| ORDER | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR. Consumer Complaint No.670-11 Date of Institution:16-08-2011 Date of Decision:19-02-2015 Suresh Rampal son of Late Nand lal, resident of 82-A, Dayanand Nagar, Gali No.3, Lawrence Road, Amritsar. Complainant Versus - Anytime Fitness, Anytime India Fitness Private Limited, 501, Powai Plaza, Hiranandani Gardens, Opposite Pizza Hut, Powai, Mumbai and 412, Meadows, Sahar Plaza, J.B.Nagar, Andheri (East), Mumbai allegedly having its corporate office at 6th Floor, Tower B, Unit No. 601, 247 Park, LBS Marg, Vikhroli (W), Mumbai through its Chairman/ Managing Director/ Manager/ Person-Incharge.
- Sh.Chandan Lunawat C/o K.R.Enterprises, 205/A, Sentinel, Hiranandani Gadens, A.S.Marg, Powai, Mumbai.
- Sh.Suniel Shetty, Person- Incharge/ Director/ Member Advisory Board of the company and had been holding out as such, 18-B, Prithvi Apartments, Altamount Road, Mumbai-400026.
- Anytime Fitness, Anytime India Fitness Private Limited, having its Branch Office at 14, Kennedy Avenue, SRK Mall, The Mall, Amritsar through its Chairman/ Managing Director/ Manager/ Person-Incharge.
Opposite Parties Complaint under section 12 & 13 of the Consumer Protection Act, as amended upto date. Present: For the Complainant: Sh.Sanjay Kapoor, Advocate. For the Opposite Party No.1: Sh.Raman Aggarwal, Advocate For the Opposite Party No.2: Exparte. Quorum: Sh.Bhupinder Singh, President Ms.Kulwant Kaur Bajwa, Member Mr.Anoop Sharma, Member Order dictated by: Sh.Bhupinder Singh, President. - Present complaint has been filed by Sh.Suresh Rampal under the provisions of the Consumer Protection Act alleging therein that in the month of January 2011, the complainant and his other friends and companions took the membership of the Opposite Party No.1 for its Amritsar Health Club in Group Package Scheme for one year from February 2011 to January 2012 and the complainant paid Rs.11029/- towards the annual membership fee vide receipt No.A-131 dated 19.01.2011 and was allotted Registration No.030. Accordingly, on 1.2.2011 the complainant had gone to the health club of the Opposite Parties situated at 14, Kennedy Avenue, SRK Mall, The Mall, Amritsar as per his given schedule with his other friends and companions of the group package scheme. But to their utter surprise, the club was not started yet and it was told to the complainant by the Manager of the Club that due to some technicality, the club has not been started yet and will be inaugurated/ open within next 10 days and advised the complainant and his other companions to come after 10 days. The complainant again visited on 10.2.2011 to the club, with other companions of the group package but to their utter surprise, the club was not yet opened and, the complainant and his other companions were advised to come after 15 days. The complainant again went there after 15 days, but the club was the also not opened by the Opposite Parties and even the necessary equipments were not installed till that day. Accordingly the complainant and others were advised by the Manager of the Opposite Party to wait for other one month and the complainant and others were assured by the Manager that the club will be opened by that time. As per the assurance of the Opposite Party, the complainant and others again went to the club of the Opposite Party at Amritsar in the last week of March 2011, but to the utter surprise, the club was closed and locked and no one was present on behalf of the Opposite Parties. Then, the complainant and his other group members contacted the Manager of the Club on telephone and asked about the same, but the Manager of the Club did not give any satisfactory answer and told that he has no information from the corporate office of the Opposite Party, about the opening of the Health Club and advised the complainant not to contact him in future to bother him. Alleging the same to be deficiency in service, complaint was filed seeking directions to the opposite parties to refund the annual membership fee alongwith interest @18% per annum from the date of payment to the Opposite Party till realization. Compensation and litigation expenses were also demanded.
- On notice, Opposite Party No.1(ii) appeared and filed written version in which it was submitted that Opposite Party No.1(ii) has never been on the Board of Directors of, or has never served as an Advisory member of, or has not held any executive office for the Anytime Fitness, Anytime Fitness India Private Limited or any of its subsidiaries involved in this complaint case. The Opposite Party No.1(ii) was not a privity to any contact of service executed between the complainant and the Opposite Parties and has no knowledge of any consequent deficiency in service. It is reiterated that no cause of action has a risen against the Opposite Party No.1(ii) as he is neither a member of the Board of Directors nor has anything to do with the company affairs, and as such the references against the Opposite Party No.1(ii) being frivolous are liable to be struck off. It is submitted that in the past, the Opposite Party No.1(ii) had been associated with Opposite Party No.1 only in the capacity of its brand ambassador. However, the Opposite Party No.1(ii) has no concern with the management or day to day working o the Opposite Party No.1 company. While denying and controverting other allegations, dismissal of complaint was prayed.
- Opposite Party No.2 served, but none appeared on behalf of Opposite Party No.2, so Opposite Party No.2 was proceeded against exparte vide order dated 8.10.2012 of this Forum.
- Complainant tendered into evidence his affidavit Ex.C-1 alongwith documents Ex.C2 to Ex.C9 and closed the evidence on behalf of the complainant.
- Opposite Party No.1(ii) tendered into evidence affidavit of Sh.Suniel Shetty Ex.OP1/1, copy of certificate Ex.OP1/2 and closed the evidence on behalf of the Opposite Party No.1(ii).
- We have carefully gone through the pleadings of the parties; arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for both the parties.
- From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that the complainant on the representation of Opposite Party No.1, became member of Anytime Fitness Health Club in Group Package Scheme for one year from February 2011 to January 2012 on payment of Rs.11029/- vide receipt No.A-131 dated 19.01.2011 Ex.C2 and the complainant was allotted registration No.030. Complainant further alleges that Mr.Suniel Shetty is on the board of the company and is also advisor member. In January, 2011, the Opposite Parties assured the complainant that the health club of Opposite Parties shall start functioning. Resultantly, the complainant visited the site of the health club of the Opposite Parties on 1.2.2011 situated at 14, Kennedy Avenue, SRK Mall, The Mall, Amritsar. But the complainant found that the club has not been started by the Opposite Parties and the complainant was told by the Manager of the Club that due to some technicality, the club has not been started and would be inaugurated/ opened within next 10 days and. Thereafter, the complainant visited on 10.2.2011 to the club of the Opposite Parties alongwith other companions and again found that the club was not yet opened and the complainant was advised to come after 15 days. The complainant again went there after 15 days, but the club was the also not opened by the Opposite Parties and even the necessary equipments were not installed till that day. The Manager of the Opposite Parties advised the complainant to wait for another one month. The complainant and other members of the club again visited the site of the club in the last week of March, 2011 who found that the club was closed and locked and no one on behalf of the Opposite Parties was present there. The complainant and other group members tried to contact the Manager of the Club on telephone, but the Manager of the Club did not give any satisfactory answer/ reply, rather told that he has no information from the corporate office of the Opposite Party, about the opening of the Health Club at Amritsar and told the complainant and other group members not to contact him in future to bother him. Thereafter, all efforts made by the complainant and other group members of the club proved fertile as the Manager or any other person on behalf of the Opposite Parties not attended the telephone calls of the complainant and other club members. The Opposite Parties neither gave proper service to the complainant nor refund the amount paid by the complainant. Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite parties.
- Opposite Party No.1(i) and Opposite Party No.2 did not turn up, as such, they were proceeded against exparte. However, the case of Opposite Party No.1(ii) is that he has never been on the Board of Directors of the Opposite Party Company nor he has ever served as advisory member nor has held any Executive Office of Anytime Fitness India Private Limited or any of its subsidiaries involved in the present case. There is no privity of contract between the complainant and Opposite Party No.1(ii) nor any service has been executed between the complainant and Opposite Party No.1(ii). The Opposite Party No.1(ii) has been unnecessarily dragged in this case by the complainant. Opposite Party No.1(ii) had been associated with Opposite Party No.1 company only in the capacity of its brand ambassador and has no concern with the management or day to day working of the Opposite Party No.1 Company. Ld.counsel for Opposite Party No.1(ii) submitted that there is no deficiency of service on the part of the Opposite Party No.1(ii).
- From the entire above discussion, we have come to the conclusion that on the representation of Opposite Party Anytime Fitness India Private Limited Mumbai that they are going to open health fitness club in Amritsar City at 14, Kennedy Avenue, SRK Mall, The Mall, Amritsar w.e.f. 1.2.2011, the complainant alongwith his other friends and companions became members of said renowned health club in Group Package Scheme and took membership in Group Package Scheme for one year from February 2011 to January 2012 on payment of Rs.11029/- each vide receipt No.A-131 dated 19.01.2011 Ex.C2 and the complainant was allotted registration No.030. Opposite Party Company did not start the said health club at 14, Kennedy Avenue, SRK Mall, The Mall, Amritsar. Consequently, the Opposite Party could not provide the services to the complainant nor refund the amount of Rs.11029/- to the complainant which fully proves that the Opposite Parties committed deficiency of service qua the complainant. As such, Opposite Party Company i.e. Anytime Fitness India Private Limited, Mumbai was bound to provide the proper service to the complainant or to refund the amount alongwith interest, but the Opposite Parties failed to provide the service to the complainant or to refund the amount so received from the complainant towards services to be provided by the Opposite Party Company to the complainant. Resultantly, we hold that the Opposite Parties committed deficiency of service qua the complainant. As such, the Opposite Party Company is bound to refund the amount so received from the complainant vide receipt Ex.C2 alongwith interest.
- As regard the refund of amount, certainly Opposite Party No.1 Company i.e. Anytime Fitness India Private Limited, Mumbai is liable to refund the amount to the complainant alongwith interest. It stands fully proved on record that Sh.Chandan Lunawat is on the panel of Board of Directors of the Company. So far as the part played by Sh.Suniel Shetty is concerned, the complainant alleges that he is advisory member of the Opposite Party Company and he is also on the panel of Board of Directors of the Company. In this regard, the complainant produced Computer Print Out Ex.C3 to Ex.C9 which only shows that Sh.Suniel Shetty is renowned actor of Film Industry and had advertised for the Opposite Party Company and he has been shown using the equipments of health club of the Opposite Party Company. But the complainant has failed to produce on record any document from the Registrar of Companies to prove that Sh.Suniel Shetty was on the panel of the Board of Directors of the Opposite Party Company or that he has been involved in the management of the Opposite Party Company in any way or that he has been getting share out of the profit of the Opposite Party Company regularly. Sh.Suniel Shetty has alleged that he is only brand ambassador of the Opposite Party Company and is only advisor to the Opposite Party Company. In this regard, he has produced on record the certificate from Anytime Fitness India Private Limited i.e. OP1/2 dated 4.4.2012 in which the Opposite Party Company has certified that Mr.Suniel Shetty was only an advisor to the company and had no role in Management or day to day running of the company. He is not responsible for any of the management decision of the company, requesting the general public not to tag Mr.Suniel Shetty in any legal matter or for any other matters of the company. Rather in this certificate, the Opposite Party Company has advised the general public to contact the Management of the Opposite Party Company on email ID
- Consequently, we partly allow the complaint with costs. Opposite Party No.1 Company i.e. Anytime Fitness India Private Limited, Mumbai is ordered to refund the amount of Rs.11029/- alongwith interest @ 9% per annum from the date of deposit i.e. 19.1.2011 till the payment is made to the complainant. Opposite Party No.1 Company i.e. Anytime Fitness India Private Limited, Mumbai is also directed to pay the costs of litigation to the complainant to the tune of Rs.2000/-. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Dated: 19.02.2015. (Bhupinder Singh) President (Kulwant Kaur Bajwa) Member (Anoop Sharma) hrg Member | |
