Order dictated by:

Ms.Rachna Arora,  Presiding Member

1.       Sh.Kulwinderjit Singh Anand, complainant  has brought the instant complaint under  the Consumer Protection Act, 1986  on the allegations that the complainant took membership of opposite party in the year 2014  and the same has been continued from time to time by paying additional membership charges to the opposite party, as such the complainant is still a member of the opposite party. In the aforesaid membership the opposite parties had promised to provide various facilities of Hotel, Restaurants and Gym in Amritsar with World class facilities. According to the said membership of the opposite parties, the complainant had been availing the facilities of Gym situated in  Trillium Mall, Circular Road, Amrtisar . The facilities provided in the GYM were very poor and inferior quality as the changing room and bathrooms of the said Gym were very dirty and smelly. The walls of changing room and bathroom were damaged from many places due to seepage  and the same were also having fungus. Not only this the said changing room and bathroom were also being used by the opposite party for placing garbage. Many a times  the complainant  made complaint to the officer bearer of said Gym  but nobody bothered to the genuine complaints of the complainant. As such the complainant being not satisfied from their services, requested the opposite parties many a times that he does not want to continue the membership of the opposite parties and requested for the refund of the amount paid by him but the opposite parties every time made a pretext that they will improve their services. But now the opposite party has closed their Gym  and all other services and facilities from Amritsar. As such the complainant cannot take the benefits or enjoy the services of Gym etc of the opposite party for which  they have been paid by the complainant . Ultimately the complainant through his counsel served a legal notice dated 9.5.2018  through regd.post on 21.5.2018 thereby requesting them to  refund the amount paid by him. The said notice was duly received by the opposite parties and they replied the same vide reply dated 23.6.2018 thereby admitted the membership of complainant but refused to refund the amount paid by the complainant. The act of the opposite parties in not rendering the services as promised by them and lateron not refunding the amount, amounts to deficiency in service, unfair trade practice for which the complainant has suffered mental harassment, agony, inconvenience as well as financial loss to the complainant.  Vide instant complaint, complainant has sought for the following reliefs:-

(a)     Opposite parties be directed to provide the facilities of Gym etc. at Amritsar as agreed by them or to refund the amount of Rs. 50000/- to the complainant alongwith interest @ 18% p.a. till its actual realization ;

(b)     Compensation to the tune of Rs. 50000/- alongwith adequate litigation expenses may also be awarded to the complainant.

Hence, this complaint.

2.       Upon notice, opposite parties No.1 & 2 appeared and filed written version in which it was submitted that on 27.5.2014 complainant came to the office of the opposite parties at Amritsar  wherein brief presentation was given to him regarding different club as well as vacation membership plans offered by the opposite party company alongwith the procedure of booking, prices and all the terms and conditions. Complainant opted for Club Membership only and no vacations and accordingly executed agreement dated 6.6.2-014. After discussions and negotiations over the membership fee and after receiving a discount of Rs. 10000/-  as discount on the total consideration  of membership fee that is Rs. 60000/-. As such complainant agreed and paid Rs. 50000/- towards one time non refundable membership fee . Membership benefits are mentioned in clause No.1 under the agreement i.e. (i) Club membership and (ii) Access to entertainment, events and amusement facilities . Further in clause no. 4  under the agreement it is mentioned free usage of fitness centre, swimming pool and other services . It is further mentioned in the said clause No. 4 itself that to maintain the facilities for members, an AMC of Rs. 6000/- excluding  taxes is applicable  irrespective of usage from the date of agreement and failure to pay the said amount will be a default and members cannot utilize the facilities  . However the complainant failed to clear the annual maintenance charges of Rs. 6000/- per year due from 27.5.2015 till last due on 27.5.2018 i.e. for 4 years amounting to Rs. 24000/- plus taxes upto 2017 and GST for the year 2018 totaling Rs. 27594/- . In reply to legal notice the complainant was reminded that there were certain dues towards the Annual Maintenance charges still pending to be cleared by him  and the same can be viewed by him through his online membership portal . As per terms and conditions of the agreement, complainant was required to clear the dues in order to avail the benefits  and without clearing dues complainant has no right to ask for services either. It was submitted that complainant has himself admitted that he has been availing the services of Gym of opposite parties situated at Trillium Mall, Amritsar  but has deliberately not mentioned the period for which he has been availing the services of Gym of opposite parties . It is submitted that the said  Gym has always been in proper working condition, well maintained neat and tidy and complainant has been using the services of the same since 2014  and no single grievance or complaint was ever made by the complainant to the manager or any other person at the said Gym. Copy of maintenance bills at regular intervals are attached as Annexure R6, R7,R8,R9,R10,R11 and R12. The photographs of the Gym are attached Annexure R-13 Colly.  It was denied that the said Gym were very dirty and smelly. It is important to note here that the complainant has been continuously enjoying the Gym facilities for the last 4 years  without making any complaint. It was denied that changing rooms and bathrooms of the said Gym are used for placing garbage.  It was denied that complainant ever requested the office bearer of Gym or any other officer of the opposite party company for the said condition of the Gym.  The said allegations are only an afterthought and present complaint is filed merely  by stating that the said Gym at Trillium Mall, Amritsar at Trillium is now closed and complainant cannot enjoy the faciltieis, whereas he has concealed that after closure of the said Gym complainant has been provided the services of Talwalkars Gym at Amritsar inspite of the fact that he has not cleared the dues of annual maintenance charges of Rs. 6000/- for the last 4 years. While denying and controverting other allegations, dismissal of complaint was prayed.

3.       Alongwith the complaint, complainant has filed photographs Ex.C-1 to Ex.C-6, copy of legal notice Ex.C-7, postal receipt Ex.C-8, reply to legal notice Ex.C-9, copy of cheque Ex.C-10, copies of documents relating to membership of complainant Ex.C-11 to Ex.C-14.

4.       On the other hand alongwith written version opposite party filed copy of board resolution Ex.R-1, copy of agreement Ex.R-2,  copy of receipt of payment Ex.R-3, Copy of online member portal showing the dues Annexure R-4 (Colly), welcome letter Ex.R-4 (Colly), copy of records/club logs on the portal of the opposite party company showing members usage of the fitness centre Ex.R-5, copies of maintenance bills Ex.R-6 to Ex.R-12, photographs of Gym Ex.R-13 (Colly).

5.       We have heard the Ld.counsel for the parties and have carefully gone through the record on the file.

6.       Ld.counsel for the complainant has vehemently contended that complainant took membership of opposite party in the year 2014  and the same has been continued from time to time by paying additional membership charges to the opposite party, as such the complainant is still a member of the opposite party. In the aforesaid membership the opposite parties had promised to provide various facilities of Hotel, Restaurants and Gym in Amritsar with World class facilities. It was the case of the complainant that he had been availing the facilities of Gym situated in  Trillium Mall, Circular Road, Amrtisar .  But, however the facilities provided in the GYM were very poor and inferior quality  . In this regard  the complainant  made complaint to the officer bearer of said Gym  but nobody bothered to the genuine complaints of the complainant. As such the complainant being not satisfied from their services, requested the opposite parties many a times that he does not want to continue the membership of the opposite parties and requested for the refund of the amount paid by him but the opposite parties every time made a pretext that they will improve their services. But now the opposite party has closed their Gym  and all other services and facilities from Amritsar. As such the complainant cannot take the benefits or enjoy the services of Gym etc of the opposite party for which  they have been paid by the complainant . Ultimately the complainant through his counsel served a legal notice dated 9.5.2018  through regd.post on 21.5.2018 thereby requesting them to  refund the amount paid by him. The said notice was duly received by the opposite parties and replied vide letter dated 23.6.2018 thereby admitted the membership of complainant but refused to refund the amount paid by the complainant. Ld.counsel for the complainant submitted that the act of the opposite party in  not providing the proper services as assured by them, amounts to deficiency in service as well as unfair trade practice .

7.       On the other hand Ld.counsel for the opposite party has repelled the aforesaid contentions of the Ld.counsel for the complainant on the ground that complainant opted for Club Membership only and no vacations and accordingly executed agreement dated 6.6.2014 for which after negotiations the comlainant paid Rs. 50000/- towards one time non refundable membership fee . Membership benefits are mentioned in the agreement and as per clause no. 4  under the agreement it is mentioned free usage of fitness centre, swimming pool and other services . It is further mentioned in the said clause No. 4 itself that to maintain the facilities for members, an AMC of Rs. 6000/- excluding  taxes is applicable  irrespective of usage from the date of agreement and failure to pay the said amount will be a default and members cannot utilize the facilities  . However the complainant failed to clear the annual maintenance charges of Rs. 6000/- per year due from 27.5.2015 till last due on 27.5.2018 i.e. for 4 years amounting to Rs. 24000/- plus taxes upto 2017 and GST for the year 2018 totaling Rs. 27594/- . In reply to legal notice the complainant was reminded that there were certain dues towards the Annual Maintenance charges still pending to be cleared by him  and the same can be viewed by him through his online membership portal . As per terms and conditions of the agreement, complainant was required to clear the dues in order to avail the benefits  and without clearing dues complainant has no right to ask for services either. It was submitted that complainant has himself admitted that he has been availing the services of Gym of opposite parties situated at Trillium Mall, Amritsar  but has deliberately not mentioned the period for which he has been availing the services of Gym of opposite parties . It is submitted that the said  Gym has always been in proper working condition, well maintained neat and tidy and complainant has been using the services of the same since 2014  and no single grievance or complaint was ever made by the complainant to the manager or any other person at the said Gym. Copy of maintenance bills at regular intervals are attached as Annexure R6, R7,R8,R9,R10,R11 and R12.  It was denied that the said Gym were very dirty and smelly. Ld.counsel for the opposite party has contended that the complainant has been enjoying the Gym facilities for the last 4 years  without making any complaint, as such there is no deficiency of service on the part of the opposite party.

8.       From the appreciation of the facts and circumstances of the case, it was not denial the fact that the complainant has availed the membership of the opposite party by spending Rs 50000/-  and in this regard agreement was executed between the parties in which the terms and conditions were duly mentioned , copy of which is Ex.C-12 on record. It was not the case of the complainant that he was not supplied the copy of the agreement . The complainant has availed only club membership only in the year 2014. It was admitted fact that the complainant has been availing the Gym facilities . The only contention of the complainant is that the facilities provided in the aforesaid Gym were very poor and inferior quality as the changing room and bathrooms of the said Gym were very dirty and smelly , walls of changing room and bathroom were damaged due to seepage and in the said changing room and bathroom were also being used by the opposite party for placing garbage. But no evidence to prove the said   fault has been produced on record by the complainant. The complainant in his evidence has placed on record certain photographs of some place showing washroom . But it neither proves that the said photographs are of washroom of Trillium Mall Gym. As such no evidentiary value can be placed on the said evidence produced by the complainant. On the other hand opposite party has placed on record copy of maintenance bills of Gym Ex.R-6 to Ex.R-12 as well as photographs of Gym equipments Ex.R-13 which shows that the Gym is fully maintained  and proper  maintenance has been done by the opposite party at regular intervals. As such the contention of the complainant that the facilities provided by the opposite party at Gym are poor , is not sustainable in the eyes of law.

9.       On the other hand the opposite party has proved on record that the agreement was entered into between the complainant and the opposite party on 27.5.2014 and Gym facilities were valid upto 9.6.2015 and if the complainant want to maintain facilities for members an AMC of Rs. 6000/- is applicable  which is duly mentioned in the terms and conditions of the agreement Ex.C-12. But the complainant has been enjoying the facilities of Gym and has failed to pay an amount of Rs. 6000/- as AMC for the continuation of the membership, even then the complainant has been enjoying the said facilities without any interruption since the year 2014 and during that period the complainant has not lodge any complaint regarding the poor condition of the Gym. Moreover  once the complainant has received the copy of agreement in which terms and conditions were duly mentioned, the complainant cannot wriggle out from these terms  and condition..In our considered opinion the complainant is bound by the terms and conditions of the Insurance Policy in dispute. We seek support on this point from M/s. V.K. Karyana Store Vs. Oriental Insurance Co. Ltd. 2014(3) CLT page 47 wherein it has been held that it is well settled principle of law that parties are bound by terms and conditions of the insurance policy and none of the parties can seek any  relief beyond those terms and conditions.

10.     The other contention of the complainant that the opposite parties are deficient in service as after making so many complaints orally finally he sent legal notice dated 9.5.2018 regarding deficiency on the part of the opposite parties. The Forum is of the view that if the opposite party is at fault, then the opposite party will not answer to the legal notice sent by the complainant. The opposite party relied the legal notice  vide reply dated 23.6.2018 wherein it was clearly mentioned that there are certain dues towards AMC which are pending against the complainant. Moreover, the complainant has been continuously enjoying the Gym facilities for the last 4 years without making any complaint, as such no deficiency is made out against the opposite party. Regarding closure of the Gym at Trillium Mall, it was submitted that as the complainant has failed to get AMC to maintain the membership  and has availed the Gym facilities since the year 2014 without getting AMC , as such the opposite parties has provided the facilities as assured by them and it was the complainant who failed to abide the terms and conditions of the agreement Ex.C-12, as such no case is made out against the opposite party.

11.     In view of the above discussion, we find no merit in the complaint and the same is hereby dismissed with no order as to costs.   Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum