Date of filing :Dt.13.7.2017
Judgment : Dt.20.7.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Atul Kumar Dalmia alleging deficiency in service and unfair trade practice on the part of the opposite parties (referred as OP hereinafter) namely M/S AYUSHA HERBAL CLINIC, a brand of Olivet Pharma Pvt. Ltd., (2) M/S AYUSHA HERBAL CLINIC, 19/2, Sahapur Colony, (3) Olivet Pharma Pvt. Ltd. and (4) Dr. C. Bhowmik.
Case of the Complainant, in brief, is that the Complainant due to his over weight has been suffering from various health complications and being informed through News Paper Advertisement of OP regarding weight control programme contacted the OP No.2 in the 3rd week of December, 2015 and as per advice of OP No.2 agreed to undergo massage therapy twice a week totaling 21 sittings and paid Rs.21,000/- on 26.12.2015 for such massage and, accordingly against a receipt was issued by the OP. The Complainant has stated that the OP No.2 claimed that this therapy would effectively reduce 10-12 kg weight by 21 sittings but after successfully completing 12-13 sittings the Complainant noticed no change in weight gained by him to which the Complainant expressed his dissatisfaction and communicated the same to the OP by a letter but the OPs refused to receive the same and being aggrieved the Complainant sent Legal Notice on April, 2017 demanding refund of deposited amount of Rs.21,000/- but the OP paid no heed to that request. It is further stated by the Complainant that this act of the OP is an example of unfair trade and deficiency in service which cause mental and physical agony. The Complainant by filing the instant Consumer Complaint has prayed for direction upon the OPs to refund Rs.21,000/- along with interest 18% p.a., to pay Rs.1,00,000/- towards damages, cost and other reliefs.
The Complainant annexed money receipt Dt.26.12.2015 issued by Ayusya Herbal Clinic, letter dt.11.4.2016, 23.4.2016 issued by the Complainant to M/S Ayusya Herbal Clinic, postal receipt acknowledgement cards, Advocate’s letter dt.19.4.2017, postal receipt, track report, prescription dt.22.12.2015 of 2.4.2016 issued by Dr. N. R. Das.
Notices were served but the OP No.1, 2 & 4 did not turn up and the case proceeded ex-parte against OP Nos.1, 2 & 4.
The OP No.3 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the OP NO.3 used to carry on his business under the brand name of Ayusya Herbal Clinic and the said brand name is no longer used by OP No.3, rather the OP No.3 runs business under the brand name of “Ayusya Ayurvedic Superspeciality Treatment Care” and further stated that at the relevant point of time the OP No.3 used to run the partnership firm of “Ayusya Herbal Clinic” instead of “Ayusha Herbal Clinic” and the said firm had been dissolved in April, 2016. The OP No.3 has stated that the Complainant was advised to take 21 sessions of treatment comprising of ayurvedic sessions of ‘Udvartanam’ and ‘Tummy Tuck’ had been given on alternate days totaling 15 sessions followed by 6 ayurvedic sessions of ‘Lekhan Vastic’ as complete treatment procedural course for controlling obesity subject to completing entire session of treatment along with maintaining doctor’s advice regarding food habits etc. but the doctor or OP No.3 never claimed reduction of 11/12 kg weight. It is further stated by the OP No.3 that the Complainant chose to quit the treatment after attending 12 sessions. The OP No.3 denied that none on behalf of OP No.3 even received the copy of letter dt.11.4.2016 as claimed by the Complainant and accordingly prayed for dismissal of this case.
The Complainant and the OP No.3 filed evidence followed by cross examination in the form of questionnaire.
In course of argument Ld. Advocate for the Complainant narrated the facts mentioned in the petition of complaint.
Decision with reasons
The Complainant claimed to have deposited Rs.21,000/- with the Ayushya Herbal Clinic for 21 sittings of treatment to be rendered by the OP.
In support of such claim the Complainant filed money receipt dt.26.12.2018.
The Complainant have claimed that being allured and assured through the advertisement regarding reduction of weight of the OP the Complainant agreed to undergo the treatment offered by the OP. It is further claimed by the Complainant that the OP made commitment regarding loosing weight by 11 to 12 kg. after completion of said 21 sessions.
On the other hand the OP also failed to file any document wherefrom it would have been evident that what type of treatment the OP rendered to the Complainant. In absence of such document it will be futile exercise to ascertain that to what extent the Complainant failed to follow the advice of the OP but at the same time the OP also admitted that the Complainant received only 12 sessions of treatment.
The Complainant claimed that the OP failed to keep their commitment regarding reduction of weight and according to him, it is an example of deficiency in service on the part of the OP.
On perusal of record, it appears that the Complainant has not filed any document in support of his claim as to promise of reduction of his weight by the OP. Hence, it is not possible to determine that whether the OP has deficiency in providing service since in absence of such promise it is not possible to find out whether any fault, imperfection, short coming or inadequacy in the quality, nature and manner or performance which is required to be maintained took place at all.
However, the OP No.3 by filing written version stated that the Complainant paid Rs.21,000/- for 21 courses of treatment and quitted after undergoing 12 courses of treatment. The money receipt shows that the Complainant has paid Rs.21,000/- for 21 sittings of treatment. Admittedly, he availed 12 courses of treatment. Under such state of affair, we are of opinion that the Complainant should get refund the fees for the remaining 9 sittings of treatment which he, admittedly, did not avail.
However, it is observed that no allegation has been made against the OP No.4.
The Complainant has prayed for compensation of Rs.1,00,000/- but he failed to substantiate the fact that the OP made him to suffer such quantum of loss so that they are liable to compensate him by making payment of Rs.1,00,000/-. Hence, the prayer for awarding compensation is not allowed.
Considering the circumstances, we are not inclined to pass any order for cost of litigation.
In the result, the Consumer Complainant succeeds in part.
Hence ordered
That CC/393/2017 is allowed in part on contest against OP No.3 and ex-parte against OP Nos.1 & 2 and dismissed ex-parte against OP No.4 without any costs.
The OP Nos.1, 2 & 3 are directed to refund Rs.9,000/- within one month from date of communication of this order to the Complainant.
