Date of Filing      : 02.07.2021

                                                                                                                 Date of Disposal: 28.11.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                  .…. PRESIDENT

                 THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L.,                                    ....MEMBER-II

  

CC. No.28/2021

THIS MONDAY, THE 28th DAY OF NOVEMBER 2022

 

Mr.N.Rajhavelmohan,

No.41, Vasanthapuri Phase II,

Poonamallee, Chennai 600 056.                                                        .........Complainant. 

                                                                          //Vs//

1.The Manager, Kolors Healthcare LLP,

   Door No.150, Mount Poonamallee Trunk Road,

   Next to GK Cinemas, Porur,  Chennai 600 116.

 

2.The Managing Director,

   Kolors Healthcare LLP,

   Plot No.59/8, Above Reliance trends, 1st Floor,

   Karkhana, Secundrabad – 500 015.                                                ...Opposite parties.

 

Counsel for the complainant                         :   Mr.A.R.Poovannan, Advocate.

Counsel for the opposite parties                  :   M/s.Karate V.Muthukumar, Advocate.

                         

This complaint is coming before us on various dates and finally on 11.11.2022 in the presence of Mr.A.R.Poovannan Advocate,  counsel for the complainant and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in not refunding the amount paid by the complainant towards weight loss charges along with a prayer to direct the opposite parties  to refund a sum of Rs.90,000/- with 12% interest per annum and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused by the opposite parties to the complainant and to pay a sum of Rs.5,000/- cost of the proceedings to the complainant. 

Summary of facts culminating into complaint:-

 

It was the case of the complainant that the opposite parties were making advertisement in all the dailies and television about their program on weight loss.  The complainant intended to join the weight loss program to reduce his weight and then consulted the 1st opposite party. The complainant on 27.01.2016 underwent surgery in his Right Eye and in Left eye on 04.11.2016.  The complainant submits that the operation failed and thus the complainant again on 12.09.2019 underwent another surgery in his right eye and the lens was removed.  The opposite parties assured that there will not be any side effect in undergoing the weight loss treatment with them.  The complainant submits that the complainant at the time of consultation itself made it clear to have a trial for 10 days and will continue thereafter. The complainant was directed to pay a sum of Rs.90,000/- towards the fees.  The complainant submits that out of the aforesaid sum of Rs.90,000/- a sum of Rs.18,000/- was paid by the complainant and the balance amount a sum of Rs.72,000/- was paid by the complainant’s wife Mrs.Geetha Vel Mohan by availing loan from Bajaj Finance.  Further the opposite party themselves have rranged for the said loan with the Bajaj Finance. The complainant attended the first two sessions of the program with the 1st opposite party the complainant then faced troubles and developed several complications.  The complainant submits that the opposite parties assured that before joining the program that there would not be any side effects on account of the treatment given by them. Based on the said assurance only, the complainant joined the weight loss treatment program with the opposite parties. At first session of weight loss program with the opposite party they covered the body with a type of blanket with a heating element and he complainant experienced severe irritation in his eyes.  The complainant immediately informed the staffs of the opposite parties that the complainant is unable to bear the heat. The opposite party‘s staffs casually told that the said irritation is temporary and asked the complainant to continue with the further sessions.  The complainant therefore attended the second session were in pressure treatment at stomach was given.  The complainant submits that on completing the second session, irritation and pressure has developed in the eyes and the complainant was also unable to bear the heat. Therefore the complainant consulted with the Opthalmologist in DRR Eye Care and Oculoplasty Hospital, the Doctor advised the complainant that since he had under gone two surgery not to continue with the weight loss program and if it was continued it would result in complete loss of vision.  The complainant’s left eye was also getting damaged.  The Doctor in DRR Eye Care and Oculoplasty Hospital had also given a certificate in respect of injures in the complainant’s eyes and advised him not to continue with the weight loss treatment. The complainant had been following with the 1st opposite party’s office at Porur for refund and they have assured to return the amount paid by the complainant.  In the mean while he received a legal notice on 02.03.2021 with false allegations against him and opposite parties denied to refund the amount paid by him.  Thereafter the complainant issued a reply notice to the opposite party on 19.03.2021. Thus aggrieved by the act of the opposite parties the present complaint was filed for the following reliefs as mentioned below;

To direct the opposite parties  to refund a sum of Rs.90,000/- with 12% interest per annum

 To pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused by the opposite parties to the complainant

 To pay a sum of Rs.5,000/- cost of the proceedings to the complainant. 

Crux of the defence put forth by the opposite parties:-

The complainant did not disclose any of his medical issues relating to eye correction surgery. Only on the request of the complainant the 2nd opposite party arranged for the loan with the Bajaj Finance.  The complainant was then directed to pay a sum of Rs.90,000/- towards the fees only after properly explained all the details, terms and conditions regarding the program. The complainant registered himself for the weight loss program for the body and not for face and thus the blanket was not covered on the complainant face. It was denied that the complainant attended the second session and that pressure treatment at stomach was given and on completing the second session, irritation and pressure has developed in the eyes. Certificate issued in respect of the injury in the complainant’s eyes by the Doctor in DRR Eye Care and Oculoplasty Hospital was obtained with ill-motive to claim money from them.  There was no refund policy as per the terms and conditions drafted by the opposite party Kolors Health Care LLP which was also duly accepted and signed by the complainant.  The treatment provided by the opposite party is safe and absolutely had no adverse effect.  The claims made by the complainant were all baseless.  The complainant is not entitled to get any refund or compensation from the opposite parties. Thus they sought for complaint to be dismissed. 

The complainant has filed proof affidavit and documents Ex.A1 to Ex.16 were marked on their side.  On the side of opposite parties proof affidavit was filed and documents Ex.B1 & Ex.B2 were filed by them.  

Point for consideration:-

Whether the act of opposite parties in not refunding the amount paid by the complainant towards weight loss charges quoting non refundable policy amounts to deficiency in service?

If so to what relief the complainant is entitled?

Point:1

On the side of the complainant the following documents were filed in support of the complaint allegations;

Bill for the payment of Rs.6000/- by the 1st opposite party dated 02.01.2020 was marked as Ex.A1;

Bill for the payment of Rs.84,000/- by the 1st opposite party dated 03.01.2020 was marked as Ex.A2;

Letter submitted by the complainant for refund of amount dated 20.01.2020 was marked as Ex.A3;

Remainder letter sent by the complainant for refund of amount to the opposite party dated 04.03.2020 was marked as Ex.A4;

Email sent by the complainant to the opposite party dated 09.03.2020 was marked as Ex.A5;

Certificate issued by Dr.T.Udhaykumar of DRR Eye Care and Oculoplasty Hospital dated 30.01.2021 was marked as Ex.A6;

 Legal notice issued by the opposite party to the complainant dated 02.03.2021 was marked as Ex.A7;

Reply sent by the complainant to the opposite party dated 19.03.2021 was marked as Ex.A8;

Rejoinder notice by the opposite party dated 31.03.2021 was marked as Ex.A9;

Returned cover by the 1st opposite party was marked as Ex.A10;

Discharge Summary of the complainant from DRR Eye Care and Oculoplasty Hospital dated 27.01.2016 was marked as Ex.A11;

Discharge Summary of the complainant from DRR Eye Care and Oculoplasty Hospital dated 04.11.2016 was marked as Ex.A12;

Discharge Summary given by DRR Eye Care and Oculoplasty Hospital dated 12.09.2019 was marked as Ex.A13;

Bill issued by Vijaya Hospital, Vijaya Heart Foundation to Mrs. Geetha Velmohan dated 27.02.2020 was marked as Ex.A14;

Fees Receipt of Mr.G.R.Yokananthaarun dated 30.11.2020 was marked as Ex.A15;

Fees Receipt of Mr.C.R.Satiyanathan dated 21.12.2020 was marked as Ex.A16;

On the side of opposite parties the following documents were filed in support of their defence;

Medical Analysis Report was marked as Ex.B1;

Terms and Conditions signed by the complainant dated 02.01.2020 was marked as Ex.B2;

  Heard the oral arguments and perused the written arguments filed by both parties.  As the opposite parties did not adduced any oral arguments even after providing sufficient opportunities this commission decided to consider the written arguments filed by them to decide the complaint on merits.

The crux of the oral arguments adduced by the complainant’s side is that he had paid an amount of Rs.90,000/- to the opposite parties towards weight loss programs by way of loan obtained from Bajaj Finance.  The complainant submitted that he got admitted on assurance that there would not be any side effect because of weight loss treatment given by the opposite parties.  As the complainant had undergone surgery on various dates before joining the weight loss programs with the opposite parties he was afraid of side effects. However, after attending the first two sessions the complainant got irritation in his eyes and could not continue the program.  On consulting with Ophthalmologist in DRR Eye Care and Oculoplasty Hospital the doctor advised and had given a certificate that he could not continue the weight loss programs.  Hence the complainant sought for the refund of the amount along with compensation.

On the other hand the opposite parties filed written version disputing all the complaint allegations.  The main contention was that the complainant joined weight loss programs without any compulsion. It was submitted by them that it gives best solution in the field of weight loss, skin and hair care and has 54 branches throughout India. The complainant did not complete the entire sessions as suggested by the opposite parties. The complainant failed to disclose regarding the eye surgery to the opposite parties thus stating that there was non-disclosure regarding the health issue and non completion of the prescribed number of sittings they could not refund the amount and no deficiency in service on their side. Thus they sought for the complaint to be dismissed.

As per available documents it is seen that the complainant had paid a total sum of Rs.90,000/- to the opposite parties vide Ex.A1 & Ex.A2 and a request letter was given by the complainant for refund of the amount which was marked as Ex.A3 to Ex.A5.  Vide Ex.A6 one Dr.T.Udhay Kumar of D.R.R. Eye Care Oculoplasty Hospital had given a certificate that the complainant was diagnosed that both Eye Macular Edema, Right Eyes S/P Vitrectomy and he was advised to avoid any weight loss or any other treatment without proper medical advice.  Further Ex.A11 shows that the complainant had undergone the procedure of “Phacoemulsification with foldable intraocular lens Implantation done under Local Anesthesia –Right Eye” for cataract in right eye and Vide Ex.A12 it is seen that complainant had undergone the procedure of “Phacoemulsification with foldable intraocular lens Implantation done under Local Anesthesia –Left Eye“. However, it is seen that it has been clearly mentioned even as per the complainant documents Ex.A1 & Ex.A2 that “the amount once paid is non-refundable”.  The complaint allegation that the complainant joined weight loss programs only on assurance that there would not be any side effect was not substantiated as no proof was submitted by the complainant. Further the complainant ought to have divulged his complete health condition before joining the programs.  There is no proof submitted by the complainant that he informed the opposite parties about the eye surgery.  However, it is an admitted fact by the opposite parties that the complainant had attended only two sessions out of 40.  It was also adequately proved that he suffered with eye damages due to the weight loss treatment undergone by him by providing sufficient medical evidences. In such circumstances, the possibility of side effects caused to complainant due to the weight loss programme also could not be ruled out.  In such circumstances the opposite parties ought to have refunded the amount paid by the complainant when could not contimue the programme.   Citing the reason by the oppostie parties that the amount once paid is not refundable in such scenerio is unfair and could not be accepted when it is proved that due to some side effects the complainant could not continue the session. Thus we answer the point accordingly holding that the act of the opposite parties in not refunding the amount amounts to clear deficiency in service. 

Point No.2:-

With regard to relief to be granted as per the Ex.A5 the complainant has sought for refund of Rs.36,760/- to him and the balance amount to be paid to the Bajaj Finance.  However, no material was produced by the complainant towards the payment of finance. But it was admitted by both parties that the amount was paid by way of finance from Bajaj Finance. In such circumstances we direct the opposite parties to refund a sum of Rs.70,000/- to the complainant without any interest within six weeks from the date of receipt of copy of this order and it is the endevour of the complainant to repay the finance. Considering the nature of claim we award no compensation and no cost. 

In the result, the complaint is partly allowed and the opposite parties 1 & 2 are jointly and severally directed to refund a sum of Rs.70,000/-(Rupees seventy thousand only) within six weeks from the date of receipt of copy of this order.

 Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 28th day of November 2022.

 

   Sd/-                                                                                                                   Sd/-

MEMBER-II                                                                                                    PRESIDENT

 

 

List of document filed by the complainant:-

 

Ex.A1 02.01.2020 Bill for the payment of Rs.6000/- by the 1st opposite party. Xerox

Ex.A2 03.01.2020 Bill for the payment of Rs.84,000/- by the 1st opposite party. Xerox

Ex.A3 20.01.2020 Letter submitted by the complainant. Xerox

Ex.A4 04.03.2020 Remainder letter by the complainant to the oppostie party. Xerox

Ex.A5 09.03.2020 Email sent by the complainant to the opposite party. Xerox

Ex.A6 30.01.2021 Certificate issued by Dr.T.Udhaykumar of DRR Eye care and Oculoplasty Hospital. Xerox

Ex.A7 02.03.2021 Notice issued by the opposite party. Xerox

Ex.A8 09.03.2021 Reply by the complainant. Xerox

Ex.A9 31.03.2021 Rejoinder by the opposite party. Xerox

Ex.A10 25.04.2021 Returned cover by the 1st opposite party. Xerox

Ex.A11 27.01.2016 Discharge Summary of the complainant from DRR Eye Care and Oculoplasty Hospital Xerox

Ex.A12 04.11.2016 Discharge Summary of the complainant from DRR Eye Care and Oculoplasty Hospital Xerox

Ex.A13 12.09.2019 Discharge Summary given by DRR Eye Care and Oculoplasty Hospital. Xerox

Ex.A14 27.02.2020 Bill issued by Vijaya Hospital, Vijaya Heart Foundation to Mrs. Geetha Velmohan. Xerox

Ex.A15 30.11.2020 Fees Receipt of Mr.G.R.Yokananthaarun. Xerox

Ex.A16 21.12.2020 Fees receipt of C.R.Satiyanathan. Xerox

 

List of documents filed by the opposite parties:-

 

Ex.B1 ............. Medical Analysis Report. Xerox

Ex.B2 02.01.2020 Terms and conditions signed by the complainant. Xerox

 

 

 

   Sd/-                                                                                                                    Sd/-

MEMBER-II                                                                                                    PRESIDENT