BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.618 of 2014
Date of institution: 14.10.2014
Date of Decision: 22.06.2015
R.S. Ahluwalia son of Late Dr. Tarlochan Singh, resident of House
No. 359, AOT Complex, Sector 48-A, Chandigarh.
……..Complainant
Versus
1. Absolute Fitness, SCF No.56-57, First Floor, Above HDFC Bank, Phase-XI, Mohali through Mr. Harnidan Singh @ Harry, Partner.
2. Harnidan Singh @ Harry, Partner, Absolute Fitness, SCF No.56-57, First Floor, Above HDFC Bank, Phase-XI, Mohali.
3. Ishmeet Singh, Partner, Absolute Fitness, SCF No.56-57, First Floor, Above HDFC Bank, Phase-XI, Mohali.
4. Anurag Panday son of Shri P.K. Panday, Fitness Trainer, Absolute Fitness, SCF No.56-57, First Floor, Above HDFC Bank, Phase-XI, Mohali.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh, Member
Mrs. R.K. Aulakh, Member.
Present: Shri P.S. Bhangu, counsel for the complainant.
Shri Sanjay Verma, counsel for OP Nos.1 to 3.
Shri Chetan Gupta, counsel for OP No.4.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Parties (for short ‘the OPs’):
(a) to refund Rs.10,200/- with interest @ 18% per annum from the date of deposit till actual payment.
(b) to pay him Rs.50,000/- as compensation for mental harassment and agony.
(c) to pay him Rs.11,000/- as costs of litigation.
The case of the complainant is that he saw an advertisement/pamphlet in the newspaper issued by the Ops in which they promised to provide all the good services/facilities of a fitness centre/gym including the services of a Dietitian, Physiotherapist, Health Café, Spa, qualified/certified instructors etc. to the persons who join the centre as its members. Accordingly, the complainant contacted the OPs and was told that OP No.4 had remained as Mr. Punjab as well as Mr. Chandigarh in the fitness/body building competitions in the year 2013 and has been engaged as fitness trainer with OP No.1. It was also informed that OP No.4 would hold Aerobic Classes in the centre daily. OP Nos.2 and 3 also informed that all the services mentioned in the pamphlet would be provided in the centre. The membership fee of the centre was informed as Rs.14,000/- but for the first 100 members it was fixed as Rs.10,200/- . Influenced by the aforesaid, the complainant paid Rs.10,200/- as membership fee for the full year to the OPs vide receipt dated 22.05.2014 and the complainant was allotted Membership/Enrolment Sr. No.1. The complainant was informed that the centre would become functional w.e.f. 01.06.2014. On 01.06.2014 when the complainant visited the centre he found that the installation of different machines was not complete and the centre became functional on 11.06.2014. The complainant who is an advocate devised his schedule to go in the centre in the morning at 5.00 AM and informed the OPs about the same. On 11.06.2014 when he reached the centre he saw that the services mentioned in the advertisement/pamphlet were not available. On being asked regarding deficiency of services, the OP No.2 assured that same would be made available in a short time. The complainant continued with his workout routine as being devised by OP No.4 for about 1 ½ months. However, thereafter OP No.4 suddenly stopped coming to the centre. OP Nos.2 and 3 informed the complainant that the services of OP No.4 have been discontinued. Even the services as mentioned in the pamphlet were not provided by OP Nos.2 and 3. Due to non provision of the promised services and in the absence of OP No.4, the complainant requested the OPs to refund back his membership. In this regard the complainant personally met the OPs on several occasions and has also submitted requests but the Ops have flatly refused to refund the amount. Thus, non refund of the deposited amount of membership is an act of deficiency in service on the part of the OPs.
2. After admission of the complaint, the notice was issued to the OPs. OP No.1 to 3 filed joint written reply. In the preliminary objections of their reply, OP Nos.1 to 3 have pleaded that the complaint is nothing but abuse of process of law. The complainant was very much satisfied with the services provided by the OP Nos.1 to 3. Due to receipt of complaints against OP No.4, OP Nos.1 to 3 dispensed with his services on 06.08.2014. The complainant thereafter stopped coming to OP No.1 to 3 and lateron on the asking of OP No.4 filed the present complaint. All the services mentioned in the pahmplet were being provided to all the members including the complainant. On merits, it is pleaded that the OPs had a team of experienced trainers including OP No.4. OP No.4 was engaged by OP Nos.1 to 3 for providing services to the members. The trainers engaged by OP Nos.1 to 3 are well trained and conversant with their jobs and have attained the required knowledge, expertise, knowhow and experience in their field for devising and providing workouts for every individual as per his/her needs. The centre became functional on 02.06.2014 and the complainant started availing the services from 04.06.2014 and right from the beginning he was provided all the services including the services of Dietician, Physiotherapist, Health Café, SPA/Sauna etc. apart from the services of a team of well trained, expert and knowledgeable fitness trainers including OP No.4. The complainant never raised any issue regarding deficiency in service on the part of the OPs. The services of OP No.4 were dispensed with on 06.08.2014 and the complainant continued coming to the centre upto 17.08.2014. However, the complainant who had developed intimacy with OP No.4 on the asking of OP No.4 in order to cause harm to the reputation of OP No.1 hatched a conspiracy and filed the present complaint. Thus, denying any deficiency in service on their part, OP Nos.1 to 3 have sought dismissal of the complaint.
3. OP No.4 in its separate reply has pleaded in the preliminary objections that this Forum has no jurisdiction to entertain the present complaint. There is no deficiency in service on the part of OP No.4 as it has not entered into any contract with the complainant and the dispute, if any, is between the complainant and OP Nos.1 to 3. OP No.4 is a Gold Medalist in Mr. Chandigarh 2013 and Mr. Haryana in 2010, Mr. North India and Mr. Jr. North India. He was also Mr. Panchkula in 2007 and 2003. OP No.4 is a well known expert in body building and has an experience of 23 years in the field of physical training and body building. OP Nos.1 to 3 assured all the customers/members who were joining the gym that the training programs will be designed and monitored personally by OP No.4 and due to that more than 250 persons joined OP No.1. When the gym had got the desired enrollment by using the name and reputation of OP No.4, OP Nos.1 to 3 without any reason dispensed with the services of OP No.4 in illegal and arbitrary manner. The OP No.4 has taken similar stand in the reply on merits and sought dismissal of the complaint against it.
4. To succeed in the complaint, the complainant proved on record his affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-5.
5. To rebut the allegations of the complainant, OP No. 1 to 3 tendered in evidence affidavit of Harnidan Singh Ex.OP-1/1 and documents Ex.OP-1 to OP-14.
6. OP No.4 tendered in evidence his affidavit Ex.OP-4/1 only.
7. We have heard learned counsel for the parties and have also carefully gone through the evidence and written arguments produced by the complainant. Counsel for OP Nos.1 to 3 and OP No.4 made statements that their reply be read as their written arguments.
8. The issuance of pamphlet/advertisement Ex.C-1 by OP No.1 to 3 is not disputed. The perusal of the pamphlet shows that the OPs have claimed themselves to be fully equipped fitness centre a fitness centre/gym including the services of a Dietitian, Physiotherapist, Health Café, Spa, qualified/certified instructors etc. and having services professionally trained trainer having title of Mr. Chandigarh and Mr. Punjab 2013. Allured by the said advertisement and having assurance from OP Nos. 1to 3 regarding availability of professionally trained trainer i.e. Shri Anurag Pandey, OP No.4 the complainant joined the fitness centre after paying the membership fee vide Ex.C-3 dated 22.05.2014. The payment of Rs.10,200/- is not disputed by OP Nos.1 to 3. Further OP No.1to 3 have also admitted the availability of services of OP No.4 who was employed with them at the time when complainant had joined the fitness centre. The grievance of the complainant that after availing the services of the gym under the able guidance of title holder trainer OP No.4 from 11.06.2014 to 04.08.2014, the OP Nos.1 to 3 without any notice or making alternate arrangement i.e. the substitute of the title holder trainer having the same qualification and standing in the field, dispensed away the services of OP No.4, thus depriving the complainant of the services of a title holder trainer. Since the OPs have not made any alternate arrangements, the complainant in the absence of a availability of services of a title holder trainer has made the request to the OPs to refund the deposited amount alleging deficiency in service and unfair trade practice on their part and the said request has not been adhered to by OP Nos.1 to 3.
9. The OP No.1 to 3 in their reply as well as affidavit have admitted having dispensed away the services of OP No.4 during the currency of the contract with the complainant. Further the OPs have admitted having not engaged the services of an alternative substitute of a title holder trainer i.e. OP No.4. However, the OPs have admitted that the other trainers including the services of dietician, physiotherapist, Spa/Sauna etc. as promised in the advertisement apart from the services of a team of well trained experts and knowledgeable fitness trainers excluding OP No.4 are available in the centre who are capable of providing training to the complainant. Further other members of the centre are satisfied with the service of other trained knowledgeable fitness trainers. In support of this plea the OPs have relied upon the affidavit of one Gajinder Singh and Vikas Sharma as Ex.OP-2 and Ex.OP-3. Therefore, OP Nos.1 to 3 have denied any deficiency in service on their part. Rather as per the OPs the complainant himself has voluntarily stopped availing the services of fitness centre from 04.06.2014 to 17.08.2014.
10. In order to resolve the consumer dispute raised by the complainant i.e. whether the dispensation of services of title holder trainer, without any notice to the complainant or further not providing the substitute of title holder trainer i.e. the equivalent rank holder trainer is an act of deficiency in service and unfair trade practice on the part of OP Nos.1 to 3 or not. It is admitted fact by OP Nos. 1to 3 that they have promised in the advertisement to provide the services of professionally trained the Chandigarh and the Punjab 2013 title holder trainer. It is again admitted that services of one Shri Anurag Pandey, OP No.4 the title holder Mr. Chandigarh and Mr. Punjab 2013, whose identity card issued by OP Nos.1 to 3 Ex.C-2, were available to the complainant from 02.06.2014 to 17.08.2014. It is further admitted fact that the services of OP No.4 were dispensed away with by OP Nos.1 to 3 from 06.08.2014 as per affidavit of Shri Harnidan Singh, Partner of OP No.1 Ex.OP-1/1. It is again admitted fact that the complainant had stopped coming to the fitness centre w.e.f. 17.08.2014. In order to show the OP Nos.1 to 3 were fully equipped with the services of other fitness trainers, they have relied upon the certificate issued in favour of one Shri Paramvir Singh another trainer in the service of the OPs Ex.OP-10. Perusal of Ex.OP-10 shows that Shri Paramvir Singh had secured third position in the weight category upto 85 kg. in the event of Sr. Mr. Punjab and he was holding first position in the weight group of 80 kg. in the event held by District Body Building Championship 2013-14 i.e. 20th Mr. Sangrur. The comparative qualification of both i.e. OP No.4 Ex.C-2 and the present trainer Mr. Paramvir Singh Ex.OP-10 and Ex.OP-11 shows that definitely Anurag Pandey being Mr. Punjab and Mr. Chandigarh 2013 was on a better footing as a personal fitness trainer than Mr. Paramvir Singh who was holding 3rd position and 1st position in championship held in 2013 and 2014. Further as per the identity card Ex.C-2 issued by OP No.1 to 3 in favour of OP No.4 the OP No.4 was having more than 22 years experience. Therefore, qualification and experience of OP No.4 and the new trainer do not match and are not at par. To say that services of other professionally trained persons are available, the plea of the OPs defies itself with the promise made by the OPs in the advertisement Ex.C-1. Thus, the act of the OP No.1 to 3 for not providing the service of Mr. Chandigarh and Mr. Punjab to the complainant after receiving the full year payment of Rs.10,200/- and providing him the services only for a short duration i.e. from 02.06.2014 to 17.08.2014 and not refunding the amount due to non availability of services of Mr. Chandigarh and Mr. Punjab 2013 is an act of unfair trade practice as enshrined under Section 2 (1 ) (r) (iv) of Consumer Protection Act. The OP Nos.1 to 3 have represented in the advertisement that he has the services of Mr. Chandigarh and Mr. Punjab available at their disposal for providing professional fitness training to the members whereas after receiving the money for the whole year assuring the availability of services has dispensed away the services of trained person and not provided the services of equivalent trained experienced and title holder trainer and further not refunded the amount for the period the services had admittedly not been used/availed by the complainant from 17.08.2014. Thus, the act of the OP No.1 to 3 is an act of unfair trade practice on their part.
11. OP No.4 in its reply and affidavit denied any deficiency in service as he being an employee of the OP No.1 was not having any privity to the contract with complainant and OP No.1 to 3. Moreover, the complainant has not alleged any deficiency in service and unfair trade practice on the part of OP No.4 and has not sought any relief against him. After going through the reply as well as affidavit of OP No.4 we are in full agreement with his contentions. Thus, the complaint against No.1 to 3 for indulging into unfair trade practice as enshrined under section 2 (1) (r) (iv) of CPA and having been proved by the complainant, deserves to be allowed and the complainant deserves to be compensated.
12. Since the complainant has paid Rs.10,200/- as membership fee for the whole year i.e. 12 months and he has availed the services from OP Nos.1 to 3 through OP No.4 from 02.06.2014 to 06.08.2014 and then from 07.08.2014 to 17.08.2014 without OP No.4, therefore, the complainant is not entitled to refund of the whole deposited amount as proportionate fee @ Rs.850/- per month for the period from 02.06.2014 to 17.08.2014 i.e. approximately for a period of 2 and half months is not refundable to him as he has availed the services of the OP Nos.1 to 3 during this period.
13. Therefore, for the remaining amount of Rs.8,175/- which deserves to be refunded to the complainant by OP No.1 to 3, the complaint is hereby allowed against OP Nos.1 to 3 and dismissed against OP No.4.
14. Thus, OP Nos.1 to 3 are directed to:
(a) refund to the complainant an amount of Rs.8,175/- (Rs.Eight thousand one hundred seventy five only) with interest thereon @ 9% per annum w.e.f. 22.05.2014 i.e. the date of deposit till actual payment.
(b) pay a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) on account of harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
June 22, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
