At present, in India we can see lot of fitness centers and gym around us. Before three decades these kind of fitness centers are not so familiar with us and now we all have come across this word ‘gym’ and ‘fitness center’ atleast once in our lifetime because of the changing life style. Due to unhealthy food habits, lot of people suffer from obesity and such other health problems like pain in joints, indigestion, heart problems, etc., which triggers them to approach the fitness centers and gyms for relief. And it is very important to know what is meant by gym and fitness center before stepping into the topic deeply.Though these terms are used interchangeably often,there is a slight difference between them.A gym is a place where physical workout will be done manually and also with equipments.Whereas fitness center is a place which provides variety of workouts which includes indoor and outdoor workouts along with fitness activities.In short,a person will get more amenties and personal care (individual trainer,warm-up and cool rooms,running tracks,golf,pool,etc.,) at fitness center than at gym.
Unfamiliar for legal problems:
Unlike other business,we haven’t heared many legal cases related to gyms and fitness centers. But that doesn’t mean gyms are exception to legal problems. At present we don’t have any special legislation exclusively for gym to regulate its conduct of business nor to provide remedies in case of any legal problem.As far now,a bill was introduced in Rajya Sabha on 21st July,2017 (The Gymnasium and Fitness Centers (Regulations) Bill,2017) and still it is pending before the Parliament for approval. And this bill has many highlighting features such as requirements for establishing a gym or fitness center,penal actions on person who contravenes the provisions,authorities for administering and monitoring such establishments,etc.,Due to absence of separate legislation,people got many confusions when there arises any problem at/from gyms and fitness centers.If a person want to start a gym or fitness center,then he has to register it under The Companies Act,2019 as a small scale business unit.
Gyms & fitness centers and Consumer Protection:
Gyms and fitness centers are providing services to needy people for consideration.On this account,the gyms and fitness centers come under the purview of Consumer Protection Act since they are provider of service and the people who obtain such service are called as consumers.If a person joins any gym or fitness center on basis of a promise that certain weight will be lost within stipulated time,and if the said promise is not fulfilled or obtained then what is the remedy available to him ? Since there is no special legislation,is he able to claim remedy from any other Act ? Yes,he can claim remedy in case of any deficiency in service of gyms and fitness centers under the Consumer Protection Act2019.
Already there was Consumer Protection Act1986 which had provisions to provide remedy for defect in goods and deficiency in services.Now this Act has been amended in 2019 as Consumer Protection Act2019 with some new provisions such as simplified disputes Redressal process – Mediation,e-filing of cases,setting up of Central Consumer Protection Authority (CCPA) to prevent consumers from unfair trade practices.
Remedies available under Consumer Protection Act 2019:
According to section 107 of Consumer Protection Act2019 the consumer protection act 1986 is repealed. Notwithstanding such repeal, anything done or any action taken or purported to
have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent
with the provisions of this Act, be deemed to have been done or taken under the corresponding
provisions of this Act[i].The Act defines what is meant by ‘Unfair trade practice’ under section 2(47) and it is very clear if anybody falsely represents that the services are of particular standard,quality or grade[ii] amounts to unfair trade practice which is punishable under the act.
From the definition of the expression ‘unfair trade practice’ it is very clear that it applies not only to the goods but also to the provisions of any service[iii].If any person joined the gym or fitness center on the basis of promise that certain weight will be lost within stipulated period of time and if such weight is not lost,then it amounts to unfair trade practice.
Mere proof of such such practice is not alone enough to file a suit against such service provider but there must be a loss on part of consumer who relied upon such false promise.Then only he will be awarded damages for the loss occurred to him.
The Supreme Court held that if any service (results) is not delivered within the stipulated period,the delay so caused is denial of service and to be exact it is denial of benefits to the consumers[iv].By taking this judgement in consideration if any weight promised to be lost within stipulated period (service) is not lost then it leads to denial of benefits to the consumers which attracts penal action under Consumer Protection Act,2019.
In addition to this,if a gym or fitness center fails to provide necessary amenities like clean drinking water,hygienic toilets,etc., or fails to maintain the equipments in proper working condition then it also amounts to deficiency in service and the gym/fitness center is liable to pay compensation to its customers if any injury is caused due to such deficiency in service.
The South Delhi District Consumer Disputes Redressal Forum held that poor maintenance of gym equipments which causes injuries to its members is a deficiency in service.The forum ordered the South Delhi gym to pay Rs.25,000 as compensation for the injuries caused to one of its member Mr.Abhinav who suffered severe injuries while doing dumbell rows.Though Abhinav had claimed for Rs.2.22 lakhs towards the refund of annual gym fees and compensation together,the forum ordered the gym to pay Rs.25,000 since he failed to provide the medical records to prove that his injuries were severe and grave[v].
In another case,the Chennai Consumer Forum has ordered the gym to repay the part of annual membership fee Rs.6,120 along with the compensation of Rs.5,000 to Mr.G.Saravanan,for failing to provide the facilities it promised to offer when collecting membership fees.The complainant was informed that he will be provided facilities like certified trainers,physiotherapist treatment for muscle injuries,yoga,aerobics,martial arts,etc., if he pays the annual membership fees.Relying upon the promise,Saravanan paid Rs.9,180 as annual membership fees in 2014 and he reported that the said facilities were not provided and he was stopped from coming to the gym when he questioned about the same.Therefore it is very clear that the gym has committed deficiency in service by not providing the promised facilities.But the gym responded that the complainant was stopped due to his misbehavior with the female members.Since no evidence has been provided by the gym nor the female members to prove such misbehavior,the forum ordered the gym to refund the portion of subscription paid by the complainant[vi].
Where to seek remedy ?
An aggrieved person can approach District Consumer Redressal Commission if the value of consideration does not exceed one crore and can seek remedy at State Consumer Redressal Commission if the value exceeds one crore but not ten crores.And if the value of consideration exceeds ten crores then National Commission can take up the case.Within 21 days from the date of receipt of complaint from the complainant,the Commission will decide the admissibility of the case.And if there is any chance for settlement of disputes through Mediation,then the Commission will refer the case to Mediation[vii].If the consumer dispute is settled in mediation then the mediators shall prepare the report and send it to the respective Commission along with the signed agreement.
If the consumer dispute is settled in part,then District or State or National Commission will continue to hear rest of the disputes[viii].If the settlement is not arrived then complaint will be taken back by the Commission and it will resolve the disputes.
The act has also established Central Consumer Protection Authority (CCPA)[ix] to regulate the matters relating to violation of consumer rights,unfair trade practice,false and misleading adverstisements.His main duty is to promote,protect and enforce the rights of consumers as a class.
The Central Authority can conduct investigation through his investigation wing (Director General) or through District Collector if he finds there is a prima facie evidence of unfair trade practice or misleading advertisements.If he confirms the prevalence of unfair trade practice or misleading advertisement then he may issue orders to recall the goods or withdraw any services,reimbursement of prices of goods or services,discontinuation of such practices[x].He also has powers to issue directions and penalties against such practices[xi].The person who is affected by the order of Central Authority can file appeal in National Commission within 30 days from the date of receipt of such order.
The Commission has to finish the case within the period of 3 months if there is no analysis or test of laboratory required.Whereas if the analysis or test of laboratory is required then it has to finish the case within 5 months[xii] and in case of any delay in finishing the case,the Commission has to record the reasons for such delay.The Commission shall admit the complaint only within the period of 2 years[xiii] from the date of when cause of action arises except if there is any reasonable ground for delay of admission of complaint.
Conclusion :
From the above words,it is very clear a person who is suffered from deficiency of service from gyms and fitness centers can approach the Consumer Redressal Commission or Central Authority to seek remedy.The common remedy which a person can get is reimbursement of prices of services and if any injury is caused due to such deficiency in services then he will get compensation to the extent of loss occurred.If the bill for Gyms and fitness centers is passed in Parliament in future,then the aggrieved person can claim for remedy under the provisions of that special Act. Until then the Consumer Protection Act2019 will provide necessary remedy to the needy people.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[i]Consumer Protection Act,2019, S 107(2).
[ii]Consumer Protection Act2019, S 2(47)(i)(b).
[iii]Mantora Oil Products Pvt. Ltd,Kanpur V. Oriental Insurance Company Ltd,Kanpur I (1991) CPJ 323 (326) (NC)
See also Mukesh Jain V. V.K.Gupta II (1992) CPJ 439 (NC).
[iv]Lucknow Development Authority V. M.K.Gupta, AIR 1994 SC 787 [III (1993) CPJ 7(17) (SC)].
[v]Aamir Khan,Duty of gyms to maintain equipment:Forum,Times Of India,Oct 23,2018.
[vi]Express News Service,Chennai:Gym ordered to refund subscription fee to user,The New Indian Express,April 9,2018.
[vii]Consumer Protection Act2019, S 74.
[viii]Consumer Protection Act2019, S 81(2).
[ix]Consumer Protection Act2019, S 10.
[x]Consumer Protection Act2019, S 20.
[xi]Consumer Protection Act2019, S 21.
[xii]Consumer Protection Act2019, S 38(7).
[xiii]Consumer Protection Act2019, S 69.
