Order dictated by:

Sh.S.S. Panesar, President.

1.       Deepak Kumar has brought the instant complaint under section 11, 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant is permanent resident of House No.13, Sant Vihar, G.T. Road, Amritsar and is a law abiding citizen, who hired the services of the opposite parties for consideration amount of Rs. 20000/- for lifetime membership. Opposite party No.1 is running a Health Club under the name and style of Dawn Health Club i.e. opposite party No.2, who provided the services of gyming, fitness and aerobics classes to the various consumers. Accordingly, complainant approached the opposite parties for gyming, fitness and aerobic purposes in the year 2011. At that time opposite parties assured that they will provide best services to the complainant as well as further guidance for his health and fitness. Opposite party No.1 gave an offer of Rs. 20,000/- to the complainant to become a life time member of opposite party No.2 and except the aforesaid amount of Rs. 20,000/-, the complainant has no need to pay any single penny in future. The complainant has given Rs. 20,000/- in cash to opposite party No.1 and become a life time member of opposite party No.2. The opposite parties issued receipt No. 10092 dated 22.6.2011  in favour of the complainant.. However, in the month of December 2014 opposite party No.1 demanded Rs. 20,000/ more  for the services of opposite party No.2 and when the complainant told opposite party No.1 that as the complainant had already given Rs. 20,000/- as a life time member of opposite party No.2 and now under what reasons opposite party No.1 is demanding more money. On this, opposite party No.1 told that whatever amount has been given by the complainant is not sufficient  for the services provided by the opposite parties to the complainant and if the complainant wanted to continue their services, then the complainant will have to pay Rs. 20,000/ - more  to the opposite parties or the complainant will pay  the monthly fee to opposite party No.2. When the complainant opposed the illegal demand of opposite party No.1,  then opposite party No.1 forcibly and illegally restrained him to enjoy their services in the Health club and when the complainant told the opposite party No.1 that he will move the complainant against them before the police authorities, opposite party No.1 did not pay any heed to it. The complainant also sent legal notice dated 23.1.2015 upon the opposite parties, but opposite parties also did not pay any heed to  the legal notice sent by the complainant.. Rather opposite party No.1 gave a threat through telephone to the complainant and the conversation of the said recording is attached herewith in the shape of CD. A separate complaint tilted as Naveen Rajput Vs. Dawn Health Club is also filed against the opposite parties which is pending before this Forum. The complainant has sought for the following reliefs vide instant complaint:-

(a)      Opposite parties be directed to revive the services of the complainant or in the alternative to return Rs. 20,000/- to the complainant.

(b)     Compensation as well as litigation expenses to the tune of Rs.6,000/- may also be awarded to the complainant.

Hence, this complaint.

2.       Upon notice, opposite parties appeared and contested the complaint by filing joint written statement taking certain preliminary objections therein inter alia that the complaint is not maintainable. It is malafide one as it is filed just to harass, pressurize and blackmail the opposite parties; that there is no deficiency in service on the part of the opposite parties; that complainant is estopped by his own act and conduct from filing this complaint and claiming any relief; that complainant has not come to this Forum with clean hands and has concealed the material facts from this Forum, therefore, he is not entitled to any relief. There is no cause of action in favour of the complainant to file this complaint. On merits, it is submitted that complainant obtained life time membership in the health club of the opposite party and paid Rs. 20,000/- being the registration charges for life time membership. Besides this amount, every member who obtains life time membership has to pay 25% extra to the opposite party being the expenses and maintenance charges such as steam bath, Aerobic classes, providing of mineral water , Towels, shampoo etc which the complainant failed to pay. As per the terms and conditions of the Health club, there is clause 4 to the effect that members on availing life time membership will have to pay 25% of the gym fees as maintenance charges. Such terms and conditions were provided to the complainant at the time of his registration. But the complainant has violated so many terms and conditions duly mentioned in the broacher. There are so many sections in this Health club  and the health club is maintaining the same after spending a lot of money for the convenience of the members.. From the year 2011, the extra amount of 25% is due from the complainant. It was denied that  except Rs.20,000/-, the complainant has no need to pay any single penny in future. It was denied that opposite parties started demanding Rs.20,000/- more cash from the complainant. It was a cooked up false story just to mislead the Forum. Remaining facts mentioned in the complaint were denied and a prayer for dismissal of complaint was made.

3.       In his bid  to prove the case, complainant tendered into evidence his  duly sworn affidavit Ex.C-1  voice recording CD Ex.C2 alongwith copies of documents Ex.C3 to Ex.C6 and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties  tendered into evidence affidavit of Shalinder Singh alias Shelly Ex.OP1, affidavit of Sh.Simarjit Singh Ex.OP2, affidavit of Balram Khosla Ex.OP3, original receipts Ex.OP4 to Ex.OP6 and closed the evidence on behalf of the Opposite Parties.  

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       On the basis of evidence on record, ld.counsel for the Opposite Parties has vehemently contended that there is no dispute that the complainant became lifetime member of Health Club of Opposite Parties  in the year 2011 on payment of Rs.20,000/-. But however, every member who obtained the lifetime membership has to pay 25% extra to Opposite Parties  being as expenses and maintenance charges such as  steam bath, Aerobic classes, providing of mineral water , Towels, shampoo etc. which the complainant failed to pay. As per the terms and conditions of the Health club, there is clause 4 to the effect that members on availing life time membership will have to pay 25% of Rs.20,000/- i.e. gym fees as maintenance charges. All the terms and conditions were provided to the complainant at the time of his registration. The complainant has not been complying with the terms and conditions of the Opposite Parties, therefore, he was directed to pay 25% of the gym fee for maintenance. There is absolutely no deficiency in service on the part of the Opposite Parties. Moreover, there is also no cause of action arising in favour of the complainant to file the present complaint. The instant complaint is nothing but an abuse of the process of law and it is contended that the complaint filed by the complainant is false and frivolous and liable to be dismissed.

7.       But however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant obtained lifetime membership of Opposite Parties in the year 2011 on payment of Rs.20,000/- as gym fees, copy of the receipt accounts for Ex.C3. Though a reference has been made to clause 4 of the agreement, yet for the reasons best known to the Opposite Parties, no copy of the agreement saw in the light of the day in the court. Since the contract/ agreement has been withheld from the court scrutiny, it shows that Opposite Parties  have something to hide from the court. It is an admitted fact that in  year 2011 the complainant obtained the lifetime membership of the Health Club, no demand for 25% extra  of the lifetime membership fee has ever been demanded by the Opposite Parties  from him. This demand has been raised by the Opposite Parties for the first time in the year 2014 and the complainant issued legal notice  dated 23.1.2015, copy whereof is Ex.C4 on record, questioning the authority of Opposite Parties  to make such a demand. There is nothing on record to suggest that the complainant was liable to pay 25% extra of the lifetime membership fee for availing the certain facilities at the heath club in dispute. Since the complainant has been enjoying all the facilities at the health club for a period of almost 5 years, the demand raised by  the Opposite Parties  for additional fee of 25% amount  to deficiency in service as well as unfair trade practice on the part of the Opposite Parties.  The complainant has made a  request for refund of the lifetime membership fee to the tune of Rs.20,000/- vide instant complaint. But the complainant has availed the services of Opposite Parties  for a period of almost five years, therefore, rateable deduction in the claim amount has to be made.   

8.       Consequently, we hold that the complainant is entitled to refund of Rs.12,500/- out of the lifetime membership  fees of Rs.20,000/-. Opposite Parties  are directed to make the payment of the awarded amount within 30 days of the passing of the order, failing which, the awarded amount shall carry interest @ 6% per annum from the date of passing of order until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 08.09.2016.