State Consumer Disputes Redressal Commission
Fitness Frist India Pvt.Ltd. vs Praveen Swami on 21 July, 2017
IN THE STATE COMMISSION: DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986)
Date of Decision: 21.07.2017
First Appeal No. 1045/2012
(Arising out of the order dated 11.10.2012 passed in Complaint Case No. 718/2010 by the District Consumer
Disputes Redressal Forum-VI (New Delhi) M-Block, Ist Floor, Vikas Bhawan I P Estate New Delhi)
In the matter of:
FITNESS FIRST INDIA PVT. LTD.
Through its Managing Director
Central Court Hotel
Central Court
N-Block, Connaught Circus
Connaught Place
New Delhi-110001 .........Appellant
Versus
PRAVEEN SWAMI
S/o Sh. K Ponnuswami
B-6, Bahadur Apartments
Raj Narain Marg
Civil Lines
New Delhi-110054 ..........Respondent
First Appeal No. 1046/2012
(Arising out of the order dated 11.10.2012 passed in Complaint Case No. 719/2010 by the District Consumer
Disputes Redressal Forum-VI (New Delhi) M-Block, Ist Floor, Vikas Bhawan I P Estate New Delhi)
In the matter of:
FITNESS FIRST INDIA PVT. LTD.
Through its Managing Director
Central Court Hotel
Central Court
N-Block, Connaught Circus
Connaught Place
New Delhi-110001 .........Appellant
Versus
MS. MIHIRA SOOD
D/o Sh. Rakesh Sood
F-4/62, Masjid Mod
Uday Park
New Delhi ..........Respondent
Page 1 of 10
CORAM
N P KAUSHIK - Member (Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
N P KAUSHIK - MEMBER (JUDICIAL)
JUDGMENT
1) This order shall dispose of First Appeals bearing Nos.
1045/2012 and 1046/2012. Appellants by way of these appeals have challenged the orders dated 11.10.2012 passed by the Ld. District Forum VI Vikas Bhawan New Delhi. Ld. District Forum had directed the appellant herein to pay punitive damages of Rs. 2,00,000/-. In each case, half of this amount was to be deposited in Consumer Welfare Fund of the State and balance amount of Rs. 1,00,000/- was to be paid to each complainant towards damages for harassment, psychological shock, humiliation and legal expenses. Parties hereinafter shall be referred to by their original status as it was in the complaint in the District Forum.
2) In brief, the complainant Ms. Mihira Sood who incidentally happened to be an Advocate was a member of the Fitness First India Pvt. Ltd. (in short the OP), a Health Club Operator. It was operating in Connaught Place New Delhi. OP has 540 clubs worldwide with over 1.4 million members. The club at Connaught Place alone has over 3000 members. Membership in this club Page 2 of 10 was also being enjoyed by the complainant Sh. Praveen Swami (Complaint Case No. 1045/2012). Membership fee of the club at the relevant time was Rs. 4000/- per month. Uptil February 2010, the complainants Sh. Praveen Swami and Smt. Mihira Sood had no complaint against the OP. In February 2010 OP introduced a policy in its Connaught Place Club and limited the amount of time a person could spend on the treadmill to 25 minutes. The treadmill was programmed to stopped automatically after 25 minutes. It was ostensibly done so to control overcrowding and excessive demand of that machine. Restrictions were also placed on the facilities like steam and sauna rooms. There were frequent breakdowns of various machines. Members had expressed their dissatisfaction of the deteriorating services. Most of the times, water was not available in the OP club. Shower-rooms and toilets could not be used. Complainant Sh. Praveen Swami, a Journalist discussed the matter with the co-member Ms. Mihira Sood. Having failed in an amicable settlement with the OP, the complainant Sh. Praveen Swami sent a legal notice through the complainant Ms. Mihira Sood on 20.02.2010. OP was called upon to restore the services as were available to the complainant when they joined the club. Legal notice sent remained unreplied. SMSes were sent to the Page 3 of 10 complainant to believe that their grievances were redressed. Complainant Ms. Mihira Sood was shocked when she was informed orally on 05.05.2010 in the OP club that her membership had been cancelled. On her enquiry she was informed that it was done so in view of the notice sent by her on behalf of her client Sh. Praveen Swami. Both the complainants received a notice dated 01.05.2010 from the OP informing them separately that their membership had been terminated. No reasons were assigned for the same. A cheque refunding the balance of membership fee in the month of May 2010 was enclosed with the letter of termination of membership.
3) Complainants sent legal notices to the OP calling upon it to restore their memberships within two days. Notice in respect of the complainant Ms. Mihira Sood remained unreplied whereas the OP replied to the notice in respect of the complainant Sh. Praveen Swami. OP stated in its reply that the membership was terminated for the simple reason that he was raising issues about the timings and quality. It was thought best not to continue the business relationship with him. OP also informed that he was not willing to restore the membership.
4) Both the complainants filed their separate complaints in the District Forum on the grounds that the termination of Page 4 of 10 membership was illegal, malafide and violation of their rights under Consumer Protection Act 1986. Action against the complainant Ms. Mihira Sood was stated as violative of the Advocates Act as well. On the basis of the aforesaid spectrum of facts complainants have sought restoration of their membership and to pay to them an amount of Rs. 1,00,000/- each as compensation. Pendente-lite and future interest @ 18% p.a. on the said amount of Rs. 1,00,000/- was also prayed for. OP club contested the complaint and relied upon clause 21 of the terms and conditions which provided for adherence to terms by the members to the equipment usage and time and limits. OP also submitted that the complainants had violated the rules and regulations of the OP club by raising issues about timings and quality. Clause 4 of the terms and conditions called upon the members to abide by the OPs rules and regulations. OP also relied upon clause 13(g) of the terms and conditions entitling the OP to cancel the membership at any time without prior notice.
5) Ld. District Forum observed that the right asserted by the OP to terminate the membership for raising issues of 'deficiency' was not only against public policy but also in violation of complainants' right under Advocates Act as well as in violation of Consumer Protection Act 1986. Ld. District Forum also observed Page 5 of 10 that the fine print conditions relied upon by the OP were unilateral. Membership could be terminated by efflux of time or in the event of complainants violating any rules and regulations of the OP. OP could do his business subject to reasonable restrictions including public laws and force.
6) Present appeal has been filed on the grounds inter-alia that the terms of contract between the parties had to be construed strictly. It thus did not amount to 'deficiency of service'. Complainants' breached the rules and regulations of the OP by not abiding by the limits.
7) I have heard at length the arguments addressed by the Counsel for the Appellant Ms. Megha Katari Advocate and the Counsel for the Respondent Sh. Prateek Chadda Advocate.
8) The relevant terms and conditions of the membership are reproduced below:
"4. CLUB RULES AND REGULATIONS:
The Club Rules and Regulations form integral part of the Application and Agreement and a breach of them will be deemed as breaching of this Application and Agreement. Certain clubs have sections high risk areas (inclusive of but limited to steam rooms and saunas). You must ensure your reads, understand and abide by the Club Rules and Regulations for the club, particularly those applying for the aforementioned areas.
13. CANCELLATION:
g) The Company/Club is also entitled without any liability whatsoever, to return, limit, suspend or vary the services, in Page 6 of 10 whole or in part, at any time in its sole discretion, with respect to on/all members without any notice for any reason which is found to be reasonable by the Company/Club, including but not limited to: Government rules, regulations, orders, directions, notifications and etc. including changes thereto prohibiting/suspending the rendering of the services by the Company/Club
21. TIME LIMITS:
You must adhere to the prevailing and specific parking terms and conditions and equipment usage time limits set by the Company/Club and violation of such limits may incur fees as decided by the Company/Club
26. RIGHT TO ADMISSION:
The Company reserves the right to refuse entry to any person including members, and has the right to cancel your membership without warning a notice for any reasons including but not limited to breach of these Membership Terms, failure to comply with the club Rules and Regulations (including inappropriate behaviour) or for any other reasons the company may decide such as damaging equipment in the club and perceived risks, including but not limited to the use of illegal or performance enhancing drugs"
9) Let us now examine as to on what grounds the membership of the complainants were terminated in these cases. Letter dated 01.05.2010 terminating the membership of the complainants simply refers to clause 26 of the terms and conditions of the membership (reproduced above). OP has not disclosed any reasons for terminating the membership. The reasons for termination of the membership are given by the OP in its letter dated 13.05.2010. It was reply to the notice dated 10.05.2010 sent by the complainants. Corresponding reply to Page 7 of 10 paras 8 to 11 as given in the letter dated 13.05.2010 is relevant.
The same is reproduced below:
"8-11 That the contents of corresponding paras of your notice are correct only to the extent of termination of your membership and rest of the contents are absolutely wrong and vehemently denied. However it is submitted that the termination of your membership had nothing to do with the notice issued by you. Your membership was terminated in accordance with the rights vested in our client and its freedom to do business with only those people whom it desires to do with. In your case your membership was terminated for the simple reason that you were raising issues about timing and quality and it was thought best by our client not to continue the business relationship with you. It would not be out of place to mention here that in India the right to do business is enshrined as a fundamental right and you being a lawyer will appreciate that the right to do business also includes the right of not doing business as well. Thus our client was well within its fundamental rights, when it decided not to do business with you or your client."
10) Perusal of the abovesaid reply shows that the OP terminated the memberships as the complainants were raising issues of times and quality. Admittedly at the time the complainants took the membership there were no specific time for the treadmill machine. The only grievance of the OP against the complainants was that the complainants raised a said issue of times and quality. The complainants joined the OP club on the assurance that there won't be any time limit for using machines including the treadmill. It is not the case of the OP that it had prescribed any time limit for the use of any machine. Controversy arises only when the OP fixed a time limit of 25 Page 8 of 10 minute for the use of treadmill. The said limit clearly deteriorated the quality and it was a case of 'deficiency in service'. OP as referred to above had 3000 members in its club in Connaught Place Delhi. It fixed the time limit so as to accommodate more and more number of members and earn more and more profits. Gagging the mouth of the complainants for raising the issue of quality is totally against the principles of Consumer Protection Act 1986 which has been legislated with an object of protecting the interests of consumer. I am, therefore, of the considered opinion that the Ld. Trial Forum rightly held that the OP was 'deficient in service' when it reduced times of the treadmill for its members.
11) Before parting it may be mentioned here that the appellant/OP has challenged the directions passed by the Ld. District Forum whereby Delhi Police and the Municipal Agencies were directed to revive the license granted the OP to run the club. Ld. Counsel for the OP has argued that the Consumer Courts do not have any power for giving such directions. Section 14(f) of the Consumer Protection Act 1986 provides for the discontinuation of the 'unfair trade practice' or for restricting trade practice or not to repeat them. In other words, law does not take cognizance of only one event but goes upto avoiding Page 9 of 10 repetition of any unfair trade practice. In the case of hospitals or doctors committing medical negligence, consumer courts often give directions to the Medical Council of India or such regulatory authorities to cancel the licenses of erring hospitals/doctors. The plea thus raised by the Ld. Counsel for the OP/Appellant is devoid of merits.
12) In view of the aforesaid reasons, the appeal is devoid of merits. The same is hence dismissed.
13) Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
(N P KAUSHIK) MEMBER (JUDICIAL) (Fatima) Page 10 of 10