State Consumer Disputes Redressal Commission
Seema Monga Curls & Curves Pvt. Ltd vs Arti Kapr on 27 February, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 27th February, 2006 Appeal No. A-1910/99 (Arising from the order dated 08-11-1999 passed by the District Forum- III, Janakpuri, Delhi in Complaint Case No. 648/98) Ms. Seema Mongas Curls & Curves Pvt. Ltd. Appellant. 15-A, N.W.A. Geeta Bhawan Through Basement, Punjabi Bagh, Mr. J.K. Bhola, New Delhi-110026. Advocate. Versus (1) Smt. Arti Kapr Respondent No.1 (2) Shri Vikram Kapur Respondent No.2 (3) Ms. Divya Kapur Respondent No.2 All residents of: N-19, Rajouri Garden, Through New Delhi-110027. Mr. T.C. Sandjuja, Advocate. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal- Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) As slimming centres have mushroomed in the city, so have the agonies of the consumers as people are becoming conscious about their body, face and weight.
2. Vide impugned order dated 8th November 1999 the appellant who provides services for body tone up, heat therapy, weight loss, skin tightening, inch loss etc. has been held guilty for unfair trade practice by giving false assurance in the reduction of weight and deficiency in service directed to refund the charges of Rs. 39,550/- paid by the respondents and pay Rs. 10,000/- as compensation and Rs. 1,000/- as cost of litigation.
3. Feeling aggrieved the appellant has preferred this appeal.
4. The allegations of the respondents before the District Forum were that lured by advertisement of the appellant and pamphlets issued by it to the general public offering its service for heath therapy, weight loss, skin tightening, inch loss and cellulite treatment of slimming at her clinic at Punjabi Bagh the respondents approached the appellant and joined a full time course for slimming therapy for reduction of the weight on 22-06-1997. The respondents No. 1 2 & 3 were assured reduction of weight by 10, 30 & 60 Kgs respectively after treatment. A sum of Rs. 39,550/- was settled to be paid to the appellant for the above mentioned course in instalments. The respondents paid Rs. 1,000/- on 26-6-97 and Rs. 28,000/- on 28-6-97. The rest of the amount was also paid.
5. During the period of treatment, the appellant had fixed electric heating pads on the respondents and had referred them to another laboratory for diagnostic tests, for which the respondent No.2 had to bear additional expenses, besides an expenditure of Rs. 50/- per day as conveyance. They were also directed to maintain the diet chart.
6. During the treatment, the respondent No.2 suffered electric current in the electric pad and requested the appellant to replace the same or get the same repaired , but the OP did not take any notice.
Consequently the respondent No.2 had to suffer electric shock on 18-10-97 and had to rush to Dr. Promod Sehgal for treatment and spent Rs. 350/-.
It was further alleged that there had been no progress in the reduction of weight even after taking treatment for three months. Consequently the respondent No.2 discontinued the course on 5-9-97 and respondent No.1 had to dispense with the same after electric shock on 26-11-97. The respondents asked the appellant to refund the amount paid by them but they refused.
7. According to the respondents Arti, Vikram and Divya were assured reduction of 10, 30 and 20 Kgs. respectively and about this there is an endorsement on the back of the receipts dated 22nd June 1997 for Rs. 10,000/-. The endorsement is as under:-
1. Aarti : 10 Kg.
2.
Vikram : 30 Kg.
3. Divya : 20 Kg.
8. After attending the course the weight was reduced as per following detailed chart:-
Name No. of sittings attended Weight before sitting Weight after sitting Loss Aarti 36 75 71 4 Vikram 41 109 101 9 Divya 51 80 70 10
9. There is no dispute so far as admission of the respondents in the aforesaid course is concerned nor there is any dispute of payment of Rs. 39,550/- received by the appellant.
10. While denying the charge of unfair trade practice and deficiency in service the appellant has taken the stand that there was no agreement for weight loss though it had assured loss of weight by way of treatment subject to the condition that the respondents shall be observing the directions/instructions in respect of control of diet and since the respondents were irregular and non-cooperative and did not adhere to the guidelines regarding diet, the desired result of reduction of weight could not be achieved.
11. In addition to this the appellant has also contended that respondent No.2-Vikram Kapoors allegation that he had suffered electric shock is wholly incorrect as he was not present on that date in the clinic which is proved from the record of attendance sheet. So much so the appellant has also produced the record in respect of respondent No.2-Vikram Kapoor showing that he had given in writing that he was satisfied with the result and the management of the course.
12. According to the Counsel for the appellant the respondents were not attending the course regularly for the treatment nor were observing the diet chart and their failure to co-operate did not deliver the desired result and therefore treatment on the part of appellant cannot be taken as negligence or deficiency in service.
13. After perusing the aforesaid record we find that the assurance given by the appellant to the respondents/Aarti, Vikram and Divya for reduction of their weight to the tune of 10, 30 and 20 Kgs is beyond doubt.
Similarly the record showing the reduction of weight of 4 kg., 9 kg and 10 kg. in respect of the aforesaid respondents is not in dispute.
14. However, there is nothing on record to show that the respondents had neither cooperated nor adhered to the diet chart nor is there any such endorsement made by the appellant in this regard. In the instant case such a therapy and treatment was given with such a condition which was difficult rather impossible for the appellant to monitor.
15. To provide diet chart is one thing and to monitor it is another thing. No provider of service of the kind one in question can have control or monitoring over its consumers as to the diet chart.
16. Every such provider of service can conveniently attribute its failure that the consumer did not follow the diet chart.
In the advertisements and pamphlets the main emphasis was upon the electric cellulite treatment, heat therapy, weight loss therapy for body tone up, skin tightening, inch loss etc. and not diet. If the diet was most important component or ingredient for achieving desired result it could have been made a condition precedent. Still the fact remains that this was such an impossible aspect which even otherwise was difficult to monitor and therefore such a representation by providers of services like the one we are dealing with comes within the mischief of unfair trade practice as assurance of weight loss to the tune of 10 kg, 30 kg. and 20 kg. is allurement and temptation beyond resistance of everybody.
17. Unfair trade practice means a trade practice which for the purpose of promoting sale, supply of any goods or the provision of any service or advice in unfair method and unfair deceptive practice including several deficiencies like inn the instant was service of a particular standard, quality and grade which did not yield the assured result.
18. If any provider of such service makes such representation as were made by the appellant it has to be equipped with well qualified and having medical knowledge of human anatomy and its metabolism as the after-effects or the ensuing effect of such a therapy of losing weight are unimaginable and cannot be ascertained by a person who is not professionally and medically qualified and in not in possession of medical knowledge as every human being has a particular kind of metabolism and has to be medically examined on day to day basis before, during and after the treatment. These are such therapies and treatment which can have devastating effect on the future life of the consumer and therefore has to be provided through highly professionally skilled and medically qualified persons and not the quacks or persons with little knowledge.
19. In the instant case the appellant has not shown any such material in respect of professional qualification and the medical knowledge of those who were administering these therapies.
20. However, at the same time we cannot be oblivious of the fact that the respondents had lost weight to the tune of 4 kg., 9 kg. and 10 kg. respectively, may be for any reason say diet control or the therapy.
21. In the given facts and circumstances of the case we hold the appellant guilty for unfair trade practice for the aforesaid reasons and award lumpsum compensation of Rs. 40,000/- as they had provided certain services which were not upto the satisfaction of the respondents and did not provide the desired result.
22. By way of caution we hereby give directions to all such providers of service who are in practice to discontinue with the unfair trade practice unless and until they are fully equipped with highly professionally skilled persons and persons having medical knowledge as to the human anatomy and metabolism and if in future we come across with any such case heavy punitive damages would be imposed upon such centres or persons providing these services.
23. Appeal is disposed of in aforesaid terms.
24. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
25. Announced on the 27th of February 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj