Chandigarh

DF-I

CC/143/2022

Simranjeet Singh Sidhu - Complainant(s)

Versus

Manager, Raw House Fitness - Opp.Party(s)

In Person

06 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/143/2022
Date of Institution	:	31.1.2022
Date of Decision	:	6/03 /2024

 

Simranjeet Singh Sidhu, son of Shri Iqbal Singh, resident of House no. 815, Sector 16-D, Chandigarh 160 015.

 

VERSUS

 

1. Manager, Raw House Fitness, Address SCO 98-99-100, 3^rd  and 4th Floor, Sector 17-D, Chandigarh.

2. Trainer Rahul, Raw House Fitness, Address-SCO 98-99-100, 3rd and 4th Floor, Sector 17-D, Chandigarh.

...Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

                                       

ARGUED BY	:	Sh. Jayaditya Gupta, Advocate for complainant
	:	OPs exparte.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties (hereinafter referred to as the OPs). The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that on finding the location of OP No.1 gym near to the house of the complainant he joined the same on 6.12.2021  on payment of Rs.4500/- being membership fee through UPI and the payment screen shot is annexed as Annexure C-1. A Membership Contract was also entered into between the parties on 11.12.2021 vide Annexure C-2.  For the first two days of gym, the complainant did workout normally with super light weights to avoid injury. However on the third day i.e. 10.12.2021,   OP No.2 asked the complainant to work on heavier weights and for prolonged period  at a stretch. It is alleged that OP No.2 over trained the complainant in time and weight  to such an extent that during training, complainant informed OP No.2 that he is having difficulty in breathing and was about to fall at least three or four times but despite of that OP No.2 pushed the complainant to continue and complainant was asked to do exercise for 4 body  parts . As the body of the complainant could not tolerate the excessive muscle injury caused  by the prolonged and vigorous exercise,  on 12.12.2021 the complainant noticed that the colour of his urine was brown  and not yellow or white. The complainant immediately called his wife who is a doctor who advised the complainant  for medical check up and at that time he was asked to take more drinking water so that damage to the kidney be avoided as it was found that it was a case of Rhabdomyolysis. The complainant continued to take water for two three days and after 24 hours  the urine slowly turned into whitish brown and thereafter the complainant in order to seek second opinion went to Nulife Hospital in Sector 115, Mohali  where his ultrasound conducted and the prescription slip  also referred to Rhadomyolysis  which is a serious  syndrome due to a direct or indirect muscle injury and various other tests conducted in the said hospital and it was found that due to excessive injury the complainant was suffering from Rhabdomyolysis and the said injury was caused due to rash and negligent act of OP No.2 the trainer of OP No.1 who compelled the complainant to do excessive exercise. At the time of joining the Gym,  the complainant was informed that the Gym has trained professionals who will help the complainant to maintain good health  but instead of giving proper training to the complainant, the trainer of OP No.2 had compelled the complainant to do excessive exercise as  a result of which he suffered from Rhabdomyolysis. It is alleged that the terms and conditions mentioned in the contract are one sided which itself amounts to unfair trade practice.  Thus, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs  were properly served and when OPs did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 16.11.2022.

2. In order to prove his case, complainant has tendered/proved his evidence by way of affidavit and supporting documents.
3. We have heard the learned counsel for the complainant and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the complainant that  he had joined the Gym of OP No.1 by paying an amount of Rs.4500/-  on 6.12.2021  as is also evident from  Annexure C-1   and that the parties have entered into  Membership Agreement as is evident from Annexure C-2 and during the gym exercise the complainant had suffered from Rhabdomyolysis, the case is reduced to a narrow compass as it is to be determined if the complainant has suffered the aforesaid injury due to the improper and deficient service of the OPs and the complainant is entitled for relief as prayed  and for that  purpose the documentary evident led by the complainant is required to be scanned carefully especially the terms and conditions  of the membership agreement Annexure C-2.
   2. As per case of the complainant  OP No.2 who is trainer of the OP No.1 Gym  compelled him to do excessive exercise in the Gym  as a result of which he  suffered from Rhabdomyolysis which could have caused  kidney failure of the complainant and the  terms and conditions of the membership agreement is one sided and the same is also unfair trade practice on the part of the OPs.
   3. The membership agreement Annexure C-2 reveals that the complainant  indemnify  the club, its official, owner, agents, employees instructor and their insurer against any liability that may arise out of or in connection with his using any of the equipment or facilities of the club  or any incident that occurs by using the club facilities. The relevant portion of the same is reproduced as under:-

“ I Understand the risk of injury from CLUB activities and using any CLUB equipment significant, including the potential for permanent paralysis and death, I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown. I acknowledge that this is an UNSUPERVISED FITNESS CENTRE and I assume all risks associated with or without using exercise equipment and exercising alone without the aid and presence of CLUB staff on the premises, I understand that Anytime Fitness is a trademark of Anytime Fitness LLC., that has been licensed to this CLUB and that this CLUB is independently owned and operated by Raw House Fitness. I HERE RELEASE, INDEMNIFY & HOLD HARMLESS Anytime Fitness, LLC., House of Fitness Pvt. Ltd., Raw House Fitness AND THE OWNERS OF ALL CLUBS WITHIN THE ANYTIME FITNESS SYSTEM, as all sponsors & advertisers & all owners & lessors of the premises of such clubs, and their respective officers, affiliates, agents & employees WITH RESPECT TO ANY & ALL INJURY, DISABILITY, DEATH, LOSS OR DAMAGE to person or property that may arise out of or in connection with my use of any of the equipment or the facilities of the CLUB of any other Anytime Fitness club or any incident that occurs while using such facilities, or otherwise related to my membership. I expressly agree that this release is intended to be as broad and inclusive as permitted by applicable law & if a portion of this release is held invalid, the balance shall remain in full force & effect. This release shall apply to my release in agreeing to enter into this agreement.

I HAVE READ THE RELEASE OF LIABILITY AND ASSUMPTIONS OF RISK AGREEMENT, FULLY UNDERSTAND ITS TERMS AND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT. ADDITIONAL TERMS & CONDITIONS I hereby confirm that I am aware of an agree to the terms and conditions on the front & back of this document.”

 

4.        Thus one thing is clear from the aforesaid declaration made by the complainant  that the complainant after admitting the contents of the Membership Agreement to be correct and agreed to abide by the same, accordingly appended his signature on the same. It is not the case of the complainant that he is an illiterate person and he was not known about the terms and conditions of the membership agreement rather the complainant himself  voluntarily admitted the contents of the membership agreement undertaking and agreed to indemnify OP No.1 including  its officials, instructors etc against any sort of liability which may arise while using of the equipment  and facilities of the club or any incident that occur while using gym facilities or otherwise related to his club membership. Thus, it is unsafe to hold that the terms and conditions of the membership agreement are one sided.
5. As per case of the complainant  Rhabdomyolysis  caused to him due to breakdown of tissue as muscle release fiber into blood. However, as per medical jurisprudence  cause of rhabdomyolysis is most often caused by direct traumatic injury and the condition can also be the result of drugs, toxins, infections, muscle ischemia, electrolyte and metabolic disorders, genetic disorders, exertion or prolonged bed rest, and temperature-induced states such as neuroleptic malignant syndrome (NMS) etc. Thus, one thing is clear that rhabdomyolysis is not only caused due to muscle injury but there are other reasons, which may cause the same as explained above.
6. Moreover, as it stands proved on record that the complainant himself has undertaken through membership agreement  that there will be no liability of the OP No.1 or its officials, instructors etc. in case of any incident while using the Gym equipments and facilities, it is unsafe to hold that the complainant has suffered from  rhabdomyolysis due to negligence of the OPs.
7. However, it is also proved on record that the complainant has used the Gym/club only for three days and thereafter he was not able to continue with the Gym due to his health issues. The OPs have not refunded the amount of Rs.4500/- to the complainant till date after deducting charges for three days proportionately and the said act of Ops amounts to deficiency in service especially when the entire case set up by the complainant in the consumer complaint as well as the evidence available on record is unrebutted by the OPs, thus,  it would be in the interest of justice that the membership fees of Rs.4500/- be refunded to the complainant after deducting charges of three days proportionately which comes to Rs.450/- for three days.

 

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to pay ₹4050/- to the complainant alongwith interest @ 9% per annum from the date of institution of the present consumer complaint till onwards.
2. to pay an composite amount of ₹7000/- to the complainant as compensation for deficiency in service;

5.    This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization.

6.       Pending miscellaneous application(s), if any, also stands disposed off.

7.    Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 6/03/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Suresh Kumar Sardana] Member