Haryana

StateCommission

A/92/2016

UMESH GUPTA - Complainant(s)

Versus

FORTUNE TRADING AND MINING CO. - Opp.Party(s)

RECEIVED FROM NCDRC,NEW DELHI

22 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

                                                 

First Appeal No.92 of 2016 in

First Appeal No.459 of 2014

Date of Institution: 05.06.2014

                                                          Date of Decision: 22.04.2016

 

1. Umesh Gupta S/o Sh.R.S.Gupta R/o N-6/12, DLF City-II, Gurgaon 122002.
2. Tanima Gupta W/o Mr. Umesh Gupta, R/o N-6/12. DLF City-II, Gurgaon 122002.
3. Sheila Sarkar D/o Mr. N.K.Sarkar, R/o L III, Ridgewood Estate, DLF Phase IV, Gurgaon-122002.

     …..Appellants

                                                Versus

 

1. Fortune Trading and Mining company through Navpreet Sidhu,Director D 65 A top Floor, Freedom fighter Enclave, Neb Sarai, near Saket, New Delhi-110068.
2. Gold’s Gym, India through chief Operating Officer, 225 “Karishma” Ground Floor, Junction of Guru Gangeshwar Marg & 12^th road, Khar (W), Mumbai-400052. (also known as F2 fund & fitness (India) Pvt. Ltd.)

         …..Respondents

 

 

CORAM:   Mr. R.K.Bishnoi, Judicial Member.
                   Mrs. Urvashi Agnihotri, Member.

 

Present:-    Mr.Umesh Gupta appellant in person.

                   None for the respondents.

 

                                      O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:

 

As per complainants they obtained memberships of Gold’s Gym Cyber City Branch, Gurgaon. The Gym was not functioning properly from July 2011 onwards.  Intimation was given to the opposite parties for providing facilities, but, to no use. The gym was closed for few days in September. Letter  dated 5^th November 2011 signed by 45 members to this effect, was sent to respondent Nos.1 and 2 through E-mail on 10^th of November and speed post on 11^th November.  Position regarding gym’s franchisee was communicated to Gold’s Gym HO at Mumbai and various e-mails  were sent to head office regarding position of gym, but, neither respondent No.1 nor respondent No.2 responded to any mail or letters.  Respondent No.2 informed complainant on 16^th December 2011 that franchise was withdrawn from respondent No.1 on 8^th April 2011.  They approached police  and gave letter dated 25^th November, 2011 to register FIR, but, police refused to register the FIR.  Thus there was deficiency in service on the part of the opposite parties.

2.      Opposite party No.1  was proceeded against ex parte vide order  dated 12.11.2013 by learned District Consumer Disputes Redressal Forum, Gurgaon, (In short “District Forum”) OP-2 failed to file written reply and consequently defence was struck off on 26.08.2013 by District Forum. Lateron OP-2 was also proceeded ex parte on 12.11.2013

3.      After hearing counsel for the complainants, learned District Forum dismissed the complaint.

4.      Feeling aggrieved therefrom, complainants have preferred this appeal.

5.      Arguments heard. File perused.

6.      Complainant-Sh.Umesh Gupta vehemently argued that Cyber City, branch of Gold GYM at Gurgaon, whose franchise was with respondent No.1 was not providing services properly and notice Ex.C-7 dated 05.11.2011 was issued to this effect.  Even thereafter there was no improvement in the service.  Information about termination of franchise of Cyber City Gurgaon, on 08.04.2011 was not sent to them.  Publication to this effect was issued on 22.11.2011, copy of which is Ex.C-10. They also moved application Ex.C-9 before police to take necessary action. It shows that there was deficiency in service.  Learned District Forum wrongly dismissed complaint vide impugned order and the same may be set aside and they be awarded compensation as prayed for.

7.      This argument is devoid of any force.  The learned District Forum has opined that the allegations are vague and indefinite.  There is no ground to disagree with the observation of the District forum to this effect. The complainants have not produced any evidence on file in support of the averments raised in the complaint.  On 12.11.2013 the complaint was adjourned to 04.03.2014 for evidence by way of affidavit and producing documents.  None of the complainants produced any affidavit in support of the averments raised in the complaint.  Not only to this effect, they did not attach any affidavit alongwith the complaint. In this way the averments are not corroborated by the evidence.  Just on the basis of alleged e-mails it cannot be presumed that there was any deficiency in service.

8.      Be that as it may, for the first time, complainants sent letter Ex.C-7 on 05.11.2011, whereas franchise of Cyber City Gurgaon  was terminated on 08.04.2011. Thereafter complainants cannot have any grouse against O.Ps.  The learned District Forum has rightly discussed that complainants were not having any link with O.Ps. They were the members of Cyber City Gurgaon, a franchise of O.P.No.1.  They made payment to Cyber City Gold Gym at Gurgaon and not to O.P.Nos.1 and 2. Their contract was with Cyber City Gym, which was independent identity. It is no-where proved that O.Ps. assured to provide specific service, but, failed to do so.  Deficiency of service can be presumed if the agreed service is not provided by the O.Ps. When there is no evidence to this effect it cannot be presumed that there was any fault on their part. More so the franchisee is an independent contractor.  No agency relationship exists between the franchisee and franchisor. The franchisee is solely responsible for the day-to-day operations of it’s business.  Where a franchisor does not exercise substantial or significant control over day-to-day operations of it’s franchisee, a court will not find franchisor to be vicariously liable for it’s franchisee’s acts/omissions. There is no agency relationship between franchisor and franchisee. The franchisee is an independent contractor completely separate from franchisor. Franchisee hires and fires it’s own employees, handles it’s own finances, maintains it’s own accounting and business records, exercises it’s own business judgement in the operation of the business and is the owner of the assets.

9.      More so, publication Ex.C-10 was issued by F-2 Fun Fitness India Private Limited, but, the same was not made a party.  The complainants have also not made Gold’s Gym at Cyber City, Gurgaon as a party from whom they obtained membership.  It was Gold’s Gym Cyber City, Gurgaon who could have explained the position. Complainants have miserably failed to show that the O.Ps. were at fault in any manner.  Moment complaint was received against Gym at Cyber City Gurgaon, franchise was terminated.  So they are not entitled for any type of compensation from O.Ps.  The learned district Forum has taken into consideration each and every aspect from every angle and there is no ambiguity in the impugned order.  Findings of learned district forum are well reasoned based on law and facts and cannot be disturbed. Resultantly appeal fails and the same is hereby dismissed.

 

April 22nd, 2016 Urvashi Agnihotri                   R.K.Bishnoi                                      Member                                      Judicial Member                             Addl. Bench                            Addl.Bench                 

 

S.K.