Delhi

North East

CC/23/2015

Ms. Renu Sharma - Complainant(s)

Versus

Rediscover - Opp.Party(s)

15 Mar 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.   23/15

 

In the matter of:

		Renu Sharma B-135/1-A, Vijay Marg, North Ghonda Delhi-110053.		Complainant
		Versus
		Rediscover, (Laser,Skin,Slimming & Ayurveda Clinic) C-4, First Floor, Anand Vihar,Karkardooma, Opp. Pushpanjali Hospital Delhi-110032		Opposite Party
			DATE OF INSTITUTION :         JUDGMENT RESERVED ON:               DATE OF DECISION      :		19.01.2015 15.03.2019 15.03.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant made out in the present complaint against the OP is that she had seen an advertisement of OP in a newspaper where OP was offering weight loss programme in three different sessions Kilogram wise and the complainant got herself registered at OP’s Preet Vihar, New Delhi Branch for 5KG weight loss + 12” to 15” loss + Chin laser hair reduction package on payment of Rs. 12,500/- on 02.08.2013 acknowledged by OP vide receipt no. 1235. However, contrary to assurance of weight loss and inch loss given by OP to the complainant, the complainant got negative results and rather started putting on weight and after a certain period, the OP declined to entertain her on the pretext that the duration of her weight loss plan was completed without apprising the complainant of any terms and conditions thereof. The complainant was very dissatisfied with the services of OP and their apathetic and deceitful attitude of showing indifference towards the complainant’s plight. Lastly the complainant submitted that the OP declined to provide her treatment related records and told her that they have destroyed the same and the complainant opposed the said act of OP without complainant’s concern/consent. Therefore the complainant was compelled to file the present complaint against the OP praying for issuance of directions against OP to refund Rs. 12,500/- as package amount alongwith sum of Rs. 60,000/- as compensation for physical strain and mental agony and Rs. 10,000/- as commuting charges.

Complainant has annexed copy of newspaper advertisement of OP offering weight reduction and laser hair reduction programmes apart from other offers and copy of bill cum receipt no. 1235 dated 02.08.2013 for a sum of Rs. 12,500/- paid by complainant to OP and acknowledged by OP.

Notice was issued to OP on 30.01.2015 which entered appearance on 23.03.2015 and offered refund of 50% of the package fee to the complainant but the complainant refused / declined the offer. The OP filed written statement on 21.04.2015 in which, while admitting the complainant having joined weight loss and hair reduction programme of OP, OP took the preliminary objection that at the time of her admission on 02.08.2013, the weight of the complainant was 97.2Kgs and due to best services provided by OP and assurance of weight reduction, the complainant lost 2Kgs weight within a month but she left the course abruptly on lame excuses and did not follow proper diet during the gap period and when she rejoined OP, her weight was up by 2-2.50 Kgs. Despite this, the OP gave its best treatment and the complainant again started losing weight but the complainant was irregular due to which her weight could not reduce. Therefore, OP had advised the complainant to take Ayurvedic massage for relief against increased weight which was a costly massage but was offered at a much lower cost to the complainant within the fees already paid of Rs. 12,500/- which also included costly laser treatment. The OP submitted that no extra money was charged from the complainant for the above said treatment which was done to the complainant’s satisfaction but the complainant who did not follow the instruction and directions of the OP and their instructor for weight loss and hair growth and therefore OP prayed for dismissal of the complaint on grounds that the complaint was false and fabricated with concocted allegations against OP to grab money from it. The OP has attached copy of weight management record dated 10.08.2013 of the complainant which was valid for six months highlighting the treatment given and body weight variations of weight loss / weight increase from 10.08.2013 to 02.05.2014 and 10 sessions of chin laser hair removal from 05.08.2013 to 25.07.2014.

2. Rejoinder to the written statement of OP was filed by the complainant in rebuttal to the defence taken in which the complainant submitted that Ayurveda Massage therapy was part / included in the weight loss programme for which she had paid Rs. 12,500/- to the OP and no favour was done by OP in offering the same to her. The complainant submitted that she is a working woman and due to paucity of time, she could not give so much time for this treatment and therefore the OP executive asked her to take 2 days session of one and half hours each in a week but their management and coordination was so messy that there was always time management issue and OP gave less time to complainant than the scheduled/fixed duration of session. The complainant further alleged incompetence and inefficiency of staff of OP which never maintained her treatment / sessions record and most of the time the technical and medical staff were absent and untrained staff gave treatment to clients which was very risky specially in laser treatments due to harmful rays. The complainant further stated that the machinery and steamer of OP were most of the time in non working mode and that the OP never asked the complainant to follow any particular diet chart or gave any such diet chart throughout the programme. Lastly the complainant objected to OP not maintaining any register or records & not having taken any signature of the complainant in any attendance register to show her presence and absence and therefore in view of all of the above, the complainant prayed for relied claimed for wastage of hard earned money against OP.
3. Evidence by way of affidavit was filed by the complainant reiterating her grievance against the OP for failure of weight loss programme and exhibited photocopy of newspaper advertisement and payment receipt. The complainant stated that she regularly attended all classes and activity of OP relying on the advertisement given by OP and assurance by OP of definite weight reduction but she could not lose weight of 5Kgs or reduction in inches from her belly and back. The complainant further submitted to non reduction of hair on her chin despite several laser sittings and no weight loss despite slimming Ayurveda treatment and therefore alleged deficiency of service on the part of OP meriting refund of her deposit fees.
4. The OP did not appear after April 2015 i.e. after filing written statement and therefore was proceeded against ex-parte vide order dated 02.12.2015.               
5. The complainant filed written arguments on 13.03.2018 reemphasizing and reinforcing her grievance against the OP of not having derived any benefit from the weight loss programme offered by OP in the advertisement vide which programme OP had cheated the complainant and caused wrongful gain to itself since complainant neither lost weight of 5KGs from her stomach and back nor lost 12” -15”. The hair reduction on chin was also not permanent contrary to what was promised by OP.
6. Written arguments were filed by the OP in which OP highlighted that complainant had herself admitted that she could not give so much time for this treatment and on the contrary filed the present complaint against the OP alleging deficiency of service only to extort money as a pressure tactics. OP denied any deficiency of service on its part on grounds that it gave proper and adequate treatment to the complainant upto her entire satisfaction but the complainant filed the complaint to harass and humiliate the OP by claiming a huge amount without any justification and if such a complaint allowed, it would encourage such type of frivolous litigation. The OP further argued that the entire terms and conditions of the treatment of programme were made clear and known to the complainant at the time of her enrolment and the complainant had agreed to the same. The OP urged that the complainant was apprised that the deposited amount was not refundable but could be adjustable against any other treatment after 20% deduction in the amount paid. The OP further argued that the treatment provided by OP was upto the mark which can be seen from the weight management record and OP had applied products duly approved / authenticated by their concerned authorities.
7. We have heard the rival contentions of both the parties and have perused the documentary evidence placed on record.

It is not in dispute that the complainant had enrolled herself for weight loss, inch loss and laser hair reduction programme with the OP in the period August 2013 on payment of Rs. 12,500/-. The said programme was for a duration of six months as can be seen from the weight management record filed by the OP alongwith its written statement.On perusal of weight management record it is ascertainable that the complainant is obese weighing 97.2Kgs which shows that the complainant had weight in excess of the ordinary and the complainant has not led any evidence to substantiate or prove that she complied with or followed the dietary and fitness instructions given by the OP for having better results regarding the weight loss programme taken by her from the OP.

In view of all the declarations / disclosures and statements made by the complainant with respect to her vital statistics (measurements) on the higher side, kept in perspective of the weight management record filed by OP, it can be seen that the complainant had lost 2Kgs in just one monthof joining the programme and thereafter the weight kept fluctuating between 96-97Kgs from September 2013 till December 2013 with marginal improvement and there was periodic intermittent absence of the complainant from the said programme, due to which irregularity the aimed / desired weight loss target could not be achieved and the weight started escalating above 100Kgs 2014 onwards. Therefore, the complainant, as a convenient defence mechanism to justify her ground for complaint to seek refund from the OP alleged failure of the weight loss, inch loss programme on the OP which the complainant failed to prove least of all establish. We are therefore of the opinion that the complainant cannot take advantage of her own acts and omission or having been irregular / indisciplined in pursuing weight loss programme and then abruptly abandoning the same without any reason / explanation midway and asking for a refund by alleging non result / failure of the weight loss programme. It is common knowledge that the result of each programme varies from person to person depending upon individual body composition, health status, metabolism and other factors including diet and life style and as such results of such programmes cannot be straitjacketed or guaranteed and lack of result will not be construed as deficiency in service. The complainant is contending exactly contrary to her undertaking to be regular and follow the regime given by counselor / clinic doctor and cannot be allowed to act otherwise.

The Hon’ble NCDRC in Kala Chand Sil Vs The Concerned Authority Infancy Health Care & Anr IV (2016) CPJ 153 (NC) , while dealing with a complaint of failure of Stems Cell Therapy for Hair Growth, after appreciating the material on record and basic issue for consideration being whether there was any unfair trade practice or deficiency of service on the part of the OP, observed that there was nowhere any guarantee provided by the OP about the results to be achieved as a result of said treatment and had dismissed the revision petition.  The Hon’ble Delhi SCDRC in Emami Ltd. Vs Nikhil Jain IV (2017) CPJ 1B (CN) (Del) in case of misleading advertisements and alleged misrepresentation therein of fairness cream held the view that burden was on the person alleging to prove that the cream which he had used had no effect on him and in view of no evidence having been  filed by him to show his condition of skin prior and subsequent to use of product, no adverse inference can be drawn against the efficacy of the product and therefore Hon’ble SCDRC had set aside order of District Forum which had allowed the complaint holding the advertisement to be unfair trade practice and selling for defective product.

Similarly, applying the same views to the present case in hand the complainant had failed to prove or establish her body condition in terms of weight and inches before and after the treatment taken from OP since the onus was always on the complainant to prove the non efficacy of the treatment and failure thereof beyond reasonable doubt for her complaint to withstand the counter defence of OP which the complainant had failed to prove in the present case. It is common knowledge that the benefits of such weight loss programmes varies from person to person and the result are usually slow and gradually and not seen overnight. Moreover, nowhere in the documents on record has there been any assurance about any time bound solution and / or guarantee given to the complainant by OP about weight loss result to be achieved. The conduct of the complainant clearly show commitment of breach of terms and conditions of contract regarding attending complete number of sessions for having positive results for weight loss and therefore cannot be allowed to take advantage of the same and claim refund / damages. The ratio of law laid down in Bharathi Knitting Co. Vs DHL Worldwide Express Courier Division of Airfreight ltd AIR 1996 SC 2508 is clear that liability undertaken in contract between the parties should be limited to extent of undertaking.

Therefore the ratio of law laid down in aforesaid judgments directly and squarely cover / apply to facts and circumstances of the present case and as the complainant had bound herself to the terms and conditions of the agreement regarding weight loss programme, she cannot seek compensation by way of refund when she herself violated the terms and conditions of the declaration made by her under the weight reduction programme merely by abandoning the weight loss programme of the OP in between without any reason.

8. We therefore do not find OP guilty of deficiency in service or unfair trade practice. The complaint is therefore dismissed as devoid of merits with no order as to costs.                     
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on 15.03.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)              Member