Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-85/02.11.2020
Nipun Murada s/o Subhash Murada
R/o 22, Rajendra Park,
Old Rajender Nagar, New Delhi-110060 ...Complainant
Versus
Manager/Director,
Pachouli SPA & Wellness Pvt. Ltd.
(Pachouli Wellness Clinic)
First Floor, Pusa Road,
Near Metro Pillar No. 120,
New Delhi-110005 ...Opposite Party
Order Reserved on: 23.02.2023
Date of Order: 29.04.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Vyas Muni Rai
ORDER
1. The present complaint has been filed by the complainant Sh. Nipun Murada (in short ‘complainant’) against Manager/Director, Pachouli SPA-Wellness Centre Pvt. Ltd., Pusa Road, Karol Bagh, Delhi (in short ‘OP’) u/s 35 of the Consumer Protection Act, 2019.
2. The complainant in his complaint has pleaded that he approached on 24.05.2019 to the clinic of OP for a weight loss program (slimming) package for three months and paid Rs. 21, 240/- vide bill no. 1934 to the OP (Annexure-A, page 10 of the complaint).
3. It is the case of the complainant that he after being satisfied with the terms and conditions, which were explained by the representative of OP, he made payment to OP as mentioned in para 2 above for the wellness program, as per the pleading, the representative of the OP told the complainant that if he joins the program for three months, complainant will get a very good looking body and will realize the weight loss of around 10-15 kg; complainant was assured for good result within two days after joining wellness program; having agreed with the briefing of representative of the OP, he undertook to join three months regular program in the clinic of the OP but received no satisfactory result.
4. It is also the case of the complainant that he brought several times into the notice of OP for not getting favorable results but of no effect and then the complainant has alleged deficiency of service and unfair trade practice on the part of OP.
5. The complainant has alleged harassment on the part of OP, served legal notice dated 17.10.2019 which is also on record (Annexure-B page-11 of the complaint) but no reply was received.
6. The complainant has submitted in his pleadings that he also received legal notice on 05.11.19 from the OP, wherein, there is admission on the part of OP of receipt of Rs. 21,240/- from the complainant for attending the session for three months; and rest of the contents of the legal notice of OP has been denied by the complainant in the body of the complaint. However, some relevant contents of the legal notice by OP to complainant will be discussed subsequently while analyzing the case on merit.
7. Based on the facts narrated above, the complainant has prayed for directions to OP to pay the amount of Rs. 21,240/- for not receiving the satisfactory result on weight loss programme; he has also prayed for Rs. 4,00,000/- (but in words amount is written Rs. Two Lakh fifty thousand only) as compensation for suffering and harassment apart from Rs. 50,000/- as litigation cost.
8. Perusal of the record shows that after the complaint was admitted by the Commission, notice was issued to OP, returnable on 08.01.2021, it has also been recorded that notice sent to OP has been served on 03.12.2020 but none entered appearance on its behalf (track report submitted on record confirms to delivery of notice on 03.12.2020; however, in the track report, it is mentioned, Delhi GPO-item delivery confirmed; it seems that notice was returned to Delhi GPO on 03.12.202) ; however, the envelope containing the said notice has been received back from the Postal Authority with the remarks ‘refused’ 01.12.2020; more so, in law, refusal of notice is taken to have been served on addressee; it is also reflected from the record that OP did not enter appearance throughout the proceedings of the case, therefore, OP was proceeded ex-parte vide order dated 19.07.2022.
9. The complainant has filed affidavit of evidence and the facts and features of the affidavit are the narration of pleadings of the complaint; however, in para 02 of the affidavit, the complainant has submitted that the present complaint has been filed u/s 12 of Consumer Protection Act, 1986; this appears an inadvertent error on the part of complainant and/or may be in cut paste manner, as perusal of index filed with the complaint, filing date is mentioned as 02.11.2020 and matter was listed first time at the admission stage on 09.12.2020 which clears all the speculations about filing of the complaint under the Consumer Protection Act, 2019; the complainant has also filed on record written arguments and contends of the same are repeatation of the pleadings given in the complaint and no new facts/ features have surfaced in the written argument.
10. We have gone carefully through the records, documents and also heard oral submissions on behalf of the complainant (OP being ex-parte).
11. We, at this stage, would like to discuss the contents of legal notice dated 30.10.2019 sent by OP to the complainant. In the said legal notice, though, OP has admitted about payment of Rs. 21,240/- towards attending regular session for three months followed by adherence of instructions given at time to time by experts; it is for the expert to make the complainant understand that result of each programme may vary from person to person depending upon individual body composition, health status, metabolism and other factors including diet and life style; after having satisfied with the session of the experts, the complainant joined the weight loss programme by entering into contract, it is also admitted by OP in its legal notice that programme was valid for 90 days from the date of start of first session and after expiry of period of validity, OP is not liable to give service; the complainant agreed that first session would be taken for 7/10 days failing which the period of validity will be proportionally reduced; it is also alleged that the complainant was tried to be contacted by the expert so many times but he did not pick up the phone; he further told the expert of OP that he is going abroad; hence not able to attend the programme; as per record he attended only three sessions i.e. on 24.05.2018, 25.05.2018 and 03.06.2019 and of his own; left the programme thereafter; OP also has stated in para 9 of its legal notice that its experts are providing more than 300 services other than slimming, if complainant wish to switch any other programme (s); he can easily join any of the programme within the range of that amount; rather OP alleged to have been harassed by complainant and maligned its image; in the legal notice, OP has also submitted that if complainant still wish to switch any other programme (s); he can easily join within the range of that amount; and lack of results will not be construed as deficiency of service.
12. The facts and features, stated in the legal notice of OP, serious allegations have been leveled against the complainant; but we find that complainant has not responded the contents of OP’s legal notice in a clear and transparent manner; though, complainant in his pleadings has attempted to respond some of the allegations leveled by OP; and simply has denied the contents of OP’s legal notice, the allegations of OP that, as per record the complainant attended only three sessions on 24.03.2018, 25.05.2019 and 03.06.2019 and left the session thereafter of his own will; however, the complainant in his pleading has submitted that he did not get satisfactory result even after attending the programme for 15 days; the fact of longevity of attending the session for 15 days by the complainant has not been proved against OP that complainant attended the session only for three days; OP has also alleged in the its legal notice that a contract was executed on 24.05.2019 for getting weight loss for three months which was duly signed and agreed by the complainant but no such document is available on record nor has been submitted by the complainant, we do not find any submissions on the part of complainant regarding offer of OP to switchover to any other programme and join the weight loss clinic, rather, OP in its legal notice has alleged harassment to it by the complainant; no document to this effect and document with regard to contract entered between the OP and complainant has been submitted on record as alleged by OP; OP has also denied in its legal notice of any deficiency in service. Moreso, OP did not give any guarantee to complainant for weight loss within a defined period.
13. In view of the facts narrated above, discussions and deliberations we come to the conclusion that the complainant has not substantiated deficiency of service nor unfair trade practices with the supportive documents on the part of OP; therefore, complaint fails, and is being dismissed for want of any deficiency and unfair trade practices on the part of OP.
14. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
15: Announced on this 29th April, 2023.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
