….Opposite Party
COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019
Before: Sh.Satpal, President.
Dr.Pawan Kumar Saini, Member
Dr.Sushma Garg, Member
For the Parties: Sh. Nishant Arora, Advocate for the complainant.
OP already ex-parte vide order dated 26.10.2021.
ORDER
(Dr.Pawan Kumar, Saini, Member)
1. The brief facts of the present complaint are that the OP is a Sports Science Nutritionist and Fitness Coach and provides fitness guidance through social media platforms such as Youtube, Whatsapp, Instagram and is also a fitness blogger. The OP advertised for his services on Instagram through his official page “rohitkhatrifitness”. The complainant approached the OP on 04.11.2019 on Instagram and expressed his will to avail his(OP) services as online fitness trainer as per the advertisement, wherein the OP had clearly stated to include custom nutrition plan, custom exercise plan, supplement guidance and changing of entire fitness plan after every 15 days for faster results in each fitness plan, to which the complainant showed interest and opted for a three-month plan. Upon this, the OP provided his bank account details for transfer of fee along with the WhatsApp number, where the OP would provide the online training. The complainant paid the requisite fee i.e. Rs.3,000/- for three month fitness transformation plan (05.11.2019 to 04.02.2020) to the OP through google pay. On the same day i.e. 05.11.2019, the complainant started the conversation on Whatsapp with the OP, where the OP acknowledged the complainant and initiated the fitness plan by asking for certain details of the complainant which were provided as asked for. Further, when the OP did not provide any guidance as proposed by the OP, the complainant enquired after two days about starting the fitness plan in their Instagram chat and then again on 08.11.2019 on Whatsapp and again on 11.11.2019 on both Instagram and Whatsapp chats dated 07.11.2019. On further persistent enquiries, the OP sent the diet chart and workout plan for three weeks on 12.011.2019 i.e. for the period from 13.11.2019 till 03.12.2019. Thereafter, the OP did not send the diet plan etc. as agreed but after 11 days of continuous requests, the OP sent the diet plan as well as the workout plan second time on 13.12.2019 for the period of three weeks, i.e. from 04.12.2019 till 24.12.2019 but considering that it was sent on 13.12.2019, the complainant followed the given plan for three weeks, i.e. from 14.12.2019 till 03.01.2020. After expiry of the second three weeks plan, the complainant again approached the Op through instagram as well as Whatsapp but OP had given no reply. Due to the act and conduct of the OP, the complainant has suffered mental agony, harassment and financially; hence, the present complaint.
2. Notice was issued to the OP through registered post as well as office email which was duly served on 16.12.2020 and 26.08.2021 and but despite delivery of summons, none has appeared on behalf of the OP and thus, due to non appearance of OP, it was proceeded ex-parte by this Commission vide its order dated 26.10.2021.
3. To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-9 in evidence and closed the evidence by making a separate statement.
4. We have heard the ld. counsel for the complainant and gone through the entire record available on the file including synopsis filed by the complainant, minutely and carefully.
5. During arguments, the complainant reiterating the averments made in the complaint as also in the affidavit Annexure C-A contended that he contacted the OP in pursuance to the advertisement made on the instragram qua availing of guidance through online. It is contended that the complainant opted the programme of 3 months and made a payment of Rs.3,000/- through GPay on 05.11.2019. It is contended that OP was deficient in not providing the basic diet plan etc as assured by him till 12.11.2019. It is further contended that as per conversation between him and the OP through whatsapp, he was assured that nutrition plan, custom exercise plan & supplement guidance etc. would be provided online to the complainant after every 15 days and thus, the OP had to provide the diet plans etc. six times to him. It is alleged that the OP had sent the diet plan and work out plan etc. only twice instead of six times and thus, it has been prayed that the complaint may be allowed by granting relief as claimed for in the complaint.
6. The OP has preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, it has proceeded ex-parte vide order dated 26.10.2021 and thus, the assertions made by the complainant go unrebutted and uncontroverted.
7. Evidently, the complainant had opted a three months online fitness coaching programme of OP by paying a sum of Rs.3,000/-, vide Annexure C-3. As per(Annexure C-4(colly)), the complainant had sent the details qua his height, age, weight and dietary habits etc. As per Annexure C-4 and C-5, it is also evident that the OP had provided the work out and diet plan etc after a period of seven days from the receipt of payment of Rs.3,000/- from the complainant on 05.11.2019. As per whatsapp conversation(Annexure C-6) between the complainant and OP, the complainant was provided the work-out & diet etc. only twice in place of six times as assured to him. The OP had assured guaranteed transformation as per(Annexure C-2). We agree with the contentions of the complainant that, as per advertisement (Annexure C-1), unrealistic transformation in the body was promised by OP. In view of the uncontroverted contentions of the complainant as also the whatsapp conversation between the complainant and OP, we find the OP deficient while rendering service to the complainant; hence the complainant is entitled to relief.
8. As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OP:-
- To pay a sum of Rs.3,000/- to the complainant, along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
- To pay a lump sum amount of Rs.3,000/- to the complainant on account of mental agony, harassment and litigation charges.
9. The OP shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.
Announced on:22.11.2022
Dr.Sushma Garg Dr.Pawan Kumar Saini Satpal
Member Member President
Note: Each and every page of this order has been duly signed by me.
Dr.Pawan Kumar Saini
Member
