13.03.2015
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The instant Appeal u/s 15 of the Consumer Protection Act, 1986 is directed against the judgment and order dated 31.8.2012 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in Complaint Case No. CDF/Unit-II/C.C.No. 368 of 2010 dismissing the Petition of Complaint on the ground of absence of negligence or deficiency in service on the part of the Respondent/OP.
The brief facts of the case are that the Complainant/Appellant, allegedly being allured by the advertisement of the OP/Respondent in The Telegraph, Kolkata, to the effect that their slimming programme would entail loss of weight of 5 Kgs. in 30 days or else money received would be refunded, joined the composite Slimming Programme conducted by the OP/Respondent at the Slimming Centre, ‘Vibes’ by name, at 207, Chittaranjan Avenue, Kolkata-700 006, on 30.1.2010 with the target of weight loss of 20 Kgs. requiring atleast 10 sessions for best results. After attending the first session of the said programme on 31.1.2010 the Complainant/Appellant suffered from Diarrhoea, which recurred on 11.2.2010 and 14.3.2010 when the Complainant/Appellant attended the second session thereof as averred in the Petition of Complaint. In this position, to overcome this problem the OP/Respondent allegedly advised the Complainant/Appellant to join another programme of Slimming Zone Therapy of 12 sessions against additional payment of Rs. 14,339/-, which the Complainant/Appellant acceded to and accordingly, paid the said additional amount on 20.3.2010. After attending those programmes on 20.3.2010 and 25.3.2010 the Complainant/Appellant further fell ill. Thereafter, following the diet chart prescribed by the OP/Respondent on 17.3.2010 the health condition of the Complainant/Appellant deteriorated instead of improvement. After recovering from the ill-health when the Complainant/Appellant further attended the programme on 11.4.2010 the Complainant/Appellant fell ill further. Then the Complainant/Appellant by a letter dated 6.5.2010, reminded by another letter dated 22.7.2010, requested the OP/Respondent to refund, as per guarantee in the advertisement in The Telegraph as mentioned hereinbefore, Rs. 86,035/- so received by the OP/Respondent from the Complainant/Appellant on the ground that the Respondent/OP failed to discharge their obligation to get the weight of the Complainant/Appellant reduced by 20 Kgs. as assured, which was actually reduced only by 2.7 Kgs. as stated by the OP/Respondent in their evidence on affidavit, but the OP/Respondent did not effect the refund. In this factual background, the Ld. District Forum passed the impugned judgment and order dismissing the Complaint. Dissatisfied with such order the Complainant has preferred the instant Appeal.
The Ld. Advocate for the Appellant/Complainant submits that the Ld. District Forum erred in dismissing the Complaint on the basis of incorrect appreciation of the facts and evidence on records of the present case. The Ld. Advocate further submits that the Ld. District Forum failed to appreciate that the Respondent/OP failed to discharge their obligation of reduction of weight to the extent of 20 Kgs. of the Appellant/Complainant despite attending eight sessions by the Appellant/Complainant out of 10 sessions for best result as the Respondent/OP assured, which is admitted by the Respondent/OP in their written version (Running Page-59 of Memo of Appeal), apart from having failed to prevent the side-effects of the programme, such as diarrhoea etc. as suffered by the Appellant/Complainant in course of attending the programme in question.
The Ld. Advocate also submits that the Respondent/OP admitted in their evidence on affidavit the loss of weight of 2.7 kgs. (Running Page-106 of Memo of Appeal) despite attending 8 sessions out of 10 sessions required for the best result as mentioned hereinbefore.
The Ld. Advocate continues that when the Respondent/OP failed to discharge their assured obligation, the refund of the money as paid by the Appellant/Complainant was demanded as per their guaranteed terms of advertisement in The Telegraph (Running Page-98 of Memo of Appeal), but the Respondent/OP did not accede to the prayer of such refund.
The Ld. Advocate concludes that such failure on the part of the Respondent/OP in discharging their assured obligation to cause the loss of weight, atleast proportionate to the number of sessions of the programme attended by the Appellant/Complainant, and also their failure to refund the money received on the ground of their failure to deliver the guaranteed weight loss, constitute the deficiency in service and unfair trade practice on the part of the Respondent/OP and, hence, in view of the submission thus put forward, the impugned judgment and order should be set aside and the Complaint be allowed, the said order being illegal and improper.
None appears on behalf of the Respondent/OP on the date of final hearing although the Ld. Advocate for the Respondent/OP was present on 20.6.2014 when the date of final hearing was fixed.
However, in the Evidence on Affidavit filed by the Respondent/OP, as available on records, it is stated that as the Appellant/Complainant attended only 8 sessions (evidence on affidavit, Running Page-102 of Memo of Appeal) out of 10 sessions as required for best result, so the Appellant/Complainant did not achieve the best result of achieving the targeted loss of weight of 20 Kgs.
It is also stated by the Respondent/OP in the said Evidence on Affidavit that diarrhoea, etc. as complained of by the Appellant/ Complainant, was not the effect of the programme, rather it was due to not following the diet chart by the Appellant/Complainant as prescribed by the Respondent/OP. The Evidence on Affidavit further states that there was loss of weight of 2.7 kgs. (Running Page-106 of Memo of Appeal) of the Appellant/Complainant inspite of his irregular attending the programme and not following the full course of the programme, which was atleast of 10 sessions. In the said Evidence on Affidavit the Respondent/OP finally states that in view of the aforesaid position of the case, there was no deficiency, nor any unfair trade practice on the part of the Respondent/OP and hence, the impugned judgment and order should be sustained, it being just and proper.
We have heard the Ld. Advocate for the Appellant/Complainant, considered his submissions and perused the materials on records.
Bill No. PKG/0104/09-10/002442 dt. 30.1.2010, as available on records, demonstrates that the Respondent/OP received Rs. 71696/- from the Appellant/Complainant on account of ‘Weight loss – 20 Kgs. (Target Based)’ (Running Page-40 of Memo of Appeal) and on other allied account. Another Bill No. PKG/0104/09-10/002702 dt. 20.3.2010, as available on records, demonstrates that the Respondent/OP received from the Appellant/ Complainant further Rs. 14,339/- (Running Page-43 of Memo of Appeal) on account of ‘Slimming Zone Therapy’ appearing to be closely associated with the first programme of weight loss.
It is also revealed from the Written Version of the Respondent/OP (Running Page-59 of Memo of Appeal) as filed before the Ld. District Forum, that the Appellant/Complainant attended only 8 sessions out of 10 sessions being the minimum sessions required for achieving the best result, connoting thereby that for achieving the weight loss of nearabout the target of 20 Kgs. the Appellant/Complainant was required to attend 10 sessions at the least, but the Appellant/Complainant attended only 8 sessions and thereby achieved loss of weight of only 2.7 kgs. The paper cutting of the advertisement in The Telegraph (Running Page-98 of Memo of Appeal), as available on records, exhibits the following advertisement:
“Loss Guaranteed 5 Kg in 30 Days or Get Your Money Back”
The materials on records, as cited above, clearly indicate that the Respondent/OP failed to achieve the loss of weight of the Appellant/ Complainant atleast proportionate to 8 sessions attended by the Appellant/ Complainant as admitted by the Respondent/OP, let alone the loss of weight of 20 Kgs. as assured and as it is evident from the Bills referred to hereinbefore. Further, the Respondent/OP did not refund the money as assured in the advertisement in The Telegraph referred to hereinbefore after failure in discharging their obligation to reduce the weight atleast proportionate to the sessions attended by the Appellant/Complainant. All these failures on the part of the Respondent/OP indicate deficiency in service as well as unfair trade practice on the part of the Respondent/OP.
In view of the above discussion and evidence on records we are unable to agree with the conclusion of the impugned judgment and order.
Consequently, we allow the Appeal, set aside the impugned judgment and order of the Ld. District Forum.
The Respondent/OP is directed to deduct Rs. 11,700/-, representing the amount proportionate to the reduction of weight, from the total payment received and refund to the Appellant/Complainant the balance amount of Rs. 74,935/- , which we deem just and reasonable, within 45 days from the date of the order, failing which interest @ 9% per annum shall accrue on the said amount of Rs. 74,935/- from the date of default till payment in full.
The instant Appeal is disposed of in the manner above.