UILS DEPARTMENT MOOT COURT, 2019

CODE: - Civil-11

UILS COMPULSORY MOOT COURT FOR 5th YEAROCT-2019

SAURABH VERMA (COMPLAINANT)

V.

MODERN GYM, SECTOR 7, CHANDIAGRH (RESPONDENT)

SUBMISSION BEFORE THE HONORABLE DISTRICT CONSUMER FORUM

SUBMITTED BY:-

NAME :- LAKHVEER SINGH

ROLL NO. 146

CLASS :- B.COM LL.B

MEMORIAL ON BEHALF OF COMPLAINANT

MEMORIAL ON BEHALF OF THE COMPLAINANT 1

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TABLE OF CONTENTS

Table of contents ........................................................................................................................ 2

List of abbreviations .................................................................................................................. 3

Index of authorities .................................................................................................................... 4

Books referred ........................................................................................................................ 4

Books on indian contract act: - .......................................................................................... 4

Statutes Referred: - ............................................................................................................ 4

Dictionaries Referred: -...................................................................................................... 4

Websites Referred: - .......................................................................................................... 4

Table of cases ............................................................................................................................. 5

Statement of Jurisdiction............................................................................................................ 6

Statement of facts ....................................................................................................................... 7

Questions presented ................................................................................................................... 8

Summary of arguments .............................................................................................................. 9

Body Of Arguments ................................................................................................................. 10

[A]terms of the contract are unfair....................................................................................... 10

[B]The naresh lamba was negligent in this respective matter ............................................. 13

Prayer ....................................................................................................................................... 17

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LIST OF ABBREVIATIONS

S. No. Abbreviation Full Form

1. &&aaaa & And

2. Anr. Approx. Approximately
3. Co. Company
4. Hon’ble Hon’ble Honorable
5. i.e. i.e That is
6. J. Justice
7. Ltd. Limited

8. Mr. Mister

9. P. Page

10. PP. Pages

11. Pvt. Private

12. r/w Read with

13. SC Supreme court

14. HC High court

15. V. Versus

16. ED ed. Edition

17. LoA LOA Letter of Acceptance

18. U.O. I UOI Union of India

NHAI

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INDEX OF AUTHORITIES

BOOKS REFERRED
BOOKS ON INDIAN CONTRACT ACT: -
 R.K BANGIA INDIAN CONTRACT ACT, SHREE RAM PUBLISHSERS, 2nd ed.,
2017

STATUTES REFERRED: -
 THE INDIAN CONTRACT ACT, 1872.
 THE CONSUMER PROTECTION ACT, 1986.
 THE UNFAIR CONTRACT TERMS ACT,1977

DICTIONARIES REFERRED: -
 BRYAN A. GARNER, BLACK’S LAW DICTIONERY (8TH ED. 2001)
 OXFORD ENGLISH DICTIONARY (2ND ED. 2009)
 WEBSTER’S NEW INTERNATIONAL DICTIONARY
 CAMBRIDGE ADVANCED LEARNERS’ DICTIONARY (3RD ED.)

WEBSITES REFERRED: -
 www.indiankanoon.org
 www.judis.nic.in
 www.manupatra.com
 www.scconline.com
 www.lexisnexis.com
 www.casemine.

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TABLE OF CASES
S.NO CASE CITATION PG.NO
1. Inland water transport corporation ltd. A.I.R 1986 S.C 13 10
V. Brojo Nath
2. Lilly white v. Munuswami AIR 1966 mad. 13 13

3. Alexandra v. Railway station 1961 K.B 816 11

4. Poonam verma v. Ashwani patil 1995 (1) CPR 276 12

5. Shri ganji mohan v. odel salid finess 2017 S.C 23 13

6. Custis v. chemical cleaning and dying A.I.R 1951 KB 205 14

co.
7. M/S Prakash road lines (p) ltd. V. H.M.T A.I.R 1999 AP 106 15
bearing ltd.

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STATEMENT OF JURISDICTION

The counsel representing the complainant have endorsed their pleadings before the Hon’ble
District Consumer Forum, Chandigarh under section 111 of The Consumer Protection
Act,1986 against Modern Gym, Sector 7, because the cause of action arises in Chandigarh
and both the parties are resident of Chandigarh.
.

1
11. Jurisdiction of the District Forum.—

(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints
where the value of the goods or services and the compensation, if any, claimed 1[does not exceed rupees twenty
lakhs].

(2) A complaint shall be instituted in a District Forum 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, actually and voluntarily resides or 2[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 3[carries on business or has a branch office], or personally works for gain,
provided that in such case either the permission of the District Forum is given, or the opposite parties who do
not reside, or 4[carry on business or have a branch office], or personally work for gain, as the case may be,
acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

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STATEMENT OF FACTS

1. Saurabh verma a 26 years old executive officer got membership of modern gym, sector-7,
chandigarh. He paid rs. 25000 as annual membership of the gym.

2. On 11.12.2012 when he was doing weight training, due to negligence of the trainer naresh
lamba, weights 23 pounds (10 kg) approx. fell on the foot of the Saurabh verma, which
leads to multiple fractures in the foot.

3. Saurabh asked for compensation from the injuries resulting from working out in the gym
from Sudesh singla proprietor of the gym and trainer naresh lamba. The gym proprietor
refused to pay any compensation for the negligence of trainer on the ground that at the
time of taking membership, complainant signed a waiver and release liability agreement.

4. Saurabh showed his ignorance about such agreement on the ground that gym’s market
manager while taking membership fee took signature on a form telling it to be a
membership form. Saurabh verma also alleges that the terms of the agreement are unfair
because by doing so gym management requires him to indemnify any loss, damages, cost
etc. but absolves itself of all the liabilities.
5. This led the complainant to approach to district consumer forum.

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QUESTIONS PRESENTED

ISSUE I

WHETHER OR NOT THE TERMS OF THE CONTRACT ARE UNFAIR?

ISSUE II

WHETHER OR NOT THE GYM IS NEGLIGENT?

ISSUE III

WHETHER OR NOT THE UNFAIR CLAUSES OF THE CONTRACT WERE IN THE KNOWLEDGE OF

COMPLAINANT?

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SUMMARY OF ARGUMENTS

ISSUE I
WHETHER OR NOT THE TERMS OF THE CONTRACT ARE UNFAIR?

 Terms of the standard form of contract should be reasonable.

 The clause related to waiver and release agreement in the standard form of
contract is against the public policy.
 One of the party in standard form of contract is in a position to have more
bargaining power and he uses that power to take undue advantage.

ISSUE II
WHETHER OR NOT THE GYM IS NEGLIGENT?
 Defendant was under a duty to take reasonable care towards the complainant
 There was a breach of duty on the part of the defendant
 The breach of duty was legal cause of the damage complained of

ISSUE III
WHETHER OR NOT THE UNFAIR CLAUSES OF THE CONTRACT WERE IN THE KNOWLEDGE OF
COMPLAINANT?

 The gym’s market manager while taking membership fee took signatures on a
form telling it to be a membership form.
 Caveat venditor

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BODY OF ARGUMENTS

[A]TERMS OF THE CONTRACT ARE UNFAIR

It is humbly submitted that there was a standard form of contract between the complainant
and respondent. In a standard form of contract the terms and conditions should be reasonable
but in this respective case all the terms and conditions are unfair and unreasonable. The gym
is just trying to revoke liability from each and every thing.

1. Section 2 of unfair contract terms act, 1977-(I) A person cannot by reference to any contract
term liability. or to a notice given to persons generally or to particular persons exclude or
restrict his liability for death or personal injury resulting from negligence.

(II) In the case of other loss or damage, a person cannot so exclude or restrict his liability for
negligence except in so far as the term or notice satisfies the requirement of reasonableness.
(III) Where a contract term or notice purports to exclude or restrict liability for negligence a
person's agreement to or awareness of it is not of itself to be taken as indicating his voluntary
acceptance of any risk.

2. It is not enough that the terms of the contract brought to the knowledge to the other party by a
sufficient notice when the contract is entered into , it is also necessary that the terms of the
contract themselves should be reasonable. If the terms of the contract are unreasonable and
opposed to public policy, they will not be entered merely because they were printed on the
reverse of the bill or receipt or form or expressly or impliedly agreed between the parties.
3. In a case Central inland water transport corporation ltd. V. brojo nath2 , one of the clause in
the contract of employment provided that the employer (corporation) could terminate the
service of permanent employee by giving him a 3 months notice or 3 months salary.in
accordance with the above clause, the services of the respondent brojo nath and other were
terminated instantly by giving them notice, accompanied by a 3 months salary. It was held by
the supreme court that such a clause in the service agreement between the persons having
gross inequality of bargaining power was wholly unreasonable and was against public policy
and void under section 233 of the contract act..

2
A.I.R 1986 S.C 13
3
Section 23. What consideration and objects are lawful, and what not.—
The consideration or object of an agreement is lawful, unless—
1." it is forbidden by law; or
2.is of such a nature that, if permitted, it would defeat the provisions of any law; or
3.is fraudulent; or

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It is humbly submitted that this respective case is similar to our case because in our case also
all the terms and conditions are unfair because the respondents are trying to escape from the
whole of the liability by adding the clauses in the contract. Clause like “ the gym will not be
liable if there is any injury to the person because of gym’s negligent instruction or supervision,
including personal training” . now this kind of clauses are also immoral and opposed to the
public policy according to section 23 of contract act.

4. In another case Lilly white v. munuswami4 an action was brought by a customer of launderers
and dry-cleaners, m/s lilly white, to whom customer have given a saree of rs. 220 for cleaning
and it was lost. The plaintiff claim full amount of the saree but the defendant offered to pay
only 50% of the price on the ground that there was a printed term on the back of the receipt
given to the customer stipulating that in case of loss of garments, the customer would be
entitled to only 50% of the market price or value of the same. It was held that such a term in
the contract is unreasonable and against public policy and therefore unenforceable, because
such a condition is imposed, any laundry owner will try to misappropriate the clothes.

This respective case is similar to our case because in our case also by adding a clause they just
want to escape from liability and according to the reasoning of the hon’ble court if this kind of
clauses will be allowed to be there then not even a single gym will be liable for any kind of
gross negligence. So, the clauses are against the public policy and immoral also.

5. In standard form of contracts, generally the terms of the contract are pre-drafted by the one
party and the other is supposed to sign on the dotted line, without having any time and chance
to change the terms of the contract. one of the party being in the great bargaining position
always try to add the terms which suits him the most and at time tries to exclude or limit his
liability, without caring for the interest of the other side, who is in a weaker bargaining
position. The respondents did the same with the complainant. They added all the clauses
which suits them and also revoke all their liability by adding unfair terms and conditions.
6. it is humbly submitted that the respondents are trying to escape from their contractual
obligation by adding a clause in the contract, which is against the public policy. In case of
Alexandra v. railway executive5, the plaintiff deposited his luggage in the defendants clock
room and in return received a ticket. the terms printed on the ticket exempt the defendants

4.involves or implies, injury to the person or property of another; or

5.the Court regards it as immoral, or opposed to public policy.
4
A.I.R 1966 Mad. 13
5
1961 k.B. 886

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form liability for loss or misdelivery of the luggage. Plaintiff’s luggage was delivered to an
unauthorised person without the production of the ticket. It was held that non-delivery of the
luggage to the plaintiff amounted to fundamental breach of contract for which the defendant
was liable.

So, from the above cases, it is clear that the terms of the contract are unfair and respondents
cannot escape from the liability by adding a clause in the contract.

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[B]The naresh lamba was negligent in this respective matter

1. Negligence is the breach of duty caused by the omission to do something which a reasonable
man, guided by those principles which ordinarily regulate the conduct of human affairs,
would do, or doing something which a reasonable prudent and reasonable person would not

do.

2. As the elements laid down in Poonam Verma v Ashwin Patel6 case that to prove negligence
three elements should be proved
 Defendant was under a duty to take reasonable care towards the complainant to avoid the
damage complained of,

It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to
establish that the defendant owed to him a special legal duty to take care, of which he has
made a breach.

It is humbly submitted before the Hon’ble district consumer forum that the naresh lamba
(trainer) who is working in the modern gym is gross negligent because he is under a duty to
took after the persons who are doing weight training in the gym.

 There was a breach of duty on the part of the defendant,

it is humbly submitted that due to the breach of duty of the trainer the weight of 23 pounds
(10 kg) approx. fell upon the foot of the complainant, which leads to multiple fractures and
severe pain for many days. so, in this respective there is clear breach of duty.

 The breach of duty was legal cause of the damage complained of,
It is humbly submitted that multiple fractures on the foot caused to the complainant is a legal
cause of the damages which is caused due to the breach of duty of the trainer and gym is also
liable for appointing such kind of untrained persons in the gym.

So, the complainant was badly injured and his professional carrier was also disturbed. Even

he had the monetary loss as he had to consult doctors and undergo through various tests.

6
1995 C PR 276

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3. as another case of Sri Ganji Mohan son of shri late bala v. odel solid fitness,7 the deceased
ganji vasu joined opposite parties gym by paying rs. 4000 . one day at around 12.00 pm.
Decease went to the gym and did it till 1.40 pm. Thereafter, he spent about 20 mints in the
reception with the receptionist and again came to the gym and while doing work on the thread
mills machine all of a sudden he collapsed and fell down in the midst of the machine.
Working hours of the gym are 8.00am to 2.00pm being Sunday. Thereafter, when receptionist
tried to wake him up the deceased not responded. Then the said receptionist make phone call
to the friend of the deceased, who, in turn make phone call to the father of the deceased and
both came out to the gym at about 4.00pm. they took him to the hospital, where doctor
declared him brought dead. The court in this case held the gym liable for negligence because
no body was present in the gym when he was doing workout, no first aid for 40 minutes was
given to the deceased. so the gym was held liable to pay damages.

In our case also, no first aid was provided to the complainant even when the trainer is present
at that time. So in our case also, the respondent is negligent and liable to pay damages.

4. PROFESSIONAL NEGLIGENCE

In Ramaswamy Iyer’s book ‘THE LAW OF TORTS’’, he throws some light on the topic
of professional negligence. Accordingly a person who holds himself out ready to give
advice or training when consulted by a consumer owes him certain duties namely a duty of
care in deciding whether to undertake the activity ,a duty of care in deciding what kind of
services to give or a duty of care in the administration of that services. A breach of any of
these duties gives a right of action for negligence to consumer .

7
A.I.R 2017 s.c 23

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[C]The unfair clauses of the contract were not in the knowledge of

complainant

1. The clauses of the contract were not in the knowledge of the complainant because the gym’s
market manager while taking membership fee took signatures on a form telling it to be a
membership form and does not disclose the terms and conditions of the standard form of
contract. According to section 188 of Indian contract act, 1872 it’s a misrepresentation and
there was no free consent of the complainant is involved.

In a case of similar facts of Custis v. chemical cleaning and dyeing co.9

Mrs.Curtis delivered her white satin wedding dress to the defendants for cleaning. She was
asked to sign a ‘receipt’, and she was orally told by the shop assistant that her signatures were
needed . In fact there was a clause in the receipt which exempt the defendants from liability if
arises due to damages to the articles received for cleaning, however caused, but that was not
disclosed to the plaintiff. When the dress was delivered back it was badly stained. It was hold
by the court of appeal that as there was misrepresentation as to the contractual terms which
mislead the plaintiff as to the extent of the defendants exemption of liability, the defendants
could not rely on the clause and they were bound to pay damage.

So, from the above case it is clear that when there is misrepresentation related to the terms of
the contract then damages must be paid by the one party to the aggrieved party.

2. There is a latin term Caveat Venditor which means” let the seller beware”. The person selling
goods is accountable for providing information about the goods to the seller. It is a counter to
caveat emptor and suggests that sellers can also be deceived in a market transaction. This
forces the seller to take responsibility for the product and discourages sellers from selling
products of unreasonable quality.

8
18. “Misrepresentation” defined.—“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 of 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.

9
1951 k.b 205

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It is humbly submitted that according to that latin term it is the duty of the respondents that
they should inform the complainant about the waiver and release of liability clause which is
there in the contract but the market manager of the gym misrepresented it as a membership
form and got the signatures of complainant.

3. In case M/s prakash road lines (p) ltd. V. H.M.T bearing ltd.10 It has been held that the carrier
is bound to deliver the goods consigned at the appointed destination or else he will be liable
to pay compensation for the same.

Merely printing on the lorry receipt that the goods are transported at owner’s risk will not
absolve the transporter from his duty unless it is proved that such terms were brought to the
notice of plaintiff. Mere printing on the lorry receipt cannot be deemed to be the term of the
contract unless the plaintiff’s knowledge and the consent about the same is there.

This case again gives the importance to the caveat venditor.

4. The modern gym and naresh lamba (trainer) on the basis of vicarious liability both are liable
to pay damages.

10
A.I.R 1999 A.P 106

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PRAYER

Wherefore in the light of facts of the instant case, written pleadings & authorities cited, the
Complainant humbly prays before this Hon`ble district consumer forum that it may be
pleased to hold, adjudge & declare that –

1. The compensation of Rs. 1,50,000 must be given to the person for medical expenses,
mental harassment and for disturbance in professional life.

2. The unfair terms of the contract should be declared void.

3. The respondents must be declared negligent.

Or pass any order, which the court may deem fit in the light of facts of the case, evidences
adduced, justice & good conscience.

The counsels for complainant shall forever humbly pray.

S/d.................................

(Counsel for Complainant)

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