BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 20^th DAY OF JANUARY 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

One Ashwini Anjanappa (complainant) approached VLCC Health Care Ltd., (OP-2) situated at 447-A S, Sri Gurukrupa Complex, 2^nd Phase, Next to Tirumala Temple, 9^th Cross, Phase-1, J.P Nagar, Bangalore who are engaged in providing health and beauty treatments.  The complainant joined OP-1 for weight loss treatment on 29.06.2013 and she was introduced to a physiotherapist and a dietician who presented her several packages.  To reduce 5 kgs of weight and body toning the complainant was offered package worth Rs.66,264-31 which she accepted and paid the said amount to OP-2.  At the time of making the said payment, complainant was not aware of any terms and conditions regarding the said package.  The complainant took a ‘zero session’ service which went for almost an hour and Vtron-CTS done on face for an hour.  On the same night, the complainant felt very uncomfortable, felt giddiness and vomiting sensation and her face became irritable.  The complainant realized that the package wouldn’t work for her.

2. That, on the third day after paying fee, the complainant went to OP-2 and informed them about the health issues she faced and requested them to refund the amount paid by her.  But OP-2 offered some beauty treatments, instead of refunding the amount.  However, the complainant was not keen in availing any beauty treatments and insisted to refund her money.  That the OP-2 refused, therefore, the complainant contacted OP-2 who asked her to mail the details of the issues and the complainant did as advised.  The complainant was promised by the OP-1 that they would get back within 24 hours.  However, the complainant has not received any reply till date.  OPs failed to resolve the issue even after rigorous follow ups and she was harassed indefinitely and has suffered due to the deficient and negligent services of the OPs.  Therefore, the complainant was compelled to approach this Forum by invoking the provisions U/s.12 of the C.P Act.

3. For the above stated reasons, the complainant prays for an order directing the OPs to refund her a sum of Rs.66,264/-, Rs.10,000/- towards mental agony suffered by her and the cost of the litigation.

4. The OPs appeared through their advocate and contested the claim of the complainant contending as under:

The complainant has not approached this Forum with clean hands.  The complainant on her own approached OP-2 and booked herself programme/package of 5 kg weight loss, 5 sessions of body therapy, 5 sessions of body firming, 10 sessions of Termoslim and 5 sessions of CTS on 29^th June 2013 and the package was for 90 days and was booked on 29^th June 2013.  The complainant availed one session and despite professional services and results being shown by the OPs, the complainant for the reasons best known to her abandoned the program abruptly and sought for refund, which is not permissible as per terms and conditions of the OPs.

The complainant having abruptly abandoned the programme, despite positive results, now cannot be allowed to allege deficiency in service rendered by the OPs.  That during the above said period of her programme and even after that the complainant never complained for any reaction or any adverse effect.  The complainant was satisfied with the services rendered by the OPs during the sessions provided to her.  It is also not the case of the complainant that, she consulted any doctor for treatment for alleged uncomfortness, giddiness which she alleges was caused by the programme/package given by the OPs.  The complainant has not placed any medical report which indicates that the alleged uncomfortness, giddiness was caused by the programme of the OPs.

          5. As per the terms and conditions of the package, the refund of the amount could not be considered.  However, the OPs offered to grant an extension of her unavailed package and also offered to convert the package to various other services available with them.  However, for the reasons best known to her the complainant did not respond to any of the communication of the OPs and instead chose to approach this Forum.  The complainant at the time of registration has specifically agreed and to signed the declaration having understood the terms and conditions of the programme/package and even undertaken not to proceed against OPs and its personnel for any loss, damages or injury whatsoever caused to her while undergoing the programme.  In pursuance of the terms and conditions of the programme, the complainant is not entitled for any refund and other relief sought by her.  There is no any deficiency of service on the part of OPs.  Therefore, the OPs are not liable either refund or pay any damages etc., to the complainant as prayed in the complaint.  Therefore, the OPs pray for dismissal of the complaint with cost.

          6. After version was submitted by the OPs, the complainant was called upon to submit her affidavit evidence in lieu of oral evidence and accordingly she filed her affidavit evidence.  Thereafter, the OPs filed the affidavit evidence of one Nideesh Babu N, Centre Accountant in OP-2, in support of the averments made in the version.  Both the parties have submitted their written arguments.  Perused the material placed on record including the allegations made in the complaint, averments made in the version, sworn testimony of the parties and the documents relied upon by both sides.

          7. In view of the rival contention of complainant as well as OPs.1 & 2 the question that arises is as to whether there is any deficiency in service on the part of OPs as alleged in the complaint and whether the complainant is entitled to reliefs sought for in the complaint.

           8. It is not in dispute that the complainant joined weight loss treatment offered by OP-2 on 29.06.2013.  The said package was to reduce 5 kgs of weight and body toning for which the complainant paid Rs.66,264-31 to OP-2 for which necessary receipt has been issued.  The complainant alleges that she took zero session service which went for almost an hour and Vtrom-CTS done on her face for an hour.  She further alleges that on the same night she felt very uncomfortable, felt giddiness and vomiting sensation and her face became irritable and she was convinced that the package obtained by her with the OP-2 wouldn’t work for her.  Therefore, immediately she approached OP-2 and informed about health issues she faced because of the treatment she was given and requested for refund of amount which she has paid but OP-2 instead of refunding the amount offered beauty treatment which she refused to accept and insisted for refund of money.  OPs also admitted that the complainant attended only one session.  OPs also admit in their version as well as in sworn testimony that the complainant alleged uncomfortness, giddiness and irritation after undergoing the programme given to her.  However, it is contended by the OPs that the complainant has not placed any medical certificate to substantiate that the alleged uncomfortness, giddiness, irritation etc., was due to the programme/treatment given to her.  Therefore, it is argued on behalf of the OPs that the alleged illness is nothing to do with the package obtained by the complainant.

          9. The learned advocate for the complainant contended that the complainant having joined the said weight loss and body toning package by paying more than Rs.66,000/- has no reason to make false allegations against the OPs.  It is argued that since the complainant was not comfortable with the treatment given to her during the zero session she was convinced that the treatment offered by the OPs wouldn’t suit to her and therefore opted out of the package and requested for refund of money paid by her.  Though the complainant did not produce any medical certificate, but we have no reasons to believe that the complainant is making false allegations of illness due to the programme only to seek refund of money paid by her.  The complainant who have joined programme voluntarily has absolutely no reason to make false allegations against the OPs.  The learned advocate for the OPs referring to the terms and conditions/programme/package obtained by the complainant argued that the complainant is not entitled to refund of amount paid by her.  He further alleged that the complainant has signed the terms and conditions of the package only after reading and understanding the terms and conditions of programme/package.  Therefore, it is contended that, she is not entitled for any relief and the OPs are also not responsible for the alleged illness suffered by the complainant.  No doubt, the terms and conditions of the programme/package obtained by the complainant discloses that the complainant has agreed that the amount paid by her is non refundable and non transferable.  In the instance case on hand the complainant is seeking refund of the money for the reasons that immediately after undergoing first session she felt very uncomfortable, giddiness and vomiting sensation and her face became irritable.  Therefore, she realized that the package would not work for her and decided to seek refund of the money.  It is pertinent to note here that the terms and conditions of the programme/package does not prohibit the complainant from seeking refund of money paid by her, in the event she is not comfortable with the package of the programme resulting in giddiness vomiting sensation, irritation etc., The non-refundable clause incorporated in the terms and conditions, in our opinion is arbitrary and one sided.  Therefore, we feel that the OPs by invoking the non-refundable clause cannot refuse to repay the money received from the complainant.

          10. When OP-2 refused to refund the money the complainant has contacted the OP-1 through e-mail for which the OP-1 has sent a reply through e-mail dated 02^nd July 2013 at 1.13 PM stating that they would revert back to her upon receiving requisite information from OP-2.  However, OP-1 never replied to the said e-mail till the date of filing of this complaint.  This attitude of OP-1 is certainly undesirable.  OP-1 instead of resolving the issue has made the complainant to run post to pillar seeking refund of the money paid by her.  The complainant has sought the refund since the package/programme offered by OP-2 did not suit to her health/body constitution.  Under such circumstances, the OPs are duty bound to refund the amount paid by the complainant by deducting the charges for rendering the first service.  The OPs are certainly not justified in withholding the entire amount paid by the complainant despite her repeated requests and legal notice.  Therefore, we are of the considered opinion that the complainant has successfully established the deficiency in service on the part of the OPs.  The failure on the part of OPs in refunding the amount to the complainant must have put her to great hardship, inconvenience and mental agony.  Therefore, the OPs shall have to be directed to pay adequate compensation to the complainant.

          11. In the given facts and circumstances of the case and in view of the discussions made above and also the duration of the package and one session rendered by the OPs, we feel it appropriate to direct the OPs to refund a sum of Rs.63,000/- to the complainant within six weeks from the date of communication of this order and to pay her compensation of Rs.5,000/- for the hardship and mental agony together with litigation cost of Rs.5,000/-. 

12. The order could not be passed within the stipulated time due to heavy pendency.      

13. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are directed to refund a sum of Rs.63,000/- to the complainant within six weeks from the date of communication of this order.  In default they shall refund the amount together with interest @ 9% p.a from the date of receipt till the date of realization.  Further OPs are directed to pay compensation of Rs.5,000/- to the complainant together with litigation cost of Rs.5,000/-.

Furnish copy of this order to both the parties free of cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 20^th day of January 2016)

MEMBER                           MEMBER                      RESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 17.12.2013.

1. Ashwini Anjanappa.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 02.01.2014.

1. Sri.Nideesh Babu N.    

Document produced by the Opposite parties:

MEMBER                          MEMBER                      PRESIDENT

Vln*