BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 16^th DAY OF NOVEMBER 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

These two complaints have been filed U/s.12 of the Consumer Protection Act, 1986 by two separate complainants against one and the same Opposite Party and the issues involved in both these complaints are one and the same.  Hence, both these complaints are taken up together for disposal under this common order.

The complainants filed these complaints against OP for refund of money paid by them to the OP under student campaign scheme together with interest, compensation and cost of litigation.

2. The brief averments made in both the complaints are as under:

That the representatives of OP M/s DSQUARE contacted the complainants over phone and explained the facilities available in their gym and after considering the explanation provided by the representative of OP, the complainants decided to join the said gym under student campaign.  Accordingly each one of them have paid a sum of Rs.12,078/- on 27.02.2015, which is for a period of 12 months.  That at the time of joining, the complainants informed that their working hours are likely to be changed and in that event they will be unable to attend the gym and they (OP) have to refund their advance amount paid by them.  That the OP assured the complainant that in the event of changes in working hours they would refund the amount by deducting nominal charges for usage of facilities in the gym.  That the complainants were working at GVK Bioscience Pvt. Ltd., as Scientists during that time.  That the complainants attended the gym only for four days.  Thereafter, there was change in the office timings of both the complainants and therefore they were unable to attend the gym.  Therefore, they informed one Mr.Adarsh in the OP and requested for refund of the amount.

That OP promised that the issue will be resolved within 15 days and thereafter they informed the complainants that they would refund the advance amount by deducting 25% of the total amount and sought for one month’s time to repay.  Thereafter, OP failed and neglected to refund the said amount despite repeated requests made by the complainants.  Then the complainants decided to join the gym by making some changes, however OP did not permit them to join the gym stating that the scheme/campaign under which the complainants had joined is closed due to shortage of members.  That on repeated requests made by the complainants, ultimately OP promised in the first week of October 2015 that they would repay the said amount in the second week of November 2015 without fail.  However, OP failed to refund the amount even in the month of November 2015 as promised.  That the conduct of OP amounts to deficiency of service.  Thereafter, the complainants got issued a legal notice dated 27.11.2015 to the OP and the same is served on them on 02.12.2015.  However OP failed to respond but called the complainants and stated that they would refund the amount during first week of January 2016.  However, again OP failed to refund the amount even in the month of January 2016.  Therefore, the complainants having no other option have approached this Forum for redressal.

3. In response to the notice issued OP appeared through their advocate on 29.03.2016 and sought time for filing version.  However despite sufficient time given OP failed to file their version and the complainants were called upon to file affidavit evidence.  After more than two months thereafter OP sought permission to file their version.  The same was opposed by the complainant.  After hearing both the sides the interim application filed by the OP seeking permission to file version was dismissed by order dated 19.08.2016 on the ground that they have failed to file their version within time stipulated U/s.13(2)(a) of C.P Act, 1986.  In the mean while complainants filed their affidavit evidence.

4. Perused the allegations made in the complaint, sworn testimony of complainants, documents produced by them and other materials placed on record.  We have also heard arguments advanced by learned advocate for the complainants.  OP failed to advance their arguments despite sufficient time and opportunity given.

5. The allegations made in the complaint coupled with sworn testimony of complainants and the receipts dated 27.02.2015 produced by complainants disclose that, the complainants have joined the gym of OP on 27.02.2015 by paying annual fee of Rs.12,078/-.  It is claimed by the complainants that when they informed the OP that in the event of change of their working hours they would not be able to attend the gym, for which OP had promised them to refund the amount after deducting certain miscellaneous amount.  It is further case of the complainant that after four days from the date of admitting themselves to the gym their office hours were changed, therefore they requested OP to refund the amount and OP though agreed to refund the amount but stated that the amount would be refunded only after deducting 25% for which the complainants have agreed.  Even thereafter OP has failed to refund the amount to the complainants after deducting 25% of the total amount paid by each one of them.  When the OP started protracting the refund of the amount on one or the other pretext the complainants have got issued legal notice to the OP calling upon him to refund 75% of the annual amount paid by them.  Despite service of notice, OP has failed to either reply to the notice or comply the demand made therein.

6. We don’t find any reasons to disbelieve the sworn testimony of the complainants coupled with the documents filed by them.  Despite sufficient opportunity provided OP failed to submit their version and contest the complaint.  Though the complainants have attended only four days in the gym they have agreed to conditions of OP to receive only 75% of the annual fees paid by them.  The said conduct of OP certainly amounts to deficiency of service.  When the complainants have attended four days and were unable to attend further because of change in their working hours, the OP ought to have refund the amount as claimed in both the complaints.  OP without their being valid reasons has retained the said amount with him and forced the complainants to approach this Forum by spending their precious time and money.  The said conduct of OP must have put the complainants to great inconvenience, hardship and mental agony.  Therefore apart from refunding a sum of Rs.9,058/- (75% of Rs.12,078/-) OP shall have to be directed to pay a compensation of Rs.2,500/- to each of complainant together with litigation cost of Rs.3,000/- each.

7. The order could not be passed within the stipulated time due to heavy pendency. 

8. In the result, we proceed to pass the following:

  O R D E R

The complaint Nos.281/2016 & 282/2016 are filed by the complainants U/s.12 of the Consumer Protection Act, 1986 is allowed in part. 

OP is directed to refund a sum of Rs.9,058/- to each of the complainant together with interest @ 9% p.a from the date of complaint till the date of realization.  Further OP shall pay compensation of Rs.2,500/- to each of the complainant together with litigation cost of Rs.3,000/-.

OP shall comply the said order within four weeks from the date of communication.

Furnish free copy of this order to both the parties.

This original order shall be kept in complaint No.281/2016 and a copy of it shall be placed in other connected file.  

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 16^th day of November)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant/s dated 29.06.2016.

Documents produced by the complainant:
    (Complaint No.281/2016)

Documents produced by the complainant:
    (Complaint No.282/2016)

Witnesses examined on behalf of the Opposite party - Nil

 Document produced by the Opposite party - Nil

MEMBER                            MEMBER                    PRESIDENT

Vln*