ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not providing the facilities promised at the time of registration of membership to the OP sports club, though they agreed to pay Rs.6,000/- for himself, for his wife, two kids and mother as AMC and applicable gym fee of Rs.7,000/- and no additional cost for any other facilities at any time in future and in case OP is not accepting the said request to refund Rupee one lakh paid towards the club membership along with interest at 18% p.a., and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

Complainant is a resident of C.V.Raman Nagar, for the last 10 years.  OP is running a sports club from 2014-15 in the neighborhood.  The marketing team promised and induced him to apply for life membership for the facilities of gym, spa, steam and sauna, swimming pool, restaurant, basketball, cricket, squash, kids play zone etc., he took life membership on 21^st October 2014 by paying full membership of Rs.1,00,000/- by cash.

3.      At the time of issuing life membership fee, OPs’ marketing team assured him to provide all facility other than gym as free for a family of five members, i.e., for complainant, his wife, two children and mother with an annual maintenance charges to be paid of Rs.6,000/- to be paid.  The same was given in writing through an email.  Even assured that swimming pool would be ready by 2016, whereas it was put to use only in 2018. He was not informed regarding the time restriction of using the said facility. Though club timing was mentioned from 5.30 am to 10.30 am, it did not mention any restriction of entry for life members.

4.      It is contended that all of a sudden, in the year 2017, the management took the decision and sacked the entire marketing team and put a new team, who had no idea of who are the members and what were the promises made.  The management did not create the board having representation from the members and they have no say in respect of the management of the club.  They were no meeting at all and no consensus or consent were obtained regarding decision which affected the rights as a member.  The father and son of the OP were taking decision as they like.  No professional qualified staff nutritionist, physiotherapist, gym trainer were appointed.  During 2018 OP made a notice directing the members to pay Rs.400/- per person for the facility even to the life members.  Though explanation was asked they have not cared to oblige.  Even several emails were written in that respect, expressing the inconvenience caused.  Even they were ready to pay the little higher amount in order to maintain but not individual fee.  No club charges, individual fee as high as by OPs.  When the complainant and other members brought to the notice to OP the terms of the agreement, the OPs back tracked and even did not draft a bye-law with a general rules prevalent in other clubs by involving the members as a representative.  Even they were not knowing the promises made at the time of taking life members.  The time limit made by OP restricts the members for using pool even after paying Rs.400/- per month.  Even if the complainant, his wife and two children uses the pool, they have to pay Rs.1,600/- per month in addition to the AMC of Rs.6,000/- and the life membership of Rs.1,00,000/-.  It amounts to cheating the people.  OP not sticking to the promises made at the time of granting life membership and literally the life members and other members have been treated as fools and beggars.   Though requested them to refund the money with interest, as they have hardly used the club facilities by paying higher maintenance, OP has informed regarding no refund policy.  The complainant only used the gym and badminton and no other facilities were made available.  Act of OP in not allowing them to use the facility and charging exhorbitant by hiking the fee even to the life members without their being consent and members not being the part of management, amounts to deficiency in service and unfair trade. Hence the complaint.

5.      Upon the service of notice, OP appeared before the Commission and filed the version contending that the complaint is not maintainable, complainant is not a consumer and the same is liable to be dismissed.  It is false to allege that the earlier sales team promised the complainant the facilities mentioned in the complaint and further the recent management sacked the marketing team and put up a new team and created a new board without representation from the members.  It has also denied all the allegations regarding not providing qualified professionals, colour staff, nutritionist, physiotherapist and unprofessional people in the team and enhancement of rs.400/- per head to use the pool facility and also refusing to refund the membership amount.  

6.      It is contended that as per the policy of the club, each member has to pay annual maintenance charges apart from membership fee and separate charges for use of various activities.  The complainant and other member were made aware of the rules and they have accepted the same.  The claim of the complainant that when once a person become life member, that person is entitle for free usage of all the facilities is not correct. There are certain time schedule prescribed for members to use the activities and they are bound by it.  OP has not at all agreed to provide sports activities at free of cost.  OP has replied in detail regarding all the queries raised by the members of the club.  There is no deficiency on its part and as per the policy there is no provision to refund the amount but it can be transferred to any person of his choice at nominal charges. Denying all the allegations made against it, OP prayed to dismiss the complaint.

7.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

9.     POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the OPs are running the club under the name V.K. Sports Club.  In the letter dated 17^th October 2014, OPs have replied that only gym is chargeable and within five years the member can transfer the membership to any other person. It is also mentioned therein that the cost of life member is one lakh, monthly maintenance Rs.500/- for complete family and valid for life and the facilities i.e., offered are ball room/banquet hall, rooms, restaurant/coffee shop, truck shop, gym, billiards, snockers, table tennis, weekend events such as Thambula, musical night, dance competition, painting competition, badminton, tennis, football, basket ball, kids play zone and in the second phase to provide swimming pool, bar and restaurant, self operated laundry, tennis court and badminton courts, health spa, ladies parlors, gents parlous and kid parlor.  In the year 2019 the OPs have changed the bye-laws and have revamped by adopting temperature control, swimming pool, upgrading instrument and interior in respect of gym, access control at the entrance, online registration and other administrative controls, other than providing facilities.  It has also modified the bye-laws.

        10.   It is to be seen here that the private club, ought to have registered with the concerned authorities.  It is for the benefit of the customers who have become members.  OP cannot take advantage of the helplessness of the complainant and other customers.  It cannot act adverse to the interest of its customers and complainant by raising high fee in respect of the facilities which it has offered free of cost.  As per its letter dated referred to above dated 17^th October 2014, only gym is chargeable. There is no other mention of charging for any of the facilities that it has offered.  One can understand that over passage of time, things has to be improved which requires investment.  A reasonable amount has to be collected for the facilities that the club offers to its members. At the same time it cannot be a burden to them.

        11.   In this present complaint it is mentioned that the OPs wanted to charge Rs.400/- per head for the facilities for the life members. When already OPs have collected full amount of Rs.1,00,000/- towards the life membership of two adults, two children and parents, levying of Rs.400/- per month per head amounts to unfair trade practice.  Further he has to pay Rs.1,600/- for his family members to use the swimming pool per month, which is also exhorbitant.  When the complainant asked for refund of the membership for not agreeing to pay, OP has refused to refund the life membership amount on the ground that there is no refund policy in the club.

        12.   When all these are taken into consideration, OP has acted in a high handed manner and also removed the restaurant facilities and asked to pay for football and other ground activities which is detrimental to the complainant in particular and to all the members in general.  Hence there is deficiency in service on the part of the OPs and answer point NO.1 in the affirmative.

        13.   Under the circumstance, we are of the opinion that OP to take members on the board of directors to take any policy decision regarding hiking of the membership fee, and for enhancing the subscription for any sports facilities to be offered and to take any decision touching the day to day activities of the club.  In this regard sufficient representation is to be given by the OPs to the members on its board and to take a majority decision. The act of OPs in taking its own decision amounts to unfair trade and detrimental to the interest of the complainant and other members.  Under the circumstance, we pass the following;

ORDER

1. Complaint is allowed in part.
2. OP is hereby directed to take sufficient members on its board of directors to manage the day to day affairs of the club and also in enhancing the membership fee and the fee to be prescribed for the sports activities and other activities it provides. Till then the facilities that are offered on the same rate to continue and shall not coerce or force the complainant and other members to pay the enhanced amount as mentioned in the recent bye-laws. The same to be done within three months from the date of receipt of this order.
3. If the majority of the members decides for enhancing the membership fee, entry fee and other fee for the service to be provided to the members by the club, and in case any member who do not want to proceed with the membership, they can seek for refund of the amount of membership paid and OP and its members are directed to refund the membership fee after deducting whatever the dues that are due from them without any interest.
4. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 15^TH DAY OF FEBRUARY 2021)

MEMBER                                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the cash receipt for having paid Rs.50,000/- and

Ex P2: Copy of the receipt for having paid Rs.50,000/- through cheque

Ex. P3: Letter issued by OP

Ex P4: Copy of the membership card issued to me to my wife and children

Ex P5: Email correspondences

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Kiran, Director VK Sports club

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the application form duly signed by the complainant at the time of taking membership of our sports club

Ex R2: Copy of the bye-laws of the sports club.

MEMBER                                PRESIDENT