Haryana

Panchkula

CC/46/2021

GAURAV GARG. - Complainant(s)

Versus

THE ATHELONICS HYBRID GYM. - Opp.Party(s)

IN PERSON.

28 Feb 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	46 of 2021
Date of Institution	:	27.01.2021
Date of Decision	:	28.02.2022

 

Gaurav Garg s/o Sh.Gian Chand Garg, resident of House No.95A, Sector-17, Panchkula.

                                                                ….Complainant

Versus

1.     The Athelonics Hybird Gym, SCO No.63, 1^st and 2^nd  Floor, Sector-11, Panchkula, Haryana through its General Manager.

  2.   Owner(name  not known) of The Athelonics Hybird Gym, SCO No.63, 1^st and 2^nd Floor, Sector-11, Panchkula, Haryana.   

                                                                                        ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.

 

For the Parties:   Shri Gian Chand Dhuriwala, Authorized Representative of the Complainant.

                        OPs No.1 & 2 already ex-parte vide order dated     31.08.2021.

 

                                        ORDER

Satpal, President

1.              The brief facts of the present complaint are that the complaint is being filed as the legal guardian of Rahul Garg and Aryan Garg. The complainant had enrolled his elder son Rahul Garg and younger son Aryan Garg as a member of the Athelonics Hybrid Gym(hereinafter referred to as Gym) of Opposite Party(hereinafter referred to as OP) on 24.06.2019  and 04.03.2020 for a period of 14 months and payment of Rs.14,000/- each was made through Axis Bank Credit Card  and Yes Bank Credit Card of the complainant i.e. Rs.1,000/- per month respectively. Also, receipt for both the membership has not been provided to the complainant inspite of regular reminders. Due to COVID-19 pandemic the Government of India declared lockdown on 22.03.2020. Thereafter in view of the global lockdown, the Gyms were closed and the services could not be availed by the minor sons of complainant. On the easing of the lockdown restrictions in the month of August 2020, the Government has allowed the opening of the Gyms, however, the same is subject to severe restrictions. The complainant had called up the OP No.1 and he was informed by the OP that the membership of the elder son Rahul Garg had expired in the Month of August, 2020 and younger son Aryan Garg is going to expire in the month of May, 2021. Thereafter, the complainant had requested the OP to refund the membership fees on prorata basis for the months, the same cannot be utilized by both the sons of the complainant in view of the Global Epidemic. The OPs have refused the genuine request of the complainant. Further, the same amounts to gross deficiency in the service upon the customers as they are being made to pay for the services not availed by them. The complainant has served a legal notice dated 08.09.2020 upon the Ops but no action has been taken by the OPs.  Due to act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Notices were issued to the OPs No.1 & 2 through process server vide no.1578-79 dated 07.07.2021 received back duly served post but none has appeared on behalf  of the Ops; hence, they were deemed to be served and thus, due to non appearance of Ops No.1 & 2, they were  proceeded ex-parte by this Commission vide its order dated 31.08.2021.

3.             The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement.

4.             We have heard the ld. counsel for the complainant and gone through the entire record including the written arguments filed on behalf of the complainant, minutely and carefully.

5.             Evidently, a sum of Rs.14,000/- and an another sum of Rs.14,000/-, as per Annexure C-1 & C-2(colly), was paid by the complainant to the OPs on 24.06.2019 and on  04.03.2020 through Axis Bank Credit Card and Yes Bank Credit Card respectively. Allegedly the aforesaid payments were made by the complainant to the OPs for availing the GYM related services being provided by the OPs by charging Rs.1,000/- per month for Sh. Rahul Garg and Sh. Aryan Garg both sons of complainant. It is also clear that Sh. Rahul Garg and Sh. Aryan Garg could not avail the said services from the OPs for a period of 5 months and 13 months respectively on account of imposition of lockdown at National Level w.e.f. 22.03.2020 due to COVID-19 Pandemic. Undoubtedly, during the aforesaid period of 5 months and 13 months, several restrictions on the movements of public etc. on account of Covid-19 situation were in force being imposed by the State Government and District Administration and thus, neither Sh.Rahul Garg and Sh.Aryan Garg both sons of complainant were in a position to avail the GYM related services from the OPs nor Ops were not in a position to provide the same. Hence, no fault can be attributed either of the party on this account. However, after the removal of the restrictions on the movements of public etc. as well as opening of Shops, Malls etc.  by the District Administration, the Ops were under obligation to provide their services to Sh. Rahul Garg and Sh. Aryan Garg both sons of complainant for the balance period of 5 months and 13 months respectively but the Ops neither offered to provide the services to said persons nor refunded their balance amount despite request made by the complainant. Further, it is found that the OPs have failed to redress the grievances of the complainant even after the receipt of legal notice (Annexure C-3) from the complainant. Moreover, the Ops have not issued the receipt in respect of aforementioned payment made by the complainant to them and thus, have indulged into unfair trade practice.

6.             The OPs did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte, for which adverse inference is liable to be drawn against them. The non-appearance of the OPs despite notice shows that they have nothing to say in their defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted.

7.             On the other hand, the version of the complainant is fully supported and corroborated by his affidavit Annexure C-A, along with documents Annexure C-1 to C-4.

8.             In view of the fact that the OPs neither responded to the notice nor have they opted to controvert the precise cognizable averments made by the complainant having a very relevant bearing upon the adjudication of the grievance, the only distilled view is that the complainant has been able to prove the genuineness of the grievance that the OPs had committed deficiency in service, the manner whereof has been fully detailed in the complaint, as also the affidavit in support thereof. Thus, we hold that OPs are liable for the deficiency and unfair trade practice; hence, the complainant is entitled to relief.

9.             As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To refund a total sum of Rs.18,000/-(Rs. 13,000/- + Rs. 5,000/-) along with interest @ 9% per annum to the complainant w.e.f. the date of filing of this complaint till realization.

 

2. To pay a lump sum amount of Rs.5,000/- to the complainant on account of mental agony, harassment and litigation expenses.

 

9.             The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 Announced on:

 

 

          Dr.Sushma Garg         Dr. Pawan Kumar Saini             Satpal

                  Member                  Member                          President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal

                                        President