BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 117 OF 2017 AGAINST C.C.NO.154 OF 2015 DISTRICT CONSUMER FORUM-I HYDERABAD
Between
M/s KOLORS Health Care India Pvt Ltd.,
Rep. by its authorized signatory
Mr.Gollapalli Gnaneshwar, Plot No.59/8
Above MBS Jewelers, 1st Floor
Karkhana, Secunderabad-500015
Appellant/opposite party
AND
Smt V.Rukmini W/o M.Satyanarayana
Aged about 54 years, Occ: LIC Employee
R/o 1-30-389, Padmavathi Nagar Colony
Kanajiguda, Secunderabad-500015,
Respondent/complainant
Counsel for the Appellant M/s Yasasvi
Counsel for the Respondent Husband of the complainant present
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
TUESDAY THE TWENTY SEVENTH DAY OF MARCH
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite party aggrieved by the orders of District Consumer Forum-I, Hyderabad dated 08.02.2017 made in CC No.154 of 2017 wherein it allowed the complaint directing the opposite party to refund an amount of Rs.80,000/- with interest @ 6% per annum from the date of the order till realization together with costs of Rs.2,000/-.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that the complainant being induced by the advertisement in electronic media of the opposite party, approached it along with her husband. The opposite party explained their package of course and classes to reduce her weight and obesity. The complainant paid an amount of Rs.90,000/- towards treatment charges on 10.08.2014. Thereafter on 14.08.2014 the complainant approached Dr.G.Saroja, Gynaecologist and the said doctor advised to undergo operation as early as possible due to some health problems. Immediately the complainant was admitted in Amrutha Heard Hospital on 08.09.2014 and taken treatment till 15.09.2014 and the same was informed to the opposite party through her letter dated 17.09.2014 and requested for refund of the amount paid by her. The opposite party instead of refunding the amount offered two options which are not acceptable to the complainant and hence she got issued legal notice dated 06.11.2014 for which the opposite party issued reply dated 17.11.2014 denying the liability instead of refunding the amount offered 2 options which are not acceptable to the complainant. Hence, the complaint praying to direct the opposite party to refund an amount of Rs.90,000/- paid by the complainant to the opposite party along with interest @ 18% p.a from the date of payment till the date of realization together with compensation of Rs.20,000/- and costs of Rs.10,000/- .
2. The opposite party resisted the case contending that the District Forum has no jurisdiction to decide the complaint, only Civil Court is competent. The complainant has joined a Beauty/Slimming programme in opposite party Secunderabad branch on 11-08-2014 and agreed to pay the prescribed fee for total number of sittings and also signed the declaration at the time of joining by agreeing to the terms and conditions. At the time of joining the course the complainant is hale and healthy and on her own she joined for the treatment. As per the terms “ no money will be refundable by KOLORS in the event of the complainant’s failure to act according to the terms and conditions the programme will be terminated immediately without any reimbursement and after joining the treatment the complainant herein willfully stopped from attending the sessions and filed this complaint. Therefore there is no deficiency of service from the opposite party as complainant on her own accord only stopped from attending the treatment and the opposite party is always ready to keep their services and treatment as agreed in the package and complainant is at liberty to take the services of the opposite party. Hence, the opposite party prayed for dismissal of the complaint.
3. In proof of the complainant’s case, she filed her evidence affidavit and got marked Exs.A1 to A13. On behalf of the opposite party, the Operational Manager has filed his evidence affidavit and got marked Exs.B1 to B3. Branch Manager of the opposite party no.2 filed his evidence affidavit and got marked Exs.B1 to B6.
4. The District Forum after considering the material available on record, allowed the complaint bearing CC No. 154 of 2015 by orders dated 08.02.2017 as stated in paragraph No.1, supra.
5. Aggrieved by the said decision, the opposite party preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum ought to have directed the complainant to approach the proper forum for her relief instead of entertaining the complaint in the District Forum. The respondent/complainant had failed to attend the treatment even a single time as agreed by the respondent/complainant. When there is no services rendered the question of deficiency of service does not arise. The respondent/complainant did not place any material to show or prove that the opposite party has committed deficiency in service and that the opposite party is not liable to refund any amount. Hence, the opposite party prayed to allow the appeal by setting aside the order of the District Forum and to dismiss the complaint.
6. Counsel for the appellant and the husband of the complainant were present and heard. Written arguments of both parties filed.
7. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief?
8. The main objection of the opposite party is that the District Forum has no jurisdiction to entertain the complaint when there is no service rendered to the complainant.
9. Now it is to be seen that when the opposite party did not render any service to the complainant can, it retain the fee paid by the complainant. Now we see what is service means. The learned counsel for the complainant has filed written arguments wherein he filed the decision of the Hon’ble National Commission in Narinder Kumar Sureja Vs R.K.Goel reported in (III) 2009 CPJ 35 (NC) wherein the National Commission has clearly stated that the service provider is not entitled to retain the fee when they did not perform the duty for which the fee was meant for. Another contention of the opposite party is that the District Forum has no jurisdiction to entertain the complaint and the remedy lies to the complainant that she can approach civil court for redress of her grievance.
10. The Hon'ble National Commission in First Appeals No. 1229, 1230, 1231 and 1232 of 2017 ("YashwantRama Jadhav Vs. Shaukat Hussain Shaikh and Anr."; "Panjan R. Dessai Vs. Shaukat Hussain Shaikh and Anr."; "Kapil Anand chandra Joshi Vs. Shaukat Hussain Shaikh and Anr."; and "Ganesh Shivaji Patil and Anr. Vs. Shaukat Hussain Shaikh and Anr."), wherein it has been observed as under:
"6. Section 3 of the Consumer Protection Act, to the extent it is relevant, provides that the provisions of the Act shall be in addition and not in derogation of the provisions of any other law for the time being in force. Thus the remedy available under the Consumer Protection Act is an additional remedy, which Parliament has made available to a consumer. Even if two remedies, one before the Civil Court and the other before the Consumer Forum are available, it is for him to decide as to which remedy he wants to avail.
11. Section '3' of the Consumer Protection Act, to the extent it is relevant provides that the provisions of the Act shall be in addition and not in derogation of the provisions of any other law for the time being in force. Thus the remedy available under the Consumer Protection Act is an additional remedy, which Parliament has made available to a consumer. Even if two remedies, one before the Civil Court and the other before the Consumer Forum are available, it is for him to decide as to which remedy he wants to avail. Admittedly, the respondent/complainant paid a total amount of Rs.90,000/- to the opposite party towards obesity treatment and due to some problems the complainant could not attend the treatment and sought for refund. . Therefore, a relationship of consumer and service provider came to be created between the parties as soon as the aforesaid transaction was entered into.
12. Now coming to the merits of the case, the complainant in order to reduce her weight and obesity approached the opposite party and the opposite party has explained the mode of treatment to the complainant and satisfying with the explanation she paid an amount of Rs.90,000/- to the opposite party. The complainant contended that she explained to the opposite party about the prolonged menstrual cycles she was facing but the opposite party suggested that only massages and dieting activates are involved in the treatment and recommended to go for treatment even though the complainant explained the said problem. But all of sudden due to severity of the problem she had to approach the gynecologist who had recommended to undergo an operation. Thereafter the complainant undergone hysterectomy surgery and due to which the complainant was unable to attend even a single session. The complainant also filed documents which prove the version of the complainant that she consulted the doctors and under gone treatment from them.
13. Thus, considering the present Appeal in the light of above observation we find no merit in the present Appeal and as such, we are not inclined to interfere with the finding of the District Forum, which is accordingly confirmed. For the foregoing reasons, we answer the point framed at paragraph No.7, supra, in favour of the complainant and against the opposite party.
In the result the appeal is dismissed confirming the order passed in C.C.No.154 of 2015 dated 008.02.2017 passed by the District Forum-I, Hyderabad. There shall be no order as to costs.
PRESIDENT MEMBER
27.03.2018
