Tamil Nadu

Thiruvallur

CC/06/2012

Ms.Sanuya Altaf, D/o Md.Altaf - Complainant(s)

Versus

M/s PINK Fitness One Centre, - Opp.Party(s)

M/s S.Janarthanan

17 Jun 2015

ORDER

                                                                                 Date of Filing: 15.02.2012

Date of Order: 17.06.2015

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

TIRUVALLUR DISTRICT AT TIRUVALLUR

 

  PRESENT:  THIRU. S.PANDIAN, B.Sc., L.L.M.,                    PRESIDENT

                     TMT. S. SUJATHA, B.Sc.,                                                 MEMBER-I

             TR. VENKATESAN, M.A., B.Ed.,MBA.,M.Phil.,B.L., MEMBER-II                                     

  TUESDAY, the 17^th DAY OF JUNE’2015.

CC. 6 /2012 

Ms.Sanya Altaf,

D/o Mr. Md. Altaf,

No.239/F-3, Kambar Street,

Alwarthirunagar,

Chennai – 87.                                                                  …Complainant

-Vs-  

M/s. Pink, Fitness One Centre,

Arcot Road, Opp.New Andhara Hotel,

Valasaravakkam, Chennai – 87.                                                         

…Opposite party

         

Counsel For Complainant               :  Tr. S. Janarthanan, M.Com.,MBA.,B.L.

Counsel For Opposite party            :  Tr. L.Thanigaivel, M.A.,B.L.,M.Phil.

ORDER

PRONOUNCED BY THIRU. S. PANDIAN,B.Sc., L.L.M.,  PRESIDENT, District Consumer Disputes Redressal Forum, Thiruvallur District.
This complaint has been filed by the complainant under section 12(1) of the Consumer protection Act, 1986, against the Opposite Party for seeking direction to pay the Medical Expenses and compensation to a sum of Rs.1,00,000/- for Mental agony, Pain and Torture due to the negligent and deficiency of service of the Opposite Party who is running Fitness One Centre.

The brief facts of the complaint are as follows:

1.       The complainant has joined as member in the physical fitness centre which belongs to the Opposite Party during the month of February’2011 and to that effect she has paid the half yearly package of Rs.7500/- from March’2011 to September’2011. The complainant started for the physical training for four days continuously and there after she has suffered from severe back pain due to the above said physical training.

Due to the severe pain, the complainant approached the doctor for the treatment, the doctor diagnosed that the complainant suffered from severe pain due to the improper physical training done by the Opposite Party. Then the complainant took treatment in the Apollo Hospital continuously till June’2011. Immediately, the complainant has informed the same to the Opposite Party and requested the Opposite Party to return back the amount of Rs.7,500/- which was paid by her after deducting some nominal amount. Further, the complainant has informed the Opposite Party that due to the improper and unqualified trainees only, she is suffering severe pain. It reveals clearly the negligent act on the part of the Opposite Party. Even there after the Opposite Party has refused to return the above said amount of the Rs.7,500/-. Therefore, the complainant has approached the Head office of the Opposite Party at Kilpauk and in turn the complainant was informed that she has to approach the Opposite Party only. Therefore, the complainant made several attempts; the Opposite Party has not come forward to return the above said amount. So the complainant was compelled to issue legal notice to the Opposite Party on 05.07.2011 and same was received by the Opposite Party on 08.07.2011. Then, the Opposite Party sent the reply notice through his counsel on 14.07.2011 with untenable allegations. Hence this complaint is filed.  

The averments of the Written Version of the Opposite Party as brief as follows:

2.       The allegations made in the complaint are all false and denied by the Opposite Party. It is specifically denies that due to the physical training of the Opposite Party the complainant was suffered from severe back pain and due to that she was taken treatment at Apollo Hospital till June’2011. Similarly the complainant suffered the back pain due to the physical training given by the improper unqualified persons is also false and frivolous. It is only to grab unlawful money from the Opposite Party. There is no negligent on the part of the Opposite Party at any point of time. The above said allegations should be proved by the complainant.

3.       It is true that complainant has joined as a member during February’2011 and she has paid Rs.7,500/- in two installments by way of cheques and the proper receipts were given to the complainant on 02.02.2011 and 28.02.2011 respectively.  At the time of joining as a member, she was given rules and regulation with regard to the Fitness Centre and she has also agreed to abide by the rules and regulation of the Fitness Centre. The clause 17 of the Rules and Regulations will squarely applicable to the present case and in limini the complaint is liable to be dismissed with cost. In fact, any member who joined in the centre will have to furnish their personal details including the health point. Likewise, the complainant had also given her personal details on 02.02.2011 in the Fitness Centre and the same will disclose that the complainant is already undergone ankle sprain on the left and frequent back pain. When she herself disclosed the above said diseases in her body, she has wantonly file this complaint with an ill-intention to grab unlawful money  from the Opposite Party and the reply notice dated 14.07.2011 may be read as part and parcel of this  Written Version.

4.       The documents filed along with complaint are not related to the subject matters. There is no cause of action for filing this complaint. In fact, there is no pain as alleged in the complaint due to their four days visit in the Fitness centre. The complainant is not obtained any expert opinion or report from the competent persons claiming for the damages which is mandatory under 13(1)(C ) of Consumer Protection Act and she is not permitted to file any such opinion/report in  future course of proceedings. There is no deficiency in service or negligence on the part of the Opposite Party as alleged by the complainant.  So the complainant is not entitled for any relief from the Opposite Party. Hence the complaint is labile to the dismissed with exemplary costs.

5.       On the side of the complainant she has filed her Proof Affidavit for her evidence and marked ExA1 to Ex A6. While so, the Opposite Party filed his Proof Affidavit and Ex.B1 and Ex B2 marked on his side.

6.       At this juncture, the vital points for determination before this forum is,

1. Whether it is correct to say that there is any deficiency of service on the part of the Opposite Party?
2. Whether the complainant is entitled for any relief as prayed for?

7.       Written Arguments filed on the side of both and the copy of the same was furnished to either side. In addition Oral Arguments also adduced on both side.

(8). Point No:- (1)

Regarding this points, the duty cast upon this Forum is to consider whether the complainant has established her case before this forum by means of relevant and acceptable evidence. First of all, on perusal of the Proof Affidavit of the complainant as well as the Opposite Party, it is an admitted fact that the Opposite Party is running  M/s Pink Fitness one Centre and the complainant has joined as a member during February’2011 and she has paid Rs.7,500/- as half yearly package from March’2011 to September’2011. Further issue of proper receipts to the complainant by the Opposite Party is also admitted one. The said receipts dated 02.02.2011 and 28.02.2011 are marked Ex-A1 and Ex-A2 respectively. Similarly, it is not disputed that the complainant as attended physical training for four days in the Opposite Party Fitness One Centre.

          At the outset, this Forum has to be decided whether the complainant has got severe back pain due to the improper training given by the unqualified trainers. In this aspect, on going through the Proof Affidavit, it is stated by the complainant that she was suffered severe pain only due to the physical improper unqualified trainers which clearly reveals the fact of negligent on the part of the Opposite Party and therefore she took continuous treatment in the Apollo Hospital till June’2011.  In order to prove, the complainant produced the prescription along with the bills for taking treatment and X-ray in original which marked as marked Ex-A3 (Series). From which, it is learnt that Ex-A3 (Series) is the document which clearly shows that one of the document is seen as, “Diagnosis & Recommendations”, which clearly mentioned that the complainant was suffered from, “lumbo sacral strain”, and thereby, the complainant should take tablets for 30 days and advised to appear before the Medical Officer, Apollo Hospital after 10 days, dated 31.03.2011. While being a situation, there is no document for any continuous treatment after 10 days as advised by the concern Medical Officer who is attached with the Apollo Hospital, Chennai-6. Whereas, in respect of the expenses spent by the complainant have been proved through Ex-A3 (Series) bills which amounted as Rs.2,590/-.

9.       In such circumstances, the next point is to be considered that as to whether the plea raised by the Opposite Party, has to be accepted, Firstly, on carful perusal of Written Version and the Proof Affidavit filed by the Opposite Party, it is stated that the clause 17(1) of the rules and regulations is clearly revealed the fact that any member who joined in the centre will have to furnish their personal details including the health point which was already given to the complainant and in turn the complainant has also agreed to abide by the rules and regulations of the Fitness Centre. It is further learnt that the complainant had also given her personal details on 02.02.2011   in which it is clearly disclosed that she was already suffered ankle sprain on the left and thereby she is having frequent back pain. The said document is marked as Ex-B2 and the copy of the Rules and Regulations of the Opposite Party’s Fitness Centre is marked as Ex-B1.    

At the outset, on careful perusal of Ex-B1, the clause 12 stated as follow:

10.     “Members with medical problems should declare their ailments in writing along with a doctor’s certificate, before starting any exercise program”.

As per the above rules, it is pertinent to note that the complainant had submitted the Ex-B2 dated:02.02.2011 the personal health details of her by mentioning her sufferings of her frequent back pain due to the ankle sprain on the left. If it is so, the Reasonable Question arises, “Is it the duty of the Opposite Party to instruct the complaint to join the Fitness Centre only after taking proper treatment for the prevailing of the above said pain and produce the fitness certificate of the competent Medical Officer”? But there is no evidence to show the same on the side of the Opposite Party. Instead, the Opposite Party has allowed the complainant to join in the Pink Fitness One Centre by getting fees from the complainant on 02.02.2011 itself as per Ex-A1 and Ex-A2 without production of any medical certificate for the complete cure of the pain suffered by the complainant and full fitness. Moreover, as per the version of the Opposite Party in Ex-A6, the reply notice as well as in Written Version it is seen that the Opposite Party having certified trainers and qualified coach for providing training and assistants depending upon individual physical condition of its member including the complainant and to give expert opinion before giving training. But, the Opposite Party has failed to do so in case of the health condition of the complainant before permitting her to join for physical fitness. In fact, the Opposite Party ought to have checked the physical conditions of the complainant before admitting her for physical training. From these facts, it is crystal clear that the Opposite Party himself not followed the rules and regulations of his institution and permitted the complainant to join as member in the Opposite Party physical Fitness Centre, only for the sake of collecting and earning money not for considering the health condition of the complainant. From the above observation, it is clearly seen through naked eye that the Opposite party has committed the deficiency of service in his way of profession. Therefore, the contention of the Opposite Party has lost its merits.

11.     The next contention raised by the Opposite Party is that the complainant has not obtained any ex-pert opinion or report from the competent persons claiming for the damages which is mandatory under 13 (1) (C ) of Consumer Protection Act. In this case, the complainant has established her case beyond any doubt through Ex-A3 (Series) that the doctor who diagnosed stated that due to the improper physical training only, she was suffered from severe back pain. From the facts and circumstances arrived in the previous paragraphs it is very clear that the initial burden of proof of the complainant has been fulfilled. Then automatically, the burden shifted to the Opposite Party to rebut the evidence of the complainant. But the Opposite Party did not rebut the said evidence properly. Hence, the above said plea taken by the Opposite Party is also not sustainable one.

          In the light of the above facts and observation this Forum can easily to hold that the complainant has proved the allegation of the deficiency in service on the part of the Opposite Party beyond doubt. Thus the point No.1 is answered accordingly.

12. POINT NO.(2):- 

As per the decision arrived in point No.2 , the complainant is entitled for the relief as narrated n the complaint along with the reasonable compensation and cost. Thus the point No.2 is answered accordingly.  

          In the Result, the complainant is allowed in part and directed the Opposite Party to return back the amount already paid of Rs.7,000/- (Rupees Seven thousand only) towards Fees Less Rs.500/- for 4 days training, out of Rs.7,500/- (Rupees Seven thousand five hundred only) and to pay a Compensation of Rs.1,000/- (Rupees One thousand only) and the Medical Expenses of Rs.2,590/- (Rupees Two thousand five hundred and ninety only) and cost of Rs.500/- (Rupees Five hundred only), Rs.11,090/- (Rupees Eleven thousand and ninety only) in total.

          The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which the amount shall carry interest at the rate of 9% P.A, till the date of payment.

Dictated to the Steno-Typist transcribed and typed by her corrected, signed and pronounced by us in the open Forum today on this 17^th of June’2015.

Sd/-                                               Sd/-                                                       Sd/-

Member-I                               Member-II                                          President.

 

List of Complainant Documents:  

1. Ex.A-1   02.02.2011  -  Xerox copy of Receipt for Membership Fees of Rs.3,500/-
2. Ex.A-2   28.02.2011  -  Xerox copy of Receipt for Membership Fees of Rs.4,000/-
3. Ex.A-3   31.03.2011  -   Xerox copy of Prescription given by Apollo Hospital.
4. Ex.A-4   05.07.2011  -  Copy of Legal Notice given by complainant.
5. Ex.A-5   08.07.2011  -  Original copy of Acknowledgement Card.
6. Ex.A-6  14.07.2017  -   Original copy of Reply Notice by Opposite Party.
7. Ex.B-1  02.02.2011  -   Xerox copy of Rules & Regulations with regards

                                            to Fitness One Centre.

8. Ex.B-2  02.02.2011  -   Xerox copy of Personal details of complainant filed     

before Fitness One Centre.

             Sd/-                                               Sd/-                                                     Sd/-

     Member-I                            Member-II                                  President.