ORDERS:
Jatinder Singh Pannu, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act, 1985 under Section 12, 13 against the opposite parties on the allegations that the complainant availed the services of the opposite party No.1 Neo Fitness Gym, Opp. Mohindra Enclave, near Amritsar Bypass, Tarn Taran on 28.05.2019 for the period of six month by paying fee to the tune of Rs. 10,000/- in advance. The package availed by the complainant is valid up-to 24.11.2019. The opposite party No. 1 is the owner of the said Fitness Gym and opposite party No.2 is trainer coach of the above said gym and opposite party No.3 is main head Branch of Neo Fitness Gym Chain. On 02.09.2019 the complainant further paid a sum of Rs.10,000/- to the opposite party No.1 in advance for a further period of six months to be started on the expiry of earlier package of six months i.e. 25.11.2019. The complainant is regular consumer of the above said fitness gym and he used to do his exercise very sincerely with hard work as per the schedule and he never acted against any rule of the fitness gym. The complainant paid the said fee to the opposite party No.1 at Tarn Taran to avail the services of the fitness gym from opposite parties No.1 and 2 and as such, he is beneficiary of the services provided by opposite parties and hence the complainant is a consumer of opposite parties under the provisions of Consumer Protection Act,1986. On 5.9.2019 the opposite parties No.1 and 2 did not allow the complainant to do exercise in their said gym and rather turned out the complainant from the building of said gym by misbehaving him in the presence of other persons present at that time without any reason as well as without any fault on the part of the complainant. Upon which the complainant asked the opposite parties No.1 and 2 about the said misbehavior on their part but the opposite parties No.1 and 2 did not give any satisfactory reply to the complainant rather threatened the complainant to leave the said gym otherwise the opposite parties No.1 and 2 will implicate the complainant in a false drug case. Thereafter, the complainant requested the opposite parties No.1 and 2 either to refund the unused portion of the amount/fee as already paid by the complainant to the opposite party No.1 or to allow the complainant to continue for availing the services of the said gym but the opposite party No.1 did not accept the request of the complainant. The complainant also moved an application before the concerned police of P.S. City Tarn Taran, against the opposite parties No.1 and 2 upon which the opposite parties No.1 and 2 assured the complainant to continue the services of their gym subject to firstly withdraw the complaint moved before the police against them and the complainant in good faith withdrawn the said complaint against the opposite parties No.1 and 2 but thereafter, the opposite parties No.1 and 2 back tracked and not allowed the complainant to enter in the building of their said gym by flatly stating that the opposite Party No.1 and 2 will never allow the complainant to continue the services of the said gym at any cost and the opposite parties were only wanted to withdraw the said complaint against them by the complainant. The opposite parties No.1 and 2 are acted malafidly in the whole episode and the opposite parties are under legal obligation either to allow the complainant to continue to avail the services of their above said gym for the remaining period or to refund the whole amount of unused portion of advance fee already paid by the complainant as stated above. Moreover, the complainant has already suffered a lot in their hands. The complainant approached the opposite parties with the request to disburse the whole amount but opposite parties did not put ears to the requests of the complainant and has been putting of the matter on one false pretext of the other. A legal notice dated 09.09.2019 was also served upon the opposite parties No.1 and 2, by the complainant through his counsel from Tarn Taran whereby the opposite parties were again requested to make the payment of the amount in dispute within period of 7 days from the receipt of the said legal notice failing which the opposite parties were notified that necessary action under the amended provision of relevant Act and law would be initiated. The said notice was duly served upon the opposite parties on its correct address but inspite of service of the notice, the opposite parties have failed to make the payment of amount in question to the complainant till date, rather the opposite parties No.1 and 2 gave a writing dated 05.09.2019 thereby admitting the cancellation of membership of the complainant before due date i.e. 24.11.2019 by leveling total false and baseless allegations against the complainant. The complainant never misbehaved with any client or owner of the opposite party No.1. The opposite parties are guilty of fault, imperfection, abort coming and inadequacy in the quality. Nature and manner of performance of service, hence are the negligence and deficiency in service on the part of the opposite parties have also resulted in great mental pain, agony, harassment and inconvenience to the complainant as such, the complainant is legally entitled to compensation to the tune of Rs. 20,000/- on account of mental and Physical harassment as well as litigation charges to the tune of Rs. 5,000/- from the opposite parties. The complainant has prayed that the present complaint be allowed by granting the following reliefs in favour of complainant.
- . That the opposite parties may kindly be directed to refund the unused portion of the fee amount to the tune of Rs.15,000/- as already paid by the complainant to the opposite party No.1 or to allow the complainant to continue availing the services of the said gym for the remaining period.
- That the opposite parties further may kindly be directed to pay an account of mental and physical harassment caused to the complainant at the hand of opposite parties and Rs.5,000/- as litigation expenses, in the interest of justice, equity and fair-play.
- Any other relief to which the complainant is found entitled to that may be also be granted in his favour under the law and equity.
Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, Membership certificate of complainant Ex. C-2, Original writing dated 5.9.2019 Ex. C-3, Self attested copy of application/ complaint dated 5.9.2019 Ex. C-4, Computerised copy of legal notice dated 9.9.2019 Ex. C-5, Courier receipts Ex. C-6 and C-7.
2 Notice of this complaint was sent to the opposite parties and opposite parties No. 1, 2 appeared through counsel and filed written version by taking preliminary objections that the present complaint is not maintainable in the eyes of law. The present complaint has been filed just to harass the answering opposite parties and the pleadings of the complaint have been concealed for the purpose. The complainant was a member of NEO Fitness but his conduct and behavior was such that he had spoiled the environment of the premises of the NEO fitness as he created frequent mischievous and also was very indisciplined in his conduct and as such, he always violated the code of conduct and rules of the membership of NEO fitness. The answering opposite parties had been very much requesting him from the day one not to indulge in such activities which are not conducive to the fitness club but in vain and as such, after giving several opportunities to the complainant for amending his ways and after failing to do so the membership of the complainant was terminated as per rules and regulations of NEO fitness. In case of such termination the member of the NEO fitness is not eligible to refund of any of the amount paid by him and same is fortified by NEO fitness as per the terms and conditions of membership. Moreover, the complainant is eligible to continue the services of NEO GYM after termination of his membership. The complainant has caused harassment and indisciplined and as such it was answering opposite parties which suffered at the hands of the complainant. On merits, it was pleaded that the complainant paid Rs. 10,000/- which was valid up till 24.11.2019 and except this amount no advance payment was received by the answering opposite parties for any period beyond this date and after termination of membership this amount is forfeited with the answering opposite parties. The act and conduct of the complainant had actually resulted in the termination of his membership. The complainant is no more consumer of the answering opposite parties. The complainant moved an application before the Police Station City Tarn Taran and withdrew that application on his own, the reason best known to him which also puts light on the conduct of the complainant. The opposite parties No. 1 and 2 have denied the other contents of the complaint and prayed for dismissal of the complaint. Alongwith the complaint, the opposite parties No. 1 and 2 have placed on record affidavit of Manavjot Singh Ex. OPs-1
3 The present complaint has been withdrawn by the complainant against the opposite party No. 3 vide order dated 10.2.2020.
4 The complainant has filed the rejoinder to the written version filed by the opposite parties and denied all the pleas taken in the written version and reiterated the stand as taken in the complaint.
5 We have heard the Ld. counsel for the complainant and opposite parties No. 1 and 2 and have carefully gone through the record on file.
6 Ld. counsel for the complainant contended that he availed the services of the opposite party No.1 Neo Fitness Gym, Opp. Mohindra Enclave, near Amritsar Bypass, Tarn Taran on 28.05.2019 for the period of six month by paying fee to the tune of Rs. 10,000/- in advance. He further contended that the package availed by the complainant is valid up-to 24.11.2019. Membership certificate in the name of complainant is attached herewith as Annexure-C-2. The opposite party No. 1 is the owner of the said Fitness Gym and opposite party No.2 is trainer coach of the above said gym and opposite party No.3 is main head Branch of Neo Fitness Gym Chain. On 02.09.2019 the complainant further paid a sum of Rs.10,000/- to the opposite party No.1 in advance for a further period of six months to be started on the expiry of earlier package of six months i.e. 25.11.2019. The complainant is regular consumer of the above said fitness gym and he used to do his exercise very sincerely with hard work as per the schedule and he never acted against any rule of the fitness gym. On 5.9.2019 the opposite parties No.1 and 2 did not allow the complainant to do exercise in their said gym and rather turned out the complainant from the building of said gym by misbehaving him in the presence of other persons present at that time without any reason as well as without any fault on the part of the complainant. Upon which the complainant asked the opposite parties No.1 and 2 about the said misbehavior on their part but the opposite parties No.1 and 2 did not give any satisfactory reply to the complainant rather threatened the complainant to leave the said gym otherwise the opposite parties No.1 and 2 will implicate the complainant in a false drug case. The complainant requested the opposite parties No.1 and 2 either to refund the unused portion of the amount/fee as already paid by the complainant to the opposite party No.1 or to allow the complainant to continue availing the services of the said gym but the opposite party No.1 did not accept the request of the complainant. The complainant also moved an application Ex. C-4 before the concerned police of P.S. City Tarn Taran, against the opposite parties No.1 and 2 upon which the opposite parties No.1 and 2 assured the complainant to continue the services of their gym subject to firstly withdraw the complaint moved before the police against them and the complainant in good faith withdrawn the said complaint against the opposite parties No.1 and 2 but thereafter, the opposite parties No.1 and 2 back tracked and not allowed the complainant to enter the building of their said gym by flatly stating that the opposite Party No.1 and 2 will never allow the complainant to continue the services of the said gym at any cost and the opposite parties were only wanted to withdraw the said complaint against them by the complainant. The opposite parties No.1 and 2 are acted malafidly in the whole episode and the opposite parties are under legal obligation either to allow the complainant to continue to avail the services of their above said gym for the remaining period or to refund the whole amount of unused portion of advance fee already paid by the complainant as stated above. A legal notice dated 09.09.2019 Ex. C-5 was also served upon the opposite parties No.1 and 2, by the complainant through his counsel from Tarn Taran whereby the opposite parties were again requested to make the payment of the amount in dispute within period of 7 days from the receipt of the said legal notice failing which the opposite parties were notified that necessary action under the amended provision of relevant Act and law would be initiated. The said notice was duly served upon the opposite parties on its correct address and receipts are Ex. C-6, C-7 but inspite of service of the notice, the opposite parties have failed to make the payment of amount in question to the complainant till date, rather the opposite parties No.1 and 2 gave a writing Ex. C-3 dated 05.09.2019 thereby admitting the cancellation of membership of the complainant before due date i.e. 24.11.2019 by leveling total false and baseless allegations against the complainant. The complainant never misbehaved with any client or owner of the opposite party No.1 and prayed that the present complaint may be allowed.
7 Ld. counsel for the opposite party Nos. 1 and 2 have contended that the present complaint is not maintainable in the eyes of law. The present complaint has been filed just to harass the answering opposite parties and the pleadings of the complaint have been concealed for the purpose. The complainant was a member of NEO Fitness but his conduct and behavior was such that he had spoiled the environment of the premises of the NEO fitness as he created frequent mischievous and also was very indisciplined in his conduct and as such, he always violated the code of conduct and rules of the membership of NEO fitness. The answering opposite parties had been very much requesting him from the day one not to indulge in such activities which are not conductive to the fitness club but in vain and as such, after giving several opportunities to the complainant for amending his ways and after failing to do so the membership of the complainant was terminated as per rules and regulations of NEO fitness. In case of such termination the member of the NEO fitness is not eligible to refund of any of the amount paid by him and same is fortified by NEO fitness as per the terms and conditions of membership. Moreover, the complainant is eligible to continue the services of NEO GYM after termination of his membership. The complainant has caused harassment and un-disciplined and as such it was answering opposite parties which suffered at the hands of the complainant. The complainant paid Rs. 10,000/- which was valid up till 24.11.2019 and except this amount no advance payment was received by the answering opposite parties for any period beyond this date and after termination of membership this amount is forfeited with the opposite parties Nos. 1, 2. The act and conduct of the complainant had actually resulted in the termination of his membership. The complainant is no more consumer of the opposite parties Nos. 1, 2. The complainant moved an application before the Police Station City Tarn Taran and withdrew that application on his own, the reason best known to him which also puts light on the conduct of the complainant.
8 In the present case, it is not disputed that the complainant was member of NEO fitness and the complainant has also placed on record membership certificate Ex. C-2 and it also show the payment of Rs.20,000/- by the complainant. It is admitted by the opposite parties No. 1, 2 that the complainant paid Rs. 10,000/- as fee for availing the services of the opposite party No. 1 and the same was valid up till 24.11.2019. The opposite parties No. 1, 2 have terminated the membership of the complainant due to indisciplined in his conduct. The complainant has placed on record one document dated 5.9.2019 Ex. C-3 issued by the opposite parties No. 1, 2 in which it is mentioned “Mr. Love Arora join New Fitness start date on 28.5.2019 to 24.11.2019. Create misbehavior on floor with clients and owner that reason cancel membership”. The complainant has placed on record one application dated 5.9.2019 Ex. C-4 addressed to SSP Tarn Taran against the opposite party No. 1 by alleging that he has joined the Gym of opposite party No. 1 on 28.5.2019 and the package was valid up to 24.11.2019. It is also alleged in the application that on 5.9.2019 the owner of the Gym has cancelled the membership and tuned out him from the Gym after insulting him. It is also alleged that the opposite parties No. 1and 2 have not returned the unused balance amount. The complainant has also served a legal notice Ex.C-5 dated 9.9.2019 to the opposite parties No. 1 and 2 with the request to continue to avail the services of the gym for agreed period and the complainant has also placed on record receipts Ex. C-6 and Ex. C-7. The opposite parties No. 1, 2 have admitted the membership of the complainant in their gym and has also admitted the payment made by the complainant to the opposite parties No. 1, 2. But the opposite parties No. 1, 2 have failed to place on record any terms and conditions on the basis of which they have terminated the services of the complainant from their gym and the opposite parties No. 1, 2 have also not placed on record any document and affidavit of customer of the gym to prove that the complainant has misbehaved with the opposite parties No. 1, 2. The opposite parties have not specifically mentioned that how the complainant spoiled the environment, further how the act and conduct was mischievous. Terms and conditions of the gym is not placed on record. The opposite parties No. 1 and 2 have failed to place on record any document/ terms and conditions whereby they can forfeit the fee paid by the complainant. Hence, there is deficiency in services on the part of the opposite parties No. 1 and 2.
9 In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant and against the opposite parties No. 1, 2. The present complaint has been withdrawn by the complainant against the opposite party No. 3, hence the present complaint is dismissed against the opposite party No. 3. The opposite parties No. 1, 2 are directed to return the amount of Rs. 15,000/- (Rs. Fifteen Thousand only) to the complainant. The complainant is also entitled to Rs.3,000/- ( Rs. Three Thousand only) as compensation on account of harassment and mental agony and Rs 2,500/- ( Rs. Two thousand five hundred only) as litigation expenses. Opposite Parties No. 1, 2 are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Commission.
23.09.2021
