ORDER

(Passed on  17/09/2019)

PER SHRI.ATUL D.ALSI, PRESIDENT.

            The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 for non providing of services and equipments in the fitness centre as promised in the broucher and thereby seeking refund of fees alongwith compensation and cost of proceeding.

2.          The facts in short giving rise to this petition are that on 2 August,2016, the complainant registered himself as a member of the OP fitness centre (Gym) for regular exercise, by paying Rs.4000/- in cash and further Rs.4,160/- by cheque i.e. in all Rs.8160/-. But within a short period of time he realised that the facilities as promised in the broucher of OP, which is filed at Exh.9, are not provided in the gym. The services of certified trainer were not provided, his workout timings were changed frequently without prior notice to him, non availibility of air conditioning system and even ceiling fans were not provided. Hence the complainant moved a complaint with the proprietor of the firm. Hence a meeting of members alongwith all trainers including One of the trainors Mr.Sourabh Gatlewar, was called and in that meeting the OPs assured to provide all requisit facilities else, it would refund the proportionate fees. However, even thereafter neither the facilities and equipments were provided nor fees was refunded, despite several requests to that effect .  Therefore, the complainant has filed this complaint.

3.         The complaint is admitted and notices were served on the OP. The Ops filed their reply and thereby denied allegations against them. However, they admitted that the complainant is a registered member of their fitness centre and he has deposited Rs.8160/- as fees in installments. It submitted that the allegation of the complainant that services and equipments were not provided is false. On the contrary, behaviour of the complainant in the gym especially in respect of ladies members was not proper and there were several complaints in this regard. Hence necessary instructions were given to the complainant. The complainant wanted to join another Gym and for that he wanted refund of fees from OP. Hence he used to quarrel with the OP and its trainors on petty matters. The complaint has no merits and it deserves to be dismissed with cost of Rs.5000/-.  

4.          Counsel for the complainant argued that the complainant has filed brocher of the OP Fitness Centre at Exh.5 which discloses the facilities and equipments agreed to be provided by the OP at the fitness Centre. He has also filed the affidavit by way of evidence of one Mr.Sourabh Gatlewar, who is one of the trainors at OP fitness centre to show that agreed facilities and equipments are not made available at the OP fitness centre. The OP evenafter several requests, failed to refund the fees. Due to lack of facilities, the complainant had to leave the gym within one month from joining. Therefore, the act on the part of OP amounts to Unfair Trade Practice. Therefore the petition may be allowed as prayed. 

5.         Counsel for the OPs argued that the OP has provided all the facilities and equipments in their Gym as per broucher. However, the behaviour of the complainant at the Gym was not proper particularly in respect of ladies members and there were several complaints from ladies members in respect of his misbehaviour. Hence instructions in this respect were given to the complainant. The complainant was not following the instructions of the trainor.  The OP has filed on record affidavit of one of the trainor Mr.Saroj Yadav to prove its case that all facilities and equipments were provided as per broucher and that the behaviour of the complainant in respect of ladies members was not proper. The complainant wanted to joine another gym and hence was pressing for refund of fees and used to quarrel on petty matters with the OP as well as Gym trainors. However, as per clause 3 of the terms and conditions of the membership, specifically mentioned in the registration form, provides that fees once paid shall not be refundable in any circumstances nor can be transferred to another person. This contract is binding on both the parties. Hence the complaint has no merits and it deserves to be dismissed with cost.

6.       We have gone through the complaint, written versions filed by OP No.1 and OP Nos.2 & 3, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.

                    Points                                                                           Finding

1. Whether the complainant is a Consumer ?                                Yes

2.  Whether  there is deficiency in service on the part

   of OP ?                                               Yes

3.  What order ?                                                                  As per final order..

As to issue No.1

7.        The complainant was admitted in the Fitness Centre of OP by filing a printed admission form as a member of Jym by paying fees of Rs.8160/-. Said printed form is at Exh.16/1. The OP has admitted this fact in its written statement filed at Exh.15. As the complainant has availed service of the OP by paying fees, he is the consumer of OP within the meaning of Section 2(1) D and the services as promised are the services within the meaning of section 2(1)(d)(ii) of CP act. and hence the issue is decided accordingly.

As to issue No.2

8.        As per the evidence filed on record by way of affidavit on 13/12/2018 of one of the trainors of Fitness Centre Mr.Sourabh Gatlewar, he has deposed that there were complaints of non availability of services as promised from the complainant. So, accordingly a meeting was conveyed with all partners with the complainant by the Manager of fitness centre, and he admitted the fact of non availability of services as promised and also undertaken to refund the fees if the services could not be provided. On the other hand, the OP also filed affidavit evidence of one of the members of the Fitness Centre Mrs.Saroj Yadav at Exh.17 dated 22/4/2019. She deposed that all facilities are available as per advertisement and broucher but the behaviour and attitude of the complainant was not proper and the complainant is of complaining nature and he used to quarrel with the partners and trainors for no reason with an intention to get the refund of admission fees. His behaviour with the lady members was also not proper.

9.        It is admitted position that the complainant had been admitted on 3/8/2016 and left the gym for any reason within a period of one month. The clause 3 of the admission form mentions that membership fees is not refundable or transferable. This clause is not formulated with the consent of public at large. It is printed and not drafted with the consent of both the parties. When a contract which seize the right to agitate or sue is not a good contract and can not be enforceable as the right to sue is given by the legislature and hence such type of contract is one sided and court can not compell to enforce such unilateral terms and conditions of the contract. The term and condition in the present contract that the fees would not be refundable is unilateral one.

10.     The Hon’ble Supreme Court in Central Inland Water Transport Corp.Ltd. Vs.Brojonath Ganguly & Others (1986)(3) SCC-156 has clearly held that the judges can strike down the terms of a contract. The Hon’ble Court has held that “this principle is that the courts will not enforce and will when called upon to do so, strike down an unfair and unreasonable clause in a contract, entered into between the parties who are not equal in bargaining power.”

11.       The Draft legislation provided by the Law Commission of India in its 199th report which addresses the issue of unfair (Procedural and substantive) terms in contract has stated that “A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harshe, oppressive or unconscionable to one of the parties”.

12.        Therefore, when a member is unable to avail the service of fitness Centre against the payment of fees for the reason which both the parties failed to prove with impartial witness, therefore the complainant is entitle to refund of fees. Non refund of admission fees amounts to Unfair Trade Practice on the part of OP. Therefore, the petition is allowed as as per following order. 

Final order

1. The Complaint is allowed.

2. The Opposite party shall refund the fees amounting to Rs.8160/- to

   the complainant.

3. The Opposite party shall pay a compensation of Rs.3000/- for

   mental and physical agony and further cost of litigation of

   Rs.2000/- to the complainant.

3. Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President