Complainant’s case in short is that O.P. is a company under the Companies Act, 1956 engaged in health care and other requirements for the purpose of making slim of the concerned person who came into the contract of O.P. under the scheme of health care etc.
Complainant alleges that she paid Rs. 50,000/- to O.P. on 31.08.2019 and O.P. acknowledged the said payment. After making payment complainant admitted in the said health care unit of O.P. at its former address and started to attend classes for one month but, as the O.P. closed its office and unit from that address and placed its office and unit somewhere else without any intimation to the complainant and as such complainant after attending several times on the said former address of O.P. could not able to find out the latest whereabouts of O.P.
Thereafter complainant also alleges that thereafter complainant obtained the new address of O.P. and contracted for arranging for completion of the course and the scheme for which she paid Rs. 50,000/- in the health care unit of O.P. Complainant also alleges that O.P. did not response and allow complainant to continue the course of health care unit of the O.P. for which complainant paid money. Complainant also alleges that O.P. did not allow complainant to know the reason why such thing happened and closed said scheme.
Accordingly, complainant also alleges that she demanded back her money as she paid earlier relating to the said health scheme program but O.P. did not response.
Thereafter, complainant since October, 2019 made demand and request to the O.P. to refund the money of Rs. 50,000/- but O.P. flatly denied to refund the said money of Rs. 50,000/-. Thus, complainant under compelling circumstances instituted the present case alleging that she has suffered loss and damages including she also has been suffered mental and physical anxieties. Complainant also alleges that O.P. deliberately failed and neglect to render the essential services to the complainant and as such the act of O.P. shows gross negligence and deficiency in service. Complainant also sent letter dated 19.02.2020 to O.P. demanding to refund the said money of Rs. 50,000/- and said letter was duly served upon O.P. on 21.02.2020. Hence, complainant has prayed for an order directing upon O.P. to pay Rs. 50,000/- to her(complainant) along with interest thereon @ 24% per annum and complainant also has prayed for compensation of Rs. 30,000/- to be paid by O.P. to her for causing mental and physical suffering. Complainant has also prayed for direction upon O.P. to pay litigation cost of Rs. 10,000/-.
O.P. has contested the case by filing W/V denying all material allegations made by the complainant and contended that O.P. (VLCC) is a leading wellness and beauty services and products organization, serving customers across 310 locations in 143 Cities spanning 12 Countries in South Asia, South East Asia, the Gulf Co-operation Council Region and East Africa. O.P. also states in over 30 years of operations, the VLCC Brand has grown to become synonymous with wellness and beauty in Indian Households and has among the largest scale of operation within the beauty and wellness services industries in India and in other countries. O.P. also states that O.P. guides its motto “Transforming Lives” O.P. seeks to spark self-transformation, spread happiness and imbibe every individual with wellness for life. O.P. further states that over the years it has built a strategic integrated wellness and beauty organization based on three pillars and those consist of O.P.’s core business segments and for wellness and duty of services. O.P. also states that O.P. operates 191 wellness centers and beauty clinics across 106 cities in India and 25 in other countries. O.P. further states that O.P. offers services including wellness, wait-management, lesser, esthetic dermatology and regular duty salon services. O.P. further states that its weight management programs carry the “Recommendation of Indian Medical Association”. IMA is the national organization of Doctors of modern medicine, with a membership based over 3,30,000 doctors. O.P. also states if all of a sudden, clients of it started asking for refund, neither its business of serving tens of thousand of obese personal sustain nor the clients will be able to avail their services, if they always incline towards asking for and getting refund. Hence, O.P. has prayed for direction upon the clients to reach O.P. and avail the best services, which any other company will not be able to give and get the desired result and lead a healthy life upon transformation from obese to a healthy person.
Points for decision
- Whether the complainant is the consumer to the O.P.?
- Whether this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try this case?
- Whether there is any deficiency in service or there is any unfair trade practice on the part of the O.P. ?
- Is the complainant entitled to get relief as prayed for ?
Decision with reasons
All the points are taken up conjointly for convenience and brevity of discussion.
On a close scrutiny of materials on record it is clear that the complainant is a consumer to the O.P.
Complainant appears to be the resident of District – Hooghly, West Bengal. Whereas, address of O.P. is at Salt Lake, Kolkata. Considering the nature of the case and prayer of the complainant it clearly indicates that the subject matter of the dispute is nothing but a consumer dispute and its straight way gives clear signal that the pecuniary value of the case is within Rs. 50,00,000/- i.e. within the limits of this Commission. So, this Commission has territorial/pecuniary jurisdiction to entertain and try this case.
In support of his case, complainant has filed evidence on affidavit which appears to be a replica of the contents of the petition of complaint.
O.P. also files evidence on affidavit. On a close perusal of the same it also appears that O.P. has tried to stand strictly upon his defense i.e. contents of W/V filed by him.
Argument advanced by the Ld. Counsel appearing for the complainant is that it is the defense of O.P. that despite the professional services and result being shown by the O.P., the complainant for the reasons best known to her abandoned the program and asked for refund of entire consideration amount which is not permissible as per the terms and conditions and as such there is no deficiency in service on the part of O.P. but in this regard he pointedly and candidly argued that O.P. without attributing on fault imperfection, short coming or inadequacy in quality, nature and manner of rendering any kind of service tried to escape from its liability.
He also argued that O.P. has tried to suppress the material facts by highlighting its own brand value and admitted that the fact that the O.P. is very rude to entertain the demand of the complainant due to power of the O.P. and thus, O.P. shows its motive and attitude and conduct which are condemnable.
He further highlighted that O.P. has never intimated about any confirmation or approval of change or transfer of the package as claimed and O.P. has also failed to appreciate to adduce any evidence about the alleged intimation of its transfer to the complainant. He also highlighted that the conversation in the alleged e-mails attached with the W/V does not show that complainant had been communicated at any point of time and it is the only practice of O.P. to misguide this Commission by suppressing the material facts of the instant case.
He further emphasized upon his submission pointing out that at the last paragraph of W/V of O.P., it is evident that O.P. has not given complete service to the complainant and thus, it is an admitted fact that dispute has arisen due to unfair trade practice and deficiency in service on the part of O.P.
Finally, he concluded his submission by highlighting that it is a fit case where complainant has succeeded to prove her case.
On the other hand, Ld. Counsel appearing for the O.P. submitted that it is imperative to note that complainant is not at all entitled to get any relief.
He also pointed out that complainant herself clearly admitted that she did not continue to follow the prescribed suggestions, hence there is no deficiency in service on behalf of the O.P. He also argued that over phone complainant was duly informed about the shifting of O.P. He also argued that complainant is an educated woman and it is important to note that from slimming program record along with terms and condition, there is a signature of the complainant and thus, it can be presumed that complainant knew about the terms and conditions of the program at the time of her joining.
He further mentioned that complainant constantly pestered the O.P. to refund the money which is highly illegal. He also pointed out that as a person we need more dedication and willpower to achieve the goal and there is clear lack of determination shown by the complainant and she stopped attending the session and such lackadaisical approach of complainant never helped her to achieve her goal.
Considering the materials on record and touching upon the submissions advanced by the Ld. Counsel appearing for the respective parties first of all, it may be noted that the allegations of O.P. about the information given to the complainant by O.P. for its shifting through telephonic conversation is not enough and obviously it is the mandatory duty on the part of the O.p. to communicate its place of shifting to the complainant in time because O.P. has taken money to render proper service and as such O.P. cannot bypass its duty to inform the complainant regarding its shifting.
It is immaterial whether a man or an woman is educated or uneducated and signature of the complainant on the relevant papers admitting about the loss of weight nearly 800 gms. of her does not cover the defense of O.P. that complainant has flouted the contract.
Further it may be pointed out that the Ld. Counsel of complainant that the written version filed on behalf of the O.P. after a long expiry period without specifying the reason of delay with supporting proof and as such the defense of O.P. is automatically becoming weak and this Commission finds force and spirit in that part of submission of Ld. Counsel of complainant.
Further it may be noted that the contents of W/V of O.P. clearly is spreading s scent about its activities, reputation and wide range of functioning all over the world, but facts remain that it is the duty of O.P. to prove that how much sincere O.P. was/is to its commitment when O.P. had entered into a contract to render proper services to complainant by taking charges.
In view of the foregoing discussion and considering the attending facts and circumstances of the case this Commission is of the view that complainant has succeeded in proving her case and as such she is entitled to have the reliefs as sought for.
Hence, it is,
Ordered
that the instant case being No. CC/154/2020 is allowed on contest against O.P. with cost.
O.P. is hereby directed to pay Rs. 50,000/- to the complainant along with an interest @8% per annum with effect from 31.08.2019 till realization of the full amount. The entire amount to be paid by O.P. within two months from the date of this order.
O.P. is further directed to pay Rs. 10,000/- to the complainant towards compensation for mental and physical sufferings and O.P. is also directed to pay Rs. 10,000/- to the complainant towards litigation cost. Both the payments to be paid by O.Ps. within two months from the date of this order.
Let plain copy of this order be supplied to the parties free of cost as per CPR.
Dictated and corrected by
[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT
