP No.1 M/S VLCC Health Care Limited having its office at Gurgaon, Haryana and OP No.2, the local office of OP No.1 situated within this town, Siliguri along with a prayer for direction to the OPs to refund the deposited sum of Rs. 50,200/- together with interest @18% per annum as accrued thereon and for a direction upon the OPs to make payment of a sum of Rs. 45,000/- towards the negligence, deficiency in services and unfair trade practice as adopted by the OP-Company causing physical harassment to the complainant and lastly also for a direction upon the OP-company to make payment of a sum of Rs. 4,000/- as the damage for suffering of the complainant from mental pain and agony as well as for other reliefs.

The OPs in this case have presented before this Forum their written version stating therein that OP No.1 is a leading organization in the field of beauty, wellness & healthcare and it is alleged therein that

complainant did not follow the prescribed suggestions/diets and it is further stated that the terms and conditions of the programme where explained to the complainant at length and complainant signed the client programme record (CPR) containing the terms and conditions of the programme and this document has been placed from the side of the OPs as Annexure-I.  The OPs stated that they provided all the services to the complainant regarding the questioned healthcare programme of the complainant diligently but complainant did not maintain his diet so the complainant is not entitled to get any relief as prayed for and the instant case is a fit case to be dismissed.

In this case both the OPs appeared and thereafter filed written version and after that complainant being PW-1 filed affidavit-in-chief in writing as evidence.  No more affidavit-in-chief has been filed and thereafter case was fixed for evidence from the side of the OPs but OPs did not submit examination-in-chief and on a particular date i.e. on 31.05.2016 while OPs did not take any steps then this Forum passed order stating that the case would be heard ex-parte against the OPs and thereafter OPs filed one petition before this Forum with the contention that they would file a revision petition before the Hon’ble State Consumer Disputes Redressal Commission and accordingly that revisional application was filed which was registered as revision petition no. RP/ 34/2017 and ultimately Hon’ble State Commission was pleased to set aside the order impugned and gave an opportunity to the OPs to contest the case by advancing argument  from their part and ultimately the Ops took part in the argument. Accordingly, no evidence in the form of affidavit has been there on case record from the part of the Ops.  Complainant filed Written Notes on Argument as well as additional Written Notes on Argument subsequent to that while no written notes on argument prior to completion of oral argument has been submitted by the side of the OPs. Complainant side filed some documents as piece of evidence of this case on 26.11.2018 as well as some judgments in photocopies are also submitted from the side of the complainant and these judgments are of Hon’ble State Consumer Disputes Redressal Commission, West Bengal and that of Hon’ble Delhi State Consumer Disputes Redressal Commission and third of Hon’ble National Consumer Disputes Redressal Commission, New Delhi.

Upon the facts and circumstances of the case as per pleadings of the parties the following issues are framed:

1. Is the complainant a consumer as per definition of Consumer Protection Act, 1986?
2. Is the case maintainable?

 

3. Has there been any deficiency in service committed by the OPs upon the complainant as alleged?
4. Have the OPs committed unfair trade practice upon the complainant in context of this case?
5. Is the complainant entitled to get the relief as prayed for?

 

DECISION WITH REASONS.

Issue No.1

 This issue is taken up for consideration at first as because the case has been filed under Consumer Protection Act. 1986.  This is a case where the OPs admittedly stated that they entered with the complainant for providing service and that service was oriented with the body weight loss programme for which consideration in the form of money was required to be paid by the complainant and that was so paid by the complainant.  Accordingly as per definition of the term ‘Consumer’ as enumerated in section 2(1)(d) of the C.P. Act. 1986 there is no hesitation to hold that the complainant has been a consumer of the OP-companies, hence, this application/complaint has been made by the complainant as per section 12(1) of the C.P. Act. 1986.  Thus this issue is disposed of in favour of the complainant.

Issue Nos. 2,3.4.& 5.

These issues are taken up together for the sake of convenience of discussion and consideration as well as for avoiding repetitions as those are interlinked.  It appears from the case record that complainant attended his last session on 16^th day of July, 2014 when his body weight was around 92kgs but prior to that while he took entry in the programme his body was 88kgs. Thus taking into account the date of cause of action it is clear to this Forum that the instant case has been initiated by the complainant well within two years from the date on which the cause of action was arisen.  As the case has been registered on 17.10.2014, so this case is not barred by limitation as per section 24A of the Act.  The OP No.2 M/S VLCC Health Care Ltd. is situated within this town, Siliguri which is under the jurisdiction of Police Station Siliguri under District Darjeeling.  Thus the question of territorial jurisdiction is answered in positive.  The case has been filed is also within the pecuniary jurisdiction of this District Forum while complainant has prayed for a total amount of Rs. 99,200/- excluding the rate of interest as prayed for.  Hence, it can safely be said that the instant case is maintainable.  We have perused the evidence of complainant himself as adduced in writing along with an affidavit as well as the documents as produced from the side of the

 complainant.  From the document which has been taken from the website of the OPs it appears that as regards weight loss VLCC, OP No.1 is Wellness Brand widely recognized in India and abroad for its holistic, scientific and completely natural weight management practices and therapeutic beauty solutions addressing the mind and body. The complainant has produced three diaries which are marked as Annexures-I, II & III.  These diaries show the day to day maintenance of the programme of weight loss with mentioned of diets, foods and activities along with signatures at the end of each day.  It is the allegation of the Ops as ventilated in written version that complainant did not adhere to the advice of the counselor and expert and from Client Programme Record (CPR) it is clear that complainant did not follow the prescribed suggestions and diets.  In the written version from Paragraph No.3 ‘REPLY ON MERITS’ it is seen that OPs admitted that at the time of entry at first session of the programme the body weight of complainant was 89.60kgs and at the time of availing his last session with OPs his weight was 90.4kgs.  Accordingly from the own version of the OPs it is admittedly correct that complainant did not loss his body weight but it was further gained during the session of body weight loss.  Now the OPs have stated many times that their organization is a leading organization in the field of Beauty, Wellness and Health Care and its main objective is to give scientific solutions to the customers.  Then question arises why the OPs failed to achieve the increasing weight loss of the complainant.  In this context we have gone through the all the diet charts and day to day maintenance of the activities meant for the mission of weight loss which are produced by Annexures mentioned above in Xerox and the originals of the same are seen which are kept in the said produced diaries as mentioned earlier in Annexures- I,II & III.  After perusal of all these and scrutiny of the same we did not find any lacuna from the part of the complainant as regards maintenance of daily activities with the hope of weight loss for which complainant entered in the weight loss programme of the OPs which institution is heard and known as a renowned institution in the arena of body weight loss, beautification etc. in a word “Wellness”.  We did not find any negligence or laches from the part of the complainant during the entire sessions of programme. Complainant deposited a sum of Rs. 50,200/- to the representative of the OP No.2 in total out of which Rs. 8,000/-was for face fermentation, Rs.2,200/- for DNA test and another Rs. 40,000/- for the weight loss programme.  In the Paragraph No.6 of the written version under heading ‘REPLY ON MERITS’ that deposit of amount has not been denied by the OPs.

 

          In support of the case of the complainant Ld. Advocate for complainant referred a case of Hon’ble State Consumer Disputes Redressal Commission, West Bengal, Kolkata in between Ashok Krumar Dhandhania and Alankar Sliming  & Cosmetic Clinic Pvt. Ltd. and in that first appeal being FA/223/2013, it has  been held by the Hon’ble SCDRC that complainant should get an award and the appeal was thus allowed while the judgment and order passed by the Ld. District Forum was set aside.  On going through that particular case as referred above it appears that the instant case is also similar to that case as mentioned on the main point of programme relating body weight loss.  It is already observed by us that we have scrutinized the papers and documents as filed by both the parties orienting this weight loss programme conducted by the OP No.2 and therefrom it is clear that during the sessions much diligence, perseverance and sincerity was there from the part of the complainant.  It is admitted truth that after attending all the sessions at the end of the programme body weight of the complainant became enhanced.  The complainant attended all the sessions required for achieving the best result but his efforts ended in vain.  The Ops failed to achieve loss weight of the complainant and all these failures on the part of the OPs indicate deficiency in service as well as unfair trade practice solely on their part.

          Thus under the facts and circumstances of the case, we are of the considered view, that it is a fit case wherein complainant has proved that OPs committed unfair trade practice and leading to that unfair trade practice the OPs have done deficiency in service upon the complainant.  As a logical corollary, we have no hesitation to hold that complainant is entitled to get relief/reliefs as prayed for.  All the issues are thus disposed of in favour of the complainant.  Proper fees paid, hence, it is,

O R D E R E D,

 that the instant consumer case no. 144-S-2014 be and the same is allowed on contest with cost against the OPs.

The OPs both jointly and severally directed to refund or to pay the sum of Rs. 50,200/- as deposited with them by the complainant in context of the weight loss programme to the complainant, along with interest thereon @ 9% from the date of its deposit till full realization of the same.

          Both the OPs are in the same manner are directed to make payment of a sum of Rs. 49,000/- for causing negligence, deficiency in service on account of unfair trade practice as adopted by the

 

OP-Company as well as for the cause of physical and mental harassment to the complainant together with a separate sum of Rs. 10,000/- as cost of litigation totaling Rs. 1,09,200/- within 45 days from the date of this order failing which interest @ 4 % per annum shall accrue on the said amount of Rs. 1,09,200/- from the date of default till the payment in full in addition to the interest @ 9 % which has already been imposed upon the amount Rs. 50,200/-.  The complainant is at liberty to put the order/decree in execution after expiry of 45 days from the date of this order against the OPs.

          Let a copy of judgment given to the parties free of cost.