PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of July 2012
Filed on : 10-10-2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 543/2011
Between
Mariappan, PRRA 17, : Complainant
Peyoly road, Kacheripady, (By Adv. A. Krishnan,
Junction, Kochi-18. Varma and Krishnan, Almanaar
Complex, M.G. Road,
Ernakulam-682 016)
And
1. M/s. VLCC Health Care Ltd., : Opposite parties
1st Floor, ABM Towers, (1stO.PBy Adv. V.V. Sadanandan
Next to Rajiv Gandhi Indoor CC-9313(9), 2nd floor, Ann’s
Stadium, Kadavanthra P.O., Apartment, Amullya Street,
Ernakulam, Ernakulam)
rep. by its Chief Executive Officer,
Sandeep Ahuja.
2. Sandeep Ahuja,
Chief Executive Officer,
M/s. VLCC Health Care Ltd.,
1st Floor, ABM towers,
Next to Rajiv Gandhi Indoor
Stadium, Kadavanthra P.O.,
Ernakulam.
O R D E R
A Rajesh, President.
The facts of the complainant’s case leading to this complaint are as follows:
The complainant is working in a private establishment. The opposite parties are engaged in the service of offering mechanized ways for body fitness and body slimming etc. Lurred by the assurances of the opposite parties, the complainant subscribed for weight loss, Tummy truck, body therapy, body firmer and paid fees for each of the above treatments totaling Rs. 4,20,79/-. But after undergoing treatment/therapy for about 14 days, intermittently, the complainant developed physical discomforts, some swelling over the body, growth of pimples over the body etc. The complainant informed the same to the opposite parties. They encouraged him to continue with the treatment/therepy. Since the discomfort were severe he was constrained to stop the same and resultantly he became normal. At the instance of the opposite parties the complainant restarted the treatment but the same problem recurred. The discomfort was due to the side effects of the treatment, a qualified doctor certified to the same. Accordingly the complainant requested the opposite party to refund the fee paid, at that juncture the opposite parties induced him to undergo any other treatment. The complainant was not ready for the same. The complainant caused to issue a lawyer notice to the opposite parties demanding the fees. They accepted the notice, but there was no response. Thus the complainant is before us seeking direction against the opposite parties to refund the fees together with compensation of Rs. 10,000/- and costs of the proceedings.
2. The version of the 1st opposite party is as follows:
The 1st opposite party is engaged in the slimming and health care services through passive exercises, dietary modification, physical activity, pattern life Style and behavior modification technique. The said services are imparted by experts. The 1st opposite party only suggested slimming therapy and final decision was taken by the complainant after going through the terms and conditions of the programme as detailed in the client programme card which was duly signed by the complainant. The complainant attended to 10 scheduled sessions, he did not develop any severe side effect. What ever rashes so emerged on the complainant were due to hyper pigmentation and was quite normal and even would have disappeared immediately. But the complainant stopped the remaining sessions. On enquiry the complainant informed that he was not interested in continuing with the sessions as is not able to maintain the precautions and dietary controls being advised. He further demanded complete refund of the amount. The 1st opposite party advised the complainant to consult the in-house medical practitioner, the complainant did not turn up. At the time of booking itself was categorically explained to the complainant that no refund will be made in case of partial execution of the treatment for any of the reasons and the complainant have accepted the same. Discontinuance of the treatment was only at the instance of the complainant. The complaint is devoid of any merit and liable to be dismissed.
3. The 2nd opposite party duly accepted notice issued from this Forum, but he opted to remaining absent during the proceedings for his own reasons. The complainant was examined as PW1 and Exts. A1 to A6 were marked. The witness for the 1st opposite party was examined as DWs 1 and 2 and Exts. B1 to B5 were marked on their side. Heard the counsel for the parties.
4. The points that arose for consideration are as follows:
i. Whether the complainant is entitled to get refund of Rs.
42,079/- from the opposite parties. ?
ii. Whether the opposite parties are liable to pay compensation
of Rs. 10,000/- and costs of the proceedings to the
complainant?
5. Point No. i. It is not in dispute that the complainant jointed the package offered by the opposite party viz. weight loss, tummy truck, body therapy and body Firmer by paying a total sum of Rs. 42,079/- evident from Ext. A1 payment receipt dated 18-04-2011. According to the complainant in spite of repeated attempts he could not continue with the treatments offered by the opposite parties since due to the same the complainant developed physical discomforts.
6. The 1st opposite party maintains that the scheme opted by the complainant is a weight losing and slimming therapy based on exercise (passive) and diet modification and never offered mechanized way of body fitness and body slimming as contented by the complainant. According to them the complainant joined the scheme fully knowing the terms and conditions of the scheme, the records categorically state that no refund shall be entertained in any event.
7. Ext. A6 medical certificate goes to show that during the treatment at the 1st opposite party the complainant consulted a doctor and he issued the same stating as follows:
“This is to certify that Mr. Mariappan aged 42 years has allergy to vibrating belt and he is advised to refrain from using the belt”.
The opinion of the doctor might have prompted him to discontinue with the treatment of the 1st opposite party. It is pertinent to note that though the opposite parties contended that they are having in house doctor and trained personal to assist the persons undergoing treatment they failed to mount the box to support the contentions of the 1st opposite party. Instead they examined as DW1 and 2 admittedly they are only administrative staffs of the 1st opposite party. They have nothing to do with the procedure of the treatment of the complainant. DW2 went to say that the 1st opposite party had incurred Rs. 10,000/- for the treatment of the complainant.
8.Evidently in Ext. B1 it is stated that fee once paid will not be refundable or transferable. In spite of a seemingly arbitrary and unilateral tinge the well laid down maximum ‘nemo debut locuplentari ex aliena jactura’ (unjust enrichment) comes to play here. Having anything contrary to the same on record the opposite parties are to refund the excess amount retained by them. To set matters right an order to the opposite parties to refund the amount after deducting the expenses incurred by the complainant as admitted by DW2 is enough to meet the ends of justice.
9. Point No. ii. The primary grievance of the complainant having been met squarely, we order no compensation, however an exemplary costs of Rs. 1,000/- is awarded.
10. In the result, we partly allow the complaint and direct as follows:
i. The opposite parties shall jointly and severally refund Rs. 32,079/- (Rs. 42,079/--Rs.10,000/- = Rs.32,079) to the complainant for the reasons stated above.
ii. the opposite parties shall jointly and severally pay Rs. 1,000/- to the complainant towards costs of the proceedings.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order failing which the above amounts shall carry interest @ 12% p.a. till realization.
Pronounced in the open Forum on this the 31st day of July 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of invoice/payment receipt
A2 : Copy of lawyer notice
dt.15-07-2011
A3 : Lawyer notice dt. 16-07-2011
A4 : A.D.card
A5 : Proof of delivery
A6 : Certificate dated 28/05/2011
Opposite party’s Exhibits : :
Ext. B1 : Client programme record
B2 : Extracts of minutes
B3 : Client Programme record
B4 : Client Programme record
B5 : Details of Mariappan
Depositions:
PW1 : K.S. Mariappan
DW1 : Vijayan M.P.
DW2 : Usha Narayanan
