CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.218/2018
K. NARAYANA RAO
S/O. LATE SH. K. SAMBA MURTY
R/O. C-5, GRAND VASANT,
PLOT NO. 23, GROUND FLOOR,
VASANT KUNJ, NEW DELHI-110037.…..COMPLAINANT
Vs.
- REDISCOVER CLINIC PRIVATE LIMITED
CLINIC AT:-
R-241, GROUND FLOOR,
GREATER KAILASH, PART-1,
NEW DELHI-110048.
REGISTERED AT:-
K-4, GROUND FLOOR,
KALKAJI, NEW DELHI-110019.
- HARISH KUKREJA
DIRECTOR,
REDISCOVER CLINIC PRIVATE LIMITED
K-4, GROUND FLOOR,
KALKAJI, NEW DELHI-110019.
ALSO AT:-
J-84, KALKAJI,
NEW DELHI-110019.
- KUMUD KUKREJA
-
REDISCOVER CLINIC PRIVATE LIMITED
K-4, GROUND FLOOR,
KALKAJI, NEW DELHI-110019.
ALSO AT:-
J-84, KALKAJI,
NEW DELHI-110019.
- ABDUL IMARAN ANSARI
DIRECTOR,
REDISCOVER CLINIC PRIVATE LIMITED
K-4, GROUND FLOOR,
KALKAJI, NEW DELHI-110019.
ALSO AT:-
J-84, KALKAJI,
NEW DELHI-110019.
- NEHA MALHOTRA
CLINIC MANAGER
REDISCOVER CLINIC PRIVATE LIMITED
R-241, GROUND FLOOR,
GREATER KAILASH, PART-1,
NEW DELHI-110048..…..OPPOSITE PARTIES
Date of Institution-28/09/2018
Date of Order- 17/06/2022
O R D E R
RASHMI BANSAL– Member
The present complaint is filed by the complainant against OPs, who is in the business for reducing body weight, for refund of the fee paid for weight reduction treatment along with compensation and litigation cost, on the ground of unfair trade practice, deficiency in services and dishonestly cheating the complainant.
OP1 is the clinic, OP 2, 3 and 4 are its director and OP5 is the clinic manager. The case of the complainant is that OP1 approached him through OP5, for his weight reduction treatment, to reduced 15 KG with corresponding inch loss in about 8–10 weeks course for which complainant had to attend two days’ workshop in a week and there was no diet restriction, exercise, yoga, walking et cetera. The consideration of Rs. 1,50,000/- for the treatment was paid vide cheque no. 000088 and 000089, for an amount of Rs. 75,000/- favoring OP1. There is no formal receipt issued by OP1 towards the said payment, however, the same is mentioned in a letter dated 08.02.2018, Ex. C1, written by complainant and bear signature of OP5.
It is stated by complainant that cheques were handed over to OP5 with clear and categorical understanding that one cheque will be presented after achieving definite weight reduction of 10 KG with corresponding inch loss and second cheque upon achieving the further weight reduction of 5 KG with corresponding inch loss after getting complainant signature on the bill/register of OP1 towards confirmation of the said definite weight reduction. Complainant stated that he was shocked when, the above said cheques were encashed by OP1 in violation of understanding between them within 10 days of the start of treatment on 16.02.2018. This is stated by complainant that upon his protest, OP5 has issued a cheque bearing number 660499, dated 01.05.2018, of Syndicate Bank Ex. C6, for an amount of Rs.1,50,000 favoring him on a clear and categorical understanding that if the target weight reduction of 15 KG was not achieved in 8–10 weeks, the complainant shall be entitled to present the said cheque to bank for refund of his fee, in accordance with performance guarantee dated 26.02.2018, Ex. C2, signed by OP5. In addition to this, the Complainant has also filed a hand-written letter, signed by OP5, wherein it is mentioned along with other general directions towards weight reduction, that the cheque, issued by complainant were deposited by mistake and that they will issue a return cheque which complainant could encash if the desired result is not achieved, and also asked for extension of package.
Complainant further stated that even after completing 10 weeks treatment, by the end of April 2018, the actual weight reduction was only 2 KG despite doing regular walk, exercise and yoga. Therefore, complainant has deposited the above-mentioned cheque for refund of his fee, which to his dismay was dishonored due to “funds insufficient”, mentioned in return memo, Ex. C3, and the email, Ex. C4, from bank. Complainant, through his email dated 01.05.2018, Ex. C5, requested OP2 and OP5, Ex. to honor the cheques but no reply was received. Complainant again on 30.05.2018 presented aforesaid cheques to bank, vide deposit slip Ex. C7, which was again returned by the bank vide cheque return memo dated 01.06.2018 Ex. C8, and email Ex. C9, stating “funds insufficient”. A legal notice dated 21.06.2018, Ex. C11, issued by the complainant to OP5 was not replied. It is stated by complainant that a criminal complaint under section 138 of N.I. Act was filed by complainant against OP5 which is pending adjudication before concerned court. This is further stated by complainant that in an attempt to escape their liability, OP1 to 4 got the cheque, bearing number 660499, issued through their clinic manager i.e. OP5, knowingly fully well that the same would be dishonored on its presentation.
This is the grievance of the complainant that OPs have acted fraudulently and dishonestly, made false promises and withdrawn the money from his bank account in violation of the understanding between them which subjected the complainant to financial loss and immense mental and emotional pain and sufferings as neither the assured weight was achieved nor the fee could be recovered. Therefore, the OPs are guilty of gross deficiency in services and unfair trade practice, and complainant is entitled to receive adequate compensation for the same along with the refund of the fee. Upon notice, OPs chose to not to appear despite service and as such were proceeded ex-parte on 18.01.2019, though an authorized representative has appeared on behalf of the OPs on 02.05.2019 but thereafter there was no participation by the OPs in proceedings of the court.
This commission has carefully perused the documents available on record, heard the Ld. Counsel for complainant and have gone through the ex-parte evidence and written arguments submitted on his behalf. Since OPs proceeded Ex.-parte, therefore, all the averments made in the complaint are deemed to have been admitted by OPs and the evidence led by the complainant stands unrebutted; for which an adverse inference is to be drawn against them as there is no denial/rebuttal to averments/evidence of the Complainant. however, despite that, complainant still is under obligation to prove his case.
Documents available on record show that two cheques bearing no. 000088 and 000089 were issued by complainant in favor of OP1, and one cheque bearing no. 660499 issued by OP5 in favor of complainant. It is admitted case of complainant that he has availed the complete course of the treatment after being agreed to proceed with the treatment under mutual understanding with OP after receiving the cheque no. 660449 from OP5. The complainant alleges deficiency of service and unfair trade practice on the part of OPs, however, miserably failed to establish the same. There is nothing on record to show that complainant is not benefitted by the treatment of the OP1. There is no record to show the changes as to complainant’s body condition in terms of weight and inches before and after the treatment. The perusal of record reveal that the main dispute is for recovery of the amount of cheque no. 660449 which returned dishonored for which, admittedly, a criminal complaint under 138 NI Act is pending adjudication before Ld. Metropolitan Magistrate.
Hon'ble Supreme Court of India in “SGS India Limited V/S Dolphin International Limited” Civil appeal No. 5759/2009 decided on 06/10/2021 has held that: “The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer P-rotection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.”
Since, the onus is on the complainant to prove the non-efficacy of the treatment and failure thereof beyond reasonable doubt, which he is failed to prove, we, therefore, dismiss the complaint as devoid of merit with no order as to cost. The file be consigned to the record room after providing copy of the order to the parties free of cost.
The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. The order be uploaded on the website www.confonet.nic.in. The order contains 6 pages and bears my signature on each page.
(RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER PRESIDENT
