BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.131 of 2016

Date of Instt. 17.03.2016

Date of Decision: 27.03.2018

Shanti Kumar aged about 50 years son of Late Sh. Piare Lal R/o House No.82, Panchsheel Avenue, Deep Nagar, Jalandhar.

..........Complainant

Versus

1. M/s The Kerala Ayerveda Center, 2-B Dashmesh Nagar, Garha Rail Crossing, Near Bus Stand, Jalandhar-144001, Punjab through its Prop./Partner/MD.

2. Mrs. Dhania Prop./Partner/MD M/s The Kerala Ayurveda Center, 2-B, Dashmesh Nagar, Garha Rail Crossing, Near Bus Stand, Jalandhar-144001, Punjab.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Jatinder Arora, Adv Counsel for the Complainant.

Sh. OP Sharma, Adv Counsel for the OP No.1 and 2.

Order

Karnail Singh (President)

1. This complaint is filed by the complainant, wherein alleged that the minor son of the complainant namely Harsh, who is aged about 14 years is a patient of Cerebral Palicy and he cannot walk and talk. The OPs published an advertisement in the newspaper that the OPs are giving treatment to the patient of Cerebral Palicy. After going through such kind of inducement, the complainant approached the OPs on 15.02.2014 and met the OP No.2 for the treatment of his son. The OP No.2 assured the complainant that she will make his son able to stand on his own legs within 21 days and for this, she would charged lump sum amount of Rs.41,947/-, after deduction 15% discount from the amount of Rs.49,350/-.

2. The complainant got started the treatment of his son from OP No.1 and 2 from 01.03.2014 for a period of 21 days and the payments were given on 01.03.2014 of Rs.10,000/-, on 04.03.2014 of Rs.10,000/-, on 08.03.2014 and 12.03.2014 of Rs.10,000/- each and on 21.03.2014 of Rs.1947/-. This payment was duly received by the OPs and the OPs have also issued the receipts to this effect. However, no improvement was seen in the condition of son of the complainant. The complainant asked OP No.2 that OPs had assured him that his son will stand on his legs within 21 days with their treatment, but there is no improvement in his condition. Then, the OP No.2 uttered the words in a very harsh manner, “I cannot show you the miracle as I have no magic stick”. Thereafter, the OP No.2 again told the complainant and his wife that the improvement can be seen within six months and thereafter, the complainant continued the treatment of OPs for two/three months. More than 9 months has been elapsed after the treatment, but no improvement is seen. The complainant has also moved a criminal complaint against OPs before SHO Police Station Div. No.7, Jalandhar and investigation is still pending on the said complaint. The OPs have played fraud with the complainant by making false representations and inducements and have extorted a sum of Rs.41,947/- from the complainant, thereby caused wrongful loss to the complainant and wrongful gain to the OPs. The complainant got issued a legal notice dated 26.02.2016 through his counsel upon the OPs vide registered post on his address and the notice was duly served upon the OPs and there is deficiency and negligence in service on the part of the OPs and the complainant suffered a great mental tension, agony and harassment apart from humiliation and as such, make a request that the complaint of the complainant may be accepted and OPs be directed to pay Rs.5,00,000/- as compensation on account of mental tension, agony and harassment caused by the OP to the complainant and further OPs be directed to pay Rs.50,000/- for causing negligence on part of the OP, deficiency in service etc. and also be directed to pay cost of litigation Rs.22,000/-.

3. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared and filed its joint reply, whereby contested the complaint by taking preliminary objections that the complaint in the present form is not maintainable, hence, deserves to be dismissed and further alleged that no cause of action has ever accrued to the complainant against the OPs for filing the present complaint and even the complaint is bad for mis-joinder and non- joinder of the necessary parties. It is further alleged that the complainant is estopped by his own act, conduct, waiver, latches and acquiesce from filing the present complaint and even the complainant has concealed and suppressed true and material facts from the Forum and as such, is not entitled for any relief including the discretionary one and even the complaint of the complainant is false, frivolous and vexatious and even the complaint of the complainant is time barred, hence, the same is liable to be dismissed. On merits, the factum in regard to getting a treatment from the OP is not denied and further alleged that no such advertisement has ever given by the OP for curing 100% of the patient and the amount mentioned in the complaint is admittedly received by the OP and further alleged that during the period of treatment being provided to the son of the complainant, a clear improvement was seen in the condition of patient and the complainant was fully satisfied for the treatment given to his son and further alleged that the complainant filed a complaint to the police and during the investigation, a report was called from the Registrar of Ayurveda Punjab and qualified doctor categorically submitted a report that the treatment given to the patient was perfectly right, but even then the complainant again started harassing the OPs for the objective reasons. The other averments as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed with cost.

4. In order to prove the case of the complainant, complainant himself tendered into evidence his own affidavit Ex.CA alongwith documents Ex. C-1 to Ex.C-16 and the evidence of the complainant was closed by order on 31.05.2017.

5. In order to rebut the evidence of the complainant, counsel for the OP No.1 and 2 tendered into evidence affidavit of the OP Ex.OP/A alongwith document Ex.OP/1 and closed the evidence.

6. We have gone through the written arguments submitted by the counsel for the complainant and also gone through the case file very minutely.

7. In nutshell, the case set up by the complainant is only that the son of the complainant namely Harsh, aged about 14 years old is a patient of Cerebral Palicy and after getting allurement from the advertisement in the newspaper, the complainant started getting a treatment from OPs, after making a payment of Rs.41,947/-, vide receipt Ex.C-1 to Ex.C-5, but after getting a treatment, there was no improvement in the condition of the son of the complainant and as such, the OP has make a false representation and inducement and have extorted a sum of Rs.41,947/- from the complainant because the son of the complainant had not got any relief to his disease and accordingly, claimed a compensation as well as litigation expenses.

8. The case of the complainant refuted by the OP, simply on the ground that the OP has never given any assurance for recovery of 100% of the disease, rather after getting a treatment, there was some improvement in the condition of the patient and further submitted that the instant complaint has been filed just to harass the OPs for extracting money.

9. We considered the entire case and find that the complainant has made allegation in the complaint that he allured from the advertisement published in the newspaper, but for the best known reason, the complainant has not brought on the file any newspaper, where from this Forum can extract the exact intention of the OP given in the said advertisement. We can make assure our-self only after going through the said advertisement whether 100% assurance was given in that publication for curing the said disease, if so then, there is a negligence and deficiency on the part of the OP, but from this angle, the case of the complainant is not established or proved.

10. Further, admittedly the case of the complainant in regard to giving a treatment to the son of the complainant is not denied by the OP, but OP alleged that there was some improvement in the condition of the patient, but this version of the OP is not refuted by the complainant by bringing on the file any medical expert evidence, who medically checked the son of the complainant after getting a treatment from the OP and gave a report whether there is any improvement or not or further if the treatment given by the OP caused further damages to the patient, if so then, we can fasten a liability of negligence on the part of the OP, but in this case, no such type of evidence has been come on the file. So, with these observations, we are of the considered opinion that the allegations made by the complainant is not established in any manner and accordingly, we do not find any force in the argument put forth by the learned counsel for the complainant and therefore, the complaint of the complainant is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

27.03.2018 Member President