Delhi

East Delhi

CC/131/2014

ANITA - Complainant(s)

Versus

HEALTH SENACTURY - Opp.Party(s)

12 Feb 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC No.131/2014:

 

In the matter of:

 

Smt. Anita Bakshi

501, Tower II, Parasvanath Majestic Tower,

Vaibhav Khand, Indirapuram,

Ghaziabad – 201 010

Complainant

Vs.

M/s. Health Sanctuary

100, New Rajdhani Enclave,

Opposite Preet Vihar,

Delhi - 110092

Respondent

 

Date of Admission : 12/02/2014

                                                                                    Date of Order          : 26/10/2015

 

ORDER

 

Poonam Malhotra, Member:

 

The brief facts of the present complaint are that lured by an advertisement of the respondent in the Hindustan Times newspaper the complainant joined the respondent centre on 18/11/2013 for Cryo-lipolysis for reduction of fat in desired areas (breast, stomach and hips) within six to eight weeks by making a payment of Rs.1,00,000/- on assurance of 100% result, no bouncing back and no side effects.  A session of 45 minutes each was given on the said desired areas but it did not yield the promised results.  It is alleged that the respondent did not use the right machine for the said procedure as revealed by one of its staff members.  Alleging deficiency in service, fraud & cheating on the part of the respondent the complainant has prayed for refund of Rs.1,00,000/- paid by her, an apology from the respondent for the inconvenience caused to her, Rs.3,00,000/- as compensation for harassment suffered by her and Rs.1,000/-as the cost of litigation.

 

In response to notice issued to the respondent, none put up appearance, no written statement filed and case proceeded exparte against it.

 

Evidence by way of Affidavit filed by the complainant only in support of her case has not been controverted by the respondent.

 

Heard the complainant and perused the record.

 

 In the case in hand, it is evident from the copy of the Bill cum Receipt with S.No.1557 dated 18/11/2013 that the complainant had paid Rs.1,00,000/- to the respondent for the Cryo-lipolysis for reduction of fat in desired areas (breast, stomach and hips).  It is alleged by the complainant that despite taking the prescribed sessions she has not got the results assured by the respondent.  Though she has not filed on record any cogent documentary evidence to substantiate her allegation but she has reaffirmed this fact on oath in affidavit and the same has not been controverted by the respondent.  It is pertinent to mention here that it is a settled position of law that uncontroverted evidence cannot be disbelieved and there is no reason for us to disbelieve the uncontroverted averments made by the complainant.   As such the same are acceptable to us.

 

Further, the complainant has also filed on record alongwith an affidavit the copy of the said advertisement as published in the newspaper The Hindustan Times of 02/11/2013 to substantiate the averments made by her in her complaint. On perusal of the said advertisement of the respondent it is clear that through the said advertisement it had given a general offer to the public at large including the complainant assuring them of positive results of its fat/weight loss therapies under the supervision of trained doctors and has thereby tried to woo the innocent people who often fall prey to their false assurances.  With the growing trend of the people opting for slimming and weight loss programmes being offered on rampant these days, the slimming and weight loss clinics such as the respondent are making hay out of the present trend to make profits by fleecing the pockets of their prospective consumers of their hard earned money in the guise of providing desired results.  They are indulging in malpractices and playing with the health of the people.

 

With regard to the specific allegations of fraud & cheating made in the pleadings filed by the complainant against the respondent it is pertinent to mention here that the offences of fraud & cheating are triable by the competent court as it involves the adjudication of questions of fact and evaluation of evidence which are out of the preview of the The Consumer Protection Act, 1986.  These proceedings are summary in nature which are decided on the basis of affidavits filed in evidence by the parties.  The questions of fact of fraud & cheating cannot be decided merely on the basis of an affidavit.  The allegations of fraud & cheating are, thus, not maintainable before this Forum.

 

Taking all the facts and circumstances into consideration, we hold the respondent guilty of unfair trade practice and direct the respondent to immediately refund Rs.1,00,000/- to the complainant within a period of 45 days from the date of receipt of this order.  We, further, award compensation of Rs.15,000/- on account of harassment meted out to the complainant inclusive of the cost of this litigation.  If this amount is not paid within 45 days from the date of receipt of this order, the complainant shall be entitled to interest over this amount @ 9% p.a. from the date of the order till it is finally paid to the complainant. 

 

Copy of the order be supplied to the parties as per rule.

 

 

(Poonam Malhotra)                                                                                                         (N.A.Zaidi)           Member                                                                                                                               President