Chandigarh

DF-I

CC/800/2015

Dr. Virendar Sarwal - Complainant(s)

Versus

Air Fitness & SPA - Opp.Party(s)

Puneet Sharma

01 Jun 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/800/2015
Date of Institution	:	02/12/2015
Date of Decision	:	01/06/2018

 

Dr. Virendar Sarwal, Director & HOD, Deptt. of Cardiothoracic and Vascular Surgery, MAX Super-Specialty Hospital, Phase-VI, S.A.S. Nagar, Mohali.

....Complainant

V E R S U S

 

[1]      AIR Fitness and SPA, SCO 134-135-136, Madhya Marg, Sector 8-C, Chandigarh, through its Manager.

[2]      Burn Gym & SPA, SCO 1-2, Maya Garden, Phase-3, VIP Road, Zirakpur, through its Director.

…… Opposite Parties

 

QUORUM:	SH.RATTAN SINGH THAKUR	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SH.SURESH KUMAR SARDANA	MEMBER

                                                               

ARGUED BY	:	Sh.Ajay Singh Rawat, Vice Counsel for Sh.Puneet Sharma, Counsel for Complainant.
	:	Sh.A.S. Sidhu, Vice Counsel for Sh.A.S. Virk, Counsel for Opposite Party No.1.
	:	None for Opposite Party No.2.

                       

PER SURESH KUMAR SARDANA, MEMBER

1.         Dr. Virender Sarwal, Complainant has preferred this Consumer Complaint under the Consumer Protection Act, 1986, against the AIR Fitness & SPA and Ors. (hereinafter called the Opposite Parties), alleging that he joined the Gym of the Opposite Parties in January, 2015 by paying an advance fee of Rs.15,000/- for one year vide receipt dated 01.01.2015 (Annexure C-1). The Complainant continued the Gym till second week of April, 2015 and when thereafter the Gym could not be functional again, he sought refund vide letter dated 27.04.2015 (Annexure C-2). However, when nothing positive could come out, a legal notice dated 18.09.2015 was served upon the Opposite Parties, but to no success. Hence, alleging the aforesaid act and conduct of the Opposite Parties as deficiency in service and indulgence into unfair trade practice, the Complainant have preferred the present Complaint.     
2.         Notice of the complaint was sent to Opposite Parties seeking their version of the case.
3.         Opposite Party No.1 filed reply, inter alia, pleading that the Complainant took Membership of the Gym in Jan. 2015. The Gym is fully functional till now and there was not a single day that Gym was ever closed, as alleged by the Complainant. New members have also joined. Had it been the case that Gym was not functional, the new members would not have joined the Gym. Pleading that there is no deficiency in service or unfair trade practice on their part, Opposite Party No.1 has prayed for dismissal of the complaint.
4.         Opposite Party No.2 contested the Complaint by filing its reply, inter alia, pleading that it has no relation whatsoever with Opposite Party No.1. It has been asserted that Opposite Party No.1 entered into a Partnership Deed with answering Opposite Party earlier known by the name of M/s Bodycraft Fitness Pvt. Ltd. on 12.08.2010 whereby Opposite Party No.1 was given Franchisee Unit to be run by Opposite Party No.2. The said Partnership Deed was amended on 12.09.2011 and 21.07.2012 and finally, on 28.11.2012 the Opposite Party No.2 retired from the Partnership with effect from 30.11.2012.  Thus, Opposite Party No.2 cannot be held liable for any wrong committed by Opposite Party No.1.  Pleading that there is no deficiency in service or unfair trade practice on its part, Opposite Party No.2 has prayed for dismissal of the complaint.
5.         Controverting the allegations contained in the written statement and reiterating the pleadings in the Complaint, the Complainant filed the replication.
6.         Parties led evidence by way of affidavits and counter affidavits. 
7.         We have heard the learned counsels for Parties and gone through the record of the case. Per material on record, we arrive at the following conclusions.
8.         Admittedly, the Complainant had paid Rs.15,000/- towards Membership Fee of the Gym of Opposite Party No.1 for one year. The said Membership was obtained by the Complainant based on the understanding given by the Opposite Party No.1 that it has the Franchise of Opposite Party No.2.
9.         The Complainant had alleged that he had filled the Membership Form of Opposite Party No.1 containing the details that Opposite Party No.1 had the Franchise of Opposite Party No.2. Accordingly, vide order dated 02.01.2018, the Opposite Party No.1 was asked produce the original application form as well as the original receipts of membership. However, the Opposite Party No.1 failed to produce the same before this Forum, for which an adverse inference is drawn against Opposite Party No.1 that it did not have the Franchise of Opposite Party No.2 and that Complainant must have been allured by Opposite Party No.1 to have its Membership projecting that it had the Franchise of Opposite Party No.2. It is not disputed that the Complainant had used the Gym facility from 01.01.2015 to 20.04.2015. In these set of circumstances, we are of the concerted view that the Complainant is eligible to get back his refund on pro-rata basis for the period for which he had not used the Gym facility. Non-refunding the money to the Complainant by the Opposite Party No.1, despite requests, to our mind, amounts to deficiency in service and their indulgence into unfair trade practice.
10.         For the reasons recorded above, the present complaint of the Complainant deserves to succeed against the Opposite Party No.1, and the same is partly allowed. The Opposite Party No.1 is directed:-

[i]     To refund Rs.11,250/- to the Complainant on pro-rata basis i.e. for the period for which he had not used the Gym facility. 

[ii]       To pay Rs.7,500/- as compensation to the complainant for the unfair trade practice and harassment caused to him.

[iii]        To also pay a sum of Rs.7,500/- to the complainant as litigation expenses. 

                The complaint against Opposite Party No.2 fails and is accordingly dismissed with no order as to costs. 

11.         This order be complied with by Opposite Party No.1, within one month from the date of receipt of its certified copy, failing which it shall make the payment of the amounts mentioned at Sr. No. (i) & (ii) above, with interest @9% per annum from the date of filing of the present complaint, till realization, apart from compliance of direction at Sr. No.(iii) above.
12.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced                                       

01.06.2018

                                 Sd/-

(RATTAN SINGH THAKUR)

PRESIDENT

 

 

Sd/-

(SURJEET KAUR)

MEMBER

      

                          

Sd/-

 (SURESH KUMAR SARDANA)

MEMBER

“Dutt”