BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   15^th DAY OF OCTOBER 2020

O R D E R

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Party (hereinafter called as OP) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OP to allow to use facility at all time as promised at the time of registration with agreed amount of Rs.6,000/- as AMC and applicable gym fees of Rs.7,000/- and no additional cost for any facility at any time in future or in the alternate to refund amount of Rs.1,15,000/- with 18% interest and to pay additional compensation.

2.      The brief facts of complaint is as under:

Complainant submitted that, the OP attracted the complainant to apply for a life membership at the OP Sports Club.  The sales team of OP were continuously followed with the complainant for membership and promised lot of facilities like Gym, Spa, stem, sauna, swimming pool, restaurant, bar, basketball, cricket, squash, kids play zone etc.  Complainant took the life membership on 08.03.2015 by paying the full membership fee of Rs.1,15,000/- through credit card.  OP allotted membership No.BLKGLM0175.  OP also promised the following list.

1. Every facility other than GYM was free for a family of 5 members of husband, wife and three children, with an Annual maintenance of Rs.6000/- per year.

2. They did not have pool at that time and they promised that the pool will be ready for the New Year 2016.  Which eventually came up only in 2018.

3. We were never ever told about restricted timings of usage of the facilities.

4. Never was it told that every facility is chargeable on usage.

5. They promised a kids play zone, squash, tennis and Bar and Restaurant.

6. Club timings clearly mentioned 5.30 am – 10.30 am (does not mention any restriction of entry for life members)

Complainant further submitted that in the year 2017 OP suddenly discharged the entire marketing team and put up a new team which had no idea.  The club management did not create a board representation from the member’s side.  The members had to say in their management of the club.  There were no meeting to take agreement on any matter of decision which affects the members and their rights at the club.  The Duo of Father and son would go about doing business as they felt it was necessary.

Complainant further submitted that OP had not possessed qualified professionals as floor staff or nutritionists or physio’s or therapists at the gym.  At one point a particular wall of the gym collapsed in 2016.  Luckily it was a POP wall and no one was hurt in the process.  That in the year 2018 OP suddenly popped out notices charging Rs.400/- per person per facility for life members.  Complainant tried to contact the management teach and asked for explanation.  OP properly not answered to the club members.  Several mails were sent by the aggrieved members but in the end members get one meeting with the management.  But it went in vain.  OP is not ready to accept any compromise on the payment.

Complainant further submitted that complainant insisted on the application forms and the terms of the agreement.  OP has not drafted the bye-law in accordance with the general rules prevalent in other clubs in Bangalore.  OP is very rude and autocratic.  The promises made while taking membership fees was unknown to them.  OP sales team collected extra amount for swimming.  OP has not appointed responsible persons to maintain the club.  OP collected Rs.400/- per person to use the pool in addition to the life term fee of Rs.1,15,000/- + AMC of Rs.6,000/- plus GST.  OP cheating the members.  Complainant requested the OP to refund the amount with interest.  OP failed to respond to the request made by the complainant.  Complainant felt deficiency in service on the part of OP.  Hence complainant filed this complaint.

3. In response to the notice issued, OP appeared through their advocate and filed their version in brief as under:

OP submitted that the complainant is not a consumer within the definition of Consumer Protection Act.  OP has not admitted the averments made in the complaint.  OP sales team has not promised the facilities as per the list mentioned in the complaint.  It is denied by OP that in the year 2017 suddenly discharged the entire marketing team and put up a new team.  Further OP denied that club management did not create a board representation from the member’s side.    

OP further submitted that under the policy of the club, each and every member has to pay annual maintenance charges apart from membership fee and separate charges for use of different sport activity.  The complainant and other members are very well made aware by the OP about the rules.  The complainant and other members accepted for the same and paid the membership fee.  The claim of the complainant that when once a person becomes member that person is entitled for free usage of all the activity is not at all correct.  There are certain time schedules for the members to use the activities and the members are bound by it.  OP has also not at all agreed that the other sports activities are free of cost.  OP has also replied in detail with regard to all the queries raised by the members including the complainant with regard to the activities in the club.  As per policy, there is no provision for refund, but it can be transferred to any person of the choice of the OP at nominal charge.  Complainant is not entitled to any of the reliefs.  There is no any deficiency of service on the part of OP.  Rest of the allegations made by the complainant is denied by OP.  Hence OP prayed for dismissal of the complaint with exemplary costs.

4. In the course of enquiry into the complaint, the complainant and the OP have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant has submitted written arguments.  Complainant and OP have produced certain documents.  We have heard the arguments of complainant and OP and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OP, if so, whether complainant is entitled for the relief sought for?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  Negative

Point No.2:  As per the order below

REASONS

7. Point No.1:  The case of the complainant is that, OP has promised to the complainant at the time of obtaining the club membership as under:

1. Every facility other than GYM was free for a family of 5 members of husband, wife and three children, with an Annual maintenance of Rs.6000/- per year.
2. They did not have pool at that time and they promised that the pool will be ready for the New Year 2016.  Which eventually came up only in 2018.

3. We were never ever told about restricted timings of usage of the facilities.

4. Never was it told that every facility is chargeable on usage.

5. They promised a kids play zone, squash, tennis and Bar and Restaurant.

6. Club timings clearly mentioned 5.30 am – 10.30 am (does not mention any restriction of entry for life members)

8. Further the complainant alleged that in the year 2017 OP discharged the entire marketing team and put up a new team.  And the club management did not create a board representation from the member’s side.  The members had to stay in their management of the club.  The said allegations of the complainant has been denied by the OP through their affidavit.  The burden lies on the complainant to prove the above said allegations made in his affidavit evidence.  The complainant has not produced any iota of evidence to prove the above said allegations.  The mere allegations through affidavit evidence without any documentary evidence the contention of the complainant cannot be acceptable.

9. Further the complainant alleged that the OP has collected annual maintenance charges and they have also collected separate charges for use of different sport activities.  As per bye-law produced by the OP, clause III sub clause c & d of Rules & Regulations and Bye-Laws for members of V K Sports Centre clause III of  Membership which reads here as under:

III. CLASSES OF MEMBERSHIP

1. ..
2. ..
3. Annual Maintenance Fee: In addition to the non-refundable Membership Fee, Annual Maintenance Charges or Annual Administrative Charges, other additional charges as indicated in the Membership Agreement/Membership Application Form will be payable.  These charges will be revised periodically to meet increase in Maintenance/Administrative expenses.

4. Charges for Facilities: Specified charges are payable for facilities used.  Some categories of membership include complementary use of facilities/Room Stay etc., at the Centre for a specific period.

*Govt. taxes.                             #Additional service charges 

III MEMBERSCHIP:

          1..

          2..

3. The prescribed membership fee is to be paid by /DD / Credit card favouring VijayKiran Hospitality Services Pvt. Ltd., at the time of signing up for membership.  Cash payment, if any made in unavoidable circumstances should be deposited only to the Company’s Accounts Department and proper Receipt obtained in order to ensure that the payment is received by the Company.  Payments would not be made to any other person, including employees of the company.  The Membership Fee is Non – Refundable.

10. As per the Bye-law the OP has collected the annual maintenance charges apart from the membership fee and separate charges for the use of different sports activities.  OP has acted only as per the Rules and Regulations of bye-laws.  OP has not violated the promises made at the time of obtaining the membership and even not committed any fault in their duty.  Further clause III (3) of the terms and condition complainant is not entitled for the refund of the membership fee.  On the above discussion made hitherto, we are of the opinion that the complainant has miserably failed to prove deficiency on the part of OP.  The complainant has not placed any material on record to substantiate his allegation that the OP have acted in contravention of the Bye-Laws of VK Sports Rules & Regulations of membership.  The complainant having agreed to the terms and conditions of membership, now cannot demand refund of the fees paid by him.  Therefore, we are of the opinion that the complaint is liable to be dismissed.  Accordingly, we answer the point No.1 in negative.

11. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

  O R D E R

The complaint filed by the complainant is dismissed.  No order as to costs.

 Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the open Commission on this 15^th day of October 2020)

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.Krishna Mohan P.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OP by way of affidavit:

Sri.Kiran.

Documents produced on behalf of Opposite Party:

Vln*