DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION SAS NAGAR (MOHALI)
Consumer Complaint No.690 of 2019
Date of institution: 09.05.2019
Date of Decision: 02.03.2021
Monica Mann aged about 40 years wife of Shri Sandeep Mann, resident of House No.2928, Sector 66, SAS Nagar (Mohali).
…….Complainant
Versus
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……..Opposite Parties
Complaint under Consumer Protection Act.
Quorum: Shri Sanjiv Dutt Sharma, President.
Sh. Kanwaljeet Singh, Member
Present: Smt. Monica Maan, complainant in person
OPs ex-parte.
Order dictated by :- Sh. Kanwaljeet Singh, Member, SBS Nagar at Mohali
Order
1. The brief facts of the case are that the complainant availed Gym Service from the OPs on 26.1.2019 for a period of six months for a total consideration of Rs.5500/-. The said amount was to be paid in two installments of Rs.2500/- and Rs.3000/-. The complainant paid an amount of Rs.2500/- vide receipt No.532 dated 26.1.2019. From the very beginning, the services provided by the GYM owners was not upto the mark and was not satisfactory. The complainant made several complaints to the OPs. The response o f the OPs was evasive all the times. The complainant also sent repeated reminders to the OPs. The complainant was told that the Yoga and Aerobic Sessions had started. However the same were available only during late hours of evening from 7.00 PM to 8.00 PM. During these hours, there were sufficient number of people from whom OPs could have arranged and started these classes but the OPs did nothing. No aerobics, zumba, yoga classes were started by the OPs. Lastly the complainant prayed that the complaint may be allowed with the directions to the OPs to refund the amount of Rs.2500/- with interest @ 12% per annum as the OPs have failed to provide the services as promised as per their advertisement. The complainant has further prayed for directions to the OPs to pay her Rs.1,00,000/- as compensation for deficiency in service, mental agony, harassment and mental torture and further Rs.25,000/- as litigation cost.
2. Upon notice, the OPs appeared and filed written reply by taking preliminary submissions that the complaint is not maintaible. The complainant approached OP No.1 to avail Gym facility to loose weight and routine physical work out for health and the officials of the OPs explained all the terms and conditions of enrolment, which were read, understood and accepted by the complainant. The complainant had chosen for six months package for an amount of Rs.5500/- which was to be paid one time at the time of enrolment. The complainant had deposited Rs.2500/- on 26.1.2019 and rest of the payment of Rs.3000/- was agreed to paid on 24.2.2019. It is further averred that the officials of the OPs behave in very decent manner with all the customers and training is given by the well trained and qualified trainer. It is denied that the OPs demanded extra money to join session. However, the complainant herself failed to pay the second installment. Contentions in the preliminary objections and parawise reply on merits of the OPs are similar to the preliminary submissions. Lastly the OPs prayed that the complainant has failed to make out a prima facie case against the OPs and that the complaint of the complainant may kindly be dismissed.
3. To prove her case, the complainant tendered in evidence her affidavit along with documents Ex.C1 to Ex.C5. None appeared for the OPs after filing the reply and as such the OPs were proceeded against ex-parte vide order dated 18.01.2021 .
4. During ex-parte arguments, we have heard the complainant and have gone through the record very carefully and minutely.
5. During arguments, the contentions of the complainant are similar to her pleadings in the complaint, so there is no need to reiterate the same. Now coming to the major controversial point that whether the complainant is entitled to refund of amount of Rs.2500/- or not. From the perusal of record, it is admitted fact that the complainant deposited Rs.2500/- vide receipt No.532 dated 26.1.2019 Ex.C-1 for availing the services of Gym for a period of six months for a total consideration of Rs.5500/-. No doubt, it is admitted fact that the remaining amount of Rs.3000/- was agreed to paid by the complainant to the OPs. After making part payment, the complainant was enrolled as member of OP No.1 and the balance amount of Rs.3000/- was outstanding qua the complainant. As per Ex.C-4, Yoga Classes for five days in a week were to start from 1.3.2019. We have also examined the enrolment form issued by the OPs and the complainant put her signatures in English Language by way of declaration. Clause (h) of the terms and conditions of enrollment form reproduced as under:-
“I am fully aware that the fees paid for the course/exercise schedule are non refundable and no such refund would be available in any circumstances”
6. Moreover, the complainant has not disclosed that for how many days she had availed the service of the GYM. It seems from the documents on record that both the parties are bound by the term and condition of the enrollment form. No one can go beyond the terms and conditions of the enrollment form. Moreover, the complainant herself had not paid balance amount of Rs.3000/-. From this angle, the complainant is not entitled to refund of the amount which she had paid to the OPs. Complainant alleged in Para No.5 of the complaint that on 5.3.2019, the staff of the OPs insulted the complainant. There was no female staff members at the time of incident. This fact is not proved by the complainant by cogent evidence. So the allegations levelled by the complainant in her complaint cannot be relied upon and are not tenable before the eyes of law.
6. Resultantly, keeping in view the factum and circumstances of the complaint in hand, we observe that the terms and conditions of enrollment form were fully applicable on both the parties. So present complaint is dismissed without any order as to cost. Free certified copies of this order be sent to the parties, as per rules. The file be indexed and consigned to record room.
March 02, 2021
(Sanjiv Dutt Sharma)
(Kanwaljeet Singh)
