| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.100/2019 Ms. Pulak Bhatnagar S/o Pankaj Bhatnagar R/o X6, 2nd Floor, Green Park Main, New Delhi ….Complainant No. 1 Ms. Arushi D/o Lalit Parakh R/o B-1/44, Hauz Khas, New Delhi- 110016 ....Complainant No. 2 Versus FAT Monkey Through its Authorised Signatory 10815, Floor-Jhandewalan Road, Nabi Karim Motiya Khan Chowk, Delhi- 110016 LIFT Fitness Through its Authorised Signatory Sh. Varun Singh S-2, 1st & 2nd Floor, Green Park Main Market, New Delhi- 110016 ….Opposite Parties Date of Institution : 11.04.2019 Date of Order : 06.10.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Ms. Kiran Kaushal - Briefly put, the complainants Mr.Pulak Bhatnagar and Ms. Arushi took membership of a GYM on 24.07.2018 and paid an amount of Rs.19,999/- each, as annual fee ,starting from August, 2018.
- It is stated that FAT Monkey (OP-1) is a partnership firm and is inter-alia engaged in the business of Fitness facilities. In the year 2018, OP-1 was operating a GYM by the name of ‘I- Fitness’ in Green Park, New Delhi. To uttershock and surprise of the complainants, in the first week of October, 2018 ‘I-Fitness’ was shut down without any prior intimation to the complainants’ or any other member. It was later found that the GYM had been shut due to the sealing drive by the Municipal Corporation of Delhi. Further, it was discovered that OP-1 had been running the GYM in an illegally constructed building.
- Complainants after shutting down of the GYM contacted OP-2 for refund of the amount paid but the complainants were informed that OP-1 has opened a new Fitness Centre by the name ‘LIFT Fitness’
(OP-2) at a different location in a smaller size. OP-1 suggested the complainants to join the new Fitness Centre in lieu of the consideration paid. After visiting the premises of OP-2, the complainants realized that the facilities and the size of the GYM of
OP-2 were inferior to that of the previous GYM. Hence, complainants again requested OP-2 for refund. Despite multiple requests and demands made by the complainants, OPs refused to refund.
- Alleging unfair trade practice and deficiency of service, complainants approached this Commission with prayer to direct OP to refund the amount of Rs.40,000/- @18% per annum paid to the respondents. It is further requested that OP be directed to pay Rs.40,000/- towards mental harassment and Rs.30,000/- litigation costs.
- OP-1 was served notice, which came back with the remark ‘No such person’ .OP-2 was served upon on 31.05.2019 as none appeared on behalf of OP-2, it was proceeded exparte. The complainant was asked to provide fresh address of OP-1. Exparte evidence and written submissions on behalf of the complainant have been filed. Submissions made on behalf of the complainant are heard.
- Averments made in the complaint and evidence led by the complainant has remained unchallenged and uncontroverted. Hence, there is no reason to disbelieve the version of the complainant.
- On perusal of the material placed before us, it is seen that the complainants joined the GYM in August and the GYM got shut down in the first week of October, 2018. The complainants had paid the complete annual fee of Rs.19,999/-, whereas they could avail the facilities/services of OP barely for two months. Though, the complainants were offered to join the new Fitness Centre opened by OP-2 in lieu of the amount paid, however complainants chose not to join the same as the complainants were not satisfied with the facilities provided in the new Fitness Centre and were not happy with the size of the GYM. Therefore, we are of the opinion that complainants were within their rights to not join the new GYM as they had paid for better services/ facilities.
- Complainant has appended a receipt issued to him by OP-1 on page 16 of the complaint which is issued by OP-1 and billed for OP-2. Therefore, it is presumed that OP-1 and OP-2 are same legal entities
- In view of the facts stated above, we hold that the complainants are entitled for refund from the date the GYM was closed. Accordingly OPs are directed to pay jointly or severally Rs.30,000/- @4% p.a. from the date of sealing of I- Fitness by MCD i.e. October, 2018 within three months, failing which OPs shall pay Rs.20,000/- @8% from the date of sealing i.e. October, 2018 till realization.
File be consigned to the record room. Order be uploaded on the website for perusal of the parties. | |
