KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 199/2020

JUDGMENT DATED: 22.10.2024

(Against the Order in C.C. 616/2015 of DCDRC, Kozhikode)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPELLANT:

American Electrolysis, Near Passport Office, Eranhipalam, Kozhikode-673 006.

         (By Adv. S. Reghukumar, Adv. Harish Babu and Adv. Threya J. Pillai)

RESPONDENT:

Shibili P.M., Panakkal House, Post: Beypore, Kozhikode-673 015.

JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

The appellant is the opposite party and the respondent is the complainant in C.C. No. 616/2015 on the files of the District Consumer Disputes Redressal Commission, Kozhikode (for short “the District Commission”). 

2.  The respondent would contend that pursuant to an advertisement in the newspapers, weeklies and other media that the appellant was specialized and well experienced in the field of removal of unwanted and excess hair growth on the body permanently by electrolysis technique without causing any pain or side effect, the respondent approached the appellant for the removal of hairs on her chin and neck.  Accordingly, the appellant started treatment.  The respondent felt much pain and itching on her face from the first day of the treatment.  The area where the treatment was made was burnt.  Black marks and boils appeared on her face.  Even after many hours of treatment, there was no progress in the treatment and she did not get the expected result.  Since there was no positive result, she sent a letter to the appellant demanding compensation for the loss of time and the physical and mental pain suffered by her.  But the appellant did not compensate the respondent.  Thereafter, the respondent approached another institute for the treatment, where an electrologist examined her and within a short period of treatment, she got better result.  Then she realized that the appellant was unnecessarily prolonging the treatment only to gain undue advantage.  The said act of the appellant was deficiency in service which caused much mental pain, loss of time and financial loss and hardships to the respondent. 

3.  The appellant, on the other hand, contended that the respondent suppressed true and correct facts.  The appellant is a trained, experienced and qualified person to do the hair removing process using electrolysis technique.  The appellant had undergone course in cosmetology, beauty parlour management and electrolysis training.  She had also completed the course of instruction in permanent hair removal.  She had been practicing the specialized techniques of permanent hair removal along with beautician course from 2005 onwards. 

4.  The appellant and the respondent filed proof affidavit.  The respondent was examined as PW1 and Exhibits A1 to A3 were marked for the respondent.  Even though the appellant filed proof affidavit, she was not cross-examined.  Exhibit B1 was marked for the appellant.  After evaluating the evidence, the District Commission found that there was deficiency in service and on the basis of the said finding, the District Commission directed the appellant to pay Rs. 20,000/- (Rupees Twenty Thousand only) as compensation and Rs. 5,000/- (Rupees Five Thousand only) as costs to the respondent.  Aggrieved by the said order, this appeal has been filed. 

5.  Heard.  Perused the records. 

6.  It is not disputed that the respondent had approached the appellant for removing the hairs found on her chin and neck by electrolysis technique and the appellant commenced the electrolysis treatment. The contention of the respondent was that the area where the treatment was made was burnt and black marks and boils appeared on her face.  Even after many hours of treatment, there was no progress in the treatment.  During the cross-examination of PW1, she initially stated that she did not go anywhere else for electrolysis treatment.  However, when she was confronted with Ext. B1, she admitted that she had undergone bleaching, laser and electrolysis treatment at some other place before she approached the appellant. 

7.  The learned counsel for the appellant Smt. Threya J. Pillai has argued that since there is absolutely no evidence to show that there was deficiency in service on the part of the appellant, the order of the District Commission cannot be sustained.

8.  Now the question to be considered is as to whether there was deficiency in service on the part of the appellant or not.  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 pursuant to a contract or otherwise in relation to any service.  The burden of proving deficiency in service is upon the person who alleges it.

9.  In this case, the respondent would contend that the treated area was burnt.  It was also contended that black marks and boils appeared on her face.  However, no medical certificate was produced to prove the black marks or boils allegedly sustained by the respondent due to the treatment by the appellant. Apart from the ipse dixit of PW1, there is absolutely no material on record to show that the respondent had sustained any burn or colour change on the skin as alleged by the respondent.

10.  The respondent, when examined as PW1, stated that she did not approach any doctor for the treatment of her chin and neck.  Therefore, there was no medical certificate to prove the marks stated to have been appeared on the face and chin of the respondent.  It is in the evidence of PW1 that PW1 had gone for treatment to Abella Electrolysis, immediately after leaving the treatment of the appellant.  Smt. Shilbi was attending the respondent in Abella Electrolysis. PW1 admitted that PW1 was given treatment in the appellant’s institution by the technician Shilbi.  It was also admitted by PW1 that the above mentioned Shilbi was the person who had subsequently treated the respondent in the new place, namely, Abella Electrolysis.  Thus, it is clear from the evidence of PW1 that PW1 was treated by the same technician in the treatment center of the appellant as well as in the new treatment centre.  If the respondent had any grievance against the treatment given by the technician Shilbi, she would not have continued her treatment under Shilbi in the new treatment center.  That itself would show that the treatment given by the appellant was not having any fault, imperfection, shortcoming or inadequacy. That apart, it is clear from the evidence of PW1 that she had taken treatment in the new center on the reason that the charge for the treatment in the center of the appellant was more than the charge in the new center.

11.  The above evidence would lead to the only inference that the contention of the appellant, that the present complaint was filed by the respondent solely at the instigation of M/s Abella Electrolysis, who is a competitor of the appellant and that the respondent had no actual grievance against the appellant, appears to be probable.

          12.  The materials on record as discussed above would not reveal any deficiency in service or unfair trade practice on the part of the appellant in this regard. The District Commission was of the view that since the appellant did not produce any certificate or other evidence to prove the qualification or the experience of the appellant in the field, the contention of the appellant that the appellant had treated as per the standard protocol could not be accepted. The appellant contended in the version that she was qualified and experienced in conducting the treatment of electrolysis.  The appellant also filed proof affidavit reiterating the above contention in the version.  However, the appellant was not cross-examined.  Therefore, her testimony remains unchallenged.  That apart, PW1 herself stated that she did not have any challenge about the qualification and experience of the appellant for doing the treatment using electrolysis technique.  For the above reasons, the finding of the District Commission in this regard cannot be justified. 

13.  Having gone through the relevant inputs, we are satisfied that the respondent could not establish any deficiency in service or unfair trade practice on the part of the appellant in treating the respondent using electrolysis technique.  In the said circumstances, the finding of the District Commission that there was deficiency in service on the part of the appellant cannot be sustained and consequently we set aside the same.

          In the result, this appeal stands allowed, the order dated 16.12.2019 passed by District Commission in C.C. No. 616/2015 stands set aside and the complaint stands dismissed.  In the circumstances of the case, there is no order as to costs.

The statutory deposit made by the appellant shall be refunded to the appellant, on proper acknowledgment. 

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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