BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (ADDL. BENCH)
DATED THIS THE 28th DAY OF OCTOBER 2024
PRESENT
MR. RAVISHANKAR : JUDICIAL MEMBER
MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER
APPEAL NO. 935/2013
Vibes Health Care Ltd., No. 93/12, Shreyas Point, South End Road, Near Surana College, Jayanagara, Bangalore – 560004. Rep by its authorized representative. (By. Sri, Jayna Kothari, Advocate) | ..…Appellant/s |
V/s
Mrs. Dheepana, D/o. Mr. N. Karuppusamy, D92, Concorde Silicon Valley, Electronic City, Bangalore – 560100. | …..Respondent/s |
O R D E R
BY SMT. SUNITA .C. BAGEWADI, MEMBER
This appeal is filed by the Appellant/ Opposite Party being aggrieved by the order dated 18/01/2011 passed in CC.No.2628/2010 on the file of IV Additional District Consumer Disputes Redressal Commission, Bengaluru and prays to set aside the order and to allow the appeal in the interest of justice and equity.
2. The brief facts of the case are as under:
Influenced by advertisement, the complainant had joined weight loss and muscle program and told OP No.2 that she is residing at Koramangala, therefore OP No.2 branch would be convenient for her to join the program and OP No.2 had agreed to provide such service at Koramangala branch and paid Rs.31,105/- for weight loss session for OP No.3 on 04.02.2010. Thereafter, OP No.2 told the complainant to avail service only with OP No.3 at Jayanagar since she had made payment to OP No.3. The complainant approached OP No.3 and complained of denied service by OP No.2 for which she demanded for re-payment of the money but, the opposite party no.3 told her that she cannot demand anything more and she cannot have any choice but, despite telling that opposite party no.3 away from her stay it was not possible to go to opposite party no.3 for availing service. But no option to her, she was treated for four sessions only consists of 20 minutes to 40 minutes vibration and heart with OP No.3. After such treatment, she developed burns in two places in her body and she has spent huge amounts towards medical expenses. Then she approached opposite party no.1 to set right her grievance who had promised to help her but did not helped. Then one Mrs. Arti Kohli the representative of OP No.1 promised to help her but, did not respond the complainant hence, the complainant has filed the complaint before the District Commission.
3. The District Commission considering the allegations of the complainant against OP No.3 issued notice against Opposite party no.3 only. Inspite of service of notice, OP No.3 remained absent hence, placed exparte.
4. After trial, the District Commission has allowed the complaint in part.
5. Being aggrieved by the said order, the Appellant/Opposite Party has preferred this appeal on various grounds.
6. Heard from appellant - Inspite of service of notice through paper publication, respondent remained absent.
7. Perused the appeal memo, certified copy of the order passed by the District Commission, we noticed that the District Commission considered the allegations of the respondent and issued notice to the appellant only and the same was served on the appellant but, the appellant remained absent and placed exparte hence, the District Commission considering the oral and documentary evidence of the respondent partly allowed the complaint.
8. Perused the order sheet, we noticed that there is a delay of 861 days(as per the office note) in filing this appeal. This Commission issued notice to the respondent along with delay application. However, the respondent remained absent and the delay application kept open, this Commission proceeds the matter. Appellant has filed an application under sec 5 of limitation Act to condone the delay and sworn affidavit that one of the employee received the notice on 27.12.2010 and same was not handed over to the appropriate authority hence, unable to contest the matter before District Commission. Moreover, on Execution petition 76/2011, was filed by the respondent however, it was dismissed for non-prosecution. Again 2nd EP No.60/2012 was filed by the respondent after one year and notice of the said execution served to the appellant on 07.12.2012. However, employees of the appellant failed to intimate the same to the management hence, could not represent. Subsequently, upon application by the respondent, consumer complaint was converted to the criminal complaint and summons was issued on 04.01.2013. The appellant received the summons and thereafter aware of the matter. Thereby, instructed the legal counsel and filed the appeal hence, there is a delay and the delay is not intentional but for a bonafide reasons. We are not satisfied with the reason stated in the sworn affidavit because since the notice in Consumer complaint and in Executions was received by the staff of the appellant. The appellant has neglected the same. In Appeal memo also, the appellant has taken same contention for non participating in the proceedings of the District Commission. Moreover, the appellant contended that reply notice dated 09.06.2010, the appellant has informed to the respondent that she was free to take up the treatment at Koramangala branch and also the vice president of the company has responded to the E-mails of the respondent at the time when they had been sent. The respondent herself stopped the treatment after four sessions without any reasons.
9. Perused the order passed by the District Commission, we noticed that it is evident that the respondent had paid the amount of Rs.31,105/- on 04.02.2010 to the appellant. It is also evident that the E-mails sent by the respondent reveals that the respondent had requested the appellant to provide the service at Koramangala Branch because it is convenient to her but, there was no any response from appellant and the appellant had also not responded to the legal notice sent by the respondent. The appellant in appeal memo admitted that some junior staff received the notice and not brought to the knowledge of the management. This is not a valid reason because, the appellant is the party to the proceedings and the notice of the District Commission was received by the staff of the appellant, then it is the duty of the appellant to appear before District Commission and file his version as his defense. It need not to bring notice to the management at Delhi. It is a clear cut negligence on the part of the appellant only. Moreover, there are not any documents was produced before this Commission to show that they had given reply to the legal notice and also E-mails of the respondent. Further, the appellant contended that the respondent has clearly told that the services cannot be transferred but at that instance only, the appellant had to refuse to give the service to the respondent. When respondent requested to avail service at Kormangala branch.
10. Hence, considering the facts and discussion made here, we are of the opinion that the order passed by the District Commission is just and proper. No interference is required. Accordingly,
O R D E R
The appeal is dismissed.
The amount in deposit shall be transmitted to the concerned District Consumer Commission to pay the same to the complainant.
Send a copy of this order to both parties as well as concerned District Consumer Commission.
(Sunita .C. Bagewadi) (Ravishankar)
Member Judicial Member
VS*
