Punjab

Ludhiana

CC/20/5

Om Parkash - Complainant(s)

Versus

Richfeel Vashi - Opp.Party(s)

Devan Verma Adv.

04 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:5 dated 07.01.2020.                                                   Date of decision: 04.05.2023.

 

Om Parkash Tard aged about 25 years son of Shri Bhanwar Lal Tard, at present resident of Air Force Station, Halwara.                                                                                                                                         ..…Complainant

                                                Versus

1. Richfeel Vashi having its registered office at 1^st Floor, 6-E-2, Sarabha Nagar, Opp. PVR Fames, Malhar Road, Ludhiana through its authorized person/Manager.
2. Richfeel Vashi having its head office Shop No.25, Arneja Comer Sector 17, Palm Beach Road, Vashi through its Manager.

…..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Devan Verma, Advocate.

For OPs                          :         Sh. Sanjay Vashisht, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the opposite parties are doing the business of solution of all hair and scalp problem and professionally treat the said problem and on hearing the name of the opposite parties, the complainant approached them with problem of overgrowing of hairs on his whole body.  After checking the problem, opposite party assured him that they will remove the problem easily and after removing the said problem, it will not begun in future. Believing the assurance of opposite party No.1, the complainant got treatment from opposite party No.1 by paying charges of Rs.53,100/- but on the receiving the receipt, the complainant was shocked to see that the receipt belongs to head office Mumbai. On asking, opposite party assured that if any problem shall be raised then only Ludhiana branch is responsible. The complainant stated that he suffered problem against the treatment and hairs started growing again on his full body after getting assured treatment from the opposite parties. He contacted opposite party who assured that the said problem will be solved but same was not solved and no satisfactory reply was given and ultimately they refused to remove the said problem. The complainant is still suffering from the said problem. The complainant approached the opposite parties number of times with request to solve the said problem but they dilly delayed the matter and refused to solve the said problem. This amounts to unfair trade practice and deficiency in service on the part of the opposite parties due to which the complainant suffered great mental tension, harassment, agony and pain. In the end, the complainant made a prayer for removal of the said problems and to pay Rs.2,50,000/- as compensation and Rs.11,000/- as litigation expenses. 

2.                Upon notice, the opposite parties filed joint written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint, suppression of material facts by the complainant; lack of jurisdiction; lack of cause of action.

                   On merits, the opposite parties admitted the treatment taken by the complainant from them. However, the opposite parties stated that the complainant never approached them with any alleged problem after the treatment nor they gave any assurance to the complainant and the present complaint has been filed by the complainant with intention only to extort money by illegal means. The other allegations of the complaint have been denied being incorrect. The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of receipt No.528 dated 23.09.2017 of Rs.15,000/-, Ex. C2 is the copy of Aadhar card of the complainant, Ex. C3 is the copy of statement of account of the complainant and closed the evidence.

4.                On the other hand, counsel for the opposite parties tendered affidavit Ex. RA of Dr. Namita, Trichologist of the opposite parties along with documents Ex. R1 is copy of resolution dated 24.02.2020, Ex. R2 is the copy of receipt, Ex. R3 is the copy of summary regarding treatment given to the complainant, Ex. R4 is the copy of consent form, Ex. R5 is the copy of statement advised containing details of removal of hair, Ex. R6 is the copy of physical examination of the complainant, Ex. R7 is the copy of history and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavits and documents produced on record by both the parties.

6.                Admittedly, the complainant approached opposite parties in September 2017 as there was over growth of the hair in the whole of his body. The cost of the treatment was Rs.53,100/- and initially the complainant paid advance of Rs.15,000/- on 23.09.2017. Thereafter, his treatment was started and there was actually 10 sittings from 23.09.2017 till 29.06.2019 as depicted in the treatment schedule Ex. R3. At the start of the treatment, the complainant had also signed a consent form Ex. R5. Now the complainant has raised the grievance that after the completion of the treatment, hair has started over growing and there is a deficiency in service on the part of the opposite parties.

7.                The complainant was legally bound to discharge his initial burden regarding deficiency in service on the part of the opposite parties. He was required to place on record any copy of advertisement or the literature of the opposite parties by reading which he was induced to undergo treatment with the opposite parties. No photographs have been placed on record to depict the re-growth of hair after the treatment. The complainant has not brought any independent expert medical opinion to substantiate his claim and affidavit of the complainant is silent about the fact when exactly he approached the opposite parties and when his treatment was started and for how long it continued. The complainant has also not mentioned in his complaint or produced any document that he has been bringing the fact of over growth of hair to the notice of the opposite parties. Except mentioning of an amount of Rs.53,100/- as charges, the other allegations in the compliant are vague and bald and that further has not been supported by any evidence.

8.                In SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection 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.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

9.                On the other hand, the counsel for the complainant has drawn the attention of this Commission towards the declaration contained in the consent form Ex. R5 whereby the complainant was made aware of pros and cons of the treatment. The relevant part of the declaration is reproduced as under:-

          “Declaration:

I hereby at my own risk willfully consent and allow the Doctor/Therapist/consultant to pluck my hair in order to obtain sample for the purpose of conducting hair analysis. I am made aware that the hair samples are obtained by plucking stands of hair sufficient to conduct the test. I am further made aware that the report should not be considered as diagnostic but as screening tool that will provide additional source of information to the doctor. I hereby agree to hold harmless any doctor/therapist/consultant and/or employee including Richfeel Health & Beauty Pvt. Ltd. For any injury, allergic/reaction and /or fatality or damage whatsoever that may be caused to me during the procedure.

I hereby take a decision of my own free will and give consent to avail the services/therapy/s offered by Richfeel Health & Beauty Pvt. Ltd. The nature and outcome of which have been explained to me in the language I understand. I have also been explained in the language I understand that the result of each therapy may vary from person to person depending upon individual body composition, health status, metabolism and other factors including diet and lifestyle and as such, result of the therapy cannot be guaranteed and the lack of results will not be construed as deficiency of service….”

It is not the case of the complainant that his consent was obtained fraudulently or by way of misrepresentation of facts. In the given facts and circumstances, this Commission is of the opinion that the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (SanjeevBatra) Member                        Member                                       President         

 

Announced in Open Commission.

Dated:04.05.2023.

Gobind Ram.

 

 

Om Parkash Vs Richfeel Vashi                              CC/20/5

Present:       Sh. Devan Verma Advocate for the complainant.

                   Sh. Sanjay Vashisht, Advocate for the OPs.

                  

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)             (SanjeevBatra)

Member                         Member                            President

 

Announced in Open Commission.

Dated:04.05.2023.

Gobind Ram.