PER:

Nidhi Verma, Member.

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11 and 12 against the opposite party on the allegations that the complainant has taken the services of opposite party for weight loss in month of August 2015. At the time of giving the product the opposite party thoroughly told the complainant about the product which they have sold to the complainant. The nature of the product is sliming therapy alongwith beauty package and hair rebounding. The central head of the opposite party had assured the complainant that their product which is mentioned above is very perfect and will work very effectively and complainant will lose 10 K.G. weight within three months. Believing the assurance and guaranty given by the opposite party, the complainant purchased the package for the services i.e. sliming, beauty package alongwith hair rebounding and has paid the price of the packages mentioned above. On 21.7.2015, the complainant has paid Rs. 500/- as booking amount and later on paid the total amount of Rs. 66,000/- for the sliming package and thereafter, 23.9.2015 Rs. 10,000/- for hair rebounding and hair spa, Rs. 1,43,000/- on 22.10.2015 for 6 months unlimited services of sliming, beauty and other allied services packages, Rs. 36,000/- on 4.1.2016 for beauty package. The services for the amount paid for hair rebounding on 23.9.2015 Rs.10,000/-  and hair spa, Rs. 1,43,000/- on 22.10.2015 for 6 months unlimited services for sliming, beauty and other allied services packages, Rs. 36,001/- on 4.1.2016 for beauty package are still unused. The complainant attended the sliming classes, which was assured by the opposite party to be finished in 3 months and complainant will lose 10 K.G. in 3 months has attended the classes for about 8 months i.e. from August 2015 to March 2016, but hardly lose a single gram of weight. The complainant when joined the classes for weight lose her weight was 113 kg and when after 8 months the complainant left the classes her weight was 111 kg This clearly shows that how the effective was the assurance given by the opposite party is. It was guaranteed by the opposite party that complainant will lose 10 kg in 3 months whereas only 2 kg was lost in span of 8 months. After the expiry of 8 months the opposite party has told the complainant that all the therapy has been exhausted and the complainant has to buy more therapies which the complainant bought on 14.2.2016 for Rs. 30,936/-. There is no response of the therapies suggested and allied by the opposite party upon the complainant for loss of weight for which the services of the opposite party was taken after paying huge money to the opposite party by the complainant. Even after taking the therapies suggested by the opposite party for about 8 months and when the complainant find no result of the therapies suggested and applied by the opposite party. The complainant asked the opposite party to return back the money which the opposite party had taken for the further therapies and has not been used till date. The opposite party has openly refused to return the money which the opposite party has received and for which no services has been rendered till date by saying that there is no policy of the opposite party to return the amount even if the services of those therapies are not taken or used. On 28.4.2017, the complainant sent an e-mail regarding the refund of unused packages to the Centre head i.e. Opposite party but the opposite party has not given any reply to the same. Service of the opposite party for valuable consideration falls within the definition of consumer as defined under Consumer Protection Act, 1986 as amended up to date. There is a deficiency at the hands of the opposite party for not keeping up the worlds and promise which they have made to the complainant at the time of receiving the price of the packages mentioned above. The complainant has suffered a lot monetarily as well as physically pain and suffering at the hands of opposite party which cannot be compensated in term of money. The complainant prayed as under:-

(a)     The opposite party may kindly be directed to refund the  amount paid by complainant i.e. Rs. 2,85,963/-

(b)     Compensation of Rs. 5,00,000/- may kindly be awarded to the complainant payable by the opposite party   for causing mental torture, harassment as well as inconvenience to the complainant and also for committing deficiency in service, unfair trade practice as well as gross negligence.

(c)      Counsel’s fee and litigation expenses alongwith costs of complainant to the tune of Rs. 10,000/ may also be awarded to the complainant.

3        After formal admission of the complaint, notice was issued to Opposite party and opposite party appeared through counsel and filed written version and contested the complaint by interalia pleadings that validity of the programs booked by the complainant was of 100 days w.e.f. 2.8.2015 and the complainant has not followed the rules and guidelines / prescriptions of diet as according to the Program. The complainant failed to follow the diet plan suggested during the programme, but still opposite party has managed to reduce weight of complainant up to 5 KG in two months from 2.8.2015 to 20.10.2015 but still complainant has demanding for refund through present false complaint. The complaint filed by the complainant is prematured and liable to be dismissed on this ground alone. It is admitted by the complainant that after completion of the programme the complainant further took an additional therapy programme at her own free will. Had complainant not satisfied she would have not taken the additional therapy programme. The conduct of the complainant itself establish that there was no deficiency in service or unfair trade practice on part of the opposite party and also there was no discrepancy in treatment. This commission lacks the territorial jurisdiction as admitted the registered office of Opposite party is located at M-14, Greater Kailash Part-II, Commercial Complex, New Delhi-110048 and further the services were rendered to the complainant from Centre at Amritsar. Therefore, this commission has no jurisdiction to decide the present complaint. The present complaint is a gross abuse of process of law and is liable to be dismissed with costs. The complainants have approached this commission with unclean hands by not disclosing and misrepresenting material facts. Legal right has not accrued to the complainant to approach this commission. The complainant is not entitled to any relief claimed therein as no cause of action qua the opposite party ever arose to file the present complaint. There is no averment with regard to deficiency in service alleged in the complaint and contents thereof do not spell out the elements, which constitute deficiency. A party signing a document/ contract is to be bound by the same and is to abide and governed by the terms and conditions contained therein. The complainant at the time of enrollment has specifically agreed to and signed the declaration, consent form. It was agreed to the term of the programme that there will not be any refund. The complainants have disregarded the solemnity of the contract. The complainant has raised disputable questions of facts which can be adjudicated only by leading evidence. the product in question has not been submitted before commission for proper adjudication of the matter. The complaint under reply involves and raises disputed question of facts which require a detailed trial and sufficient evidence including the examination of witnesses and can be adjudicated only by a competent civil court. The present commission is not a appropriate forum to deal with the intricate questions of law and fact required to be adjudicated upon the present complaint which requite detailed evidence. As such, the present complaint needs to be dismissed on short ground alone qua opposite party. The present complaint is barred by Limitation Act, as filed after expiry of limitation period. The opposite party has experienced specialists including dermatologists, nutritionist, cosmetologist and has served over 10 million customers since its inception, the opposite party is the largest and most preferred branch in the wellness domain in the countries it operates. The opposite party is world’s first Health and Beauty Corporate to be awarded certification of ISO 9001:2000 other than SA 8000 and ISO-14001. The opposite party has been awarded many prestigious awards including but not limited to Retailer Customer Services Award 2013, Beat Salon at Geo Spa Asia Spa India Awards 2012, featured in Inc. India 500 list 2013. The opposite party gives paramount importance to the customer satisfaction. The services rendered by the opposite party are based on multi disciplinary, integrated scientific approach which analysis and studies individual body compositions. A team of well qualified and experienced professionals exercise their acumen and skill to formulate highly individualized programs. Complainant upon her free will and violation had visited the centre of opposite party at Amritsar after hearing about the good reputation of the opposite party. The complainant made various enquiries regarding various treatments and Progarms such as Turbo Slim, Detox, Glycopeel, Hydra, Sliming Therapy alongwith Beauty Packages and Hair Rebounding etc. All the necessary information regarding the treatment, limitations, exclusions and the precautions to be taken both during and after the services, expenses to be incurred regarding the programme and the approximate period for the entire programme was provided by opposite party. It was further informed to the complainants to think properly and then only start the programme as the results of the treatment vary from person to person depending upon body structure, metabolism and other factors including diet and lifestyle and as such results of the Programme (s)  cannot be guaranteed which was clearly explained to the complainants. Thereafter the complainants enrolled for the programs i.e. Slimming (weight loss) and made a total payment of Rs. 3,25,961/- (Total for different added package which include beauty services as well) and certain documents in the form of consent letters, terms and conditions, declarations etc. were duly signed by the complainants after understanding the contents therein, thereby entering in to a contract with the opposite party. The complainant was duly informed that there was no refund policy in any case. The complainant enrolled for the aforesaid Program only after perusing the terms and conditions of the aforesaid programs. The representatives of opposite party duly explained the nature of procedure of all the above stated programmes, its expected benefits and possible side and after effects and risk involved. The complainants duly agreed to the said terms and conditions of the programme through the declaration/ consent form duly read, understood and signed by the complainants.  The relevant portion of the declaration/ consent form is reproduced here under:-

I hereby taken a decision of my own free will and give consent to join programme(s) I have been explained in the language I understand the effects, nature and outcome of the programme(s) and that the result of each programme may vary from person to person depending upon individual body composition, health  status, metabolism and other factors including diet and lifestyle and as such results of the programme cannot be guaranteed and the lack of result will not be construed as deficiency of service. I have been given an opportunity to ask any questions relating to the programme and I am satisfied and I don’t want to seek any further information.

I accept and agree that failure on my part to abide by the advice given to me by the team of professions (e.g. cosmetologist, dermatologists, doctors, nutritionists, gym instructor etc.) of the treatment given shall not entitle me to hold the company/ centre or any employee/staff of the company/ centre personally liable for any civil or penal action. I undertake that no guarantee/ assurance has been given to me regarding the result and outcome of the programme and in circumstances of unsatisfactory results due to factor beyond control of the staff of the centre, I shall not be entitled to claim / damages or to hold the centre or its staff liable for the same

…………….

I accept and agree that neither the management nor any of the staff members of the centre shall be responsible or liable for any loss, damage or injury whatsoever caused to me while undergoing the programme.

I declare and certify that I have a normal health constitution and have filled my personal data form properly to the best of my knowledge and I do not suffer from any medial/ psychological disorder or any other allergy and am fit to undergo the proframme under the programme in which I have enrolled myself.

I further undertake that the amount paid is non refunsable as well as non transferable.

……………

I agree that validity of the programme booked by me is 100 days from the date of first session given to me and after expiry of the period of validity, the company is not under any obligation to give services to me against this booking/programme. I further agreed that the first session would be taken by me within 7 days/ 10 days of signing of this document, failing which the period of validity would be proportionately reduced.

I have also read and understood the terms and conditions of the company and agree to abide by them. These have been also explained to me in the language that I understand. In the event of my failure to act according to the terms and conditions, my programme will be terminated without any reimbursement. 

The complainant has already underwent 28 sessions starting from 2.8.2015 till 20.10.2015 as per Programme Records as maintained by opposite party. Thereafter the complainant completed the Programme and during the programme complainant lost her weight up to 5 Kg and reached 108 kg from 113 kg. During these entire sessions the complainant did not showed any sign of discomfort/ complaint as is clear from Programme Record. No complaint/ allegations was ever made out to the opposite party regarding the programme taken by the complainants nor was any discomfort or complaint regarding no weight loss was reported during the tenure of the treatment.  The opposite party had not made any guarantee or false promises or cheated or committed deficiency in services in any manner or at all. All options and schemes available were explained to the complainants in detail alongwith fee structure. Therefore, from the aforementioned, it is evident that there is no negligence on the part of the opposite party or their representatives nor any deficiency in rendering services and the whole programme was carried out diligently and with precaution. The validity of the Programms booked by complainant was of 100 days w.e.f. 2.8.2015. The complainant neither approached the opposite party or its representatives with any concern nor lodged any complaint regarding weight loss.  Despite giving complete professional services for aforementioned program opted by the complainants and results being shown by the opposite party as complainant lost 5 kg weight in two months only, the complainant after availing the programme demanded refund for reasons best known to the complainant, which is not permissible as per terms and conditions agreed between the parties. Deficiency in services cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of rendering any service in pursuance of a contract and in the present case no such fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of rendering service has been attributed to opposite party.  The complainant was never willing to do any kind of physical exercise or activity as suggested by the opposite party. The complainant also failed to follow the diet plan which was evident from increase of Visceral fat in body. The opposite party has also offered some advanced therapies free from opposite party side at the request of husband of the complainant, but the complainant never turned up to avail those free therapies. Opposite party has also written an e mail to call complainant to avail free therapies. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same.

4        To prove his case, the Ld. counsel for the complainant has tendered in evidence affidavit of complainant Ex. C-1, copy of mail Ex. C-2, copy of chart showing loss of weight Ex. C-3 to C-8, copies of Bills and receipts Ex. C-9 to Ex. C24 and closed the evidence. On the other hands, Ld. counsel for the opposite party has placed on record affidavit of Sh. Stuti Singhania Ex. OP1, authority letter Ex. RW1/1 copy of treatment chart Ex. RW1/2 Programme record Ex. RW1/3 to Ex. RW1/6 and closed the evidence.

5        We have heard the Ld. counsel for the complainant and opposite party and have gone through the record on the file.

6        In the present complaint, The complainant has taken the services of OP for weight loss in month of August 2015.  The central head of the OP had assured the complainant that their product is very perfect and will work very effectively and complainant will lose 10 kg weight within 3 months. The price of the packages paid by the complainant as below :-

The complainant attended the sliming classes which was issued by the opposite party to be finished in three months and complainant will lose 10 kg in three months ,has attended the classes for about eight months ,from August 2015 to March 2016 but hardly lose a single gram of weight the complainant when joined the classes for weight loss her weight was 113 kg and when after eight month the complainant left the classes her weight was 111 kg . This clearly shows that how the effective was the assurance given by the OP is. After the expiry of eight months the  OP has told the complainant that all the therapy has been exhausted the complainant has to buy more therapies for which the complainant paid ₹30,936 on 14^th Feb 2016. Later the complaint asked the OP to return back the money which the OP had taken for the future therapies and has not been used till date, the OP openly refused to return the money which the opposite party has received and for which no service has been rendered till date by saying that there is no policy of the OP to return the amount even if the services of those therapies are not taken or used. On dated 28.04.2017 the complainant send an Email regarding the refund of unused packages to the OP but no response was given by the OP. OP stated in their written version that the validity of the programs booked by the complainant was of 100 days , the complainant has not followed the rules and guidelines of diet as according to the program  but still OP has managed to reduce weight of complainant up to 5 kg in 2 months from 2^nd August 2015 to 20 October 2015. In the present case the complainant at the time of enrolment has specifically agreed and signed the declaration consent form ,it was agreed to the term of the program that there will not be any refund. The relevant portion of the declaration form is here under :-

“ I hereby take a decision of my own free will and give consent to join program . I have been explained in the language I understand the effects , nature and outcome of the program and that the result of each program may vary from person to person depending upon individual body composition health status metabolism and other factors including diet and lifestyle and as such result of the program cannot be guaranteed and the lack of result will not be construed as deficiency of service”

Later, at the Request of complainant for further therapies the OP suggested some advanced therapies in order to break the fat cell more better and there were visible positive result of these additional therapies complainant lost her weight up to 5 kg .  Further, no complaint was ever made out to the opposite party regarding the program taken by the complainant nor was any discomfort or complaint regarding no weight loss was reported under the tenure of the treatments. It is pertinent to note that the complaint was never willing to do any kind of physical exercise or activity as suggested by the opposite party. Moreover, these centres makes the terms and conditions unilaterally. The consumer is placed at receiving end always. They draft the terms and conditions which are favaourable to them hence these are not binding upon the consumers.  Since the opposite party has obtained the therapies in the Amritsar Centre, as such this commission has jurisdiction to decide the complaint.

7        In the view of the above discussion and documents placed on record, we are of the consider view that the complainant attended the program properly as an evidence, the complainant provided sliming program record (Ex C-4 to C-8) . Which clearly shows the dates she attended the program and before weight and after weight details on particular dates i.e. from 02.08.2015 to 04.02.2016  . It is pertinent to mention here that if as per the records , the complainant was not losing her weight then it was the duty of the employee of the centre / OP to check on the matter /problem , instead of continuing the program till the program was valid . The sliming program record clearly shows hardly any sign of weight loss of the complainant. Further, the complainant attached the bill receipts (Ex.C-9 to C-24) she paid to the OP and still the service for hair rebounding, hair spa unlimited service of sliming, beauty and other allied services packages are still unused (10,000+1,43,000+36000) . The OP , in their grounds of appeal argued that:- -

• The complainant had given a specific undertaking duly signed by the complainant that she Understands that no guarantee/ assurance could be given to him regarding the result and outcome of the program and in circumstances of unsatisfactory result due to factors beyond the control of the staff of the centre/ OP  shall not be entitled to claim/ damages or to hold the centre/ opposite party or it’s staff liable for the same .
• The complainant in order to reduce her weight had to abide and strictly follow the dietary instructions but the complainant has not followed the rules and guidelines of diet as according the program.

 In view of the above discussion, we are of the consider view that , when no desirable results were achieved after selling the 1^st plan to the complainant and the OP were very much sure of the careless attitude of the complainant of not following the diet schedule strictly to attain desirable results then , there was no occasion to sell another additional program to the complainant to grab more money from her (On 14.01.2016). The OP pleaded that on the request of the complainant, they provided further therapies in order to break the fast cell more better and demanded proof from the complainant that the OP suggested for the further therapies but there is no cogent proof or document submitted by opposite that the complainant requested for further treatment , when there was no desired result from 1^st program.  Further , OP submitted their own records i.e. Sliming Program Record ,where they added the remarks as “ had heavy dinner at night ” on dated 12.08.2015 but rest all are blank. Which itself proved that the complainant followed the diet program and attended the program regularly on particular dates but no response of weight loss was shown in the record . Thus it was the duty of the centre / employees of the OP, to check from time to time where was the problem , why the program was not yielding desirable results. Instead of getting money and waiting till the end to get the program expired they are asking for further program/therapies to get more money from the complainant. OP need to take required action in-between the program to get the desirable results because it was there duty plus the complainant paid for the same and by saying that the complainant didn’t followed the rules and regulations of the program they can’t put their blame on others as they failed to perform their duty properly.  Further , the OP stated that the program was for 100 days , that means for almost 3 months . As per sliming program record submitted by the OP (EX.RW1/2) the complainant started the same on 02.08.2015 and ended on 04.02.2016 , if it was the 100 days program then why the OP provided the services more than 100 days , which clearly shows the deficiency on the part of OP ,to get the desirable result OP extended the program. However, such companies do advertisement for their services and  products to sell and give false assurance to the complainant regarding the program. The Act of allurement or unfair trade practice on the part of the OP , by way of ‘misleading advertisement 'As defined in section 2(28) of the Consumer Protection Act, 2019 . The act of OP of giving false assurance on one hand by way of misleading advertisement and on the other hand obtaining declaration from the consumer qua no guarantee/ assurance regarding the result and outcome of the program, it is clear example of unfair trade practice adopted by opposite party.

7        In view of above discussion the present complaint is allowed and the opposite party is directed to refund the amount of Rs. 2,85,963/- to the complainant. The complainant has been harassed by the opposite party for a long time, the complainant is also entitled to Rs. 25,000/- (Rs. Twenty Five Thousand only)  as compensation on account of harassment and Rs. 10,000/-/- (Rs. Ten Thousand only) as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order will be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar. 

Announced in Open Commission

04.10.2022