Complaint filed on: 29-07-2011
Disposed on: 12-05-2014
BEFORE THE BENGALURU IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BENGALURU URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BENGALURU – 560 052
C.C.No.1402/2011
DATED THIS THE 12th MAY 2014
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.H.JANARDHANA, MEMBER
Complainant: -
Mrs.K.Swapna
Aged about 28 years,
W/o. Mr.C.Bhanuprakash
R/o. Flat No.5/116,
7th Main, 19th Cross,
BTM 2nd stage,
Bangalore-76
V/s
Opposite party: -
M/s. VLCC Health Care Centre
Ltd, No.C-7, BBMP ward No.67,
Ganesh Temple Road, Koramangala, Bangalore - 34
Reptd by its Managing Director
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act 1986, praying to pass an order, directing the OP to pay Rs.51,250=00 being amount collected from the complainant, to pay Rs.2,700=00 towards legal notice charge, medical expenses of Rs.8,000=00, to pay Rs.50,000=00 towards mental agony, Rs.10,000=00 towards court expenses and Rs.50,000=00 towards blaming the complainant and in total Rs.1,71,950=00.
2. The brief facts of the complaint can be stated as under.
Upon having read the advertisements in the print media with respect to the specialized laser hair removal treatment, the complainant has approached the concerned staff of OP. Thereupon Ms.Rukhmini along with one other executives Ms.Ruby have both induced the complainant to avail treatments like the aforesaid laser treatment for hair removal on chin, upper-lip, hands, legs etc. The complainant has agreed about the cost and charges and the complainant has been lured into paying the full amount being Rs.51,250=00 out of which she paid Rs.5,000=00 through her debit card and Rs.46,250=00 vide her credit card. The OP has duly en-cashed the said amount. The complainant has generously obliged and made the aforesaid payment to the OP. The OP has wantonly avoided to enter into a full-fledged service contract with the complainant by predicting the consequences and ironically proceedings upon the dangerous experiment upon the complainant. Thereafter having vested trust and faith and with a belief that the dermatological qualification and experiences of the professionals of the OP is sufficient, the complainant has undergone the laser enabled procedure for hair removal in the month of Feb.2011. The complainant has believed their sugar words of the OP that VLCC stands for commitment to improve the quality of lives they touch and also that they are a pioneer wellness brand that stands for innovation and commitment to client delight as alleged by the OP. Surprisingly after having undergone the treatment under the OP, the complainant has developed red patches on both forearms, legs. Immediately having realized that there has been some sort gross deficiency in the laser treatment that the OP has provided, the complainant has contracted the counselors and explained her plight. But instead of heeding to the in satiated and helpless condition of the complainant, the OP has pretended that the red patches is something common and attempted to mislead the complainant into believing that all was normal. The complainant is a well-educated lady, working for the famous company named TATA consultancy services at Bangalore and she has approached the Fortis hospital and taken the necessary treatment. The complainant has requested the staff of the OP that she would not proceed with the laser treatment as her skin had been badly burnt and affected with red patches but the staff of the OP were rude and curtly and has rejected the said request of the complainant. The act of staff of OP was unwarranted and against the known principles of natural justice. Between 2-3-2011 and 25-4-2011 the complainant has sent several emails to the OP and the complainant has also approached and requested the refund of the money paid to the OP, but instead of honestly refunding the amount to the complainant, the OP has ironically represented that the money cannot be refunded. The act of the staff of OP is arbitrary and unjust as the OP cannot provide good service without burning the skin. Hence, there is a deficiency of service suffered by the complainant. As on the date the complainant has paid Rs.51,250=00 to OP, the complainant has suffered mental agony so she has asked Rs.50,000=00 also towards mental agony. The complainant got issued legal notice on 10-5-2011 and that was replied by the OP and the OP is liable to make good the loss sustained by the complainant and the amount of mental agony and stress which was caused due to the rude behavior, negligence of the staff of the OP. Hence the present complaint is filed.
3. After service of the notice, the OP has appeared through its counsel and filed version contending inter-alia as under:
The complaint of complainant is not maintainable and it is liable to be dismissed. The OP is a pioneer in redefining wellness and is the single largest player in the organized sector with a Pan-India presence and overseas. The OP has earned tremendous good will and reputation for kind of service. In December 2010 the complainant booked the weight loss package with the OP and booked another service laser treatment for hair removal. Prior to the complainant taking up the treatment she was clearly made aware of the expected benefits possible side effects and other risks involved. It was also explained to the complainant that the result of such treatment varied from person to person as the individual body composition, metabolism, skin colour and other factors played an important role. The complainant was also explained of the precautions she needed to take post execution of the services. The complainant initially paid a sum of Rs.33,030=00 on 8-1-2011 the same was acknowledged by OP. Thereafter the complainant paid a sum of Rs.16910=00 on 13-1-2011 and the same was acknowledged. The complainant visited the OP to avail the treatment on 31-1-2011 and she was satisfied with her earlier treatment and the complainant underwent the second treatment session and this session also yielded good results. The expert Dr.Mahua Chatterjee’s opinion which clearly enunciates the details of the treatment and the most common after effects is produced. However the complainant panicked and expressed her apprehensions regarding the hyper pigmentation. The complainant agreed to the same and subsequently underwent galvanic induction treatment and de-tan treatment on her face and hand on 5-3-2011, 28-3-2011, 9-4-2011 and 13-4-2011 free of cost. The cost of aforesaid free services rendered was around Rs.25,000=00. In-fact the complainant’s skin looked much better than it did before the treatment and the same is evidenced by the complainant’s photographs that were taken after the treatment was rendered. Thereafter on 14-4-2011 the complainant came to this OP for another session of treatment and has thereafter come numerous times for the slimming program. The complainant even requested that her slimming treatment be transferred to the JP Nagar branch. Despite all these bona-fide attempts of OP to keep the complainant happy and satisfied, the complainant for reasons best known to her choice to issue a legal notice and that notice was replied. The complainant till date is availing service with the OP. The OP denies the averments of complaint made in para no.1 to 14. It is true that the complainant approached and requested to refund of money paid to the OP despite being aware of the policies of the OP that money once deposited cannot be refunded but could be adjusted towards other packages after deduction of 20% of the amount paid. It would be pertinent to mention that the complainant came back on the 14-4-2011 for laser treatment on her chin, lip etc. & after she has undergone two sessions which caused hyper pigmentation and after she has allegedly visited the Fortis hospital. It is false to state that the complainant suffered mental agony and she lost her valuable time, energy apart from the monetary loss. The complainant is trying to enrich herself at the cost of the OP. It is false to state that, the act of the OP was unwarranted and against the known principles of natural justice. There is no deficiency of service rendered to the complainant and the complainant is put to strict proof of the same. The notice issued by the complainant was suitably replied by the OP. Annexure-E and G clearly demonstrate that, the complainant has availed multiple sessions of treatment including several free treatments and not just one. Hence it is prayed to dismiss the complaint with exemplary cost.
4. So from the averments of the complaint of the complainant and version of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP in giving laser treatment for hair removal on chin, upper-lip, hands, legs etc.?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Affirmative
Point no.2: The complainant is entitled to
claim a sum of Rs.50,000=00 along with cost of litigation of Rs.2,000=00
Point no.3: For the following reason
REASONS
6. So as to prove the case, the complainant has filed her affidavit and produced eight documents and examined one Dr.M.Mallikarjun as witness on behalf of the complainant and got marked as Ex-C1 being the report of expert doctor. On the other hand, one Raju.N who being the employee of OP has filed his affidavit on behalf of the OP and one Dr.Mahua Chatterjee was examined by filing affidavit and got marked as annexure-A to K. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.
7. One Mrs.K.Swapna, who being the complainant has stated in her affidavit that, upon having read the advertisements in the print media with respect to the specialized laser hair removal treatment, she has approached the concerned staff of OP and met one of their executive by name Ms.Rukhmini and thereupon the said Ms.Rukhmini along with one other executives Ms.Ruby had both explained and convinced her to avail laser treatment for hair removal on chin, upper-lip, hands, legs etc. Since after much assurances given by the said staff of the OP, she had agreed about the cost and charges and the she had paid the full amount being Rs.51,250=00 and the OP received the said amount. The OP has wantonly avoided to enter into a full-fledged service contract with her by predicting the consequences and ironically proceedings upon the dangerous experiment upon her. Thereafter having vested trust and faith and with a belief that the dermatological qualification and experiences of the professionals of the OP is sufficient, she has undergone the laser enabled procedure for hair removal in the month of Feb.2011 with the OP. After having undergone treatment under the OP she has developed red patches on both forearms, legs. Immediately she realized that there has been some sort gross deficiency in the laser treatment, and she has contracted the counselors and explained her plight. But, the OP has pretended that the red patches is something common. Thereafter she forced to approach the Fortis Hospital and took the necessary treatment. The OP did not explain to her about the side effect of the said treatment. If the OP had informed her that her skin would be burnt after treatment, she would not have availed the service. She required to go out every day to earn her livelihood then how would she have agreed to go out with burnt skin is not explained to her, she had got her chin burnt which was just before her sister’s engagement, she had requested the staff of the OP that she would not proceed with the laser treatment, but the staff of the OP were rude and curtly and had rejected her request. Thereby she had to suffer more mental agony and lose her valuable time, energy apart from the monetary loss. Between 2-3-2011 and 25-4-2011 she has sent several emails to the OP but the OP gave vague replies then she again requested the OP to refund of the money paid by her and the OP admitting their deficiency in services but told that the money could not be refunded and that she would only have to avail some other treatment from them for that amount according to their rules. The act of the OP is arbitrary and unjust as the OP cannot provide good service without burning the skin, there is a deficiency of service suffered by her. The OP is liable to make good the loss sustained by her along with the amount claimed by her towards the mental agony and stress, which was caused to her due to the rude behavior, negligence of the staff of the OP. Hence she has come up with the present complaint claiming refund of Rs.51,250=00, legal notice of Rs.2,700=00, Rs.8,000=00 towards medical expenses incurred for taking treatment, Rs.50,000=00 towards mental agony suffering, Rs.10,000=00 towards court expenses and Rs.50,000=00 towards blaming her by OP and in all she claimed a sum of Rs.1,71,950=00 from the OP.
8. Let us have a look at the relevant documents of complainant. Document no.1 of the complainant consists of bills issued by OP for having received Rs.33,090=00 and Rs.16,910=00 in the name of complainant towards treatment in the center of OP. Document no.2 consists of medical records namely medical bills and positive photographs and in that we found one certificate of Dr.Sudheendra Umbalker from Fortis Hospital dated 29-4-2011 wherein it is stated that, the complainant came to him on 10-3-2011 for consultation and she was having red patches on both forearms, and she underwent a laser procedure for hair removal on 22-2-2011 and she lesions were suggestive of post laser burns, the complainant was charged Rs.300=00 towards consultation of Dr.Sudheendra Udbalker. Six positive photographs are produced by the complainant in respect of legs, right arm and neck portion, wherein we found burnt patches on legs, arms and neck portion of complainant. One email letter of VLCC dated 1-4-2011 addressed to the complainant shows that they have taken up her concern with team of their medical experts who have confirmed that such reaction as alleged i.e. disfigurement, burning, rashes in no event can be due to the treatment given to her by them, but the same is only a temporary effect and it diminishes and settles down within a period of time by application of anti-inflammatory ointments. The effects and side effects of such treatment are conveyed to the client prior to such treatment and the amount paid is not refundable and team of experts have applied due ointments to facilitate the side effects to subside as quickly as possible. One email letter of complainant dated 24-3-2011 addressed to the OP employee reveals in the first treatment for hands and legs itself they got burned out, but till now no solution is provided from their ends for one month and she prays the complete treatment to cure these marks by end of this month, otherwise she will proceed against the OP legally. The complainant has produced copy of legal notice sent to the OP dated 10-5-2011 calling upon the OP to make good an amount of Rs.1,11,950=00 to the complainant due to deficiency of service provided by the OP within 7 days from the date of receipt of this legal notice, failing which legal proceedings will be initiated. Postal receipts and postal acknowledgment are produced for having posted the notice and receipt of the notice by OP. The complainant has produced reply notice of OP sent to the lawyer of complainant dated 5-6-2011 denying the contents of legal notice of complainant and in the reply the OP has stated that, the occurrence and developing of erythema or swelling post such treatment was normal and is only an expected side effect which diminishes and settles down permanently on application of inflammatory ointments and the OP has provided the agreed treatment which utmost professionalism, the total amount given by the complainant is Rs.50,000=00, the OP has not committed either negligence or deficiency of service, the OP denies of being liable to pay any amount and the OP will take available legal steps to defend their case.
9. Dr.M.Mallikarjun, Professor and HOD of Dermatology department, KVG Medical College, Sullia has stated in his evidence that, earlier to that he was working as Professor and HOD, Bangalore Medical College and Research Centre, Victoria Hospital, Bangalore and at that time the case was referred to him by this forum for giving expert opinion and accordingly he gave his report which is marked as Ex-C1 and in the cross examination the said witness stated that, the complainant did not explain before me the kind of laser treatment she underwent with the OP. It is not true to say that, the opinion report given by him is based on inadequate information given by the complainant. Ex-C1 is the report of Dr.M.Mallikarjun wherein it is stated that, he has examined on 15-11-2011 and multiple hyper pigmented macules are noted cover both upper arms and dorsum of right hand, chin area is free of any pigmentation and he is of the opinion that, above hyper pigmented lesions could result from laser therapy, however the hyper pigmented lesions tend to fade away gradually.
10. One oral testimony of the complainant that, on account of laser treatment given by the OP, she developed black patches and she took treatment in Fortis Hospital stands corroborated by bills produced by the complainant, email correspondences between the complainant and OP, doctor certificate of Fortis Hospital and six positive photographs and evidence of Dr.M.Mallikarjun and his report which is marked as Ex-C1.
11. Let us have a look at the oral and documentary evidence of the OP. One Raju, who being the employee of OP has stated in his affidavit that, in December 2010 the complainant booked herself into the weight loss package with the OP. The complainant approached the OP on 8-1-2011 and booked for another laser treatment for hair removal and she was also explained of the precautions she needed to take post the execution of the services. The complainant after having read and understand the terms and conditions of the said treatment, signed the consent form and paid for the services. The OP informed the complainant that as per their policies money once deposited could not be refunded. However the complainant panicked and expressed her apprehensions regarding the hyper pigmentation. The OP in order to ensure customer satisfaction offered to do free galvanic induction treatment. The complainant agreed to the same and subsequently underwent galvanic induction treatment and de-tan treatment on her face and hand on 5-3-2011, 28-3-2011, 9-4-2011 and 13-4-2011 free of cost. The cost of free services rendered was around Rs.25,000=00. In-fact the complainant’s skin looked much better than it did before the treatment. There is no deficiency of service on the part of the OP and notice of the complainant was suitable replied. The OP has explained the pros and cons of the treatment to the complainant. The complainant has filed the present complaint with the sole intention of harassing the OP, illegally enriching herself and the complainant is not entitled for any relief, so the complaint be dismissed with exemplary cost.
12. One Dr.Mahua Chatterjee who being the practicing doctor with VLCC has stated in his affidavit that, the laser is pulsed for a millisecond emitting a gentle beam of light on to the skin. The light energy passes harmlessly through the skin, but is absorbed by the pigment in the hair follicle and hair shaft. By absorbing this laser energy, the hair follicles are disabled, impairing their ability to grow and he has stated that in this case the sessions were conducted under Dr.Ruby’s supervision. Normal side effects include the change of burning the skin or discoloration of the skin or discoloration of the skin, hypo pigmentation swelling around the hair follicle, scab formation and infection. These risks can be scarring and skin texture too may change. The complainant developed some post treatment scabs following laser sessions resulting in hyper pigmentation, but with medications prescribed by in house dermatologist the scabs had improved and currently the skin is almost normal as reported by Dr.Ruby.
13. Annexure-A of the OP is the copy of sheet from user manual, wherein complications and side effects of laser treatments are given. Annexure-B is the copy of consent form of complainant dated 12-1-2011 for laser treatment taken, wherein we found Do’s and Don’ts of laser hair treatment and it is signed by the complainant and Dr.Ruby and laser treatment was given to complainant for full arms, upper arms, upper lip, chin and half legs. Annexure-C and D are the copies of bills issued by the OP in the name of complainant for having received total sum of Rs.50,000=00 towards treatment. Annexure-F is the copy of email of Dr.Mahua Chatterjee dated 31-12-2011 to one Geetanjali Uppal wherein we found unwanted side effects such as hypo or hyper pigmentation can occur with laser hair reduction but with medications prescribed has improved and currently the skin is almost normal as reported by Dr.Ruby. Admittedly the said email letter was sent to Geetanjali Uppal and not to the complainant, we do not understand in what way the said email letter is helpful to the OP with regard to the present case on hand. Annexure-G is the client programme record wherein the name of complainant and No. of sittings are found. The complainant has attended some sittings and also galvanic induction also as per the record and in that document we found terms and conditions of the OP wherein it is stated that, once the amount is paid it is nonrefundable. Five photo copies are produced to show that, neck portion and hand portion of complainant is normal, but unfortunately these photos produced by the OP do not disclose on which date these photos were taken and these photos belong to whom etc. In fact the photo copies produced by the OP are bald and vague in this regard.
14. So looking to the oral and documentary evidence of complainant and compare the same with the material evidence of OP, it is made manifest that, there is no convincing material evidence produced by the OP to show before the forum that, before giving laser treatment to the complainant the OP has explained the side effects of the laser treatment to the complainant specifically and then only gave the treatment as per the agreement. The material evidence in this regard is lacking in its credibility. Moreover the OP has stated both in the version and evidence of its employee that developing of erythema or swelling post such treatment was normal and is only expected side effects and it diminishes and settle down immediately on application of anti-inflammatory ointments. If the OP had explained to the complainant about the developing of erythema or swelling after taking laser treatment before giving laser treatment to the complainant, the present problem would not have arisen. It is required to be noted that, in the documents produced by the OP, we do not find any scrap of paper to show that before giving laser treatment to the complainant, the OP has explained the side effects of laser treatment and after giving treatment the OP gave inflammatory ointment to the complainant particularly. In the absence of placing any clear and tangible evidence by the OP, it is not justifiable to accept the contention of the OP that the OP took all possible care and precaution while giving laser treatment to the complainant. The complainant has produced six positive photos showing conditions of the neck portion, arms and legs wherein we found black patches. The complainant has gone to Fortis Hospital and taken necessary treatment for these black patches on account of laser treatment given by the OP. Besides the complainant has made several correspondences with the OP to solve her problem, but her efforts ended in vain. When no satisfactory service is given to the complainant, the OP is not having any right to keep the amount of complainant under pretext of non-refundable clause in the terms and conditions of the OP. So making careful scrutiny of the oral and documentary evidence of both parties, it is vivid and clear that, the oral and documentary evidence of complainant are more believable trustworthy and acted upon than the oral and material evidence of OP and as such we are of the view that, the complainant who comes to forum seeking relief has proved with the believable material evidence that, the OP is negligent and there is deficiency of service on the part of the OP in giving laser treatment on chin, hand and legs as the OP has failed to take precautionary measurement for giving laser treatment to the complainant, and accordingly, we answer this point in a affirmative.
15. In view of our affirmative finding on point no.1, the complainant is entitled to claim Rs.50,000=00 paid to the OP as per the bills issued by the OP, so the OP is directed to refund Rs.50,000=00 to the complainant along with 5% interest per annum on the said amount within 30 days from the date of this order failing which, the Op shall pay the said amount to the complainant along with 7% interest per annum on the said amount from the date of order to till the date of realization and the Op is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation, and accordingly we answer this point. In the result, for the foregoing reason, we proceed to pass the following order.
ORDER
The complaint of the complainant is partly allowed. The Op is directed to refund Rs.50,000=00 to the complainant along with 5% interest per annum on the said amount within 30 days from the date of this order failing which, the Op shall pay the said amount to the complainant along with 7% interest per annum on the said amount from the date of order to till the date of realization.
The Op is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this, 12th day of May 2014).
MEMBER PRESIDENT
