Ex-P A R T E O R D E R
PER SHRI. S. G. CHABUKSWAR – HON’BLE MEMBER
1) This is a complaint for the reliefs of refund of membership fees Rs.8,974/- with interest @ 18% p.a. from 20th June, 2011 till realization of amount, Rs.10,000/- as compensation for mental agony and any other relief as deems fit by the Forum.
2) The case of the Complainant in short is as under –
The Complainant is the resident of Bhagatwadi, Mumbai – 400 002. A new gymnasium styled as Reps Fitness was opened at 210/212, Raja Ram Mohan Roy Road, Prathna Samaj, Mumbai 400 004. One Mr. Imran Ansari was the Proprietor of the said establishment. Opposite Party had agreed to provide service of bodily fitness to all members of the gym through specialized trainers. Opposite Party had also promised to provide services regarding Cardio Sections, Strength training and free weight section via high-tech machines and stream rooms alongwith professional advice from qualified Physiotherapists. Opposite Party had offered pre-opening membership discount for 13 months membership Rs.12,500/- to be paid in two installments. Accordingly the Complainant paid first installment of Rs.5,000/- and second of Rs.7,500/- by cheques dtd.23/11/2010 and 13/05/2011.
3) Opposite Party had promised that the gym will be came in to function from 01/12/2010 but he failed to open the gym on the said date. Opposite Party on several occasions postponed the date of re-opening. Lastly without intimation to the Complainant the gym was opened in the first week of February, 2011. The Complainant started for taking service of the gym from first week of March, 2011. The said gym was closed for a week in the month of May, 2011 for unknown reason. The gym was again shut down on 20/06/2011 by saying that there is electricity failure in the gym. The gym was re-opened on 14/07/2011 but again closed from 16/07/2011. After several communication with the Opposite Party for re-opening the gym the Opposite Party assured that gym will be re-opened on 01/08/2011 otherwise he will refund to the Complainant membership fees. The Opposite Party neither reopened the gym nor refunded the membership fees. In the month of April,2013, Complainant noticed that the premises of the gym has been transferred to some other person and gymnasium equipments has been removed from the said place. The Opposite Party mentally and physically harassed the Complainant by asking him to visit the gym and called him every now and then. Opposite Party is guilty of unfair trade practice and there is deficiency in service. Hence, this complaint for the reliefs mentioned in above para no.1.
4) The notice of this complaint was issued to the Opposite Party by Registered Post A.D. Opposite Party is duly served with the notice, its acknowledgment receipt is on record. Opposite Party failed to appear, hence, complaint proceeded ex-party on 08/10/2013. The Complainant submitted his affidavit of evidence on 03/02/2014. The Complainant has produced a copy of gym brochure at Exh.D, The terms and conditions of the gym pleaded in the complaint are appearing in the brochure Exh.D issued by the Opposite Party. Copy of the receipt Exh.A and pass book Exh.B shows that Complainant has paid Rs.5,000/- towards first installment of the membership fees by the Cheque No.174924 dtd.23/11/2010 to the Opposite Party. The Complainant has also paid second installment of the membership fees Rs.7,500/- by the Cheque No.32 on 13/05/2011. The Complainant has paid total amount Rs.12,500/- to the Opposite Party towards membership of the gym.
5) The evidence, pleading and documents filed by the Complainant remained unchallenged. There is nothing on record to disbelieve the evidence of the Complainant. The evidence available on record clearly goes to shows that Complainant had taken membership of gymnasium of the Opposite Party. As per the terms of the gym Opposite Party was to provide services of the gym to the Complainant for 13 months but the services were terminated by the Opposite Party within three months. Opposite Party failed to provide the services to the Complainant for remaining 10 months hence, Complainant has claimed refund of membership fees Rs.8,974/- of 10 months by deducting the amount of three months Rs.3,526/-.
6) The Complainant near about 10 times had returned without the fitness services as the gym was closed and due to which he caused mental & physical harassment. Therefore, Complainant is entitled to the amount of Rs.1,000/- from the Opposite Party as compensation for mental agony caused to him. The Complainant is entitled to the refund of membership fees of Rs.8,974/- with interest @ 9% p.a. from the date of closure of gym i.e. 20/06/2011 till realization of the amount and cost of complaint Rs.750/-.
In the result complaint deserves to be partly allowed with cost. Hence, we proceeds to pass following order –
O R D E R
i. Complaint No.134/2013 is partly allowed with cost against Opposite Party.
ii. Opposite Party is directed to pay to the Complainant Rs.8,974/- (Rs.Eight Thousand Nine Hundred Seventy Four Only)
with interest @ 9% p.a. from 20/06/2011 till the realization of said amount.
iii. Opposite Party is directed to pay to the Complainant Rs.1,000/-(Rs.One Thousand Only) as compensation for mental
agony caused to him.
iv. Opposite Party is directed to pay to the Complainant Rs.750/- (Rs.Seven Hundred Fifty Only) towards the cost of
complaint.
v. Opposite Party is directed to pay the amount mentioned in above para Nos. ii, iii & iv to the Complainant within 45 days
from the date of service of this order.
vi. Certified copies of this order be furnished to the parties.
