Haryana

StateCommission

A/134/2020

SURBHI CHADHA - Complainant(s)

Versus

GOLD GYM LIFESTYLE FITNESS - Opp.Party(s)

MRINAL JAIN

06 Mar 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

First Appeal No.134 of 2020

Date of Institution:19.02.2020

Date of decision:06.03.2020

 

Surbhi Chadha D/o Sh.LT. Col. Khushal Chand Chadha R/o H.No.11, Sector 17-A, Defence Colony, Gurgaon 122001.

 

…Appellant

Versus

 

1.      Gold Gym-Lifestyle Fitness Private Limited having office at 729, Mehrauli Road, Mehrauli-Gurgaon Rd, Block B, DLF Colony, Sector-14, Gurgaon, Haryana 122001 through its Manager/Authorized person.

 

2.      Gold’s GYM India having office at 202-203, Trade Avenue, 2^nd Floor, Suren Road, Andheri (E), Off Western Express Highway, Mumbai-400093.

…Respondents

 

CORAM:   Mr.Harnam Singh Thakur, Judicial Member.
                   Mrs. Manjula, Member

 

Present:-    Mr.Mrinal Jain, Advocate counsel for the appellant.

                  

                                      O R D E R

 

HARNAM SINGH THAKUR, JUDICIAL MEMBER:

 

          The appeal has been preferred against the order dated 12.06.2019 passed by the District Consumer Disputes Redressal Forum, Gurgaon (in short ‘District Forum’) vide which the complaint was allowed and directed the OPs to pay Rs.1,00,000/- to the complainant on account of negligent and deficient services provided to the complainant.

2.      The brief facts giving rise to the complaint are that she got herself enrolled with the opposite party (O.P.) on 01.02.2013 and was availing the services of OP under the 6 months exercise problem.  She renewed the services of the OPs in the month of January 2014.  The O.Ps. assigned an instructor cum physiotherapist named Rekha Yadav for her fitness and wellbeing. She availed the services under the  trainer’s close guidance and supervision, she felt slight pain in her right knee. The pain was arisen during the exercises. She was difficult for her to run, climb up the stairs and stand for even little long hours.  Due to delayed attention and carelessness of the trainer and the head trainer, the reduction of weights was of no help at all and pain continued. The knee pain was converted to an ailment termed as Chondromalacia Patellae- a painful disorder of the knee. She is finding great difficulty in discharging even her basic and extremely essential functions such as walking, running, taking the stairs, sitting, driving etc.  She spent exorbitant sums of money on her vivid treatments.  The trainers and the management’s sheer careless and negligent acts, she has lost upon her right to life and dignity.  The OPs were deficient in providing services to the complainant. 

3.      Notice being issued, opposite parties contested the complaint.  In the reply, they admitted that the complainant enrolled herself for membership of the Gym, fitness center in February, 2013 for a period of six months. She was completely satisfied with the services as well as equipments. She used the services without taking any personal training sessions. The assistance and proper guidance including re-scheduling of exercises, weights etc. was provided and the trainer and Head trainer at the Gym as and when requested by complainant. She renewed her membership in December, 2013 effective from January 2014. The ailment termed as Chondromalacia Patellae allegedly caused due to wrong exercise done under guidance of the trainers of the fitness center is totally incorrect. The ailment was caused due to following reasons:-

1.      Poor alignment due to a congenital condition.

2.      Weak hamstrings and quadriceps (the muscles in the back and front of your thighs)

3.      Muscle imbalance between the adductors and abductors (the muscles on the outside and inside of the thighs)

4.      A Direct blow or trauma to her kneecap.

The above said ailment might have healed within few weeks after she discontinued the usage of gym facility in July, 2014. There was no deficiency in service on the part of the O.Ps.

4.      An application for condonation of delay has also been filed alongwith the appeal.

5.      There was a delay of 198 days in filing the appeal.  Appellants have filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of 198 days wherein,  it is alleged that  being unable to self-manage her medication and day to day chores alone, owing to the perpetual pain, mobility constraints and financial constraints, her presence has become totally indispensable. Due to the above said reasons, the appeal was being filed after 198 days. The delay in filing the appeal is neither intentional nor willful but on account of the reasons mentioned herein above.

6.      Arguments heard on application for condonation of delay as well as on merits of appeal. File perused.

7.      It is argued by learned counsel for the appellants that she was unable to self-manage and day to day chores alone, owing to the perpetual pain, mobility constraints and financial constraints, her presence has become totally indispensable. Learned counsel for the appellants vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal is not intentional and may be condoned.

8.      However, the contention of learned counsel for appellant to condone delay is of no avail.  A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act and rightly so, because it would vary from facts and circumstances of each case. It is settled law that delay of each and every delay should be explained properly with some reasonable cause but in the appeal in hand. No reasonable ground and sufficient cause has been pleaded or proved.  Thus, inordinate delay of 198 days, cannot be condoned as there is no justifiable reason or sufficient cause to condone the same.

9.      Here reliance can be placed on the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days’ delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

    In 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

 

10.       Even on merits, this Commission do not find any illegality or perversity in the impugned order passed by learned District Forum, Karnal.     The O.Ps have not provided the services as promised to her, the learned District Forum rightly directed the O.Ps to pay Rs.1,00,000/-  to the complainant. No more claim is justified.

11.       In view of the above, the application for condonation of delay for 198 days in filing the appeal is dismissed. We also do not find any illegality or fault in the finding given by the learned District Forum on merits. Appellant seems to have adopted a casual approach in filing the present appeal. The present appeal being without merits is dismissed in limine.

 

06th March, 2020    Manjula                                 Harnam Singh Thakur                                                      Member                                 Judicial Member                            

S.K.(Pvt.Secy)