BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

01^ST DAY OF FEBRUARY 2016

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 seeking direction against Opposite Party (herein after referred as OP) to pay compensation of Rs.3,00,000/- on the allegations of deficiency in service.

2.  The brief averments made in the complaint are as follows:

The OP is a body care centre.  The centre treats the patients by cool-sculpting machine, approved by F.D.A. of U.S.A manufactured by M/s.Geltec U.S.A which ensures weight loss and loss of obesity by freezing fats of the body.  OP has given advertisement widely in a newspaper about the pattern of treatment on 09.05.2015 in Times of India.  Complainant who is obese got lured by the said advertisement and approached OP office on 09.05.2015, who was received by an Executive of OP, Ms.Bandana.  Ms.Bandana started glib talking with the complainant and assured that they are in possession of cool sculpting laser machine imported from U.S.A. and should the complainant got registered on the same day of the advertisement, concessional rate can be offered to him.  OP assured cool sculpting of the complainant body and fat ensuring 10 Kg of weight loss and girth loss of 40-50cms.  Complainant wanted to see cool sculpting laser machine.  He was told that the machine was in interior and could be inspected the next day.  Since, it was a closing time the deal should be inked instantly so that complainant could avail the concessional rate of treatment.  Complainant got assured by the promises of the executive of OP and OP extracted sum of Rs.52,000/- from the complainant which was paid by credit card of Axis Bank.  The amount was duly acknowledged by OP on the same day.  On 10.05.2015 being a Sunday, complainant went to OPs clinic on 11.05.2015. The Executive Ms.Bandana persuaded the complainant to commence the treatment and thereafter promised to show           cool-sculpting machine.  Surprisingly, on the pretext of treatment, the complainant was led to an indigenous vibrator and some perfunctory massage was given to the complainant.  When the complainant desired to see the U.S.A made cool-sculpting machine the Executive started showing some other machines. At that juncture, complainant realize the deceitful act of OP and then and there demanded cancellation of the therapy programme and refund of the amount. Complainant through e-mail dated 12.05.2015 explicitly cancelled the treatment programme and demanded the refund of amount paid.  Even the complainant wrote to his bank namely Axis Bank for stoppage of payment, but the bank showed its helplessness. Thereafter the complainant was made to come to the office of OP more than 10 times from his residence at Whitefield by hiring Taxies and spending more than Rs.12,000/-.  He was made to talk with other Executive like Ms.Somia, Divya and few others.  But OP refused to refund the amount paid.  OP without having a cool-sculpting machine of the claimed U.S.A. make, approved by F.D.A. of U.S.A. has lured the complainant to part with the sum of Rs.52,000/- by resorting to restrictive trade practices, thereby complainant is entitled to be compensated for the loss of travelling expenses and mental agony amounting to Rs.3,00,000/-.  Inspite of repeated e-mail correspondence and request, OP failed to refund the amount.   Hence, complainant felt deficiency in service on the part of the OP.  Under the circumstances, he is advised to file this complaint against OP for appropriate relief.

3.  After registration of the complaint, notice was issued to OP.  Inspite of service of notice OP remained absent without any sufficient reason or cause.  Hence OP was placed exparte and posted the case for filing affidavit of the complainant.

4. So as to prove his case, Mr.Sailendra Kumar Mohanty, who being the complainant filed his affidavit evidence in support of complaint reiterating the complaint averments and produced documents.

5. The above said assertions of the complainant have remained unchallenged. OP neither filed version nor denied the sworn testimony of the complainant.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainant.

6.  Let us have a cursory glance at the documents produced by the complainant.  Document No.1 is newspaper advertisement dated 09.05.2015 in Times of India. Document No.2 is copy of the visiting card given by OP. Document No.3 is copy of the HDFC Bank credit card payment slip for having paid Rs.52,000/- by the complainant through his Master card. Document No.4 is the cash memo issued by OP dated 09.05.2015 for having received a sum of Rs.52,000/- towards the package.  Document No.5 is copy of e-mail correspondence dated 12.05.2015 from complainant to OP stating that the machine showed to the complainant is not cool-sculpting machine, e-mail reply dated 11.05.2015 by OP to the complainant stating that complainant has registered for the package for weight loss, inch loss and cool-sculpting and same will be provided as it has been promised.  Document No.6 is also email dated 15.05.2015, wherein the complainant has requested OP to refund the amount paid immediately to his account, failing which he will take legal action for cheating and deficiency in service in the Consumer Court.

7. On perusal of oral and documentary evidence of the complainant, it is made crystal clear that the complainant attracted by the advertisement given by OP, as per the Document No.1 OP is possession of cool sculpting laser machine imported from U.S.A., concessional rate will be offered if registered on the same day.  Further OP assured loss of 10Kgs weight and girth loss of 40-50cms, hence he approached OP for the treatment of weight loss and loss of obesity.  The complainant paid a sum of Rs.52,000/- to OP through his credit card on 09.05.2015 as per Document No.3.  The OP has issued cash memo dated 09.05.2015 acknowledging receipt of the said amount from the complainant towards the package as per Document No.4. Now, the grievance of the complainant is in the said advertisement OP has stated that OP treats the patients by                    cool-sculpting machine approved by F.D.A. of U.S.A. manufactured by M/s.Geltec U.S.A., which ensures weight loss and loss of obesity by freezing fats of the body but when the complainant approached OP for the treatment on 11.05.2015, OP persuaded the complainant and commenced the treatment.  Complainant was desired to see U.S.A. made cool-sculpting machine, but the executive of OP showed some other laser machine.  Hence, complainant realized that OP cheated the complainant by its deceitful acts.  Hence, he demanded for cancellation of the therapy programme and sought for refund of the amount paid vide email dated 15.05.2015 as per document No.6.  OP failed to refund the amount.  Thereby made the complainant to approach this Forum by wasting his valuable time, money and energy.  Hence this complaint. 

8. From the available materials on record it is crystal clear that complainant attracted by the advertisement of OP opted the package for the weight loss and loss of obesity and paid a sum of Rs.52,000/- to OP.  As per the advertisement OP has failed to show the cool sculpting machine approved by F.D.A of U.S.A to the complainant and has shown some other laser machine and persuaded the complainant to proceed with the treatment with indigenous vibrator and some perfunctory massage.  Thus OP has failed to provide the service as assured in the advertisement.  This act of OP amounts to unfair trade practice and deficiency of service as per section 2 (r) (1) (i) of C.P. Act reads as follows:

Section 2 (r) (1) (i) reads as follows:-  Unfair  trade practice “means a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the practices namely:- 

1. The practice of making any statement, whether orally or in writing or by visible representation which, (i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model etc….

9.  Thus OP has failed to provide the service offered and thereby followed unfair trade practice.  We are satisfied that complainant proved deficiency in service and unfair trade practice against OP.  Under the circumstances there is nothing to discard the sworn testimony of the complainant.  Therefore, OP is liable to refund Rs.52,000/- to the complainant along with compensation of Rs.25,000/- towards  mental agony and hardship caused to the complainant along with litigation cost of Rs.5,000/-.  Accordingly, we proceed to pass the following:

                                  O R D E R

1. The complaint filed by complainant is allowed in part. 

2. OP is directed to refund Rs.52,000/- to the complainant and to pay compensation of Rs.25,000/- towards mental agony and hardship caused to the complainant along with litigation cost of Rs.5,000/-.

3. This order shall be complied within 30 days from the date of receipt of this order.

4. Supply free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Forum by us on this the 01^st day of February 2016)

 MEMBER                          MEMBER                        PRESIDENT

NRS* 

CC.No.1262/2015

Witnesses examined on behalf of the complainant dated 08.12.2015-Sri.Sailendra Kumar Mohanty

Witnesses examined on behalf of the OP – Absent

List of documents produced by the OP – Nil

MEMBER                           MEMBER                        PRESIDENT