Haryana

Panchkula

CC/292/2021

AMIT CHOPRA. - Complainant(s)

Versus

ASEEM RAO & AJEET YADAV. - Opp.Party(s)

AMIT CHOPRA

17 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	292 of 2021
Date of Institution	:	13.07.2021
Date of Decision	:	17.02.2023

 

Amit Chopra son of Sh.S.P.Chopra, resident of Flat No.307, Shakti Apartment, Sector-14, Panchkula.                                                                                                                                   ..….Complainant

Versus                                                              

1.     Aseem Rao and Ajeet  Yadav owner cum found Hype The Gym,         Registered officer SCO No.141-142, Gurugram, Sector-46,        Gurugram Pin-122003(Man HUDA Market)

2.     Hype The Gym through its Franchise Owner Sh. Naresh     Pawar(Chief Executive Officer) HUDA at Gurugram  Haryana     presently residing  at Amrawati Enclave Pinjore, through its Registered office at SCO No.387, Ist Floor, Sector-20, Panchkula

3.     Hype The Gym through its Manager Pankaj Pandey  SCO No.387,       Ist Floor, Sector-20, Panchkula-134116.

                                                                       ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person.  

                         Sh. Anirudh Kush,  Advocate for OPs No.1 to 3.

                               

ORDER

(Satpal, President)

1.             Briefly stated, the facts of the present complaint are that   the complainant approached the opposite party No.3(hereinafter referred to as OP No.3) through its Manager, Sh. Pankaj Pandey  in the year 2020 to join  the Gym so as to maintain his mental and physical fitness and on the persuasion of said Manager, he(complainant) joined the Gym in the branch of Sector-20, Panchkula i.e. OP No.3. The said manager had offered the discount to the new members and assured that the OP No.3 had a good instructor having exclusive knowledge of yoga and Gym. As per version of Sh. Pankaj Pandey, annual subscription was Rs.9,999/-. As per telephonic conversation, the said manager, namely, Sh.Pankaj Pandey, finally refused to give any discount in the membership of Gym in Sector-16 i.e. OP No.1. The complainant joined the branch of Hype The Gym, Sector-20 by making the payment of Rs.7.500/-(wrongly stated as Rs.6,500/-) as annual subscription in cash so as to avail the Gym and yoga facility. It is stated that there was no yoga instructor and no yoga facility in the Gym of OP No.3 and resultantly, the complainant had to leave the membership of OP No.3 being dis-satisfied with its services. The said Pankaj Pandey, Manager, of the OP No.3 was requested to refund the amount of annual charges i.e. Rs.7,500/- as paid by the complainant but the said Sh. Pankaj Pandey lingered on the matter on one pretext or other. Due to Covid-19, situation gym remained closed. After the relaxation in Covid restrictions, the complainant again approached the OPs and had a telephonic conversation with the owner of Gym of Naresh Pawar seeking the refund of his deposited amount but the same was not refunded. Due to the act and conduct of the OPs No.1 to 3, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.             On 08.11.2021, notices were issued to OPs who appeared through their counsel and an application was filed on behalf of the OP no.2 seeking the deletion of its name from the arrays of parties on the ground that OP no.2 i.e. Naresh Pawar is not the franchise owner of Hype Gym(OP No.3). Reply to the said application was filed by the complainant opposing the contents of said application filed on behalf of the OP No.2.

                The OPs No.1 to 3 filed written statement raising preliminary objections qua complaint is not maintainable in its present form; the complainant is estopped from filing the present complaint due to his own act and conduct; no locus-standi; the complainant has not approached the Commission with clean hands; no notice was served prior to filing of the present complaint; the present complaint is liable to be dismissed on the ground of mis-joinder of the necessary parties.

                On merits, the contentions of the complainant have been denied stating that OP No.3 never remained the Manager of Gym at the branch of Sector-16, Panchkula i.e. OP no.1 and that no discount was offered by OP No.3. It is stated that no discount was offered to the members, who wanted to join the branch of Sector-16 or Sector-20, Panchkula. It is stated that the complainant had made part payment of annual description and he enjoyed all the facilities, including the Gym and Yoga etc. as per schedule of the Gym and he was totally satisfied with the services of the trainer as well as qua the Gym equipments. It is stated that the complainant did not visit the Gym after attending for few days and he is now free to join the Gym to complete his balance tenure after making the payment of balance payments. It is stated that lockdown was imposed w.e.f. 23.03.2020 and Gym remained closed thereafter. It is stated that OPs had to bear the expenses of the building etc. at their own level during the lockdown period. It is stated that the membership fee was non refundable and it was specifically told to the complainant by the OP No.3 that membership was non refundable. It is stated that OP No.2 is not the owner of the Gym as alleged. It is denied that the complainant has suffered any financial loss etc. The complainant can join the Gym to complete his tenure after paying the balance membership fee.

3.             Replication to the written statements of the OPs No.1 to 3 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

4.             To prove the case, the complainant has tendered his affidavit as Annexure C-A along with document Annexure C-1 & C-2 in evidence and closed the evidence by making a separate statement. On the other hand, no documentary evidence was submitted by OP despite several opportunities. Thus, the evidence of the Ops are closed by Commission vide order dated 27.09.2022.

                During the course of arguments on 25.01.2023, the complainant has tendered the copy of welcome massage, copy of membership invoice amounting to Rs.7,500/-, copy of membership form on record, which is taken on record as Mark ‘A to C’ for the adjudication of the controversy in a proper and fair manner.

5.             We have heard the complainant and the learned counsel for the OPs and gone through the entire record available on file, minutely and carefully.

6.               During arguments, the complainant reiterating the averments made in the complaint as also in his affidavit Annexure C-A contended that the OP No.3 was deficient while rendering its services to the complainant as there was no trained yoga instructor and the Gym was not equipped with the proper, adequate Gym facility. Alleging lapses and deficiencies on the part of the OPs, the complainant has prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.

7.             On the other hand, the learned counsel appearing on behalf of the OPs, while reiterating the version as contained in the written statement, has contended that the branch of Hype Gym at Sector-20 i.e. OP No.3 was well equipped with Gym facilities having trained yoga instructor and thus, there was no deficiency on the part of the OPs while rendering its services to the complainant. It is contended that the complainant did not turn up to avail the Gym facilities after few days from joining the OP No.3 and that he is at liberty to avail the remaining period after making the balance payment. Concluding the arguments, the learned counsel stated that the complaint is liable to be dismissed being false, baseless and incorrect.

8.             Evidently, the complainant has taken the membership of OP No.3 by submitting the membership form(Mark ‘C’) wherein he was given the membership ID i.e. Hypes sector-20PNCK-HY400. As per membership invoice dated 29.02.2020(Mark ‘B’), a sum of Rs.7500/- was paid by the complainant in cash to OP No.3. The grievances of the complainant are that the OP No.3 was not equipped with proper and adequate Gym facilities and there was no yoga trainer as promised by the OPs, while granting membership to him. The OPs have denied the assertions and contentions of the complainant qua the Gym facilities as well as trained yoga instructor. However, the version of the Ops is not corroborated and substantiated by any documentary evidence and affidavits. Pertinently, the evidence of the OPs was closed by the Commission vide order dated 27.09.2022. Therefore, it is a mere bald assertions made on behalf of the Ops that the OP No.3 was well equipped with Gym facilities having a good trained yoga instructor. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value. The contentions of the complainant qua deficiency on the part of the Ops go unrebutted and uncontroverted and in view of the same, we have no option except to conclude that OPs No.1 & 3 were deficient while rendering services. In so far as liability of the OP No.2 is concerned, an application seeking its deletion was moved stating that OP No.2 has no concern, whatsoever, with OPs No.1 & 3. Though, the complainant has opposed the said application, yet no proof has been submitted on record by the complainant qua the ownership of OP no.2 of OPs No.1 and 3. Therefore, no liability can be attributed on the part of OP No.2 and accordingly the application is disposed of.

9.             As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 &  3:-

1. To pay an amount of Rs.7,500/- to the complainant, along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
2. To pay a lump sum amount of Rs.2,500/- to the complainant on account of mental agony, harassment and litigation charges.

 

10.            The OPs No.1 & 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 & 3 A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:17.02.2023

 

 

 

          Dr.Sushma Garg         Dr. Pawan Kumar Saini             Satpal

                  Member                  Member                          President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President