Chandigarh

DF-I

CC/220/2019

Amandeep Singh Thind - Complainant(s)

Versus

Burn Gym & Spa Pvt. Ltd. - Opp.Party(s)

Divjyot S. Sandhu

01 Jun 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/220/2019
Date of Institution	:	03/04/2019
Date of Decision	:	01/06/2020

 

1. Amandeep Singh Thind son of Kuldip Singh
2. Amandeep Kaur Thind wife of Amandeep Singh Thind,

     Both residents of House No.113, Sector 10-A, Chandigarh.

… Complainant

V E R S U S

1. Burn Gym & Spa Pvt. Ltd., SCO No.58-59, 2^nd Floor, Sector 11, Panchkula through Shri Baljinder Singh, authorized signatory, through its Manager.
2. Burn Gym & Spa Pvt. Ltd., SCO No.62-65, 1^st Floor, Sector 8-C, Chandigarh through its Manager.

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                               

ARGUED BY	:	Sh. Divjyot Singh Sandhu, Counsel for complainants
	:	Sh. Karanvir Singh Jawandah, Counsel for OPs

 

Per Rattan Singh Thakur, President

1.      Allegations, as set out in the consumer complaint are, on 28.2.2018 complainants – husband and wife – had taken the membership of OP-2/Gym for a period of 12 months starting from 19.3.2018, which was to expire on 18.3.2019, on actual payment of Rs.18,000/- each totaling Rs.36,000/-. The case is, complainants had a small baby and mother of the complainants used to take care of him in their absence during their visit to the gym. However, as their mother had to go abroad, therefore, vide email dated 4.9.2018 complainants apprised the OPs and the membership was frozen from 11.9.2018 to 1.2.2019 which was agreed to by the complainants. Averred, complainants could not join the gym due to personal reasons and through emails dated 24.1.2019, 1.2.2019 and 4.2.2019 requested the OPs to refund the amount of balance membership fee of six months i.e. Rs.9,000/- each totaling Rs.18,000/-.  OPs responded the same was not refundable per terms and conditions of the membership. Not only this, though the OPs had frozen the membership from 11.9.2018 to 1.2.2019, as was requested, but the complainants could not join the gym even later on. Since the amount was not refunded, notice was issued by the complainants, but, to no effect. Hence, the present consumer complaint for directing the OPs to refund the amount of Rs.18,000/- alongwith interest, compensation of Rs.1.00 lakh and Rs.35,000/- as litigation costs.
2.     OPs contested the consumer complaint, filed their joint written reply and, inter alia, raised preliminary objections of consumer complaint being not maintainable.  Maintained as a goodwill gesture and on the request of the complainants, membership was frozen for a period from 11.9.2018 to 1.2.2019. It is further the case, complainants did not turn up and the OPs were ready to provide the services.  Maintained, per the terms and conditions, duly signed by the complainants, amount is not refundable. Hence, the question of refund of the amount for the remaining half period does not arise at all. On these lines, the cause is sought to be defended.
3.     The complainants did not opt to file rejoinder/rebuttal evidence despite grant of opportunity.
4.     Parties led evidence by way of affidavits and documents.
5.     We have heard the learned counsel for the parties and gone through the record of the case. After perusal of record, our findings are as under:-
6.     Per pleadings of the parties, the admitted case of the complainants is, they themselves did not avail the facilities though the OPs were ready to provide the same.  The complainants had their own reasons not to avail the services as they were to take care of their baby which earlier was used to be taken care of by their mother who had gone abroad. 
7.     Record further shows, even for a certain period of 5-6 months, on the request of the complainants, the membership was frozen, but, subsequent thereto, they did not avail of the remaining period of gym facility. Thus, the complainants themselves were at fault and no deficiency in service or unfair trade practice can be attributed on the part of the OPs.
8.     The OPs in their written reply had claimed, complainants had appended their signatures on the membership form which contained the agreement and conditions of use.  To these pleadings and documents, complainants did not furnish affidavit against affidavit or even rejoinder to the averments made in the written reply controverting the allegations contained therein.
9.     OPs have placed on record the membership form (Annexure OP-1 and OP-2). The relevant membership agreement and conditions of use are reproduced below :-

“1. The full membership fee as above is payable whether or not the member makes full use of the facilities.

2.  The membership fee or any part thereof is non-refundable.”

 

10.     On the foot of it, both the complainants had appended their signatures on 5.3.2018.  Condition No.1, as reproduced hereinbefore, was full membership as above is payable whether or not the member makes the full use of the facility.  Condition No.2 was membership fee or any part thereof is non refundable. On these terms and conditions, the complainants had appended their signatures which are undisputed before us. Now the complainants cannot wriggle out from their own agreed and signed terms and conditions. This Forum cannot introduce new terms and conditions. Hence, the complainants are estopped to file the present consumer complaint for the refund of the amount by their act, omission and declaration in the form of membership containing the terms and conditions which are duly signed by them.
11.     The complainants had not pleaded any fraud rather given a lame excuse, terms and conditions were to be dispatched later on by OP-1, but, these facts are not borne out from the record. The document of terms and conditions is already on record and oral evidence now is to be excluded for the purpose of appreciation of the document. In this regard Section 91 of the Indian Evidence Act is relevant and the same is reproduced below :-

          “91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.”:

 

12.     In view of above discussion, we do not find any deficiency in service or unfair trade practice on the part of the OPs.  There is no merit in present consumer complaint. Accordingly, the same is hereby dismissed, leaving the parties to bear their own costs.
13.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
01/06/2020	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President