Date of filing:24.04.2017
Date of Disposal:19.12.2022
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 19th DAY OF DECEMBER, 2022
CONSUMER COMPLAINT NO.364/2021
PRESENT:
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SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR:MEMBER
Smt. Amrutha Varshini.T.J.
W/o Mr.Cheluva Rajesh.R
Aged about 26 years
No.1402, 14th Floor
Falarpuria Sattava Divinity
Nayandahalli, Mysore Road
Bengaluru 560 039
Ph: 9008974567
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(Sri MJ Alva Adv. For Complainant)
Arikotara Sudhakar Mahindra
M/s Namo Wellness
No.1, 1st Cross, 30th Main
Banagiri Nagar, 3rd Stage
Banashankari
Bengaluru 560 085. …OPPOSITE PARTY
(Sri Akki Manjunath Gowda.K Adv. For opposite party)
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//JUDGEMENT//
BY SMT.REKHA SAYANNAVAR, MEMBER
The present complaint is filed under Section 35 of Consumer Protection Act 2019 with a prayer to direct the Opposite party to refund a sum of Rs.50,000/- with interest @ 18% per annum from 20.11.2020 till payment and to grant compensation for deficiency of service and the cost of the litigation and also grant such other reliefs as this commission deems fit in the interest of justice and equity.
2. Brief facts of the complaint: that the complainant is a graduate in computer applications and he is working in Amazon Private Limited as Catalogue specialist at Bangalore since five years. Her husband is also a graduate in engineering and presently working at Wells Forgo Bengaluru as a System Operations Engineer. Both are leading a settled family life and the Opposite party is a health club and Fitness centre which provides the services of medical slimness skin and health care, acupuncture and many more under the name and style of “NAMO WELLNESS”. Further the complainant was induced by the opposite party to join his health club and fitness centre for weight reduction program and the complainant has made the payment of Rs.50,000/- out of Rs.75,000/- towards the weight reduction medical service. The opposite party had assured and promised the complainant that within a period of two months the complainant would reduce her weight by 10 kgs in the proportionate ratio of 1.5 kg per session. Further the complainant with good faith have attended three sessions. Soon after the complainant found that Opposite party is not giving the proper services as promised and there is no such positive results as promised and assured by the opposite party. The complainant had lost the breath and confidence in the treatment of Opposite party itself. Immediately the complainant made a request for the refund of amount of Rs.50,000/- paid by her. To the shock and dismay of the complainant the opposite party had asked and pressurized the complainant to introduce any person for making the adjustment of the said amount. The complainant could not respond in a positive manner in view of the fact that the services rendered by the opposite party itself was defective and further opposite party demanded the balance of Rs.25,000/-, instead of refunding Rs.50,000/- already paid by the complainant.
3. The complainant submits that the opposite party indulged in unfair trade practices their services are defective in nature and misleading the innocent people. She made a demand for the refund of the amount paid but of no use.
4. The complainant issued a legal notice on 14.07.2021. The notice was duly served upon the opposite party but there is no reply and comply. The complainant is left with no other alternatives, approached this commission for redressal of her grievances for the deficiency of services and unfair trade practice under the Consumer Protection Act, 2019. Hence this complaint.
5. The counsel for the opposite party had filed detailed version, partly denied the averments made by the complainant and contended that whenever the complainant visited the Opposite party wellness centre she had been attended with most courtesy and in the most professional manner and had provided good services. Further contended that the complainant just to make unlawful gains at the cost of Opposite party approached this commission. Hence the complaint is not maintainable, as it has no jurisdiction.
6. The counsel for the complainant had filed affidavit in form of her evidence in chief. Ex P1 to P3 are marked. The counsel for the Opposite party also filed an affidavit Ex R1 and R2 are marked.
7. The counsel for the opposite party had filed detailed written arguments.
8. Heard the arguments.
9. On the basis of the pleading and documents, the points that would arise for consideration are as under:
i) Whether the Opposite party had followed the unfair trade practices?
ii) Whether the complainant proved the deficiency of service on the part of the opposite party?
iii) Whether the complainant is entitled for the reliefs as sought in the complaint?
iv) What order?
10. Our findings on the aforesaid points are as follows:
Point No.1 : In affirmative.
Point No.2 : In affirmative.
Point No.3 : Partly in affirmative.
Point No.4 : As per the final order for the following;
REASONS
POINT NO.1:-
11. PW-1 and RW-1 have reiterated the facts of the complaint in the affidavits filed. The complainant had opted weight reduction program from the Opposite Party health club and fitness centre for Rs.75,000/- and made the payment of Rs.50,000/- on 20.11.2020. Ex.P1 payment receipt. The complainant found the services of Opposite party are defective in nature she immediately demanded for refund of amount paid but to her shock and dismay she was forced to introduce any other person for making the adjustment of the said amount. It attracts unfair trade practice as enumerated under Section 2(47). Hence we answer Point no.1 in affirmative.
POINT NO.2:
12. On perusal of the Ex. P1 i.e. Payment receipt and Ex R1 i.e. medical declaration and R2 i.e. term sheet of treatment, it appears that the complainant attended three sessions. I noticed that the weight of the complainant was 101.5 kgs on 22.11.2020 and again on 19.01.2021 the weight of the complainant was mentioned as 101.8 kgs. It is clear evident that for a period of two months the complainant weight has not at all been reduced as promised and assured by the Opposite party fitness and health centre. It attracts the deficiency of services of the Opposite party as enumerated under Section 2 (11) of Consumer Protection Act:
“(11) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-
- Any act of negligence or omission or commission by such person which causes loss or injury to the consumer, and
- Deliberate withholding of relevant information by such person to the consumer”
13. Therefore, the opposite party falls under imperfection, shortcoming, inadequacy in the quality, nature, manner of performance which is required to be maintained in the above Section. Accordingly the opposite party has committed deficiency of service. Admittedly, the complainant had attended three sessions. Hence, she is not entitled for entire refund of amount. For reducing the weight the contribution of the complainant is also necessary. According to RW-1 as and when the complainant had visited Opposite party wellness centre, she has been attended with utmost courtesy and in most professional manner. Further the weight of a person depends upon the nature of the body and it differs from person to person. But false assurances are not expected. Therefore, the complainant is entitle for the refund of Rs.20,000/- with interest @ 9% per annum from 20.11.2020. Hence I answer Point No.2 in affirmative.
POINT NO.3:
14. On perusal of Ex P1 and Ex R1 and R2 I observed and feel that I am in the opinion that the complainant being a young working lady has suffered to some extent of emotional and mental agony due to the deficiency of service of the Opposite party as she opted for her weight reduction program with many expectations relating to her future personal and family dreams and aspirations and many more. Thus the complainant is also entitle for the damages of Rs.15,000/- as she suffered mentally and emotionally. In addition to, the complainant is entitle for Rs.10,000/- towards the cost of the litigation. Hence I answer Point No.3 partly in affirmative.
15. POINT NO.4:- In view of the discussion made above, I proceed to pass the following;
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The complaint is allowed in part.
The opposite party is directed to refund Rs.20,000/- to the complainant with interest @ 9% per annum from 20.11.2020 till realization.
Further the opposite party is directed to pay the damages of Rs.15,000/- to the complainant and Rs.10,000/- towards litigation cost.
The opposite party shall comply the order within 30 days. In case, it fails to comply the order within the said period, the above said amount carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 19th day of December, 2022)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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//ANNEXURE//
Witness examined for the complainants side:
Smt. Amrutha Varshini TJ, the complainant
has filed her affidavit.
Documents marked for the complainants side:
1: Copy of the receipt for having paid a sum of Rs.50,000/- dt. 15.11.2020.
2: Copy of the legal notice sent to the opposite party dt.14.07.2021
3: postal receipt and postal acknowledgement for having received the notice by RPAD.
Witness examined for the opposite party side:
RW1: Sri Arkotaram Sudhakar Mahendra, Proprietor of OP.
Documents marked for the Opposite Party side:
1. Notarized copy of declaration form dt.22.11.2020.
2. Notarized coy of Medical analysis report (4 sheets)
(REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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