Raj Shekhar Attri, President
1. This appeal has been filed by the appellant/opposite party (in short the appellant), as she is aggrieved of the order dated 22.12.2020 passed by District Commission-I, U.T., Chandigarh (in short the District Commission), whereby the consumer complaint bearing no.1077 of 2019 filed by the respondent/complainant (in short the respondent) was partly allowed and the appellant was directed as under:-
€œ..In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP is directed as under :-
i. to refund the amount of Rs.25,000/- to the complainant alongwith interest @8% per annum from the date of payment i.e. 9.9.2019 till realization.
ii. pay Rs.15,000/- to the complainant as compensation for causing mental agony and harassment to her;
iii. to pay Rs.10,000/- to the complainant as costs of litigation.
iv. OP is further burdened with exemplary costs of Rs.1,00,000/- which shall be deposited by her in the Consumer Legal Aid Fund account head being maintained in the name of Secretary, State Consumer Disputes Redressal Commission, UT, Chandigarh which may be utilized under the orders of the competent authority for the purpose of providing legal aid to economically poor persons and weaker sections of society as well as making consumer awareness by holding appropriate programmes etc.
This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, she shall make the payment of the amounts mentioned at Sr.No.(i)&(ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of remaining directions€.€
2. The District Commission noted the following facts out of the complaint filed by the respondent:-
€œ..The long and short of the allegations are, complainant (a housewife) alongwith her husband on 9.9.2019 had visited the OP for diabetes treatment. The OP got filled the enrolment form and terms and conditions were usually one sided and the complainant was left with no option except to sign the form and pay Rs.1,000/- as enrollment fee. Per averments, OP had told it would take at least 9 months for treatment for which the package was of Rs.75,000/- in one go and consultancy was to start upon payment. In view of some financial constraints of the complainant, OP agreed to accept Rs.25,000/- and remaining two installments of Rs.25,000/- each were to be paid later on. To this effect, receipt was issued. It is further the case, complainant had informed the OP she and her husband had to go abroad after three days to attend family function and they were to return after two months and then she would start the consultation process. However, after coming from abroad sugar level and BP of the complainant increased and her health deteriorated and she did not want to follow the process of OP and prayed for refund of the amount. However, the OP did not refund the deposited amount. Alleged, since the complainant had not availed the services of the OP, therefore, she (OP) was bound to refund the amount and non refund of the same speaks of deficiency in service and unfair trade practice on her part. Hence, the complainant filed the instant consumer complaint for directing the OP to refund Rs.25,000/- alongwith interest; pay compensation of Rs.50,000/- and Rs.15,000/- as litigation expenses€€
3. The contents of reply filed by the appellant, noted down by the District Commission in the order impugned are as under:-
€œ€OP contested the consumer complaint, filed her written reply and raised preliminary objections complainant has not come to the Forum (now Commission) with clean hands; consumer complaint being not maintainable and bad for mis-joinder and non-joinder of parties and having no jurisdiction. On merits, claimed complainant took the package of Rs.75,000/- and had paid Rs.25,000/- only and remaining amount was agreed to be paid in two installments i.e. of Rs.25,000/- each. The complainant was a patient of blood pressure, diabetes and cholesterol, was insulin dependent and under the treatment of Dr. Murlidharan of Fortis Hospital. After making initial payment, the complainant did not visit the clinic of the OP as she had taken weekly diet for about six weeks on her mobile phone. Subsequent thereto, OP sent an email to the complainant on 20.9.2019 claiming the balance amount. Afterwards on 30.9.2019, phone of the complainant went out of service. Thereafter, a call was received stating complainant had gone abroad for about two months. The OP regularly sent diets to the complainant on her mobile phone. Maintained, OP is still ready to undertake remaining part of the treatment in case remaining amount of Rs.50,000/- was paid. Hence, claimed there was no unfair trade practice or deficiency in service on the part of the OP. On these lines, the cause is sought to be defended€.€
4. The parties led evidence in support of their case, before the District Commission.
5. The District Commission after hearing the contesting parties and going through the record of the case, partly allowed the consumer complaint, in the manner stated above.
6. Hence this appeal.
7. We have heard the counsel for the appellant; gone through the material available on the record; and are of the considered opinion that this appeal deserves to be dismissed at the preliminary stage, for the reasons to be recorded hereinafter.
8. The moot question which is required to be decided in this appeal is, as to whether, any services had been provided by the appellant to the respondent or not. The answer to this question is found within the contents of emails dated 06.11.2019, Annexure C-3 sent by the respondent to the appellant, wherein she had requested for refund of the amount paid, on the ground that since her health has deteriorated, as such, she will not be able to go with the treatment of diet with the appellant. In response thereto, the appellant vide email dated 07.11.2019, in a very candid manner informed the respondent that since she has not followed the diets, as such, the amount paid by her (respondent) is safe with her (appellant) for unlimited time period and that if she did not want to start the diet in the clinic of the appellant, she can avail some other services worth the amount paid like complete panchkarhma therapies or any other diet plan. From the contents of email dated 07.11.2019, it has been proved that on account of ill health of the respondent, she could not avail the services of the appellant for which she had paid part amount of Rs.25,000/-. Thus, once the appellant did not provide any service to the respondent, she was having no right to retain the amount paid by her (respondent). She also cannot force the respondent to avail some other services like complete panchkarma therapies etc. in the absence of any prescription from a Doctor. It is significant to mention here that the appellant is a dietician and she cannot, of her own, suggest any treatment to any patient, in the absence of any advice of a Doctor. Under these circumstances, by not refunding the amount paid by the respondent, despite the fact that no services were provided to her, the appellant indulged into unfair trade practice, thereby causing mental agony, harassment and financial loss to the respondent. In our considered opinion, the District Commission was right in allowin
Please Login To View The Full Judgment!
g the consumer complaint, while ordering refund of the amount paid, alongwith interest; compensation, litigation expenses etc. Other issues dealt with by the District Commission, in the order impugned also did not suffer any illegality or infirmity and as such did not require any interference by this Commission. Thus, the order impugned stands upheld. Resultantly, this appeal being devoid of merit is dismissed at the preliminary stage, with no order as to cost. 9. Consequently, miscellaneous application bearing no.101 of 2021 filed by the appellant for staying the operation of the order impugned dated 22.12.2020 also stands dismissed, having been rendered infructuous. 10. Certified copies of this order be sent to the parties, free of charge. 11. The file be consigned to Record Room, after completion.