BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 184 of 2017

Date of Institution: 21.03.2017

Date of decision: 16.01.2018

Smt.Sangeeta Mehra wife of Sh.Paraveen Mehra, resident of House No.31-32, Suraj Avenue, Fatehgarh Churian Road, Amritsar.

Complainant

Versus

Country Vacations division Country Club Hospitality and Holidays Limited through its Chairman/Managing Director/Principal Officer having its Branch office at Trillium Mall, Circular Road, Amritsar through its Branch Manager.

Opposite Party

Complaint under section 12 & 13 of the Consumer Protection Act, 1986

Present:   For the Complainant: Sh. Vijayant Khanna, Advocate  

                For the Opposite Party:  Sh. Ashok Kalia, Advocate

Coram:

Mr.Anoop Sharma, Presiding Member      

Ms.Rachna Arora, Member.

ber

Order dictated by:

Ms.Rachna Arora,  Member

1.       The complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986  on the allegations  that the opposite party advertised and offered the complainant a one vacation plan and Gym membership for life. The complainant was made to enter a vacation plan agreement and club membership/Gym membership, as such the complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant had given membership of country vacations/fitness centre by local agent and on the instructions and assurance for providing services as mentioned in the brochure  provided by opposite party’s aforesaid manager for the facility of life long membership of Country club Fitness at Trillium Mall, Amritsar with the facilities of full equipped Gym, personal training, weight loss, Aerobics, Cardio, Strength training. Accordingly the said manager of opposite party took the signature of complainant as well as her husband jointly on one printed paper and one stamp paper on 6.7.2014. Accordingly, the complainant made a payment of Rs.1,42,500/- as life time membership for the same and executed an agreement at Amritsar. The opposite party assured the complainant to provide all the above said facilities mentioned in the aforesaid brochure which was also a part of aforesaid agreement alongwith other facilities to provide lots of facilities to the complainant including membership of many other clubs all over India and Abroad besides many verbal assurances. The complainant coming in their sweet words booked the one vacation plan which was for life time membership for payment of Rs.1,42,500/- and made the payment of Rs.142500/- to the opposite party and it includes gold coin of 2 gm, complimentary 6 nights and 7 days  holiday voucher for 32 years in five star hotel anywhere in India, holiday for 6 nights and 7 days stay at Malaysia and Philippines respectively, apart from life long membership of their Gym at Trillium Mall, Amritsar, complementary Spa for 3 years, dinner set, Gym bag every year till 4 years, apart from the swimming pool facility with Gym and other facilities were offered at the time of taking money from the complainant . An agreement was executed between the parties on 6.7.2014. Since the day one, the opposite party failed to provide a single service to the complainant. All the machinery equipments have stopped working  and are in dilapidated condition. All the tread miles are out of order. All the cardio machines are not working. Even no personal trainer has been provided to complainant for the weight loss, aerobics and cardio as well as strength training. No such trainers are available in the Gym. All the sitting order and benches have been torn off and broken. The bathroom and the washbasin have become dirtiest ever and non maintained and providing fowl smell. The cables of the strength machine are being broken from the last 6 months. Similarly cable of smith machine has also been broken from the last 6 months  for which complainant has many times complained to opposite party at their local manager of the Gym, but the said manager instead of rectifying the said defects in the gym always used filthy  language  for the customers of the gym. Locker room of the gym is in worst condition  and almost all lockers have been broken. All the dirt and waste items have been stored in the locker room.  The line manager of opposite party mislead the complainant  and cheated by way of saying that he would provide a permanent free visiting entry card for lumsden club Amritsar which is tied up with the country club and the same would be valid for complainant and her family members and even no entry fee would be charged . But complainant while entering, found that the said fact is false and frivolous since lumsden club never accepted that card even a single day from complainant . Since the opposite party failed to provide all the services promised by them at the time of executing an agreement between parties  and they have played a fraud with the complainant of unfair trade practice  due to which the complainant suffered a mental agony.  The opposite party completely failed to provide the services as assured and mentioned in the brochure  and agreement thereby cheated the complainant for their unfair trade practice. Apart from verbal requests to refund the amount paid by the complainant issued a legal notice through counsel Sh.Vijayant Khanna on 25.11.2016 through registered post. But after receipt of legal notice, the opposite party neither refund the amount of the complainant nor provided all the facilities as offered by them. The act of the opposite party in not providing the offered gym facilities and other vacation plan to the complainant  is an act of deficiency in service, unfair trade practice and mal practice and is not sustainable in the eyes of law and has caused a lot of mental tension, agony and harassment to the complainant besides financial loss to the complainant. Vide instant complaint, complainant has sought for the following reliefs:-

(a)     Opposite party be directed to refund the amount of Rs. 1,42,500/- to the complainant alongwith interest @ 18% p.a. from the date of making payment till actual realization ;

(b)     Compensation to the tune of Rs.1,00,000/- as well as adequate litigation expenses be also awarded to the complainant.

Hence, this complaint.

2.       Upon notice, opposite party  appeared and contested the complaint  by filing written version taking certain preliminary objections therein inter alia that  present complaint is not maintainable as the complainant has not come with clean hands. The complainant has alleged discrepancies in the gym of opposite party  from the date of agreement i.e. 6.7.2014, whereas has not placed on record any grievance from that day till date. The present complaint is filed on 16.3.2017 i.e. after about 16 months of the date of agreement. It cannot be expected from a prudent person who is sufferer from day one of the agreement to keep mum and wait for more than two years to file a complaint; since disputed questions of facts are involved in the present complaint  which can only be decided by the civil court after leading cogent evidence  and cannot be decided in a summary manner. Therefore, this court does not have territorial jurisdiction to entertain and adjudicate the present complaint. On merits, it was submitted that out of various membership plans explained to the complainant and her husband, the vacation membership plan opted by the complainant was having a duration of 5 years for vacations and the Club membership  was not having any duration  and therefore it was for lifetime. The complainant herself entered into the membership agreement with her free consent. It was submitted that sales representatives of opposite party  only explained the benefits and terms and conditions under various plans. It was submitted that brochure of fitness club provides for facilities; full equipped gym, personal training, weight loss, aerobics, cardio and strength training and the same was very much provided in the Gym. It was admitted that complainant made a payment of Rs.1,42,500/-, however the said payment is towards one time non refundable membership fee under vacation agreement . It was denied that the complainant was assured to be provided membership of many other clubs all over India and Abroad. It was wrong that vacation plan was for lifetime. It was clearly mentioned in the vacation agreement that the same is for 5 years from the date of agreement. It was denied that membership included gold coin of 2 gram, complimentary 6 nights and 7 days holiday voucher for 32 years in five star hotel anywhere in India. It was also denied that membership included holiday stay for 6 nights and 7 days stay at Malaysia and Philippines respectively.  It was denied that the complainant was assured to be provided spa for 3 years, dinner set, gym bag every year till 4 years apart from swimming pool facility. No agreement dated 6.7.2014 was executed between complainant and opposite party but agreement dated 6.7.2014 was executed.  It was submitted that the machinery equipments of gym have been properly working and in good condition. It was denied that all the treadmills were out of order .  All the allegations made by the complainant regarding gym are oral, bald and without any evidentiary and made with malafide intention to extort money from the opposite party. It was denied that complainant made any complaint to the local manager. It was submitted that the machines are regularly monitored and serviced. It was denied that opposite party mislead and cheated the complainant. It was submitted that as per the agreement, there is nowhere mentioned that opposite party were supposed to provide any visiting entry card. It is not the case of the complainant that any entry fee for gym was charged and she paid the same. It has been falsely alleged that opposite party played a fraud with the complainant and that there was any unfair trade practice and the complainant was shown false promises. The complainant has enjoyed the benefits under the membership plan without raising any grievance  and the opposite party has provided all the services as mentioned in the Vacation and Club Membership Agreement, whereas no holiday has been booked till date by the complainant. The opposite party has provided all the gym facilities in the fitness centre and ready and willing to provide facilities  under vacation membership also  and there is no act of unfair trade practice or deficiency in service on the part of the opposite party. The complainant did not brought to the attention of this Forum the express clause under the agreement which states that “The vacation charges is not refundable under any circumstances and the vacation fee is not a refundable deposit”, therefore, complainant can only claim compensation in case she proves unfair trade practice or deficiency in service but cannot claim the refund of a non refundable amount . Remaining facts narrated in the complaint have been denied and a prayer for dismissal of the complaint with cost was made.

3.       In her bid to prove the case complainant tendered into evidence her duly sworn affidavit  Ex.CW1/A, alongwith copies of documents Ex.C1 to Ex.C7  and closed her evidence.

4.       On the other hand Sh.Ashok Kalia,Adv.counsel for the opposite parties tendered into evidence affidavit of Sh.Bharat Reddy, Legal Officer  Ex.OP1 and closed the evidence on behalf of opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

6.       Ld.counsel for the complainant has reiterated the facts as narrated in the complaint and has vehemently contended that the opposite party advertised and offered the complainant a one vacation plan and Gym membership for life. The complainant was made to enter a vacation plan agreement and club membership/Gym membership, as such the complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant had given membership of country vacations/fitness centre by local agent and on the instructions and assurance for providing services as mentioned in the brochure  provided by opposite party’s aforesaid manager for the facility of life long membership of Country club Fitness at Trillium Mall, Amritsar with the facilities of full equipped Gym, personal training, weight loss, Aerobics, Cardio, Strength training. Accordingly the said manager of opposite party took the signature of complainant as well as her husband jointly on one printed paper and one stamp paper on 6.7.2014. Accordingly, the complainant made a payment of Rs.1,42,500/- as life time membership for the same and executed an agreement at Amritsar. The opposite party assured the complainant to provide all the above said facilities mentioned in the aforesaid brochure which was also a part of aforesaid agreement alongwith other facilities to provide lots of facilities to the complainant including membership of many other clubs all over India and Abroad besides many verbal assurances. The complainant coming in their sweet words booked the one vacation plan which was for life time membership for payment of Rs.1,42,500/- and made the payment of Rs.1,42,500/- to the opposite party and it includes gold coin of 2 gm, complimentary 6 nights and 7 days  holiday voucher for 32 years in five star hotel anywhere in India, holiday for 6 nights and 7 days stay at Malaysia and Philippines respectively, apart from life long membership of their Gym at Trillium Mall, Amritsar, complementary Spa for 3 years, dinner set, Gym bag every year till 4 years, apart from the swimming pool facility with Gym and other facilities were offered at the time of taking money from the complainant . An agreement was executed between the parties on 6.7.2014. Since the day one, the opposite party failed to provide a single service to the complainant. All the machinery equipments have stopped working  and are in dilapidated condition. All the tread miles are out of order. All the cardio machines are not working. Even no personal trainer has been provided to complainant for the weight loss, aerobics and cardio as well as strength training. No such trainers are available in the Gym. All the sitting order and benches have been torn off and broken. The bathroom and the washbasin have become dirtiest ever and non maintained and providing fowl smell. The cables of the strength machine are being broken from the last 6 months. Similarly cable of smith machine has also been broken from the last 6 months  for which complainant has many times complained to opposite party at their local manager of the Gym, but the said manager instead of rectifying the said defects in the gym always used filthy  language  for the customers of the gym. Locker room of the gym is in worst condition  and almost all lockers have been broken. All the dirt and waste items have been stored in the locker room.  The local manager of opposite party mislead the complainant  and cheated by way of saying that he would provide a permanent free visiting entry card for lumsden club Amritsar which is tied up with the country club and the same would be valid for complainant and her family members and even no entry fee would be charged . But complainant while entering, found that the said fact is false and frivolous since lumsden club never accepted that card even a single day from complainant . Since the opposite party failed to provide all the services promised by them at the time of executing an agreement between parties  and they have played a fraud with the complainant of unfair trade practice  due to which the complainant suffered a mental agony.  The opposite party completely failed to provide the services as assured and mentioned in the brochure  and agreement thereby cheated the complainant for their unfair trade practice. Apart from verbal requests to refund the amount paid by the complainant issued a legal notice through counsel Sh.Vijayant Khanna on 25.11.2016 through registered post. But after receipt of legal notice, the opposite party neither refund the amount of the complainant nor provided all the facilities as offered by them. The act of the opposite party in not providing the offered gym facilities and other vacation plan to the complainant  is an act of deficiency in service, unfair trade practice and mal practice and is not sustainable in the eyes of law and has caused a lot of mental tension, agony and harassment to the complainant besides financial loss to the complainant. Ld.counsel for the complainant submitted that all this amounts to deficiency in service on the part of the opposite parties.

7.       On the other hand ld.counsel for the opposite parties repelled the aforesaid contention of the ld. Counsel for the complainant on the ground that the present complaint is not maintainable as the complainant has not come with clean hands. The complainant has alleged discrepancies in the gym of opposite party  from the date of agreement i.e. 6.7.2014, whereas has not placed on record any grievance from that day till date. The present complaint is filed on 16.3.2017 i.e. after about 16 months of the date of agreement. It cannot be expected from a prudent person who is sufferer from day one of the agreement to keep mum and wait for more than two years to file a complaint; since disputed questions of facts are involved in the present complaint  which can only be decided by the civil court after leading cogent evidence  and cannot be decided in a summary manner. Therefore, this court does not have territorial jurisdiction to entertain and adjudicate the present complaint. On merits, it was submitted that out of various membership plans explained to the complainant and her husband, the vacation membership plan opted by the complainant was having a duration of 5 years for vacations and the Club membership  was not having any duration  and therefore it was for lifetime. The complainant herself entered into the membership agreement with her free consent. It was submitted that sales representatives of opposite party  only explained the benefits and terms and conditions under various plans. It was submitted that brochure of fitness club provides for facilities; full equipped gym, personal training, weight loss, aerobics, cardio and strength training and the same was very much provided in the Gym. It was admitted that complainant made a payment of Rs.1,42,500/-, however the said payment is towards one time non refundable membership fee under vacation agreement . It was denied that the complainant was assured to be provided membership of many other clubs all over India and Abroad. It was wrong that vacation plan was for lifetime. It was clearly mentioned in the vacation agreement that the same is for 5 years from the date of agreement. It was denied that membership included gold coin of 2 gram, complimentary 6 nights and 7 days holiday voucher for 32 years in five star hotel anywhere in India. It was also denied that membership included holiday stay for 6 nights and 7 days stay at Malaysia and Philippines respectively.  It was denied that the complainant was assured to be provided spa for 3 years, dinner set, gym bag every year till 4 years apart from swimming pool facility. No agreement dated 6.7.2014 was executed between complainant and opposite party but agreement dated 6.7.2014 was executed.  It was submitted that the machinery equipments of gym have been properly working and in good condition. It was denied that all the treadmills were out of order .  All the allegations made by the complainant regarding gym are oral, bald and without any evidentiary and made with malafide intention to extort money from the opposite party. It was denied that complainant made any complaint to the local manager. It was submitted that the machines are regularly monitored and serviced. It was denied that opposite party mislead and cheated the complainant. It was submitted that as per the agreement, there is nowhere mentioned that opposite party were supposed to provide any visiting entry card. It is not the case of the complainant that any entry fee for gym was charged and she paid the same. It has been falsely alleged that opposite party played a fraud with the complainant and that there was any unfair trade practice and the complainant was shown false promises. The complainant has enjoyed the benefits under the membership plan without raising any grievance  and the opposite party has provided all the services as mentioned in the Vacation and Club Membership Agreement, whereas no holiday has been booked till date by the complainant. The opposite party has provided all the gym facilities in the fitness centre and ready and willing to provide facilities  under vacation membership also  and there is no act of unfair trade practice or deficiency in service on the part of the opposite party. The complainant did not brought to the attention of this Forum the express clause under the agreement which states that “The vacation charges is not refundable under any circumstances and the vacation fee is not a refundable deposit”, therefore, complainant can only claim compensation in case she proves unfair trade practice or deficiency in service but cannot claim the refund of a non refundable amount and there is no act of unfair trade practice or deficiency in service on the part of the opposite party .

8.       From the entire above discussion, it stands fully proved on record that complainant has entered into an agreement  for club and vacation membership dated 6.7.2014 with the opposite party by making payment of Rs. 1,42,500/-. Copy of agreement is Ex.C1 on record. The only contention of the complainant is that  since the day one the opposite party failed to provide a single service to the complainant and all the machinery equipments have stopped working and are in dilapidated condition. All other facilities as detailed in the agreement are also not provided. On the other hand, the Opposite Party  has failed to rebut the aforesaid contentions of the ld.counsel for the complainant by producing any cogent and convincing evidence and the oral submission regarding the denial of providing the facilities which were to be provided to the complainant, can not be admitted as truth. In such a situation, we are of the view that there is certainly a deficiency and Unfair Trade Practice on the part of the Opposite Party  and the Opposite Party  has to make good the loss of the complainant.      

9.       So in view of the above discussion, we direct the Opposite Party  to refund the amount of Rs.1,42,500/- to the complainant within 30 days from the date of receipt of copy of this order, failing which the complainant shall be entitled to claim the interest @ 6% per annum on the awarded amount from the date of filing the complaint till its realization. But however, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs.  Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated: 16.01.2018.                                     (Rachna Arora)       (Anoop Sharma)

                                                          Member             Presiding Member