Date of Filing:21/07/2014
Date of Order:10/03/2017
ORDER
BY SRI.H.JANARDHAN, MEMBER
1. This is the complaint filed in person alleging the deficiency in service on the part of the O.P and praying for direction to the O.P to pay a sum of Rs.50,000/- with bank interest along with the cost of the litigation.
2. The brief facts of the complaint is that, the complainants opted for weight loss program with the O.P having his branch in Indiranagar on 15.3.2014. The complainants paid Rs.50,000/- including service tax vide receipt No.2525 to the O.P for the weight loss program. The program was for 48 sessions and these included three sessions in a week for four months and given the assurance to both the complainant and his wife for reduction of weight to an extent of 30 Kg weight and 20 Kg weight for both complainant and his wife respectively. On the day of joining the complainants had taken a zero session when he visited the center for the next day doctor Nafees was not available but Dr.Priya was available and explained about the program and as it was sufficient for the complainant and his wife. Dr.Priya asked the complainants to change the program by paying minimum Rs.15,000/- to change the program, the program which she suggested was more expensive then earlier they opted for the program. When the complainants explained that they have already paid Rs.50,000/- and asked her to make suitable arrangements to change the program without charging more money and once if they see the results, the complainants assured to pay the full amount in one bowl. But Dr.Priya refused to change the program without paying minimum Rs.15,000/- from these discussion the complainants came to know that these weight reduction program was fraud and just for extracting more money without showing any results. Then the complainants decided to quit the program as there was no gurantee of weight loss rather to take the medical treatment for weight loss. On the same day i.e.on 16.3.2014 complainants asked Dr.Priya to quit the program and asked for the refund. Complainants explained as they have not taken any service from the center except zero session, hence sought for refund of the money paid. Even after the pursuance of the refund Dr.Priya i.e. O.P refused to pay back or refund the money. Inspite of frequent follow-ups for the refund which has to be discussed by the management and the management has to take the decision for the refund without which the O.P refused to refund the amount. The complainants also made phone calls many times to the center but complainants did not get any answer from the O.P center. Further complainants sent the legal notice to the O.P center on 3.7.2014 asking for the refund within 10 days of receipt of the said notice. Inspite of the receipt of the notice O.P did not come forward to refund the amount. Hence this complaint.
3. Upon issuance of notice to O.P and O.P appeared through their counsel and filed its version. In the version O.P contended that, the complaint is not maintainable either in law or on facts. The complainants have filed this complaint in order to harass the O.P without any valid reasons and grounds. The complainants have suppressed material facts before the Hon’ble Court which renders in guilty of suppression- vari and suggestio falsi has filed the false and frivolous complaint on frivolous grounds. There is no cause of action to file the complaint. Further O.P contended that, complainant opted for the weight loss program with the O.P on 15.3.2014 had paid Rs.50,000/- the program for 48 sessions and had a break up of three sessions per week for four months and attended the zero sessions i.e. trial session on the day of joining the program. The allegation that Dr.Nafeesa was not available and hence Dr. Priya explained then that the program opted by complainants is not sufficient for both of them and asked them to change the program by paying minimum Rs.15,000/- to change the program and that the suggested program was more expensive then what they opted is false and incorrect and there is no shred of truth. Further O.P contended that she did not agree to change the program without any payment and from these discussion complainants came to conclusion that the weight reduction program are fraud and just taking money without showing the result is baseless and the complainants are put to strict proof of the same. The allegation that the complainant decided to quit the program where there is no gurantee of results and they have decided to take a medical treatment for their weight is their personal view and decision and there is no basis for coming to such conclusion without attending sessions and they cannot come to such decision that there is no gurantee of result it is nothing but deformatory statement made by the complainants and O.P reserves right to sue in the appropriate forum. The allegation that complainant asked Dr.Priya for refund and Dr.Priya refused to refund is true since the invoice of the bill is specific that once the payment is made is non-refundable at any given circumstances and the complainants have taken unilateral decision at their whims by relaying on their institution and there is no technical reasons assigned by the complainants without availing and going through the program the complainants cannot come to conclusion that the O.P is fraud by attending only one session i.e. introduction program. Hence O.P. contended that there is no deficiency in service on the part of the O.P as the complainants has not availed the services of the O.P. Further O.P contended that the complaint is not maintainable as the corporate office of the O.P is situated in Mumbai has not been arrived as party to the complaint. On other grounds O.P prays for dismissal of the complaint.
4. In order to substantiate the case of the parties and he filed his affidavit evidence in lieu of oral evidence and also heard the arguments.
5. On the basis of the pleadings of the parties, the following points will arise for our consideration are:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.P?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) What order?
6. Our answers to the above points are:-
POINT (A) & (B): In the Affirmative.
POINT (C): As per the final order
for the following:
REASONS
POINT No.(A) & (B):-
7. On perusing the pleading of both the parties it is an undisputed that the complainants have opted for weight loss program with the O.P and paid an amount of Rs.50,000/- vide receipt No. 2525 dated15.3.2014 and the weight loss program total 48 sessions and this included three sessions a week for four months and the O.P assured the complainant and his wife that they are going to reduce the weight of 30 kg to the complainants and 20 kg weight loss to the complainant’s wife. It is true that the complainants have taken a zero session i.e. a trial session with the O.P but when they consulted one Dr.Priya and explained for what purpose they are attending the program of weight loss on listening to the complainants words Dr.Priya of O.P instititute suggested the complainants to change the program which they have opted and for changing the program of weight loss O.P demanded Rs.15,000/- for the change of the program. But the complainants made a request not to charge more and as they have already paid Rs.50,000/- the same may be adjusted to the changed program but O.P did not heed to the words of the complainants and demanded Rs.15,000/- extra for change of the weight loss program.
8. Per-contra O.P contended that as per the invoice bill once amount is paid will not be refunded. It is worth to note that when the complainants not intended to take the weight loss program session after attending zero session program and when they dissatisfied with the advise of the O.P to change the program by paying extra amount of Rs.15,000/-. The law is very clear that, the consumer are the service taker has got every right has the law contemplated under Section 6 of the Consumer Protection Act 1986 reads as under:-
(b) Right to be Informed about the quality, quantity, potency, purity, standard, and price of goods (or services, as the case may be) so as to protect the consumer against unfair trade practices,
(c) The right to be assure, whenever possible, assess to a variety of goods (and services) at competentive prices.
(d) The right to be heard and to be assured the consumer’s interest will receive due consideration at appropriate Forums.”
9. Based on the above provisions, the O.P did not inform the complainants about the other changed package before receiving the money and hence the right of complainants deprived. Further when the complainant did not want to continue the program but the O.P failed to hear the right of the consumer/complainant and his interest is not get due consideration. When the package price is more complainant has got every right to opt for the relief or service at the competent prices.
10. When the complainant demaned to refund the amount against the dis satisfaction of the package program it is the duty of the O.Ps to refund the money unconditionally for the reasons assigned above. The non-refunding of the amount paid by the complainant by the O.P it amounts not only deficiency in service but also unfair trade practice also. In the attendance circusmtnaces of the case we hereby direct the O.p to refund an amount of Rs.50,000/- along with interest at the rate of 9% per annum from the date of payment till realization. And Rs.2,000/- towards cost of litigation and it will meet the ends of justice. Accordingly we answered these points in the affirmative.
POINT (C):
11. On the basis of answering the Points (A) & (B) in the affirmative, we proceed to pass the following:-
ORDER
- The complaint is allowed in part with cost.
2. The O.P i.e. MD, Ego Wellness Pvt. Ltd., represented by its Authorized Signatory is hereby directed to refund an amount of Rs.50,000/- to the complainant along with interest at the rate of 9% per annum from the date of payment till realization.
- Further O.P. is hereby directed to pay Rs.2,000/- towards cost of the litigation expenses.
4. The O.P is hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this forum within 45 days from the date of receipt of this order.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 10th Day of March 2017)
MEMBER MEMBER PRESIDENT
*Rak
