1ST SURANA & SURANA & SOL RAFFLES UNIVERSITY NATIONAL LABOUR LAW MOOT i

2018

BEFORE THE HON’BLE DISTRICT

CONSUMER FORUM, CHANDIGARH

UNDER SECTION 35

OF THE CONSUMER PROTECTION ACT, 2019

COMPLAINT NO. ___ OF 2012

IN THE MATTER OF:

SAURAV VERMA _______________________________________________ PETITIONER

VERSUS

SUDESH SINGLA________________________________________________ RESPONDENT

AND
NARESH LAMBA________________________________________________ RESPONDENT

SUBMITTED BY : JAYANTI SINGLA,

B.COM L.L.B. (HONS.),
139/15, GROUP C-3.

MEMORIAL ON BEHALF OF THE COMPLAINANT

MEMORIAL ON BEHALF THE RESPONDENTS

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TABLE OF CONTENTS

S. PARTICULARS PAGE
NO.
1. List of Abbreviations ii
2. Index of Authorities iii.-v
3. Statement of Jurisdiction Vi
4. Statement of Facts vii
5. Statement of Issues Viii
6. Summary of Arguments ix
7. Arguments Advanced 1
1. That The Complaint Is Maintainable. 1-3
2. That The Terms Of The Standard Form Contract Are Not Lawful,
And Hence Not Binding.
3-8
3. That The Respondent Has Been Negligent In The Dispensation Of
His Legal Duties. 8-11

4. That The Gym Owner Is Vicariously Liable For The Negligence Of

The Gym Owner. 11-13
5. That The Complainant Is Entitled To Compensation 13-14
8. Prayer 15

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LIST OF ABBREVIATIONS

S. No. ABBREVIATION FULL FORM

1. & And
2. AIR All India Reporter
3. Hon’ble Honorable
4. COPRA, 2019 Consumer Protection Act, 2019
5. Del Delhi
6. ED. Edition
7. Govt. Government
8. Sec. Section
9. HC High Court
10. ICA Indian Contract Act, 1872
24. Bom. Bombay
11. All. Allahabad
22. Ltd. Limited
20. Cal Calcuta
12. Mad Madras
13. Ors. Others
14. C.B. Circuit Bench
15. QB Queen’s Bench
23. KB King’s Bench
16. SC Supreme Court
17. SCC Supreme Court Cases
18. SCR Supreme Court Reports
19. H.L. House of Lords

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INDEX OF AUTHORITIES

BOOKS REFERRED

BOOKS ON CONTRACT LAW

1. The Indian Contract Act, 1872, Universal Bare Act, 2017.
2. Bangia R.K., The Indian Contract Act,1872; Allahabad Law Agency, Delhi, 2015,
17th ed.
3. Singh Avtar, Business Law, EBC Explorer, Delhi, 2019, 11th ed.
4. Bangia R.K., Principles of Merchantile Law; Allahabad Law Agency, Delhi, 2010,
8th ed.
5. Srivastava S.N., ‘Law of Contract I & II, Central Law Agency, Lucknow, 2017, 11th
ed..
6. Mulla D.F., The Indian Contract Act, Lexis Nexis, Allahabad, 2015, 11th ed.

BOOKS ON CONSUMER PROTECTION ACT

1. Justice Aggarwal S.N., Supreme Court on Consumer Protection, Universal
Publication, Delhi, 2018
2. Kaushal Anoop, Introduction to torts and consumer protection, Allahabad Law
Agency, Lucknow, 2015, 6th ed.
3. Bangia R.K., The Consumer Protection Act,1986; Allahabad Law Agency, Delhi,
2018, 5th ed.
4. Singh Avtar, Business Law, EBC Explorer, Delhi, 2019, 11th ed.

BOOKS ON TORT LAW.

1. Bangia R.K., The Consumer Protection Act,1872; Allahabad Law Agency, Delhi,
2015, 17th ed.
2. Singh Avtar, Business Law, EBC Explorer, Delhi, 2019, 11th ed.
3. Kaushal Anoop, Introduction to torts and consumer protection, Allahabad Law
Agency, Lucknow, 2015, 6th ed.

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CASES REFERRED:

Sr. No. Case Name Citation Page No.

1. Fitness First India Pvt. Ltd. v. F.A. No. 1045/2012; Delhi 1
Praveen Swami State Consumer Disputes
Redressal Commission,
decided on 21/07/2017.
2. Noorudeen v. Umairathu Beevi A.I.R. 1998 Ker 171. 4
3. Curtis v. Chemical Cleaning and (1951) 1 K.B. 532. 5
Dyeing Co.
4. M/s Prakash Road Lines (p) Ltd. A.I.R. 1999 A.P.106. 5
v. H.M.T. Bearing Ltd.
5. Parker South Eastern Railway (1877) 2 C.P.D. 416. 5
Co.
6. Richardson Spence & Co. v. (1894) A.C.217 5
Rowntree (1894) A.C.217
7. Thornton v. Shoe Lane parking (1971) 1 All E.R. 686. 5
ltd.
8. Olley v. Marlborough Court Ltd. (1949) 1 K.B. 532. 5
9. Central Inland Water Transport A.I.R. 1986 S.C. 1571. 6
Corporation Ltd. V. Brojo Nath
10. Lilly White v. Munuswami A.I.R. 1966 Mad. 13. 6
11. Levison v. Patent Steam Carpet (1977) 3 W.L.R. 90 (CA) 6
Cleaning Co. ltd.
12. Photo Production ltd. v. (1978) 1 W.L.R. 856. 6
Securicor Transport Co.
13. R.S. Deboo v. Hindlekar A.I.R. 1995 Bom. 68. 7
14. Davies v. Collins (1945) 1 All E.R. 247 7
15. Pinnock Bros. v. Lewis & Peat (1923) 1 K.B. 690. 7
16. Alexander v. Railway Executive (1951) 2 K.B. 882 8
17. Tirathraj v. Amar credit (1968) 72 Cal W.N. 234. 8
corporation
18. Blyth v. Birmingham Water (1856) LR 11 Exch. 781 8
Works Co.
19. Donoghue v. Stevenson 1932 AC 562 9
20. Grant v. Australian Knitting 1935 AC 85 9
Mills Ltd.
21. Bourhill v. Young, 1943 AC 92 9
22. Butterfield v. Forrester (1809) 11 East 60 10

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23. Brown v. Kendal (1859) 6 Cussing 292 11

24. Stevenson Jordan & Harrison (1952) 1 TLR 101 12
Ltd. V Macdonald & Evans
25. The Management Of Indian (1990) ILLJ 50 Mad 12
Bank vs The Presiding Officer
26. White v. John Warrick and Co. (1953) 1 W.L.R. 1285 13
Ltd.

DICTIONARIES REFERRED

1. Bryan A. Garner, Black’s Law Dictionary (8th Ed. 2001).

2. Oxford English Dictionary (2nd Ed. 2009).

STATUTES

1. Consumer Protection Act, 2019

2. Indian Contract Act, 1872

3. The Unfair Contract Terms Act, 1977

WEBSITES

1. www.manupatra.com
2. www.judis.nic.in
3. www.ncrb.nic.in
4. www.scconline.com
5. www.egazette.nic.in
6.

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STATEMENT OF JURISIDICTION

The Complainant in his capacity of a consumer and having being aggrieved by the services

rendered by the defendants; has approached the Hon’ble District Consumer Forum by way of

a complaint under virtue of Section 351 of the Consumer Protection Act, 2019; and thus,

reposes his absolute faith in the worthy jurisdiction of this forum.

1
35. Manner in which complaint shall be filed –
(1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service
provided or agreed to be provided, may be filed with a District Commission by—
(a) the consumer, —
(i) to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or
agreed to be provided; or (ii) who alleges unfair trade practice in respect of such goods or service;
(b) any recognised consumer association, whether the consumer to whom such goods are sold or delivered or
agreed to be sold or delivered or such service is provided or agreed to be provided, or who alleges unfair trade
practice in respect of such goods or service, is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission
of the District Commission, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central Government, the Central Authority or the State Government, as the case may be: Provided that
the complaint under this sub-section may be filed electronically in such manner as may be prescribed.
Explanation. —For the purposes of this sub-section, "recognised consumer association" means any voluntary
consumer association registered under any law for the time being in force.
(2) Every complaint filed under sub-section (1) shall be accompanied with such fee and payable in such
manner, including electronic form, as may be prescribed.

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STATEMENT OF FACTS

 Saurabh Verma, (the present complainant), a 26-year-old executive officer got

membership of Mordern Gym, situated in Sector-7, Chandigarh; after paying Rs.
25,000 as membership fee.
 On 11.12.2012, while doing weight training, because of the negligence of the gym
trainer, Mr. Naresh Lamba, (Respondent No. 2), 23 pounds weights slipped from the
rod and fell on the foot of the complainant leading to multiple fracture in his foot.
 Mr. Sudesh Singla (the gym proprietor and Respondent No. 1) absolved his liability
of compensating the complainant for the injury caused while working out in the gym,
by relying on the ‘Waiver and Release Liability Agreement’ signed by complainant.
 The complainant expressed his ignorance about such waiver agreement by stating that
he has signed such agreement on the basis of the fraudulent representation made by
the gym manager that the same is membership form. The complainant also alleges
such agreement to be unfair and prejudiced towards the seller.
 The complainant has approached the District Consumer Forum for claiming
compensation for the negligence and deficient services of the respondents.
 Hence, this present case.

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STATEMENT OF ISSUES

ISSUE I

WHETHER OR NOT THE COMPLAINT IS MAINTAINABLE?

ISSUE II

WHETHER OR NOT THE TERMS OF THE STANDARD FORM CONTRACT ARE LAWFUL

AND HENCE BINDING?

ISSUE III

WHETHER OR NOT THE RESPONDENTS HAVE BEEN NEGLIGENT IN THE DISPENSATION

OF THEIR LEGAL DUTIES?

ISSUE IV

WHETHER OR NOT THE GYM OWNER IS VICARIOUSLY LIABLE FOR THE NEGLIGENCE

OF THE GYM TRAINER ?

ISSUE V

WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO CLAIM COMPENSATION, AND

HOW MUCH?

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SUMMARY OF ARGUMENTS

I. THAT THE COMPLAINT IS MAINTAINABLE.

The complainant is a consumer within definition of COPRA and the present complaint
conforms with the territorial and pecuniary jurisdiction of District Consumer Forum,
Chandigarh, hence it is maintainable.

II. THAT THE TERMS OF THE STANDARD FORM CONTRACT ARE NOT LAWFUL, AND
HENCE NOT BINDING.
The terms of Waiver and Release Liability Agreement contained in the membership form do
not constitute a valid contract, was entered into by misrepresentation, has unreasonable terms
with no reasonable notice being given of its exclusive terms, constitutes a fundamental breach
of contract and is violative of public policy and Section 28 of ICA, therefore a void contract
and hence not binding.

III. THAT THE RESPONDENT HAS BEEN NEGLIGENT IN THE DISPENSATION OF HIS
LEGAL DUTIES.
Respondent No. 2 has been negligent in the dispensation of his duties as he owned a duty to
care towards the complainant, he committed a breach of such duty, resulting in consequent
injuries to the complainant. Also, he cannot avail any defense available against negligence.

IV. THAT THE GYM OWNER IS VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF THE GYM
OWNER.

The respondent no.1 shares a master servant relationship with respondent No. 2, and since the
impugned tort of negligence was committed during the course of employment, therefore the
former is vicariously liable for the acts of the later.

V. THAT THE COMPLAINANT IS ENTITLED TO COMPENSATION

The complainant is entitled to compensation under Section 38 of COPRA, 2019; Section 75

of ICA and also under the law of torts, and hence has claimed a compensation of Rs. 67,500.

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ARGUMENTS ADVANCED

MOST RESPECTFULLY SHOWETH:

I. THAT THE COMPLAINT IS MAINTAINABLE.

1. It is humbly submitted that the complaint filed by the complainant under Section 35 of

the Consumer Protection Act, 2019 (COPRA, 2019) before the Hon’ble District

Consumer Forum is maintainable as conforming to all the provisions of the Act.

A. THE COMPLAINANT FALLS WITHIN THE DEFINITION OF A CONSUMER

2. It is humbly submitted that the complainant is the buyer and the direct beneficiary of the

gym training services and facilities rendered by the respondents. Providing gyming

machineries and fitness infrastructure and rendering gym training and work-out

instructions is a ‘service’ as provided under Section 2(42)2 of COPRA, 2019. It was

reaffirmed by the Delhi State Consumer Disputes Redressal Commission in Fitness First

India Pvt. Ltd. v. Praveen Swami 3, where it ordered compensation to be provided for the

unfair trade practises practised by the appellant providing health club or gym services.

3. Hence, the complainant who is ‘availing a service for a consideration which has been

paid, for his personal use and consumption’ falls within the definition of consumer as

provided under Sec 2 (7)(b)4 of COPRA, 2019. Therefore, the complainant is empowered

to file the present complaint before the Hon’ble District Forum and seek redressal under

the provisions of COPRA.

2
"service" means service of any description which is made available to potential users and includes, but not
limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing,
supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment,
amusement or the purveying of news or other information, but does not include the rendering of any service free
of charge or under a contract of personal service
3
First Appeal No. 1045/2012; Delhi State Consumer Disputes Redressal Commission, decided on 21/07/2017.
4
"consumer" means any person who—
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any beneficiary of such service other than
the person who hires or avails of the services for consideration paid or promised, or partly paid and partly
promised, or under any system of deferred payment, when such services are availed of with the approval of
the first mentioned person, but does not include a person who avails of such service for any commercial
purpose.

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B. THE DISTRICT CONSUMER FORUM, CHANDIGARH HAS THE TERRITORIAL

JURISDICTION TO ENTERTAIN THE PRESENT COMPLAINT

4. It is submitted that, since all the parties are resident in Chandigarh as well as the cause of

action has arisen within Chandigarh; therefore the present complaint very well falls

within the territorial jurisdiction of the District Consumer Forum, Chandigarh.

5. Section 34(2)5 of COPRA, 2019; lays down the territorial jurisdiction of a District

Consumer Disputes Redressal Commission and provides that a complaint can be

instituted in such District Forum in whose local jurisdiction either each or any of the

opposite party resides or personally works for gain; or where the cause of action, wholly

or in part has arisen; or where the complainant resides or personally works for gain.

6. In the instant case, both the respondents as well as the complainant resides in

Chandigarh. The gym which is regularly frequented by them is located in Sector -7,

Chandigarh; where the complainant has got injured, hence the cause of action also arose

in Chandigarh. Therefore, the simultaneous incidence of all the aforesaid conditions

occurs within the local jurisdiction of District Consumer Forum, Chandigarh.

C. THE RELIEF CLAIMED BY THE COMPLAINANT FALLS WITHIN THE PECUNIARY

JURISDICTION OF THE DISTRICT FORUM.

7. Section 34(1)6 of COPRA, 2019 lays down the pecuniary jurisdiction of a District

Consumer Disputes Redressal Commission; and provides for the claim ceiling of one

5
Sec. 34(2) : A complaint shall be instituted in a District Commission within the local limits of whose
jurisdiction,—
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the
institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works
for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint,
actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain,
provided that in such case the permission of the District Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain.
6
Sec. 34(1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to
entertain complaints where the value of the goods or services paid as consideration does not exceed one crore
rupees: Provided that where the Central Government deems it necessary so to do, it may prescribe such other
value, as it deems fit.

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crore rupees. Since, the complainant has asked for a claim of Rs. 67,500 which is well

within the pecuniary jurisdiction of the District Forum, hence the impugned complaint

stands fully maintainable.

II. THAT THE TERMS OF THE STANDARD FORM CONTRACT ARE NOT LAWFUL, AND

HENCE NOT BINDING.

8. It is humbly submitted that the terms and conditions of the ‘Waiver and Release Liability

Agreement’ contained in the Gym Membership Form, which was a standard form

contract; were absolutely unreasonable, unfair and oppressive in nature, thereby

harassing and vexing the innocent consumers. Because of its despotic and unjustified

terms which is prejudicial to the sellers and exploitative for the consumers; thereby

enabling the seller to completely escape its liability, such a standard form contract is not

a valid contract for being opposed to the fundamental principles of a contract as well as

the statutory principles underlined by the Indian Contract Act, 1872; and hence not

binding on the parties to such contract.

A. NOT A VALID CONTRACT AS NOT EFFECTED THROUGH FREE CONSENT

9. Section 107 of Indian Contract which lays down the essentials of a valid contract

prescribe that only such an agreement is enforceable which have been entered into with

the free consent of the parties and for a lawful object and consideration. While the said

agreement entails a lawful object and consideration; it had not been signed by the

complainant with his free consent, i.e. agreeing upon same thing in same sense or

consensus-ad-idem.8 The said Waiver and Release Liability Agreement was signed by

7
Sec. 10 : All agreements are contracts if they are made by the free consent of parties competent to contract,
for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in force in 1 India and not hereby expressly repealed by which
any contract is required to be made in writing2 or in the presence of witnesses, or any law relating to the
registration of documents.
8
Section 13 of Indian Contract Act, 1872 : Two or more persons are said to consent when they agree upon the
same thing in the same sense.

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the complainant by the misrepresentation effected through the gym manager who

purported to be a gym membership form.

10. Misrepresentation is effected when due to a breach of duty of a party he gains an

advantage over the other party who is misleaded to his prejudice; or when a party cause

the other party to undertake a mistake as to the substance subject matter of the

agreement.9 In the present case, the representation by the gym manager that the

instrument which is signed by the complainant is a mere membership form, has coerced

the defendant into signing the Waiver and release liability agreement, thereby causing

the complainant to be mislead to his own prejudice 10, because if he would have been

aware of the actual contents of the Waiver agreement, he would have never signed it

owning to its unreasonable terms.

11. Since, a membership form usually contains the undertaking to abide by rules of the gym,

terms and conditions of usage and of payment only, therefore the presence of such a

waiver and release of liability clause within the membership form; and that too which

completely absolves the party dominant, i.e. the gym proprietor from his entire liability is

beyond the comprehension of the complainant while signing the form. If any exclusive

terms as to waiver of liability are there in the form, the gym manager was under a

specific legal duty to inform the consumers about the same, so that they can get a true

picture as to the substance of the agreement signed by them.

D. MISREPRESENTATION AS TO THE TERMS OF THE CONTRACT

9
Section 18 : "Misrepresentation" means and includes—
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which
is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or
any one claiming under him; by misleading another to his prejudice, or to the prejudice of any one claiming
under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing
which is the subject of the agreement.
10
Noorudeen v. Umairathu Beevi, A.I.R. 1998 Ker 171.

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12. The complainant has signed the agreement containing certain terms but there was a

different oral representation as to the contents of the document by the gym

representative, hence the said agreement is not a binding one. Reliance can be placed on

the landmark case of Curtis v. Chemical Cleaning and Dyeing Co.,11in which it was held

by the Court of Appeal that as there was misrepresentation as to the contractual terms

which misled the plaintiff as to the extent of the defendant’s exemption of liability, the

defendants could not rely on the said clause and they are bound to pay damages.

E. NO REASONABLE NOTICE OF EXCLUSIVE TERMS

13. In order that a contract becomes binding, it is necessary that the attention of the other

party is drawn towards those terms by the party who has pre-drafted the terms of the

contract.12 If reasonably sufficient notice about the terms of the contract, specially the

exclusive terms of the contract, in the likes of exemption of liability clause 13 or, some

special obligation on part of opposite party is included which don’t find place in a

contract in the usual course, then attention towards such terms must be drawn

specifically.14 If a party to the contract wants to have exemption form liability, he must

give a reasonable notice about such exemption and such clause must form an intrinsic

part of the contract.15

F. THE TERMS OF THE CONTRACT ARE UNREASONABLE.

14. It is not enough that the terms of the contract have been brought to the knowledge of the

other party by a sufficient notice before the contract was entered into, it is also necessary

that the terms of the contract themselves should be reasonable. If the terms of the

11
(1951) 1 K.B. 532.
12
M/s Prakash Road Lines (p) Ltd. v. H.M.T. Bearing Ltd., A.I.R. 1999 A.P.106.
13
Parker South Eastern Railway Co., (1877) 2 C.P.D. 416.
14
Richardson Spence & Co. v. Rowntree, (1894) A.C.217; Thornton v. Shoe Lane parking ltd., (1971) 1 All E.R.
686.
15
Olley v. Marlborough Court Ltd., (1949) 1 K.B. 532.

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contract are unreasonable and opposed to public policy 16, they will not be enforced

merely because they were been implied agreed on between the parties.

15. Unlike England, there is no specific legislation in India concerning the question of

exclusion of contractual liability.17 There is possibility of striking down unconscionable

bargains either under Sec. 19 as obtained without free consent, or under Sec 23, as

opposed to public policy. The supreme court clarified the position in India with respect

to repressive contracts in Central Inland Water Transport Corporation Ltd. V. Brojo

Nath18. The Supreme Court held that such a clause in an agreement between persons

having gross inequality of bargaining power was wholly unreasonable and against public

policy and was therefore void under Sec. 2319 of the ICA.

16. Indian and English Courts have time and again held that contracts which unreasonably

restrict or exclude liability are opposed to public policy. In Lilly White v. Munuswami20,

an action was brought by a customer against a firm of drycleaners and launderers, who

had given a saree worth Rs. 220 for dry-cleaning. The respondents having lost the saree,

the plaintiff claimed the entire cost of the saree, however the respondents offered only

50% of the value as written on the back of the receipt given by them. It was held that

such a term of exclusion of liability is was unreasonable and opposed to public policy

and therefore unenforceable, because if it is enforced the seller would try to take undue

advantage of the consumer.21

16
Levison v. Patent Steam Carpet Cleaning Co. ltd., (1977) 3 W.L.R. 90 (CA) ; Photo Production ltd. v. Securicor
Transport Co., (1978) 1 W.L.R. 856.
17
Unfair Contract Terms Act, 1977; this legislation severely limits the right of the contracting party to exclude
or limit their liability through exemption clauses in their agreements, especially the liability for personal injury
or death cannot be excluded through a term in a contract.
18
A.I.R. 1986 S.C. 1571.
19
Section 23 : The consideration or object of an agreement is lawful, unless—
it is forbidden by law ; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is
fraudulent ; or involves or implies, injury to the person or property of another; or the Court regards it as
immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of
which the object or consideration is unlawful is void.
20
A.I.R. 1966 Mad. 13.
21
R.S. Deboo v. Hindlekar, A.I.R. 1995 Bom. 68.

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G. FUNDAMENTAL BREACH OF CONTRACT

17. To protect the interest of the weaker of the parties to the contract when they have

unequal bargaining power, it is important to ensure that enforcing the terms of the

contract does not result in fundamental breach of the contract. In a standard form of

contract, it is likely that the party having a strong bargaining power may insert such

exemption clause in the contract, that his duty to perform the main contractual obligation

is thus negated.22 No exemption clause is allowed to exempt the non-compliance of the

basic contractual obligations.23 Since, the primary obligation and duty of a gym instructor

and trainer is to ensure that the gym exercises are done in a balanced and safe manner,

therefore, negligence on his part from observing his basic contractual obligations cannot

be exempted through a clause in the agreement.

H. RESTRAINT OF LEGAL PROCEEDINGS

18. Sec. 28 of ICA24 renders ‘Agreements in restraint of legal proceedings’ by which any

party thereto is restricted absolutely from enforcing his rights under or in respect of any

contract, by the usual legal proceedings in the ordinary tribunals; as void. In the present

case, para 3 of the ‘Waiver and Release Liability Agreement’ entails that the complainant

must completely surrender ‘his right to bring any legal action or assert a claim against

the gym for its negligence, or for any defective product on its premises’. Hence, by

manipulating the terms of the membership form as a standard form of contract, the

respondents have used it as a tool to completely restrain any legal action against their

deficient services, whatsoever; thereby violating Sec. 28 of ICA.

22
Davies v. Collins, (1945) 1 All E.R. 247; Pinnock Bros. v. Lewis & Peat, (1923) 1 K.B. 690.
23
Alexander v. Railway Executive, (1951) 2 K.B. 882, Tirathraj v. Amar credit corporation, (1968) 72 Cal W.N.
234.
24
Section 28 : Every agreement,—
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any
contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may
thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under
or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his
rights, is void to the extent.

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19. Hence, in the light of the above raised arguments, the terms of the ‘Waiver and Release

Liability Agreement’ included within the standard form contract of Gym Membership

Form, are completely unreasonable and opposed to the provisions of Indian Contract Act

as well as public policy, and thus void. Therefore, the claim of the respondents that the

complainant has waived off his rights by signing the said agreement and that they are

completely absolved from their liability in respect of the negligence committed by them,

stands refuted.

III. THAT THE RESPONDENT HAS BEEN NEGLIGENT IN THE DISPENSATION OF HIS

LEGAL DUTIES.

20. It is humbly submitted that Respondent No. 2, Mr. Naresh Lamba who was the gym

trainer and instructor, has been grossly negligent in the dispensation of his legal duties

and contractual obligations, resulting in acute pain, injuries and multiple fractures to the

complainant.

21. Negligence signifies the failure to exercise standard of care which the doer as a

reasonable man should have exercised in the circumstances. It is the breach of a legal

duty to take care which results in damage, undesired by the defendant to the plaintiff 25.

It is the omission to do something which a reasonable man would do, or doing something

which a prudent or reasonable man would not do.26

A. ESSENTIALS OF NEGLIGENCE

22. The respondent no. 2 has fulfilled all the essentials of the tort of negligence, and hence

he is liable to compensate for the injury suffered by the complainant as a result of such

negligence :

25
Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45
26
Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781

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(a) DUTY TO TAKE CARE: One of the essential conditions of liability for negligence is

that the defendant owed a legal duty towards “the persons who are so closely and

directly affected by my act that I ought reasonably to have them in contemplation as

being so affected when I am directing my mind to the acts or omissions which are

called in question”.27 In Grant v. Australian Knitting Mills Ltd.28, the court held that

the legal duty to a seller is not limited to the dispensation of basic duty of supplying

goods, but to ensure the safe and comfortable use of the use of the same by the

consumers.

Respondent No. 2 being a gym trainer is responsible for exercise advice and

personalized training of the clients. He owns a duty to care to ensure balanced and

safe work out routine, for all the clients especially while dealing with dangerous

equipments and procedures, like weight training.

(b) DUTY MUST BE TOWARDS THE PLAINTIFF - It must also be established that the

defendant owed a duty of care towards the plaintiff. In the present case, since the

complainant enrolled in the gym, the gym trainer became liable to dispense expert

supervision and instructions to the complainant while he is exercising. And, the

respondent held, a greater duty to care when the complainant was operating dangerous

and specialized equipments of weight training, which the respondent has breached

leading to a foreseeable injury to the complainant.29

(c) BREACH OF DUTY TO TAKE CARE – The respondent has committed serious breach

of his duty to care by being negligent, because of which the weight slipped from the

rod and fell on the left foot of the complainant. The said fact has been clearly

expressed in the moot proposition.

27
Lord Atkin, Donoghue v. Stevenson, 1932 AC 562
28
1935 AC 85
29
Bourhill v. Young, 1943 AC 92

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(d) CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF - The last

essential requisite for the tort of negligence is that the damage caused to the plaintiff

was the result of the breach of the duty. The harm may fall into following classes:-

a. physical harm, i.e. harm to body;

b. harm to reputation;

c. harm to property, i.e. land and buildings and rights and interests pertaining

thereto, and his goods;

d. economic loss; and

e. mental harm or nervous shock.

I. NO DEFENSES AVAILABLE

23. The defendant committing a tort of negligence can take the defences of Contributory

Negligence, Act of God or Vis Major or Inevitable Accident to absolve from his liability.

But, in the impugned case none of these defences are available to the respondents.

24. For ‘Contributory Negligence’, it must be proved that the complainant has by his own

negligence contributed to the injury of which he complains; then he will be considered in

law to be author of his wrong. In Butterfield v. Forrester,30 the defendant had put a pole

across a public thoroughfare in Durby, which he had no right to do. The plaintiff was

riding that way at 8’O clock in the evening in August, when dusk was coming on, but the

obstruction was still visible from a distance of 100 yards. He was riding violently, came

against the pole and fell with the horse. It was held that the plaintiff could not claim

damages as he was also negligent.

25. Therefore, for taking the defence of contributory negligence, the complainant must have

overlooked his duty to care and should be reckless and ignorant in the course when his

injury occurred. However, in the present case, the factual proposition is completely silent

about any such fact, which provides that the complainant did not use proper safety
30
(1809) 11 East 60

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equipments, gloves, head rests etc. or had been careless during the use of dangerous

equipments. Hence, taking relying on the defence of contributory negligence would be a

stupid presumption.

26. ‘Inevitable accident’ works as a defence of negligence, when the accident is that which

could not possibly, be prevented by the exercise of ordinary care, caution and skill. it

means accident physically unavoidable. In Brown v. Kendal,31 the plaintiff’s and

defendant’s dogs were fighting, while the defendant was trying to separate them, he

accidentally hit the plaintiff in his eye who was standing nearby. The injury to the

plaintiff was held to be result of inevitable accident and the defendant was not liable.

27. However, in the present case, the injury to the complainant could have been easily

avoidable, if the respondent wouldn’t have been negligent in the dispensation of his

duties. Therefore, the respondent has committed a gross negligence, and since he can

take the benefit of no defence, therefore he must compensate the complainant for his

injuries.

IV. THAT THE GYM OWNER IS VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF THE GYM

OWNER.

31
(1859) 6 Cussing 292

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28. It is humbly submitted that the gym proprietor, i.e. Respondent No. 1 is vicariously liable

for the acts of the gym trainer, i.e. Respondent No. 2; as the two share a Master-Servant

relationship. As established under Contention No. III, even though respondent no. 2 has

committed negligence, Respondent No. 1 can be held liable for the same since the two

share a master-servant relationship and the said tort of negligence was committed during

the course of employment.

29. Vicarious liability means the liability of a person for an act committed by another person

and such liability arises due to the nature of the relation between the two. It is based o the

principles of ‘Respondent Superior’ and ‘Qui facit per alium facit per se’, i.e. whenever

a person gets something done by another person then the person is viewed to be doing

such an act himself.32 The essentials of vicarious liability are that the two must share a

master-servant or principal-agent relationship , and the tort must be committed during the

course of employment.

30. For establishing Master-Servant relationship, the traditional view had been based on the

control test. However, in the case of Stevenson Jordan & Harrison Ltd. V Macdonald &

Evans33, the test of an integral part of the business was applied. Since, the moot

proposition expressly provides the fact that the gym trainer was under the employment of

the gym proprietor, and the fact that the ‘Waiver and Release Liability Agreement’ also

absolved any liability from negligence of gym supervision, instruction or personal

training; it reaffirms the fact that gym trainer performed an integral function of the gym.

31. Secondly, since the said tort of negligence has been committed and the resultant injury

has occurred while the complainant was working out in the gym, hence the negligence

was committed during course of employment. Therefore, the gym owner, is vicariously

32
The Management Of Indian Bank vs The Presiding Officer, (1990) ILLJ 50 Mad
33
(1952) 1 TLR 101

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liable for the negligence committed by the gym trainer, and hence he is also bound to

compensate the complainant for the injuries sustained by him.

V. THAT THE COMPLAINANT IS ENTITLED TO COMPENSATION

32. It is humbly submitted that since neither the complainant has waived off his rights, nor

the respondents have been absolved form their liabilities, therefore the complainant is

entitled to claim compensation for the injuries sustained by him as a result of the

negligence of Respondent no. 2, and vicariously from Respondent No. 1.

33. That the complainant is entitled to claim compensation for deficient services and

negligent conduct of the service providers under Section 39(1)(c),(d),(e)34 of COPRA,

2019; as well as for the breach of the contractual obligations and duty to care by the

Respondents under Sec. 73 of ICA35.

34. That, assuming arguendo, even if it is presumed that the respondents have excluded their

liabilities under the contract, they cannot absolve their liability for negligence under the

law of torts. In White v. John Warrick and Co. Ltd.36, it was held that that the exemption

34
Sec. 39 - (1) Where the District Commission is satisfied that the goods complained against suffer from any of
the defects specified in the complaint or that any of the allegations contained in the complaint about the
services or any unfair trade practices, or claims for compensation under product liability are proved, it shall
issue an order to the opposite party directing him to do one or more of the following, namely:—
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant along
with such interest on such price or charges as may be decided;
d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury
suffered by the consumer due to the negligence of the opposite party: Provided that the District Commission
shall have the power to grant punitive damages in such circumstances as it deems fit;
(e) to pay such amount as may be awarded by it as compensation in a product liability action under Chapter VI;
(m) to provide for adequate costs to parties;.
35
Sec. 73 - When a contract has been broken, the party who suffers by such breach is entitled to receive, from
the party who has broken the contract, compensation for any loss or damage caused to him thereby, which
naturally arose in the usual course of things from such breach, or which the parties knew, when they made the
contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and
indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation
resembling those created by contract. When an obligation resembling those created by contract has been
incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the
same compensation from the party in default, as if such person had contracted to discharge it and had broken
his contract.
Explanation. In estimating the loss or damage arising from a breach of contract, the means which existed of
remedying the inconvenience caused by the non-performance of the contract must be taken into account.
36
(1953) 1 W.L.R. 1285

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clause only excluded contractual liability of the defendants, while they still remained

liable for negligence under the law of torts.

35. That the complainant is claiming a compensation to the tune of Rs. 67,500 ; which has

been computed as follows :

1. Membership Fees paid to gym: Sec 39(1)(c) : 25,000

2. Medical Expenses due to multiple fractures : 20,500

3. Costs of the suit : 15,000

4. Harassment, Distress and Physical Agony : 7,000

TOTAL COMPENSATION : 67, 500

36. Hence, it is most humbly ardently prayed before this Hon’ble forum that the complainant

be awarded compensation amounting to Rs. 67,500 for all the sufferings which have bee

dwelt upon him by the respondents.

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PRAYER

Wherefore in the light of facts of the instant case, arguments advanced and authorities cited,

it is humbly prayed before this Hon’ble District Consumer Forum that it may be pleased to

hold, adjudge and declare:

1. THAT THE COMPLAINT IS MAINTAINABLE.

2. THAT THE TERMS OF THE STANDARD FORM CONTRACT ARE NOT LAWFUL, AND

HENCE NOT BINDING.

3. THAT THE RESPONDENT HAS BEEN NEGLIGENT IN THE DISPENSATION OF HIS LEGAL

DUTIES.

4. THAT THE GYM OWNER IS VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF THE GYM

OWNER.

5. THAT THE COMPLAINANT IS ENTITLED TO COMPENSATION

Pass any other order, which the court may deem fit in light of justice, equity and good

conscience.

And in these premises the Complaiant as duty bound shall forever pray.

Sd/-

(Counsels on behalf of Complainant)

MEMORIAL ON BEHALF THE COMPLAINANT