Haryana

Panchkula

CC/374/2020

YASHPAL. - Complainant(s)

Versus

ATLANTIC PREMIUM FITNESS CLUB. - Opp.Party(s)

ARUN GOEL

20 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

Consumer Complaint No	:	374 of 2020
Date of Institution	:	07.12.2020
Date of Decision	:	20.09.2022

 

 

Yash Pal son of Sh.Satya Parkash, Resident of H.No.1339, Sector-25, Panchkula.

 

                                                                           ….Complainant

Versus

Atlantic Premium Fitness Club, situated at SCO 113, Level 1-2, Sector-25, Panchkula through its Proprietor/Manager Sh. A.K.Goswami.

….Opposite Party

 

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. Sanjeev Malhotra,  Advocate for OP.

 

ORDER

(Dr.Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that the complainant has taken a fitness package(Gym Services) from the OP vide invoice no.1131 dated 04.09.2019 amounting Rs.13,000/- after discount from 04.09.2019 to 04.11.2020 vide membership no.1181. The complainant has taken the services of the OP upto 20.03.2020 and as per the Government directions the lock-down was imposed on 21.03.2020 due to Covid-19, the complainant has not taken/or provided by the OP any services till 05.08.2020. Thereafter, the Gym started again and the complainant has resumed the package on 05.08.2020.  At that time, the OP promised him that the period from 21.03.2020 to 04.08.2020 will be carried forward upto 15.03.2021. Thereafter, on 04.11.2020, the OP refused to provide his services to the complainant and said if the complainant wants to carry the gym activity, he has to pay again. On this the complainant requested to the OP not to do so but the OP flatly refused to accept any demand of the complainant. Then, he demanded to return Rs.4500/- in lieu of no service period from 21.03.2020 to 04.08.2020 as he has not availed any service but the OP also refused to return the amount. Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financially; hence, the present complaint.

2.             Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being frivolous and false; no locus standi; estoppels; concealed the true material facts and suppressed true material facts. On merits, it is stated that the OP has not assured and promised to the complainant to adjust the said Covid-19 period upto 15.03.2021 as alleged. It is further submitted that the OP was providing the facilities of Gym to the complainant as per the terms and condition of the membership. But due to the outbreak of Covid-19 Pandemic, the Gym, restaurant, hotel, school, colleges etc. were remained closed as per the necessary instructions issued by the Govt. of India in order to prevent the outbreak of Covid-19 in the country and in order to comply with the instructions issued by the Govt. of India, Gyms of all over country was closed for the said period. There was no fault on the part of the OP. Further, the complainant has concocted a false story just to frame the present complaint. In fact, it is the complainant who used to create scene and nuisance in the gym in front of other gym persons in order to malign the image and reputation of the OP. It is further stated that the OP after giving the discount to the complainant has given the offer of Gym but due the gym could not be functioned due to instructions issued by Govt.of India. It is stated that OP has paid the entire rent, electricity bill as well as to the staff in the gym during the lockdown period.  It is stated that he was given the package after giving the full discount and once the package has already sold then the question of returning the amount of said period does not arise at all. So, there is no deficiency in service and unfair trade of practice on the part of OP and prayed for dismissal of the present complaint.

3.             To prove the case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 & C-2 in evidence and closed the evidence by making a separate statement. On the other hand, the OP has tendered affidavit Annexure R-A and closed e evidence.

4.             We have heard learned counsels for the parties and gone through the entire record available on file, minutely and carefully.

5.             Admittedly, the complainant had availed the services of the OP qua fitness package(Gym Services) vide membership no.1181 by paying a sum of Rs.13,000/- vide invoice dated 04.09.2019 (Annexure C-2) for a period of 14 months w.e.f. 04.09.2019 to 04.11.2020. Though, the price of the package was Rs.14,000/- but it was provided to the complainant at the price of Rs.13,000/- by giving the discount of Rs.1,000/-. There was no dispute between the parties qua the quality or ambience in the Gym prior to impositions of lockdown on 22.03.2020 at National Level due to the Covid-19 situation. Admittedly, the period w.e.f. 21.03.2020 to 04.11.2020 remained unutilized due to Covid-19 situation; hence, the dispute between the parties is qua the providing of the Gym related services to the complainant for the said unutilized period.

                During arguments, the complainant reiterating the averment made in the complaint has prayed for refund of Rs.4,500/- alongwith compensation of Rs.50,000/- on account of mental agony and harassment and Rs.10,000/- and litigation charges.

7.             The OP has contested the complaint by raising preliminary objections as well as on merits in its written statement. Vide preliminary objection, it is stated that the complaint is not maintainable in the present Forum nor the complainant has got any locus standi to file the same. Further, it is stated that the complainant is estopped to file the present complaint by his own act and conduct.

8.             The above objections are rejected as the OP has not clarified as to how the present complaint is not maintainable and as to how the complainant has no locus standi and further as to how the complainant is estopped from filing the present complaint. The learned counsel for OP while reiterating the averments vehemently contended that the complainant was provided the Gym facilities as per terms and conditions of the membership but due to the out-break of Covid -19 Pandemic, the Gym was closed as per the orders passed by the Government of India. It is contended that there was no fault on the part of the OP while closing the Gym during the lockdown period and thus, the prayer of the complainant for the refund of Rs.4,500/- is liable to be rejected. The learned counsel contended that the complainant has created nuisance in the Gym in front of other persons so as to malign the image and reputation of the OP and thus, the complaint is liable to be dismissed.

9.             Undoubtedly, during the aforesaid period of 5 months approximately several restrictions on the movements of public and vehicular traffic etc. on account of Covid-19 situation were imposed by the State Government and District Administration and thus, the complainant was not in a position to avail the GYM related services from the OP nor OP was in a position to provide the same. Hence, no fault can be attributed either on the party on this account. However, after the removal of the restrictions on the movements of public etc. as well as opening of Shops, Malls etc. by the District Administration, the OP was under obligation to provide its services to the complainant for the unutilized period of 5 months  but the OP flatly refused to provide the same stating that no such adjustment could be made as the Gym was not closed voluntarily at its option.

10.            We find no force and substance in the contention of the OP denying the refund of Rs.4,500/- in lieu of the unutilized period w.e.f. 21.03.2020 to 04.11.2020 for Gym services. After the relaxation/ removal of restrictions imposed on account of Covid-19 situation, the OP ought to have provided its Gym services to the complainant for the unutilized period of 5 months approximately. In our considered opinion, the OP has failed to perform its part of obligation while declining its services for the unutilized period of 5 months approximately and thus, the OP has been found deficient while rendering services to the complainant; hence, the complainant is entitled to relief.  

11.            Apart from above, the complainant is also compensated on account of mental agony, harassment and litigation charges.

12.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OP:-

1. To pay a sum of Rs.4,500/- 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.5,000/- to the complainant on account of mental agony, harassment and litigation charges.

 

13.            The OP shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 71/72 of CP Act, against the OP. 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:20.09.2022

 

 

 

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.

 

                                        Dr. Pawan Kumar Saini                 

      Member