CC No.593/2018                                  Date of filing:04.04.2018

                                                           Date of Disposal:07.11.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE  7^th    DAY OF NOVEMBER 2019

CONSUMER COMPLAINT NO.593/2018

PRESENT:

Sri    Venkatasudarshan  D.R.  B.Com,LL.M.,              …. President

Smt  L.Mamatha, B.A., (Law), LL.B.                              ….    MEMBER

COMPLAINANT:

Dr. K. Venkatesh,

57 years, s/o late Sri. Ramachandra Rao,

No.6, D main road, East End,

9^th block, Jayanagar,

Bengaluru-560069.

 (Complainant by Sri. Kiran. N ,Advocate)          

 V/s

OPPONENTS:

1. Acme Fitness shope,

No.17 & 18, Devatha Plaza,

No.130, Residency road,

Bengaluru-560025, having

Corporate office at No.1,

Ambalavanan street,, 100 feet

Road, Arumbakkam,

2. Acme Fitness Private Limited,

No.1/1, Peridot Plaza,

Muttanna Garden, Anepalya main

Road, Gajendra Nagar,

 (Opposite party by Sri.M. Kaushik,  Advocate)

= = = = = = = = = = = = =                                         

Written by Sri Venkatasudarshan D.R., President

              ******

// ORDER//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Dr. K. Venkatesh against Acme Fitness Pvt. Ltd., praying for direction to the opposite parties to take back unsuitable fitness equipment sold to the complainant and to refund the sum of Rs.3,25,000/- together with interest at 18% p.a. to be calculated from the date of filing of this complaint till the actual date of realization and to grant other reliefs as deemed fit by this Forum.

2. The brief facts of the case of the complainant  as per the complaint are that the complainant  being the Ex.DSP CRPF and presently a practicing advocate has been suffering from Diabetes and allied disorders.  Hence, he has been advised by the physician to carryout necessary physical exercise.

3. It is the further case of the complainant that on the advice of the physician and on the reference made by one Madam Irine of Olympic sports, Double road, Bangalore he approached  first opposite party who is engaged in the business of selling Fitness equipment of which the 2^nd party is the authorized dealer having branch office at Bangalore.  The Sales representative therein suggested to buy  “inspire FT2-Multi functional Trainer and FID  Bench and Schwinn 4701 Elliptical trainer” worth Rs.3,25,000/- for getting better results.  It was also misrepresented to the complainant that the said equipment is exclusively designed for persons aged above 50 years.  The complainant being lured had purchased the said equipment on 24.06.2017 for Rs.3,25,000/- from the 2^nd opposite party.  The same was installed at the place of the complainant by the engineer of the opposite party company.  But none have given any briefing and demonstration about the working of the equipment.  The repeated requests made in that regard went in vain.  Thereafter on the request made by  the complainant one of the Fitness Expert,  came and demonstrated the equipment and shown its functioning.  At that time the said expert told the complainant that the equipment which the complainant purchased was suitable for professional body builders and not for the end user who are looking to lose their weight.     To substantiate the same the fitness expert has pointed out the specification in the equipment and said that those  description are designed only for the professional and unfit product for the complainant.  Thus the complainant realized the unfair trade practice adopted by the opposite party.

4. On realizing this, the complainant  approached the opposite parties and requested them to take back the equipment and refund the amount after deducting some amount towards damages if required.  But the opposite party behaved with arrogance.  The complainant wrote a letter also to the 1^st opposite party on 12.12.2017 asking for refund.  But the untenable reply was sent by the opposite parties through their advocate and said “Goods once sold will not be taken back of exchanged”.  Thus it is contended that the opposite parties adopted unfair trade practice under consumer laws.  Finally stated in the notice that the refund cannot be made.   Hence, the complaint.

5. In this case there are two opposite parties.  After admitting the complaint the notices were ordered to be issued to both.  The opposite parties entered appearance through their advocate and filed version.

6. In the version it is contended that both the opposite parties are one and the same entity.  All the averments made in the complaint are stated to be false.  It is the case of the opposite parties that the complainant who claims to be an advocate is highly educated with several qualification to his credit  beside a practicing advocate and thus not a layman.  He approached the opposite party and purchased the equipment of his choice voluntarily and without any inducement or misrepresentation by opposite party or its employees without even infirming  about his alleged physical ailment i.e., diabetes and allied disorder.  The equipment purchased was the one which the complainant specifically asked for.  The same was delivered, installed and demonstrated to the full satisfaction of the complainant.  There was no defect or any deficiency of service.  Hence, it is contended that there is no cause of action.

7. It is also the case of the opposite party that as per the letter dated 12.12.2017 sent by the complainant he has not used the equipment even for  a single day from the date of purchase which was in the month of June-2017 (six month).  Therefore it is contended that the demand made by the complainant to take back the equipment is unreasonable.  It is more so when the complainant admits that it was his mistake in buying the equipment. It is stated that  in the letter of the complainant dated 12.12.2017 there is no allegation of misrepresentation, alleged unfair trade practice or about the ailments diabetes and allied disorder with which he was suffering from  or the purpose of which it was  intended to be purchased.  Therefore it is contended that all these allegation made now in the complaint are only an  after thought made only to suit the complainant.  There is no unfair trade practice  adopted by the opposite party.  Hence, prays to dismiss the complaint.

8. When the case was set down for recording evidence the complainant filed his affidavit evidence and closed the case on behalf of the opposite parties,  one Mr. Om Prakash Patnack the authorized secretary got his affidavit filed as evidence and closed the case.

9. Written arguments filed by the complainant and also the opposite parties.  The advocate for the opposite party submitted oral arguments.

10.      The points that arise for our determination are:-

(1) Whether the complainant proves that the opposite parties adopted unfair trade practice while selling the product to the complainant?

(2) Whether the complainant is entitled for the reliefs sought in the complaint?

11.    Our findings on the above points are:-

Point No.1:- In the Negative.

Point No.2:- Does not arise.

Point No.3:- As per the final order for the following.

12. Point No.1:- This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Dr. K. Venkatesh against Acme Fitness Pvt. Ltd.,  praying for direction to the opposite party  to take back unsuitable fitness equipment sold to the complainant and to refund the sum of Rs.3,25,000/- together with interest at 18% p.a. to be calculated from the date of filing of this complaint till the actual date of realization and for other reliefs as deemed fit by this Forum.

13. The brief facts of the case of the complainant as per the complaint are that the complainant being the Ex.DSP CRPF and presently a practicing advocate has been suffering from Diabetes and allied disorders.Hence, he has been advised by the physician to carryout necessary physical exercise.

14. It is the definite case of the complainant that the opposite parties have adopted unfair trade practice and therefore their liability to refund a sum of Rs.3,25,000/- together with interest.The term unfair trade practice has been defined under section 2(r) of the C.P. Act which reads as under;

“unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice.

15. The burden of providing that the opposite parties have adopted a trade practice by adopting an unfair method or deceptive practice is on the complainant.Generally a trade practice which is not fair can be said to be unfair trade practice.The gravity of the allegation of unfair trade practice and the degree of proof required has been well explained in the decision of the Hon’ble State Commission in “ Element of unfair trade practice definitely stands at a higher and onerous platform than the deficient service.  For making out a case of unfair trade practice an element is involved to the extent of making false and misleading statement and representation and in order to make a case of unfair trade practice such ingredients, which are part and parcel of the concept of unfair trade practice has to be alleged and must be proved and established.”

   Keeping the above principles in mind we have to examine the case on record to record filing whenever the complainant has successful discharged his burden of proof.

16. According to the complainant, as per the averments in the complaint and affidavit evidence he is a retired Ex-Deputy Superintendent of Police, CRPF and presently practicing an advocate.He was suffering from diabetes and allied disorders.He was advised by the physician to carry out necessary exercise and to stay fit.Therefore he took the advice of the physician and as per his advice to reduce the intensity of cholesterol and keep himself healthy decided to purchase the fitness equipment which can suit his requirement.With that purpose he went to the 1^st opposite party as per reference made by one Madam Irine of Olympic sports, double road, Bangalore.The opposite party has claimed no knowledge about these aspects.Therefore the burden is on the complainant to show that he was suffering for such ailment, he was advised by the physician to reduce the intensity of the cholesterol by doing exercises.No document has been produced by the complainant to show that he was diabetic and suffering from allied disorder.That apart the complainant could have examined those material witnesses namely the physician who examined and advised him to doexercise and also that lady Madam Irine who referred him to the 1^st opposite party to support the complaint averments.That has not been done.The examination of these two witnesses was necessary, because as rightly contended by the opposite party the legal notice dated 19.12.2017 got issued by the complainant there is no mention at all about the ailment of the complainant and the advice given to him by the physician.This document has came into existence at an undisputed point of time when no one thought that the dispute would reach the doors of the consumer Forum.Thereforenon-examination of these material witnesses or filing of their affidavit evidence in our view is something like with holding the evidence of important witnesses which goes fatal to the case of the complainant.

17. It is also the further case of the complainant that when he went to the 1^st opposite party, the sales executive has suggested the equipment namely Inspire FT2 Multi-Functional Trainer and FID Bench and Schwinn 4701 Elliptical trainer, price worth Rs.3,25,000/-  is suited for getting better result.The opposite party categorically denies anything about the complainant version of expressing about the need for purchasing the fitness equipment to suit as particular requirement to the opposite parties or their sales executive.When such being the case the evidence of the complainant that the sales executive of the 1^st opposite party has suggested the above equipment for getting better result cannot be accepted.The name of the sales executive who had represented to the complainant has not been stated in the complaint nor he has been examined in this case.At least the complainant could have got summoned that person to appear before this Forum to give evidence.That also has not been done.

18. The opposite party does not deny that the complainant had purchased the equipment by paying Rs.3,25,000/- on 24.06.2017.According to the opposite parties the complainant being the well-educated, highly qualified person with his qualification as MALLB, MA (English literature, PHD, PDA, MBA etc.,) has voluntarily and on his own, choose the equipment in question and purchased it.So he is not a layman to be carried away by the colorful words of any persons including the so-called sales executive. Therefore the contention of the complainant that there was misrepresentation cannot be accepted.Thus in the absence of their any other evidence placed by the complainant (except himself) to prove his case of unfair trade practice himself repetition etc., it has to be believed that the complainant has purchased the said equipment voluntarily and it was his choice to purchase that equipment.

19. The further case of the complainant is that after taking delivery of the said equipment and got installed the same through an engineer of the opposite party, none from the opposite party came to give demonstration about the function of that equipment and usage of the same.Therefore he took help of the one of the fitness experts to demonstrate the equipment.That expert on inspecting the equipment appears to have told him that the said equipment was suitable only for professional body builders and not for the end users like the complainant who are looking to lose their weight.According to the complainant the expert had pointed out the following description of the said product.

* Unique design integrates Olympic bar and weight stacks, eliminating the need for Olympic weight plates.

* Dual Pulley system adjusts to 32 positions for unlimited functional training capability.

* Pull-up bar is adjustable in height to accommodate low ceiling height.

* Optional leg extension/leg curl attachment conveniently hoops up to weight stacks for a smooth, commercial feel.

* Innovative weight multiplier feature doubles maximum resistance to accommodate heavy lifters.

Based on above the complainant contends that the opposite parties have sold a product which was exclusively designed for professionals body builder misrepresenting that it would suit the requirements of the complainant to make unlawful gain.Therefore it is contended that this amounts to unfair trade practice adopted to gain.To substantiate this aspect except the lone evidence of the complainant in the form of the affidavit there is no other evidence.Even the affidavit evidence of the complainant is nothing but the repetition of the complaint averments about which narration has already been above.Apart from the above, there is not even produced the report of that Fitness Expert who inspected the equipment and opined that the same was not suitable to the complainant.Not only this the complainant has not even mentioned the name of that Fitness Expert in the complaint or in the affidavit evidence.If really this contention of the complainant is true, nothing prevented the complainant from summoning the said Fitness Expert and examine him before the Forum.That also has not been done.In fact if really the case of the complaint is true that person who is an expert is a competent person to speak about the equipment in question.For the reasons best known to the complainant the evidence of that witness is also withheld by the complainant.

20. It is also pertinent to note that in the letter sent by him on 12.12.2017 he has mentioned that he has not at all used the equipment even for a single day.In that letter there is no mention also about the fitness expert inspecting the same and opining that the said equipment was designed only to meet the requirements of professionals and not for end users who wish to lose their weight.On the other hand, in the said letter the complainant has stated that he did mistake in buying the said machine.As already stated above, that letter had come into existence at an undisputed point of time in which there is no mention about the Fitness Expert and his opinion.Apart from that even without using the equipment he comes to the conclusion that it does not suit his requirement.In addition to that the complainant withheld the evidence of other material witness viz the physician and Madam Irine besides the evidence of the Fitness Expert.So, the non-examination of these material witnesses and non-production of the material documents like the document relating to the health condition of the complainant and the opinion of the Fitness Expert would compel us to draw adverse inference against the complainant.Under these circumstances as rightly contended by the complainant, it can be said that the complainant has not approached the Forum with clean hands.On the other hand, he has suppressed the material facts.

21. Further the text of the full.The decision relied on the complainant in Bonn Nutrients Pvt. Ltd., V/w Jagpal Singh Dara, IV(2005) CPJ 108 (NC) has not been made available.However by reading the portion found in the Xerox copy of the extract produced by the complainant it can be said that the said decision is not applicable to the case on hand.

22. In the light of the above it has to be held that the complainant has failed to prove that the opposite parties have adopted an unfair trade practice.Accordingly, we answer the point No.1 in the negative and against the complainant.

    23. POINT No.2 and 3:- In view of the finding recorded on point No.1 in the negative and against the Complainant holding that the deficiency of service by the Opponents is not proved by the Complainant, the question of considering the entitlement of ;the Complainant for any reliefs does not arise.  Accordingly, we answer point No.2 “as the same does not arise for our consideration”.   In the result, we proceed to pass the following order:

                                              -:ORDER:-

The complaint filed by the complainant Dr. K. Venkatesh u/s 12 of the Consumer Protection Act is dismissed.  No order as to cost.

  Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on  7^th   day of November 2019  )                                            

  (L.Mamatha)                                 (D.R. Venkatasudarshan )     

     Member                                                    President.  

      //ANNEXURE//

Witness examined for the complainant side:

1. Dr. K. Venkatesh, who being the Complainant has filed his affidavit.          

Witness examined for the opponent side:

1.  Mr. Om Prakash Patnack, the authorized secretary of opposite party has filed his affidavit.

Documents marked for the complainant side:

1.  Copy of the product brochure.
2. Copy of the Advance payment receipt.
3. Copy of the Tax Invoice.
4. Copy of the notice to the respondent.
5. Copy of the reply notice of the respondent.

Documents marked for the opponent side: