Haryana

StateCommission

A/147/2020

VIBES HEALTH CARE LTD. - Complainant(s)

Versus

GUNJAN VERMA - Opp.Party(s)

DINESH KUMAR DAKORIA

03 Jun 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA Panchkula

 

Date of Institution:18.02.2020                      

    Date of final hearing:17.05.2024

        Date of pronouncement:03.06.2024                                                                  

FIRST APPEAL No.147 of 2020

 

IN THE MATTER OF:                                      

 

1.      Vibes Health Care Ltd., A-14/24, Basement & Ground Floor, DLF Phase-1, Golf Course Road, Gurgaon-122002 (Haryana) through its authorized person.

2.      Ms. Leena Aggarwal, Authorized person/Country Head of Vibes Health Care Ltd., A-14/24, Basement & Ground Floor, DLF Phase - 1, Golf Course Road, Gurgaon–122002.

3.      Ms. Asmita Sharma, Authorized Person/ Center Manager, Vibes Health Care Ltd., A-14/24, Basement & Ground Floor, DLF Phase -1, Golf Course Road, Gurgaon–122002.

4.      Dr. Ruchika, Skin Doctor of Vibes Health Care Ltd., A-14/24, Basement & Ground Floor, DLF Phase-1, Golf Course Road, Gurgaon–122002.

                                                                                            .….Appellants

 

Through counsel Mr. Dinesh Kumar Dakoria, Advocate

 

 

Versus

 

 

Ms. Gunjan Verma daughter of Mr. Jagdish Verma, resident of H.No.A-7, Sector-30, Noida (U.P) at present residing at H.No.J-506, Vilas, DLF Phase-II, Gurgaon (Haryana).

 …..Respondent

 

Through counsel Mr. Rajnikant Upadhyaya, Advocate

 

CORAM:    S.C. Kaushik, Member.

 

Present:-    Mr. Dinesh Kumar Dakoria, Advocate for the appellants.

                   Mr. Rajnikant Upadhyaya, counsel for the respondent.

                  

O R D E R

S.C. KAUSHIK, MEMBER:

 

                   Present appeal is preferred against the impugned order dated 16.12.2019, passed by learned District Consumer Disputes Redressal Forum, Gurgaon (now “learned District Commission”) vide which complaint bearing No.254 of 2017 filed by the complainant-present respondent was allowed and opposite parties (“OPs”)-present appellants were directed as under:-

“So, keeping in view the fact that on account of the treatment of the OP, the complainant suffered from burns, rashes and unbearable pain instead of being good, we direct the OPs to refund a sum of Rs.54,960/- to the complainant which is the cost of treatment. Further, the OP is directed to pay a sum of Rs.2200/- to the complainant on account of mental agony, harassment as well as cost of litigation”.        

 

2.                The brief facts giving rise for disposal of the present case are that the complainant came to know through pamphlets about the package of OP No.1 and she visited their centre for skin treatment. She was advised Darmaroller Retises AHA Vita-C treatment. It was alleged that the complainant was assured by the OPs of positive results. As per scheme of OPs rate of package was Rs.54,960/-, which was to be paid in instalments for 20 sessions. The complainant had informed the concerned doctors that she was suffering from Psoriasis disease. After getting the surety, the complainant took the package and EMI for 08 instalments were settled by OP. It was further alleged that the cashier fraudulently deducted the whole amount Rs.54,960/- vide receipt No.4931 dated 30.03.2016 with a false assurance to return the balance amount as the payment was decided to be deducted in instalments further. After completing 10 sessions, complainant suffered from burns of rashes with pain and OP apologized for the same. Thereafter, the complainant requested to return the amount paid, upon which OPs gave false assurance that they will return the said amount within 10 days, but failed to do the same. It was further alleged that complainant also served a legal notice dated 23.02.2017 upon the OPs, but to no response. Thus, there was deficiency in service on the part of OPs and complainant prayed for issuance of directions to the OPs to pay Rs.54,960/-along with interest @ 18% p.a. from the date of payment i.e. 30.03.2016 till its realization and further to pay Rs.1,00,000/- for causing harassment, mental agony and unfair trade practice.

3.                Notice of the complaint was issued to the OPs, upon which OPs No.2 to 4 failed to appear before learned District Commission despite service and were thus proceeded against ex-parte.  However, OP No.1 had appeared and filed its written version and submitted therein that the Vibes Healthcare Limited is a well-known Enterprise of high repute and prestige in the field of providing plethora of services for both men and women right from Weight Management to Skin & Hair Treatments, Laser Hair Removal and many more and having ISO 9001: 2000 certifications and derives its strength from its team of over 800 qualified, trained and experienced professionals with a panel of over 100 Dieticians and Doctors and having latest world class technology and advanced treatments in India and in its state of the art center and introduced many advanced dermatological treatments like PRP for Skin and Hair Rejuvenation, Stem Cell Technology for Hair Re-growth and many Slimming Treatments like Cryolipolysis, Lipo Laser and Mesolipolysis. It was further submitted that the complainant has prayed for refund of treatment fee from the opposite party which is absolutely against terms and conditions agreed by and between the complainant and OP. Further, the Clause No.(d) of the form/beauty record was reproduced, which is as under:-

"The management will not refund any amount against booking and/or its services whether availed in full or not by the client during the validity of the program. Payments received by the company against the services shall be deemed to have been utilized in full in discharge of the company obligation”.

4.                It was further submitted that the said form was duly signed by the complainant with open eyes. Moreover, the complainant was a highly qualified  person and visited the Gurgaon clinic of the OP party on 30-03-2016 and enquired/consulted Dr. Asmita Sharma regarding skin treatment and after detailed discussion and understanding the complete process of treatment as well as total fee/charges of the treatment, she booked/opted a package which included 5 beauty package AHA, 5 Skin Treatment Derma Roller Face, 5 Skin Treatment-Retises Treatment and 5 Skin Treatment- International Vita-C-Treatment and paid a sum of Rs.54,960/- through her debit card. It was further submitted that the complainant took satisfactory four sessions and suddenly she stopped coming. Thereafter, several communications through telephone and emails were done but she did not turn up. It was further submitted that she had herself opted for entire fee one time and was given receipt too and no assurance was made to her to return the amount. Finally it was submitted that there was no deficiency in service on part of OP and prayed for dismissal of the complaint.

5.                After hearing both the parties, learned District Commission allowed the complaint and issued directions to the OPs as mentioned in 1^st Para (Supra).

6.                Aggrieved from the impugned order passed by learned District Commission, appellants have preferred the present appeal for setting aside the impugned order dated 16.12.2019 by acceptance of present appeal.

7.                Arguments have been advanced by Mr. Dinesh Kumar Dakoria, learned counsel for appellants and Mr. Rajnikant Upadhyaya, learned counsel for respondent. With their kind assistance entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined.

8.                It is an admitted fact that the respondent-complainant visited centre of appellants-OPs for skin treatment. It is also an admitted fact that respondent-complainant was suffering from Psoriasis disease and she was advised Darmaroller Retises AHA Vita-C treatment. It is also an admitted fact that as per scheme of appellants-OPs rate of package was Rs.54,960/-, which was to be paid in instalments for 20 sessions. However, aHowever

s per the respondent-complainant, she took the package and EMI for 08 instalments were settled by appellants-OPs, but cashier of appellants-OPs fraudulently deducted the whole amount Rs.54,960/- vide receipt No.4931 dated 30.03.2016.

9.                A perusal of record reveals that the total cost of package was Rs.54,960/- and whole treatment under the said package was to be completed in 20 sessions. However, there is nothing on record that the EMI for 08 instalments were settled by appellants-OPs. Second contention of respondent-complainant is that the cashier of appellants-OPs fraudulently deducted the whole amount Rs.54,960/- vide receipt No.4931 dated 30.03.2016. In this regard it is pertinent to mention here that it is established on record that respondent-complainant paid an amount Rs.54,960/- through credit card on 30.03.2016 against which the appellants-OPs provided her proper receipt No.4931 dated 30.03.2016, so there is no question of any type of fraud arising therein. Moreover, it is also established on record that she availed of her session under package on 01.04.2016 and second session on 26.04.2016 by endorsing her remarks as “Very Nice”. Thereafter, she availed 3^rd session after a gap of two months on 26.06.2016 and in same manner again availed 4^th session on 26.07.2016 after a gap of one month and also endorsed her remarks “Super Cool”. She stopped availing sessions before completion of treatment, on her own will. It is also pertinent to mention here that if a fraud is committed with someone, then how he/she visited again at the same place and endorsed his/her remarks in a positive manner. It is also established on record that she availed total 04 sessions and in between she never lodged any complaint or FIR against the appellants-OPs regarding any type of fraud. As per respondent-complainant she suffered from burn and rashes with pain during her treatment, but this Commission cannot ignore the fact that there was a gap between the sessions availed by her and that too on her part and not on the part of appellants. Moreover, she stopped availing of sessions as discussed above of her own will without any intimation to the appellants.

10.              From the above discussion as well as on a careful perusal of record it is established that there was no deficiency in service on the part of present appellants-OPs. However, it is also established that the respondent-complainant paid an amount of Rs.54,960/- to the appellants-OPs for her treatment and availed of 04 sessions out of a total of twenty sessions. But, learned District Commission failed to consider these facts and wrongly directed the OPs to return the total amount i.e. Rs.54,960/-. The District Commission should have given some cogent reasons and justification before issuing the aforesaid directions. Since, deficiency in service on the part of appellants-OPs is not proved, so the respondent-complainant is not entitled to get any compensation on account of mental agony, harassment etc. Consequently, the impugned order dated  16.12.2019, passed by the learned District Commission, Gurgaon is hereby modified and the present appeal stands partly allowed with directions to present appellants-OPs to refund the balance amount to respondent-complainant after deducting their fee for 04 sessions availed of by respondent-complainant out of Rs.54,960/- received by the appellants.

11.              Statutory amount of Rs.25,000/- deposited at the time of filing of present appeal be refunded to the appellants against proper receipt, identification and as per rules after expiry of the period of filing appeal, revision, if any.

12.              Application(s) pending, if any, stand disposed of in terms of the aforesaid Order.

13.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The Order be uploaded forthwith on the website of the commission for the perusal of the parties.

14.              File be consigned to records.

 

 

 

Pronounced on 03^rd June, 2024                                                 S.C. Kaushik

                                                                                                            Member

                                                                                                            Addl. Bench-III

R.K