Karnataka

Bangalore 4th Additional

CC/15/1011

Dr. Nishchit Hegde - Complainant(s)

Versus

The Manager, Ego Wellness Pvt Ltd - Opp.Party(s)

In person

07 Mar 2018

ORDER

Complaint filed on: 27.05.2015

                                                      Disposed on: 07.03.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1011/2015

DATED THIS THE 7^th MARCH OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Dr.Nishchit Hegde,

C/o Dr.Sam Koruth,

17/8, 1^st cross, 1^st main road, 1^st floor, Near Ganapathi Temple, MSR Nagar,

Mathikere, Bengaluru-54.

 

Permanent Address:

no.31, 3^rd cross,

RMV extension, 2^nd stage,

1^st block, Bengaluru-94.

 

By Adv.Sri.Ashok B Patil     

 

V/s

Opposite party/s

Respondent/s:-

 

1. The Manager,

Ego Wellness Pvt. ltd.,

#4/1, Sadashivnagar main

road, Opp. Palace Ground,

Bengaluru-80.

 

2. The Managing Director,

Ego Wellness Pvt. ltd.,

no.4009, 100 feet road,

HAL 2^nd stage, Indiranagar, Bengaluru-38

3. The Managing Director,

Ego Wellness Pvt. ltd.,

no.4 & 5, 2^nd floor,

Millennium star building,

Dhole Patil Road,

Pune, Maharashtra-411001,

 

By Adv.Sri.S.Nagabhushana

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1, 2 & 3 (herein after referred as Op.no.1, 2 & 3 or Ops) seeking issuance of direction to apologize for the inconvenience caused to the Complainant. Further direct them to refund the entire amount of Rs.55,250/-, direct to pay a sum of Rs.60,000/- towards mental agony and also direct to pay Rs.1000/- towards cost of litigation and to pass such other orders deem fit for which the Complainant is entitled to. Further direct to pay Rs.2,20,000/- towards additional expenses incurred for treatment.

 

          2. The brief facts of the case of the Complainant are that, Ops widely advertised their services with regard to the “laser hair removal” (hereinafter referred as said treatment) treatment. In this context, Complainant approached Ops for the said treatment for the back and lower back and said treatment could have required 14 sessions, for which he had paid entire amount of Rs.55,250/- which was to be paid prior to start of the treatment for which Ops issued the receipt. It is the specific case of the Complainant that, at the time of discussion as to the treatment to be provided, the Ops promised him that professionally trained individuals would be providing the treatment and only laser machines would be used for the same. The Ops also assured the Complainant that there would be regular consultations with a qualified dermatologist who would also be present during the treatment itself.  When the Complainant went for the initial sessions for the removal of hair by way laser treatment, Ops repeatedly used only razors and shaving moisturizers. It came to the notice of the Complainant that Ops used an ultrasonic frequency lipolysis machine as opposed laser machines for the treatment. This was not the treatment that the Complainant had engaged the Ops for. Further the said treatment was performed by non-professionals and individuals that had no formal training in providing the same. Further there was never any dermatologist present at the sessions and there was never any consultation scheduled with one, despite the fact that the Complainant repeatedly asked for the same. This was contrary to that which was promised and assured to the Complainant at the time of engaging the services of the Ops. In respect of laxity/deficiency of service found on Op, he brought to the notice of the Ops but there was only baseless and vague answers. It is also the case of the Complainant that, himself was doing his post-graduation in general surgery, he know, how they are using wrong machines for the purpose of hair removal. It is also the case of the Complainant that, he got in touch with Mr.Anil, Mr.Sarvat & Mr.Mahesh, the Managers of Op.no.1, 2 & 3 respectively, however, after avoiding giving any answers and giving some excuse or the other to him, stopped receiving his calls or replying to his messages.  Thereafter, he contacted the Ops to either procure the correct machine or to refund the money paid for the treatment. However, the Ops only avoided dealing with the situation. The Ops on several occasions rescheduled appointments and falsely assured the Complainant that they would be procuring the correct laser machine. However, no laser machine was procured and the Ops failed to render the treatment promised and paid for. Hence, he did not undergo any sessions of laser hair removal treatment much less 14 sessions as promised, only by reason of deficiency of service on the part of Ops. When such being the fact, he was not able to take the said treatment. In this context, he issued legal notice dtd.11.02.15 laying out all the facts and circumstances of the case and calling upon the Ops to refund the amount of Rs.55,250/- and compensation of Rs.60,000/- for the stress and mental agony caused to him. In view of deficiency of service of Op with regard to the said treatment, he approached another clinic, Dr.Tina’s Skin Solutionz, who opined that, due to the use of razors and shaving creams, the hair growth problem of the Complainant had worsened.  Further the treatment suggested by the said doctor for another 14 sessions cost about Rs.2,20,000/-. Further, Complainant amended his complaint at para 17(a) stating that, owing to the deficiency of service on the part of Ops, the Complainant was constrained to seek treatment at a different clinic for which he has spent an amount of Rs.2,20,000/- and hence prays to direct the Op to pay the said amount of Rs.2,20,000/-. Hence on these grounds and other grounds prays for allowing the complaint.

 

3. On receipt of the notice, Ops did appear and filed version denying the contents of the complaint except admitting that, the Complainant had hired the service of Op for laser hair removal and has paid entire treatment amount. The sum and substance of the version of the Ops are that, complaint is filed only seeking refund of money paid and there is no deficiency in rendering the service and the same could be inferred by the pleading of the Complainant that it was only due to the non-availability of the machine or repair of the machine and all the other allegations are made to suit his whims and fancies for approaching this forum for the money. Ops further submit that the complaint is not maintainable for the second reason that the Complainant seeks refund/return of money and is also clear from the pleading that he has not availed any sessions and the cause of action is out of the purview of CP Act and this forum has no jurisdiction to try and entertain the present complaint as the Complainant has to approach proper forum for the refund of amount. Ops further submit that, the invoice is specific that once the payment is made is non-refundable at any given circumstances and the Complainant has taken unilateral decision at his whims to claim the refund whereas it was assured to him to provide treatment upon receipt of machine from the company and any dispute shall be resolved by arbitration only on this count also the complaint is not maintainable. Ops further submit that, it is highly reputed in Bengaluru having branches around the city meets with the international standard and the methodology used by Op is unique and till today there are no complaints of such kind as complained by the Complainant.  Ops further submit that, the Complainant has made allegations without understanding the technical characteristics of services provided by the Op and there is no deficiency of service from Op. Hence on these grounds and other grounds prays for dismissal of the complaint. Ops who also filed additional version denied the contents of the amended portion of 17(a) of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A25. The Managing Director of Op filed affidavit evidence and none of the documents been produced. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether the Complainant proves deficiency of service on the part of Ops, if so, whether he entitled for the relief sought for ?    
2. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: Partly in the Affirmative  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  The undisputed facts which reveal from the pleadings of parties goes to show that, the Complainant hired the services of Op.no.1 for laser hair removal on 28.02.14. To get the treatment done, the Complainant paid the full amount of Rs.55,250/- (Rs.25,000/- via debit card and Rs.30,250/- in cash) for 14 sittings (12+2 sittings) of laser hair removal on 28.02.14. With regard to the laser machine is concerned, Op has taken the defense that, delay was due to defect in the laser machine which could not be rectified by the local machinist and the machine had to be sent to company for repair and this fact was brought to the notice of the Complainant and the Complainant being desperate, impatient created scene and demanded huge money along with amount he paid which clearly shows attitude/nature of the Complainant in filing this complaint. At this stage, presumption can be raised that, at the initial session, the alleged laser machine was found to be defective, under such circumstances, Op used the razors and shaving moisturizers for the said purpose as stated by the Complainant. We also noticed that, no dermatologist was present at the time of initial treatment, so, the procedure adopted for removal of hair by using the laser machine appears to be unscientific method. It is also noticed that, the Complainant brought these facts to the notice of the Managers of Op.no.1 to 3, but there was no proper response. Complainant being the doctor, who was doing post-graduation in general surgery, very well know the pros and cons in respect of using the razors and shaving creams and the ultrasonic frequency lipolysis machine which are not fit to the said treatment. The entire text of the version filed by Ops are that, they provided the service of one dermatologist name called Dr.Usa, her affidavit is also not filed before this forum, as to know, the procedure adopted for the removal of hair.  

 

          8. With regard to the mistake that was committed by Ops at the time of initial session by using razors and also shaving creams, Complainant has got further complications. In this context, he approached Dr.Tina’s Skin Solutionz who estimated for the hair removal treatment for an amount of Rs.2,20,000/- which can be seen at Ex-A7. It appears that, the Complainant has paid this amount periodically. When Ops are found negligent in their duties in rendering their service, under such circumstances, the Complainant has no other go except to approach Dr.Tina’s Skin Solutionz. This fact is not specifically denied by the Ops. Only contention taken by Ops are that, laser machine was out of order, hence the same is to be sent to the company for repair. Another contention taken by Ops is that, once the amount paid is not refundable. In this context, learned counsel for the Complainant draw our attention towards the news item published on 03.08.14 in The Times of India annexed to the written arguments, which reads thus:

Mumbai: In an order sure to boost consumer rights, the State Consumer Commission   on Wednesday ruled in favour of a man who took on a clothing showroom for forcing on its customers the illegal condition that “goods once sold cannot be returned or exchanged”.

The Maharashtra Family showroom, in addition to a compensation of Rs.1,000/- will have to refund of Rs.3,050/- to Prem Lonke, an IIT-B project assistant, for the clothes that he wanted to return.

Lonke (34) told TOI that many people were unaware of the letter issued by the department of consumer affairs in Delhi in 22.12.1999, prohibiting printing the condition that “goods once sold will not be taken back” on receipts.  “Hopefully through such State Commission orders, people who have similar issues will be aware of their rights. Such illegal practices need to be curbed,” Lonke said. “I have spent more on fighting this complaint than the compensation awarded. But I am happy with the positive outcome.”

Lone filed an appeal before the Maharashtra State Consumer Disputes Redressal Commission earlier this year, after a district forum dismissed his complaint on 16.12.13. The State Commission said it admitting the appeal after Lonke submitted a letter issued by the government of India, which stated that the condition that “goods once sold will not be taken back or exchanged” was against the law.

After receiving a notice of the appeal, the showroom represented itself in the State Commission and agreed to pay the amount.

On 14.08.13, Lonke, who lives on IIT-B’s Powai campus, bought two trousers collectively worth Rs.2,198/- and two shirts collectively worth Rs.1,190/- from the showroom, the store offered Lonke a 10% discount. Unsatisfied with the quality of the product, Lonke returned to the showroom to exchange the clothes the very next evening.  But as he was not satisfied with the quality of the exchanged clothes too, he sought a refund. The showroom refused and cited the policy under which a refund could be given. Despite sending notices, when Lonke did not receive a favourable response, he filed the complaint before the District Forum.

Lonke also cited a Pune district forum order of 30.05.12, in which a clothing store was directed to refund Rs.240/- along with Rs.1,000/- compensation, to a woman who wanted to return a pair of leggings that did not fit her. The forum had observed that printing such a non-return policy on the bill amounted to unfair trade practice.

 

 

 

We find there is considerable force in the arguments advanced by the learned counsel for the Complainant. Under such circumstances, we come to the conclusion that, there is deficiency of service on the part of Ops in removing hair.

 

9. Now, what is the relief, to which Complainant is entitled too, we placed reliance on the contents of Ex-A1 which is the invoice dtd.28.02.14 for an amount of Rs.55,250/- paid by the Complainant. This fact is not denied by Ops. When the removal of hair has been failed, under such circumstances, Complainant is entitled for the refund of entire amount of Rs.55,250/- paid as per Ex-A1. Accordingly, Complainant is entitled for refund of the said amount of Rs.55,250/-. With regard to the mental agony, hardship, inconvenience are concerned, Complainant has sought for an amount of Rs.60,000/-. As we already stated above, when the Ops have failed to discharge their duty and made the Complainant to suffer by using razors and shaving creams for hair removal, certainly he suffered mental agony. In this context, if an amount of Rs.10,000/- is awarded towards compensation, we hope the same is substantial amount. Further, Complainant prayed for Rs.1,000/- towards cost of litigation, which appears to be just and proper.

 

10. The Complainant after amending the petition, sought for another relief to direct the Ops to jointly and severally pay to the Complainant a sum of Rs.2,20,000/- towards additional expenses incurred for treatment. In this context, mere filing an affidavit by the Complainant, nothing is placed on record. Now, after un-successful hair removal from the side of Ops by using razors and shaving creams, it made the Complainant to knock the door of another clinic name called Dr.Tinas Skin Solutionz. When such being the fact, we do not find any just reasons to allow an amount of Rs.2,20,000/- towards expenditure incurred for the treatment. Accordingly we answered the point no.1 partly in the affirmative.

 

         11. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby allowed in part.

 

2. Op.no.1, 2 & 3 are jointly and severally liable to pay an amount of Rs.55,250/- as shown in invoice (Ex-A1) and also to pay compensation of Rs.10,000/- to the Complainant within six weeks from the date of receipt of this order, failing which, it carries interest at the rate of 6% p.a. from the date of payment till the date of realization.  

 

3. Further, we direct Ops to pay cost of litigation of Rs.1,000/- to the Complainant.

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer in the open forum and pronounced on 7^th March 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Dr.Sri.Nishchit hedge, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

Ex-A1	Tax invoice dtd.28.02.14 Rs.55,250/-
Ex-A2	Bank statement dtd.28.02.14
Ex-A3	SMS, whats app call records
Ex-A4	CD with audio and video recordings of communication
Ex-A5	Letter dtd.11.02.15
Ex-A6	Courier receipt dtd.17.02.15
Ex-A7	Estimated cost of treatment dtd.06.07.15
Ex-A8 & A9	Receipts dtd.06.08.15, 08.07.15
Ex-A10 & A11	Bank statements dtd.08.07.15, 06.08.12
Ex-A12	Receipt dtd.01.10.15
Ex-A13, A15, A17, A19, A21, A23, A25	Bank statements dtd.01.10.15, 21.11.15, 26.12.15, 27.02.16, 26.04.16, 01.06.16, 07.07.16
Ex-A14, A16, A18, A20, A22, A24	Receipts dtd.21.11.15, 26.12.15, 27.02.16, 26.04.16, 01.06.16, 07.07.16

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Mahesh Kalayaril, who being the Managing Director of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

NIL -

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT