Tamil Nadu

South Chennai

CC/127/2021

Mrs.Alice Prema Andrew - Complainant(s)

Versus

The Managing Director, Vecular Wellness Clinic and another - Opp.Party(s)

Mrs.Alice Prema Andrew

26 May 2023

ORDER

  Date of Complaint Filed:05.07.2021

  Date of Reservation     :08.05.2023

  Date of Order              :26.05.2023

          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                             : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,             :  MEMBER  I 

                    THIRU. S. NANDAGOPALAN., B.Sc., MBA.,      : MEMBER II

               

CONSUMER COMPLAINT No.127/2021

 FRIDAY,THE 26^th DAY OF MAY 2023

 

Mrs. Alice Prema Andrew,

A 601, Kavita Nivas,

46 Pachaiyappas College Hostel Road,

Chetpet,

Chennai-600031..                                                           .. Complainant.

-Vs-

 

1.The Managing Director,

VeCura Wellness Clinic,

Ground & First Floor, Old No. 52, New No. 8,

 Dr. B N Road, North Boag Road, T. Nagar,

Chennai-600017.

 

2.Chief Executive Officer,

Bajaj Finserve,

3^rd Floor, Kaba Plaza, LB Road,

Indra Nagar, Adyar,

Chennai 600020.                                                         .. Opposite Parties.

* * * * *

 

Counsel for the Complainant         : Party in Person

 

Counsel for 1^st Opposite Party      : M/s. M. Soundar Vijay Arulram,

                                                    S. Jerome, S.V. Badriah, B. Boopathy

 

Counsel for 2^nd Opposite Party      : Exparte on 31.05.2022

 

 

On perusal of records and upon hearing the oral arguments of the Complainant in Person and the counsel for the 1^st Opposite Party this Commission delivered the following:

 

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

(i) The Complainant has filed this complaint as against the Opposite Parties under section 35 of the Consumer Protection Act, 2019 and prays to refund her full amount of Rs.1,87,408/- and to pay interest @12% per annum on the amount of Rs.1,87,408/- from 26.11.2020 till date or realization and to pay compensation of Rs.3,00,000/- as per my notice with 12% p.a interest from 26.11.2020 till realisation along with cost of Rs.1,00,000/- with 12% p.a interest from 26.11.2020 till realisation.

I.  The averments of Complaint in brief are as follows:-

1.     The Complainant submitted that she had approached VeCura Wellness Pvt Ltd T. Nagar, Chennai, 1^st Opposite Party for a weight reduction program in the month of October 2020 and paid as follows:

a) Paid Rs 5,000 vide invoice no CHE2021SA00357 dated 23.11.2020

b) Paid Rs 1,63,408 vide invoice No.CHE2021SA00358 dated 26.11.2020

c) Paid Rs 1,000 vide invoice No.CHE2021SA00359 dated 20.11.2020

d) She had applied for Rs.1,80,000/- loan from Bajaj Finserve. Bajaj Finserve Loan Rs.1,80,000/- showing that she paid Rs.18,000/- on 02.02.2021. Hence, she had paid Rs.1,87,408/- till now and have the liability of paying back the loan.

2.     When she visited the center for her treatment on the first day, she was taken into the treatment room where she found that the COVID-19 SOP/protocols were not met as her temperature was not checked, 90% of the staff were not wearing masks, the towels and bed linen used were not disposable, and having seen all this she was not convinced that they have even sanitized the place and immediately walked out of the center.

3.     Then expressed her displeasure and unhappiness of their Covid protocols followed and asked the 1^st Opposite Party to cancel the treatment and also asked the 2^nd Opposite Party to cancel the loan.

4.     She has been repeatedly requesting the 1^st Opposite Party to refund her amount of Rs.1,87,408/- but in vain. she had requested the 2^nd Opposite Party representative stationed at VeCura Wellness Clinic to cancel the loan after taking the cancellation letter from VeCura Clinic, but they did not cancel the loan and harassing her to pay the EMI every month.

5.     She received an email dated 00.00.2021 from Mr.Krishnan of 2^nd Opposite Party that if she paid Rs.18,000/- the loan would get cancelled within 45 days, Mr. Sunder who claimed that he is from the cancellation team of 2^nd Opposite Party (Mobile:+91 9940589314 email: sunder97@gmail.com ) forced her to pay Rs.18,000/- promising that after the payment the loan will be cancelled in 30 minutes and on this advice she made the payment of Rs.18,000/- on 2-2-2021. After receiving the amount Mr. Sunder stopped picking her call.

6.     The 1^st and 2^nd Opposite Parties have jointly conducted Unfair Trade Practice under Section 2 (47) of the Consumer Protection Act, 2019 by not refunding Rs 1,87,408/-.

7.     She sent legal notice to the Opposite Parties on 28-3-2021 through International Consumer Rights Protection Council. She has filed this complaint to get refund with interest, compensation and costs after getting harassed and stressed for many months by the 1^st and 2^nd Opposite Parties.

 

II. Written Version filed by the 1^st Opposite Party in brief:

8.     The Complainant approached the 1^st Opposite Party knowing every such detail for weight reduction program but for the reason best known to her withdrew from the program and blamed the 1^st Opposite Party that they did not follow Covid-19 protocols without any material evidence to prove the same. The 1^st Opposite Party has handed over the contract of house-keeping, sanitization and other requisite protocols for Covid-19 prevention to an expert third party contractor and closely supervised by the 1^st Opposite Party.

9.     There is a declaration signed by the Complainant agreeing to the terms and conditions of the treatment in such declaration clause regarding refund is as follows:

"I further undertake that the validity of the program is 180 days from date of receipt of first payment and the amount paid thereof is non-refundable as well as non-transferable"

"I accept and agree that no money will be refundable by VeCura on closure of the center due to circumstances forcemajor or other causes beyond the control of VeCura and, insuch event, I agree to take my remaining in another center ofVeCura"

10.    When signing such declaration the Complainant was fully aware of the clause now it is not open to Complainant to add or subtract any of the conditions or words thereof while doing so to refund the amount of Rs.1,87,408/- which is contrary to provisions of the declaration. Once the agreement was signed by the Complainant, the 1^st Opposite Party reviews the treatment protocol by involving clinical dietician, doctors and therapist etc. and a complete program schedule was devised, hence there is no failure on the part of the 1^stOpposite Party.

11.    The 1^st Opposite Party sent an email intimating the Complainant about final request to complete the weight reduction program and the 1^st Opposite Party tried to contact the Complainant regarding the explanation of terms and conditions of the declaration and other such formalities but the Complainant failed to respond to the calls from the 1^st Opposite Party and moreover the 1^stopposite part never agreed to refund the amount in view of the declaration signed by the Complainant and terms and conditions mentioned in the agreement. There is no failure, negligence, contemplation of treatment from the 1^st Opposite Party and it is the Complainant due to her health conditions withdrew from the program. The Complainant concealing her health conditions has approached the 1^st Opposite Party for weight reduction program. Such concealment will be breach of the declaration in which the Complainant signed declaring her health to be sound.

12.    The 1^st Opposite Party has not committed any unfair trade practices or mislead the Complainant or extorted any money illegally from the Complainant. The allegations raised by the Complainant are false and it is clear breach of contract by the Complainant. The failure is on the part of the Complainant who failed to undergo the treatment as agreed.

13.    It is the Complainant who had approached the Commission, therefore, without any proof of deficiency, the Opposite Party cannot be held responsible for deficiency in service.

14.    The Complainant has no cause of action. The cause of action mentioned in the complaint is faulty. The Complainant is not entitled to the relief claimed. Hence prayed to dismiss the complaint.

III. The 2^nd Opposite Party was set ex parte:

        Notice was sent to the 2^nd Opposite Party and was duly served to the 2^nd Opposite Party. Despite the notice being served the 2^nd Opposite Party has failed to appear before this Commission either in person or through counsel on the hearing date and not filed any written version on their side.  Hence the 2^nd Opposite Party was called absent and set ex-parte. Subsequently, the case was proceeded to be heard on merits.

IV.    The Complainant has filed his Proof Affidavit and Written Arguments,  in support of his claim in the complaint and has filed documents which are marked as Ex.A-1 to A-7. The 1^st Opposite Party had submitted its Proof Affidavit and Written Arguments. On the side of 2^nd Opposite Party document was marked as Ex.B-1 alone.

V. Points for Consideration:-

 

1. Whether there is unfair trade practice on the part of the Opposite Parties?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

POINT NO. 1 :-

15.    The contention of the Complainant is that she had paid Rs.1,87,408/- to the 1^st Opposite Party by availing Rs.1,80,000/- as loan from the 2^nd Opposite Party and remaining amount through her own funds. When she visited the 1^st Opposite Party center she found that  they were not following COVID-19 protocols and hence expressed her displeasure and unhappiness of their Covid protocols not being followed. She had requested the 1^st Opposite Party to cancel the treatment and the 2^nd Opposite Party to cancel the loan. Further she has been repeatedly requesting the 1^st Opposite Party to refund her amount of Rs.1,87,408/- but in vain. She had also requested the 2^nd Opposite Party to cancel the loan, but they did not cancel the loan and harassing her to pay the EMI every month.

16.    The 1^st Opposite Party contended that the Complainant approached the 1^st Opposite Party for weight reduction program but had withdrawn from the program and blamed the 1^st Opposite Party that they did not follow Covid-19 protocols without any material evidence to prove the same. The 1^st Opposite Party has handed over the contract of house-keeping, sanitization and other requisite protocols for Covid-19 prevention to an expert third party contractor and closely supervised by the 1^st Opposite Party.

17.    Further submitted that the Complainant had agreed and signed to the terms and conditions of the treatment wherein she had agreed the amount paid thereof is non-refundable as well as non-transferable.   The 1^st Opposite Party sent an email intimating the Complainant about final request to complete the weight reduction program. There is no failure, negligence, contemplation of treatment from the 1^st Opposite Party and it is the Complainant due to her health conditions withdrew from the program. The Complainant concealing her health conditions has approached the 1^st Opposite Party for weight reduction program. Such concealment will be breach of the declaration in which the Complainant signed declaring her health to be sound.

18.    A perusal of documents marked as exhibits would show that the Complainant had availed loan from the 2^nd Opposite Party for treatment of weight reduction with the 1^st Opposite Party and also made part payments out of her own funds. According to the Complainant the 1^st Opposite Party was not following Covid 19 protocols and hence she wanted to withdraw her treatment and cancel the loan availed from the 2^nd Opposite Party  and requested for the same with the Opposite Parties. While so, she received an email dated 09.02.2021, Ex.A-6  from the 1^st Opposite Party that as per the requisition  of the Complainant they had initiated for cancellation of the loan  and that if the Complainant pays Rs.18,000/- the loan would get cancelled within 45 days and on this advice she made the payment of Rs.18,000/- on 02.02.2021, which is evident from the Statement of Accounts, Ex.A-5. However the Opposite Parties had not cancelled the loan.

19.    The 1^st Opposite Party by referring to Ex.B-1 had contended that the Complainant has signed the declaration agreeing to the terms and conditions of the treatment  where  the clause regarding refund is given hereunder

"I further undertake that the validity of the program is 180 days from date of receipt of first payment and the amount paid thereof is non-refundable as well as non-transferable"

"I accept and agree that no money will be refundable by VeCura on closure of the center due to circumstances forcemajor or other causes beyond the control of VeCura and, insuch event, I agree to take my remaining in another center of VeCura"

20.    Further the Opposite Party contended that when signing such declaration the Complainant was fully aware of the clause and it is not open to Complainant to seek refund the amount of Rs.1,87,408/- which is contrary to provisions of the declaration.

The 1^st Opposite Party placed reliance on the following judgements:

i) The Hon’ble Supreme Court of India in Civil Appeal No.5759 of 2009, passed on 06.10.2021 in Sgs India Ltd. Vs Dolphin International Ltd.,where it was held that the onus is on the Complainant to prove deficiency of service and dismissed the complaint.

ii) (2000) 1 Supreme Court Cases 66, Ranveet Singh Bagga Vs KLM Royal Dutch Airlines and another, the burden of proving the deficiency is upon the person who alleges it, as the Complainant has not established any wifulfault, imperfection, shortcoming or inadequancy in the service of the respondent and dismissed the complaint.

iii) 2010 SCC Online NCDRC 206, Neel Kumar Motilal Karunakar Village Kherva Vs Khyati Resorts Ltd., where it was held that the Complainant having not proved negligence or deficiency in service the complaint is liable to be dismissed.

21.    In the above cases it has been held that the onus is on the Complainant to prove that the Opposite Parties had committed deficiency in service and without proof of deficiency in service the Opposite Party cannot be held responsible for the deficiency in service. In the present case the 1^st Opposite Party having agreed the request of the Complainant for the cancellation of loan once a sum of Rs.18,000/- is paid and would refund the pending amount had failed to keep its promise as assured would amount to unfair trade practice.

22.    Further the 1^st Opposite Party relied on the following orders:-

i) the Hon’ble National Commission in Mahindra Holidays & Resorts Ltd., Vs Hemant Kumar M Wadekar, held that when the membership application form mentioned that amount paid towards admission fee is non-refundable the Complainant is not entitled to refund of admission fees.

 ii) Maharasthra State Consumer Disputes Redressal Commission, Mumbai in M/s IDBI Bank Vs Bipin Kumar BabulalZaveri, (2010 2 CPJ 144,) has held that when there was declaration signed by Complainant, Complainant cannot ask for refund of process fees or administrative fees.

iii) 2009 (2) CPR 80, Jharkhand State Consumer Disputes Redressal Commission, Ranchi, Anshuman Das Gupta Vs FIITJEE and another held that where there is declaration on the part of the Complainant that the fee once paid is not refundable, the Complainant is not entitled for the refund of the amount.

iv)     2008 (3) CPR 146, Punjab State Consumer Disputes Redressal Commission, Chandigard, Khalsa College for Women Vs HarleenKaur and others held that when there is specific condition in prospectus that fees once deposited was not refundable, the Complainant is estopped from seeking refund.

Also relied on the order reported in 2006 1 CPC 166, and the Judgment of the Hon’ble Supreme Court passed on 28.01.2020 in C.A No.000778-000779/2020.

23.    In the above cases it was decided that the presence of Non refundable clause in the agreement would not entitle the Complainant to seek refund of the amounts paid. Though there is clause which stipulates non refund of amount paid to the 1^st Opposite Party for treatment, inspite of such a clause the 1^st Opposite Party had agreed to refund the amount paid by the Complainant, and so going beyond the assurance given by the 1^st Opposite Party would amount to unfair trade practice.

24.    From the above discussions and considering the facts and circumstances of the case this Commission is of the view that the Complainant not satisfied with the services of the 1^st Opposite Party had sought for cancellation of the loan and refund of the money paid, though the 1^st Opposite Party who had arranged loan for the Complainant from the 2^ndOpposite Party had agreed to cancel the loan and to refund the amount had failed to cancel the loan availed from the 2^ndOpposite Party which was paid to the 1^st Opposite Party and hence the 2^nd Opposite Party  continued to present the cheques which were dishonoured making the Complainant to suffer mental agony and hardship besides monetary loss for the services which was never availed from the 1^st Opposite Party, which act of the 1^st Opposite Party amounts to unfair trade practice. No deficiency of service is made out against the 2^nd Opposite Party. Accordingly Point no.1 is answered.

POINTS NOs. 2 & 3

25.    As discussed and decided in  Point No.1,  that the 1^st  Opposite Party had committed unfair trade practice, the 1^st Opposite Party is liable to pay a sum of Rs.1,87,408/- with interest at the rate of 9% p.a from 26.11.2020 till the date of realization and to pay a sum of Rs.20,000/- as compensation for the unfair trade practice of the 1^st Opposite Party along with a sum of Rs.5000/- towards the cost of litigation to the Complainant within 8 weeks from the date of receipt of this order. Complaint as against the 2^nd Opposite Party stands dismissed. Accordingly, Point Nos.2 and 3 are answered.

In the result, the complaint is allowed in part. The 1^st Opposite Party is directed to pay a sum of Rs.1,87,408/- (Rupees One Lakh Eighty Seven Thousand Four Hundred and Eight Only) with interest at the rate of 9% p.a from 26.11.2020 till the date of realization and to pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) towards compensation for the unfair trade practice of the 1^st Opposite Party along with a sum of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant within 8 weeks from the date of receipt of this order. Complaint as against the 2^nd Opposite Party stands dismissed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 26^th of  May 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                     B.JIJAA

      MEMBER II                            MEMBER I                          PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	23.11.2020	Paid Rs.5000 against invoice No.CHE2021SA00357
Ex.A2	26.11.2020	Paid Rs.1,63,408 against invoice No.CHE2021SA00358 through a Bajaj Finserve Loan
Ex.A3	20.11.2020	Paid Rs.1,000 against invoice No.CHE2021SA00359
Ex.A4	26.11.2020	Paid Rs.10520 against invoice No.CHE 2021S00997
Ex.A5	02.02.2021	Statement for Rs.1,80,000 loan from Bajaj Finserve (2nd Opposite Party) showing that she paid Rs.18,000 on 02.02.2021 for her customer id No.41086891
Ex.A6	09.02.2021	e-mail from 2nd Opposite Party asking her to pay Rs.18,000
Ex.A7	26.03.2021	Legal notice to Opposite Party through ICRPC

 

List of documents filed on the side of the 1^st Opposite Party:-

 

Ex.B1

23.11.2020

Vecura Wellness Clinic Weight Loss Management & Maintenance Record of the Complainant

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                          MEMBER I                            PRESIDENT