For the Complainant - Mr. Saikat Mali, Advocate
For the OPs - Mr. Dipak Kumar Si, Advocate
FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
The fact of the case in brief is that the Complainant Sri Nikhilesh Biswas visited the OPs for the purpose of weight loss and paid a sum of Rs.44,672/- on 08.11.2011 and thereafter paid Rs. 12133.00. on 21.11.2010 as per advice of the OPs. The complainant while undergoing the said session desired to avail the second session of “Aroma Body Therapy” and paid advance payment of Rs.47,363/- by instalments last being on 09.6.2011 against the total package payment of Rs.57,908/-. The complainant thereafter fell sick on 30.01.2012 and finally had to undergo Coronary Artery Bypass Graft Surgery on 02.04.2012. Because of his serious health problem the complainant vide letter dated 20.3.2012 requested the OPs to refund him Rs.47,363/- which was paid as advance payment against the ensuing session of “Aroma Body Therapy”. The complainant again wrote to them for refund of the said advance payment vide letter dated 21.3.2012 , 16.4.2012, & 24.5.2012 but the OPs did not reply and refund him the said payment. The complainant then approached the Consumer Affair & Fair Business Practice Deptt., Govt. of West Bengal on 21.9.2012 for redressal of the Complaint but that was concluded with no result & was dropped on 19.2.2014. Finding no other way the complainant has filed the instant case to this Forum for justice.
The OPs have contested the case by filing W/V contending interalia that the Complaint is barred by limitation. There is no cause of action to file the instant case. Moreover, this Forum has no jurisdiction to entertain the complaint. They have further stated that they provide service to the customer/ consumer against payment of money in advance. They issue money receipts with the mandate that “ Money once deposited is not refundable “ The OPs have admitted that the complainant is an old customer since the year 2010 and had been availing different sessions with them. The OPs have denied that they had any knowledge about the health problem of the complainant prior to 30.01.2012. They have however, acknowledged the receipt of Rs.47,363/- which they are not liable to refund to the complainant for not availing the specified service since the complainant owing to his personal reason did not avail the said service.
On the pleading of the parties the following points have necessarily come up for determination:-
- Whether the complaint petition is barred by limitation,
- Whether there is any deficiency in service on the part of the OPs.
3) Whether there is any unfair trade practice on the part of the OPs.
4) Whether the complainant is entitled for the relief as prayed for.
Decision with Reasons
All the points are taken up together for the sake of convenience and brevity in discussion.
The complainant has tendered his evidence on affidavit and copies of the documents available with him. Both parties have filed their reply to the questionnaire set forth by their adversaries. They have also filed their BNAs. We have travelled over all the documents placed on record.
Facts remain that the complainant paid a sum of Rs.47,363/- in advance to the OPs for the second session of Aroma Body Therapy which has duly been acknowledged by the OPs in their Written Version. The complainant could not attend the said session due to the circumstances beyond his control. The relevant treatment papers of B.R. Singh Hospital of Eastern Railway and B.M. Birla Heart Research Centre have been filed by the Complainant. We are to decide whether the complainant is entitled for the refund of the said amount or not.
We find from the record that the complainant requested the OPs to refund the advance payment of Rs.,47,363/- vide letters dated 20.03.2012, 21.03.2012, 16.04.2012 and 24.05.2012 mentioning his serious ill health condition. But all those letters were not at all responded by the OPs and they have not taken any action in the matter of refund of the said amount taken in advance deliberately. Not responding the series of letters of the complainant specially when he was in a very distressed condition of health definitely tantamount to deficiency in service on the part of the OPs. The complainant desired to avail the session of the OPs with an open mind but could not avail the session for the circumstances beyond his control . He had to undergo coronary artery bypass grafting surgery under compelling circumstances which was absolutely beyond his control and was very much unexpected of. For the said emergency treatment he had to spend huge amount of money and because of his severe ill health he could not avail the said session. The OPs have not listened to the appeal of the complainant and denied the claim of the complainant simply on the arbitrary ground of one writing on the Bill / Money Receipt saying ” Money once deposited is not refundable”. This is the only stand point on the part of the OPs based on which they had denied the payment. Moreover, OPs have not filed any single document in support of their contention. The very writing on the money receipt as mentioned above is very much one sided and does not confer any right to the OPs to forfeit the genuine payment made in advance by the complainant and accordingly the same is not binding upon the complainant . This one sided unlawful action on the part of the OPs tantamount to unfair trade practice.
As regards to the point, the petition is barred by limitation we find that the complainant filed separate petition which was registered as MA/177/2018 for condonation of delay in filing the instant complaint petition under Section 24A (2) of the CP Act, 1986. The petition was heard and considered based on submissions of the Ld. Lawyer of the complainant and was accepted accordingly for the ends of justice vide order dated 19.07.2018.No objection was raised by the OPs nor the said order was challenged in the Higher Forum. As such, at this stage the Forum has no scope and authority to review its own order passed on 19.07.2018.
As such we are of the considered view that there is deficiency in service on the part of the OPs and unfair trade practice adopted by the OPs has been established. Thus all the points are answered in the affirmative.
In the result the complaint succeeds in part.
Hence,
ORDERED
That the Complaint Case be and the same is allowed on contest in part against the OPs with the following directions.
1. The OPs are directed to refund the advance payment of Rs.47,363/- to the complainant with simple interest of 6% from the date of payment till the date of realisation.
2. The OPs are further directed to pay a sum of Rs. 15,000/- to the Complainant for harassment & mental agony with litigation cost of Rs.5,000/- .
3. The OPs are directed to comply the above order within 45 days from the date of the order failing which the Complainant is at liberty to put the order in execution according to law.
