Delhi

North East

CC/46/2015

Suman Dalal - Complainant(s)

Versus

VLCC Health Care Ltd. - Opp.Party(s)

09 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 46/15

 

In the matter of:

 

1.         2.	Mrs. Suman Dalal W/o Sh. Sanjiv Sangwan R/o 426/22 Durga Colony, Rohtak- 124001, Haryana.   Ms. Meghna Sangwan D/o Sh. Sanjiv Sangwan R/o 426/22 Durga Colony, Rohtak- 124001, Haryana.	Complainants
	Versus
	VLCC Health Care Ltd. Building No. 35 1st, 2nd & 3rd Floor Central Market, Punjabi Bagh,                        New Delhi-110026.	Opposite Party

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

03.02.2015 02.04.2018 09.04.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainants who are in relation to each other as mother daughter had in the month of December 2012 come across weight reduction treatment programme introduced by OP in their website advertised in youtube.com as advertisement in video form and also checked on the OP website www.vlccwellness.com. The complainants after seeing the said advertisement registered for a free appointment with the OP and visited the office of the OP at Punjabi Bagh Branch for consultation and after a lot of persuasions, commitment and promise of assured result of weight reduction treatment given by the OP, the complainants enrolled themselves with the OP for a 15 Kg weight reduction treatment each and also enlisted for two therapies each, namely Detox/Instant weight reduction and Tummy Trim for complainant no.1 (Suman Dalal) vide package No. PK1300105 and HAT and Tummy Trim for complainant no.2 (Meghna Sangwan) vide package No. PK1300104 consisting 10 therapies each on 16.12.2012. The complainants stated to have paid a sum of Rs. 1,01,920/- to OP vide receipts no. 161212 and 261212 broken up as Rs. 25,000/- paid vide credit card on 16.12.2012 and Rs. 76,920/- on 26.12.2012 by cash. The complainants visited the OP from December 2012 till April 2013 twice a week for the said treatment / programme and minutely followed all the instructions prescribed by OP including diet management and availed of two session of HAT and Detox / instant weight reduction and five session each of Tummy Trim therapy but to their utter shock, the complainant noticed after 4 months that the complainant no.1’s weight increases by 1 or 2 Kg whereas the weight of the complainant no.2  remained unchanged and rather she got patches / marks on her stomach as side effect of the treatment. The complainants have stated that finding no positive result and benefit from the treatment provided by the OP, they discontinued the treatment and asked for refund of the amount paid from the OP by way of written and oral request. However the OP, vide undated letter received by the complainants on 20.12.2014 declined to give the refund claiming that complainants have given declaration in writing that ‘amount paid is not refundable’ and therefore the OP cannot process the refund. The complainants have stated that such a term is illegal and against public policy and that the complainants have undergone mental trauma owing to ineffective and useless treatment of OP which rather than giving a positive outcome has only worsened things causing the complainants social ridicule and discomfort of travelling from Rohtak to Delhi. Therefore vide present complaint, the complainants have prayed for directions to the OP to refund a sum of   Rs. 1,01,920/- which was paid by the complainants to the OP alongwith interest @ 24% p.a. from the date of payment i.e. 16.12.2012. In addition the complainants also prayed for a sum of Rs. 5,00,000/- a compensation for mental agony and harassment caused by the OP to the complainant No.1 Rs. 5,00,000/- towards compensation for mental agony and harassment caused to complainant no.2 by OP, Rs. 76,000/- towards compensation for commuting from Rohtak to OP centre at Delhi and Rs. 1,00,000/- towards cost of litigation.
2. Notice was issued upon OP which entered appearance on 18.03.2015 and filed written statement on 27.07.2015 in which OP took the preliminary objection that the validity of programme booked by the complainant No.1 was for 180 days w.e.f. 26.12.2012 and that of complainant No.2 was of 150 days w.e.f. 07.01.2013 but the complainants did not complete their respective programmes thereby abandoning them in between and demanding refund instead. OP opposed the maintainability on grounds of territorial jurisdiction and that no deficiency in service could be attributed to the OP and no specific averment has been alleged by the complainants in the contents of the complaint attributing fault, imperfection, short coming or inadequacy in the quality, nature and manner of rendering service qua the OP. The OP submitted that it is world’s first health and beauty corporate to be awarded certification of ISO 9001:2000 other than               SA 8000 and ISO 14001 and has been awarded many prestigious awards globally. The OP further submitted that the complainants visited their Punjabi Bagh Centre upon their free will and volition after hearing about good reputation of OP and after making various enquiries regarding treatment and programmes such as Turbo Slim, Detox, Glycopeel, Hydra etc and all necessary information regarding treatment, limitation, exclusion and precautions to be taken both during and after the services, expenses to be incurred regarding the programme and approximate period for the entire programme was provided by the OP to the complainant before starting the programme and complainants were apprised that the results of treatment vary from person to person depending upon body structure, metabolism, diet and life style etc and as such the results of programmes cannot be guaranteed. That after satisfying themselves completely, the complainants had enrolled themselves for the programmes i.e. complainant No.1 (Mrs Suman Dalal) for 15 KG + 10 Turbo Slim + 10 Detox + 10 K.E. + 40 P.A. and made a payment of Rs. 47,750/- and complainant No.2 (Ms. Meghna Sangwan) for 15 K.G. + 10 Turbo Slim + 10 HAT + 10 K.E. + 40 P.A. and made a payment of Rs. 40,600/-. Documents in form of consent letter, terms and condition declaration etc were duly signed by the complainant after reading and understanding the contents therein and thereby entering into contract with the OP, the contents of which were reproduced by OP in para 4 of preliminary submission of the written statement filed by the OP in which interalia it was also stated that the amount paid is not refundable as well as non transferable. The OP further stated that the complainants underwent 11 sessions starting from 26.12.2013 to 12.04.2014 as per programme record maintained by OP but abandoned the programme for reason best known to them despite showing no sign of discomfort during any of these sessions attended by them and the complainants never approached the OP or its representative with any concern or complaint in this period. The OP further submitted that despite giving complete professional services for the above mentioned programme opted by the complainants and results being shown by the OP, the complainants after availing the programme demanded refund which is not permissible as per terms and condition agreed between the parties. The OP denied that the complainants followed diet management and other instruction/ advised rendered by the OP in relation to the programme booked by the complainants and the results of the client programme records of the complainants are contrary to the allegation of the complainants and denied that there were any patches or marks on the stomach on complainant no.2 as side effect of the programme for want of sufficient proof. The OP further urged that as per the terms and conditions of the programme and declaration and consent form signed by the complainants, the complainants had undertaken that the amount paid was not refundable and non transferable and the same had been intimated to them by the OP and the said contract between complainants and OP was entered into by the complainants on their free will and consent and enforceable under law and no terms therein are illegal and against public policy. Lastly the OP urged that the complainants have not suffered from any mental agony as no guarantee of result was offered by the OP and prayed for dismissal of the complaint with compensatory cost. The OP filed the complete CPR of the complainants alongwith attendance sheet / follow up record.
3. Rejoinder to the written statement was filed by the complainants in which the complainants denied that the validity of programmes booked by the complainant No.1 & No2. was of 180 days and 150 days respectively and denied not having completed the same. The complainants further denied having agreed to the terms and conditions of the programme through declaration / consent form duly read understood or signed  by the complainants.
4. Evidence by way of affidavit was filed by the complainants as well the OP.
5. Written arguments were filed by the complainants alongwith judgments / citations in support of their case/ defence. OP filed case laws in its defence and sought time to file written arguments which was granted vide order dated 10.05.2016 however despite repeated opportunities OP failed to file written arguments for which non compliance a cost of Rs. 1,000/- was imposed on OP payable to the complainant vide order dated 30.01.2018. However since the OP did not comply with the same, its right to file written arguments was closed vide order dated 02.04.2018 on which date the arguments were addressed by the counsel for complainants and order was reserved.
6. We have heard the arguments addressed by the complainants and perused the documentary evidence placed on record by both the parties. During the course of arguments the counsel for complainants denied that the complainants signed the client programme record declaration under the head client signature and stated that the same varied from the signatures of the complainants on the complaint as well the affidavit in support thereof. In view of which the terms and conditions were neither binding nor made aware to the complainants by the OP.

It is not in dispute that the complainants have enrolled themselves for weight loss programme with the OP in the period December 2012 – January 2013. The complainants stated that they have paid Rs. 1,01,920/- to the OP whereas the OP admitted to have received Rs. 88,350/- from the complainants towards the said weight loss programme. On perusal of client programme record it is seen from the medical history/profile of the complainants that both are obese with BMI of around 30 - 35 and weighing 95 - 97 KGs with sedentary life style without much activity and complainant no.1 was suffering from hypothyroidism which shows that the mother daughter duo had tendency to put on weight in excess of the ordinary and the complainants have not laid any evidence to substantiate or prove that they complied with or followed the dietary and fitness instructions given by the OP for having better results regarding the weight loss programme taken by them from the OP. There was family history of obesity which was hereditary and there was very less physical activity and faulty eating habits within the family with disease of hypertension running the family.

In view of all the declarations/disclosures and statements made by the complainants with respect to their physical attributes, physical health BMI, body weight, obesity, life style disorder, unhealthy eating habits, sedentary life style, vital statistics on the higher side, the complainants as an afterthought and very strategically decided to wriggle out of the client programme record signed by them whereby under various clauses of declaration mentioned therein, one of them being an undertaking to the effect that the amount paid is non refundable and non transferable by disputing and denying their signatures on the said contract as a convenient defence mechanism to justify their grounds for complaint to seek refund from the OP by alleging failure of the weight loss programme and its alleged side effects which the complainants failed to prove least of all establish. The complainants never filed any application for FSL report for signature verification to establish the veracity of their claim of the same being forged by OP on the CPR and rather chose a simply disclaimer / denial to claim/ justify refund from the OP by stating that they had never signed any such document. We are therefore of the opinion that the complainants cannot take advantage of their own acts and omission or having abruptly abandoned the programme of the OP without any reason / explanation midway as can be seen from the follow-up record filed by the OP and then asking for a refund by alleging non result / failure of the weight loss programme which is common knowledge that the result of each programme varies from person to person depending upon individual body composition health status, metabolism and other factor including diet and life style and as such results of such programmes cannot be guaranteed and lack of result will not be construed as deficiency in service. The complainants are contending exactly contrary to their undertaking whereas they had duly understood and signed the Client Programme Record and cannot be allowed to dispute the signatures thereon. The Hon’ble NCDRC in the case of Desk to Desk Courier and Cargo Vs Kerala State Electronics Development Corpn. Ltd, reported as II (2004) CPJ 39 (NC) held that a person, who signs a document containing contractual terms, is clearly bound by them, even though he had not read them or was ignorant of their precise legal effect. It was held that even if the terms and conditions (printed on the consignment note) were not explained, he would be deemed to have agreed and accepted the terms and conditions printed on the face and reverse of the said consignment note signed by him.

The conduct of the complainants clearly show commitment of breach of terms and conditions of contract regarding attending complete number of sessions for having positive results for weight loss and therefore cannot be allowed to take advantage of the same and claimed refund / damages. The ratio of law laid down in Bharathi Knitting Co. Vs DHL Worldwide Express Courier Division of Airfreight ltd AIR 1996 SC 2508 is clear that liability undertaken in contract between the parties should be limited to extent of undertaking.

Therefore the ratio of law laid down in aforesaid judgments directly and squarely covered /applicable to facts and circumstances of the present case and as the complainants had bound themselves to the terms and conditions of the agreement regarding weight loss programme, they cannot seek compensation by way of refund when they themselves violated the terms and conditions of the declaration made by them under the CPR merely by disputing or denying their signatures and abandoning the weight loss programme of the OP in between without any reason.

7. We therefore do not find OP guilty of deficiency in service or unfair trade practice or that the contract entered into between the complainants and OP against public policy as alleged by complainants and dismiss the complaint as devoid of merits with no order as to costs.                      
8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on 09.04.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member