Tamil Nadu

South Chennai

CC/386/2013

TV krishna Murthy - Complainant(s)

Versus

Aurthorized Signature of Country Vacations - Opp.Party(s)

Party in Person

13 Jul 2016

ORDER

                                                                           Date of Complaint  : 02.12.2013

                                                                 Date of Order         : 13.07.2016

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT :    THIRU. B. RAMALINGAM, M.A.M.L.,                  :  PRESIDENT                     

                     TMT.K. AMALA, M.A. L.L.B.,                                :  MEMBER – I

                     DR.T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

                                                     

C.C.No. 386/ 2013

THIS WEDNESDAY  13^TH DAY OF JULY 2016

 

TV Krishna Murthy & T. Naga Pavani,

Flat No.13, First Floor,

Nitya Apartments,

Dr. Thomas Road-2,

T.Nagar, Chennai -1 7.                                            .. Complainant.

                                                         - Vs-

Authorized Signatory of Country vacations, M/s. Country vacations, Old No.6, New No.11, 1st Floor, Sri Vallabha Towers, Park Circle College Road, Nungambakkam, Chennai 600 006.                                          .. Opposite parties.

 

For the complainant             :    Party in person           

For the opposite parties        :    M/s. V.T. Narendiran & another   

ORDER

THIRUMATHI.K.AMALA,   ::    MEMBER-I

 

Complaint under section 12  of the Consumer Protection Act 1986.  The complaint is filed seeking direction against  the opposite party to refund the amount of Rs.40,000/- with interest  and Rs.5,000/- towards mental agony and cost of the complaint to the complainant.

1.The case of the complainant is briefly as follows:-  

        The complainants submit that impressed upon the false commitments by the marketing team of the opposite party they paid a sum of Rs.40,000/- through SBI credit card and signed the agreement.   The opposite party assured that they would send receipt for the payment and temporary card within two days and permanent card within 15 days.  Besides, the opposite party also assured that they would provide the members login pass word to the company’s website for 15 holiday trip.   They have also offered some oral false promises / commitments as follows:

i.  Life time Club Membership Holiday trip can be availed once in a year at any of their Holiday spots.  The pickup, drop and sightseeing is taken care by the opposite party.  

ii. Rs.6.00 lakhs personal accidental insurance and Rs.50,000/- Medical Insurance for  the all the family members.

iii. One time concession of 50% in air fare up and down trip for the entire family  and sightseeing arrangements can be taken care of the company.

iv. Facilities such as Gym, Spa Swimming without fee for members for the first year.

v. Cancelling / transferability of the membership can be allowed.

vi. One party / occasion is allowed per month with their country vacations spots situated as anywhere in the country.

vii. Temporary membership card will be issued within one or two days.  Permanent membership card will be issued within a 15 days.

2.     The complainant also contacted the opposite party through email and requested to provide the membership benefits as most of the promises made on 29.12.2012 were not present in the agreement.   But the opposite party never responded their request.   On 31.12.2012 complainant received an acknowledgment for payment from the opposite party.   Again 1.1.2013 the complainant sent email to the opposite party to provide the membership benefits and also the membership card but they were negligent and not informed about the card.  The complainant also read through internet about the club and shocked to know that the above promises / benefits are false.   Number of complaints against country vacations has been filed before the consumer courts.   On 2.2.2013  the complainants lodged a complaint with SBI credit card regarding the refund of amount due to lack of services as the  complainants had paid entire amount through SBI credit card, for which they replied that the above mentioned transaction is an EDC (Electronic Data Capture ) online transactions which means that the card was present at the time of transaction, since the card is in the possession of the complainants they urged to clear the outstanding amount at the earliest.   On 13.2.2013 the opposite party informed the complainants that they had created the membership card and once the card is verified they would ship the same.   But by the time complainant was fully dissatisfied with the poor response from the opposite party.  Though the card has been created they failed to deliver the same to the complainant address immediately.   The card was posted after two months from the date of creation and the same was rejected by the complainants due to the lethargic services of the opposite party.     On 4.6.2013 the complainants sent a final email to the opposite party stating that they had not availed any services from the opposite party hence to cancel the membership.   Whereas the opposite party staff Mr.Ranjith try to avoid giving explanation and finally informed the complainants that refund is not possible.    The agreement is totally one side and there is no equal bargaining power.   Due to the pressure of the  opposite party the complainants signed the agreement and paid Rs.40,000/- instead of Rs.50,000/- for the same benefits.  The complainant was not provided with permanent membership card within the reasonable time i.e. 15 days from the payment.  The complainants were also not provided in receipt for the payment made and the opposite party also not provided any member login Id and pass word to the company’s website.   The opposite party has not offered a standard membership fee to the complainants.   Only to attract to the public the opposite party is selling the club membership by cheating with their false promises which is absolutely against the business ethics and thus committed unfair trade practice hence the complainants filed the above complaint for refund of the amount of Rs.40,000/- with  12% interest from the date of complaint to till the date of realization and Rs.5,000/- towards mental agony and also cost of the complaint. 

Written version of opposite party in brief as follows:

3.     The opposite party denies all the allegations of the complaint except those that are specifically admitted and put the complainants for strict proof of the same.    The complaints is misconceived on facts and has no merits and deserves to be dismissed.  There is no deficiency in service and unfair trade practice as defined under C.P. Act by the opposite party.   At the outset the complaint is legally not maintainable as the company has not been made a party as country vacation is only brand name and not the company’s name and the company name as found in the agreement i.e. Country Club of India Limited has not been made party and therefore the same has to be dismissed in limini.   The above complaint has been filed for imaginary cause of action as no case of deficiency has been made out in the averment of the complaint and the complainants has cloaked his claim of refund as a claim for consumer complaint and the same is inadmissible in law and against the agreement between them.  

4.     There is no truth in the allegation made in para-3 alleging false promises and submits that all was agreed between the parties was reduced to an agreement that was signed by the parties and the same is reflected as a document and there is no justification or truth in the claim. The complainants as an adult are legally construed to be aware of the terms and conditions and having signed the same they are legally stopped to claim anything in contra and no claim of deficiency can be made out making unsubstantiated the claim and the complainants with an intention to seek refund has made a false cause of action by raising the issue of refund which is in admissible in law.    As per the agreement signed the membership fee is non refundable and the said amount paid by the complainants as membership fee is not a deposit.   Therefore the complainants claim for refund is not maintainable.    The opposite party are well known brand owning of over 200 clubs in cities across the country and have about 4 clubs in around Chennai city and operating 48 resorts in their name in various places of the country.    When facts be so the complainants have by citing some email sites which have hidden Agenda against this opposite party and engaged in mud-slinging against all and sundry is trying to prop up his case, when, clearly no averment, in the complaint discloses a cause of action against the opposite party.  As per the agreement entered into between the complainants and the opposite party provides the complainants access to the club and also five years vacationing for the complainants and his family and admittedly the opposite party had dispatched the club membership to the complainants and he had rejected the same.  It is pertinent to note that the complainants are entitled to utilize the services of the club pending issue of the card.  Moreover the membership card which in an electronic card to club membership is centralized at Hyderabad and for issue of membership card, the document including proof of residence and photo of the members and the family has to be verified and sent.  Therefore the claim of the delay for dispatched is hollow.    Further the complainants by stating links email ID in the internet world and other sites which indulge in bad mounting about individuals, Government officials, companies by using the anonymity offered by the internet as if there are gospel truths and hard evidence in the complaint, which cannot be considered.   In fact all the said sites are liable to be tried and punished for offences u/s 66 A of the I.T. Act.   In fact the number of complaints against the opposite party also dismissed by the consumer forum in Chennai and also all over the country for failing to make out the case of consumer deficiency.    It is the fit case for invoking Sec.26 of the Consumer Act and awarding damages and cost against the complainants for making such mischievous against the complainants.   Hence it clearly shows that the act of the opposite party does not amount to deficiency in service or unfair  trade practice.  Therefore the question of granting relief of refund along with the interest does not arise and also the question of compensation and other relief does not arise.

5.     The opposite party states that they are still ready and willing to fulfill their obligations as per the agreement as the complainants is entitled to and the complaint deserves to be dismissed for want of details and  the alleged deficiency is clearly vague and untenable.  Further the documents filed by the complainants itself does not show any deficiency in service except that he had requested for refund and averments to allege deficiency is only imaginary.    There is no loss incurred by the complainant due to the opposite party.  The complainants cannot seek for refund of the money contrary to the written  contract when the contact is not being disputed or challenged and hence any damages suffered by the complainants is due to their own commission and omission and the opposite party cannot be blamed for the same.   From the above facts the complainants are not entitled to any relief or remedy as they had come with unclean hands and has suppressed material facts hence this complaint is liable to be dismissed.

6.   Complainants have filed their Proof affidavit and Ex.A1 to Ex.A14 were marked on the side of the complainant.   Proof affidavit of  Opposite party filed and no documents marked on the side of the  opposite party.  

7.      The points that arise for consideration are as follows:-

1.   Whether the opposite party has committed  deficiency of

 service  as alleged in the complaint?

 

2.   Whether the complainant is entitled for the relief sought for in

the complaint? If so to what extent ?

 

8.  POINTS  1 and 2 :

            Perused the complaint filed by the complainants, the written version filed by the opposite party, proof affidavits filed by both the parties  and the documents Ex.A1 to Ex.A14 filed on the side of complainants    and considered the arguments of the both sides.                      

9.     The complainants contended that only impressed upon the false commitments by the marketing team of the opposite party they paid a sum of Rs.40,000/- through SBI credit card and signed the agreement.   The opposite party assured that they would send receipt for the payment and temporary card within two days and permanent card within 15 days.  Besides, the opposite party also assured that they would provide the members login pass word to the company’s website for 15 holiday trip.   They have also offered some oral false promises / commitments as follows:

i.  Life time Club Membership Holiday trip can be availed once in a year at any of their Holiday spots.  The pickup, drop and sightseeing is taken care by the opposite party. 

ii. Rs.6.00 lakhs personal accidental insurance and Rs.50,000/- Medical Insurance for  the all the family members.

iii. One time concession of 50% in air fare up and down trip for the entire family  and sightseeing arrangements can be taken care of the company.

iv. Facilities such as Gym, Spa Swimming without fee for members for the first year.

v. Cancelling / transferability of the membership can be allowed.

vi. One party / occasion is allowed per month with their country vacations spots situated as anywhere in the country.

vii. Temporary membership card will be issued within one or two days.  Permanent membership card will be issued within a 15 days.

10.    The complainant further contended that they also contacted the opposite party through email and requested to provide the membership benefits as most of the promises made on 29.12.2012 were not present in the agreement.   But the opposite party never responded their request.  On 31.12.2012 complainant received an acknowledgment for the payment from the opposite party.   Again 1.1.2013 the complainant sent email to the opposite party to provide the membership benefits and also the membership card but they were negligent and not informed about the card.  The complainant also read through internet about the club and shocked to know that the above promises / benefits are false.   Number of complaints against country vacations has been filed before the consumer courts.   On 2.2.2013  the complainants lodged a complaint with SBI credit card regarding the refund of amount due to lack of services as the  complainant had paid entire amount through SBI credit card.  On 13.2.2013 the opposite party informed the complainants that they had created the membership card and once the card is verified they would ship the same.   But by the time complainant was fully dissatisfied with the poor response from the opposite party.  Though the card has been created they failed to deliver the same to the complainants’ address immediately.   The card was posted after two months from the date of creation and the same was rejected by the complainants due to the lethargic services of the opposite party.     On 4.6.2013 the complainants sent a final email to the opposite party stating that they had not availed any services from the opposite party hence to cancel the membership.   Whereas the opposite party staff Mr.Ranjith tried to avoid giving explanation and finally informed the complainants that refund is not possible.   The agreement is totally one side and there is no equal bargaining power.   Due to the pressure of the  opposite party the complainants signed the agreement and paid Rs.40,000/- instead of Rs.50,000/- for the same benefits.  The complainant was not provided with permanent membership card within the reasonable time i.e. 15 days from the payment.  The complainants were also not provided  receipt for the payment made and the opposite party also not provided any member login Id and pass word to the company’s website.   The opposite party has not offered a standard membership fee to the complainants.   Only to attract the public the opposite party is selling the club membership by cheating with their false promises which is absolutely against the business ethics and thus committed unfair trade practice hence the complainants filed the above complaint for refund of the amount of Rs.40,000/- with 12% interest from the date of complaint to till the date of realization and Rs.5,000/- towards mental agony and also cost of the complaint. 

11.    Whereas, the opposite party has resisted the complaint filed by the complainants, stating that at the outset the complaint is legally not maintainable as the company has not been made a party as country vacation is only brand name and not the company’s name and the company name as found in the agreement i.e. Country Club of India Limited has not been made party and therefore the same has to be dismissed in limini.   The above complaint has been filed for imaginary cause of action as no case of deficiency has been made out in the averment of the complaint and the complainants has cloaked his claim of refund as a claim for consumer complaint and the same is inadmissible in law and against the agreement between them.  

12.    The opposite party further stated that there is no truth in the allegation made in para-3 alleging false promises and all that was agreed between the parties was reduced to an agreement that was signed by the parties and the same is reflected as a document and there is no justification or truth in the claim. The complainants as an adult are legally construed to be aware of the terms and conditions and having signed the same they are legally stopped to claim anything in contra and no claim of deficiency can be made out making unsubstantiated the claim and the complainants with an intention to seek refund has made a false cause of action by raising the issue of refund which is in admissible in law.   As per the agreement signed the membership fee is non refundable and the said amount paid by the complainants as membership fee is not a deposit.   Therefore the complainants claim for refund is not maintainable.    The opposite party are well known brand owning of over 200 clubs in cities across the country and have about 4 clubs in around Chennai city and operating 48 resorts in their name in various places of the country.    When facts be so the complainants have by citing some email sites which have hidden Agenda against this opposite party and engaged in mud-slinging against all and sundry is trying to prop up his case.  When, clearly no averment, in the complaint discloses it the cause of action against the opposite party.  As per the agreement entered into between the complainants and the opposite party provides the complainants access to the club and also five years vacationing for the complainants and his family and admittedly the opposite party had dispatched the club membership to the complainants and he had rejected the same.  It is pertinent to note that the complainants are entitled to utilize the services of the club pending issue of the card.  Moreover the membership card which in an electronic card to club membership is centralized at Hyderabad and for issue of membership card, the document including proof of residence and photo of the members and the family has to be verified and sent.  Therefore the claim of the delay for dispatched is hollow.    Further the complainants by stating links email ID in the internet world and other sites which indulge in bad mounting about individuals, Government officials, companies by using the anonymity offered by the internet as if there are gospel truths and hard evidence in the complaint, which cannot be considered.   In fact all the said sites are liable to be tried and punished for offences u/s 66 A of the I.T. Act.   In fact the number of complaints against the opposite party also dismissed by the consumer forum in Chennai and also all over the country for failing to make out the case of consumer deficiency.    It is the fit case for invoking Sec.26 of the Consumer Act and awarding damages and cost against the complainants for making such mischievous against the complainants.   Hence it clearly shows that the act of the opposite party does not amount to deficiency in service or unfair trade practice.  Therefore the question of granting relief of refund along with the interest does not arise and also the question of compensation and other relief does not arise.

13.    The opposite party further stated that they are still ready and willing to fulfill their obligations as per the agreement as the complainants is entitled to and the complaint deserves to be dismissed for want of details and  the alleged deficiency is clearly vague and untenable.  Further the documents filed by the complainants itself does not show any deficiency in service except that he had requested for refund and averments to allege deficiency is only imaginary.    There  is no loss incurred by the complainant due to the opposite party.  The complainants cannot seek for refund of the money contrary to the written  contract when the contact is not being disputed or challenged and hence any damages suffered by the complainants are due to their  own commission and omission and the opposite party cannot be blamed for the same and    the complainants are not entitled to any relief or remedy as they had come with unclean hands and has suppressed material facts and the opposite party prayed to dismiss the complaint.

14.    Admittedly the complainants are the members of the opposite party’s club are not denied by the opposite party.  Ex.A1 is the membership purchase agreement dated 29.12.2012.  As per the agreement the complainants had paid a sum of Rs.40,000/- through SBI credit card dated 29.12.2012 which is also acknowledged by the opposite party through country club membership fee receipt i.e. Ex.A4.  

15.    The main grievance of the complainants is that  on the date of agreement the opposite party offered several false promises / commitments as stated in the complaint hence the complainants requested the opposite party to provide the membership benefits, but they failed to do so.   Whereas the opposite party has evidenced  in their proof affidavit that the alleged promises were not agreed between the parties as per the agreement and all that was agreed between the parties was reduced to an agreement.   On perusing Ex.A2 i.e. the Membership Purchase Agreement for club and vacation membership it reveals that there is no such offers provided in the agreement as alleged by the complainants in the complaint hence the contention of the complainants that the opposite party failed to provide the offers assured by them is not sustainable, since the agreement has been signed by both the complainants.  

16.    The complainants also raised certain allegations that the opposite party failed to provide the fee receipt, membership card as  promised by them that they would furnish the same within 15 days and hence they sought to cancel the membership and refund the amount whereas the opposite party failed to do so.  It is found from Ex.A4 that the opposite party mailed the acknowledgment wherein it is mentioned as Country Club membership fee receipt hence the contention of the complainants that the opposite party had not issued receipt is not acceptable.  Ex.A5 i.e. the email transactions reveals that the complainant only sought for the membership benefits from the opposite party in spite of the fact that as per the agreement when  the complainants are fully aware of the benefits given by the opposite party.  Though from Ex.A5 email dated 2.1.2013 it is found that the complainants sought to provide member benefits and the membership card, Ex.A7 email letter, dated 19.1.2013 from the complainants to the opposite party reveals that the complainants sought only for cancellation of membership and refund of amount paid.

17.    However for the grievance of the complainants that the opposite party did not issue the membership card within fifteen days there is no any document to show  the time limit fixed for issuing the membership card i.e. within 15 days as stated by the opposite party.  Whereas Ex.A9, dated 13^th February 2013 email letter from the opposite party to the complainants reveals that they have stated that they had created the membership card, however the complainants need not wait for the card but they can always logon to their website to book the holidays.   Instead the complainants after receiving this email sought only for cancellation of membership and refund of Rs.40,000/- paid as membership fee.        Moreover it is also found from the evidence of the opposite party that the opposite party had dispatched the club membership card to the complainants but they had rejected the same and the complainants are entitled to utilize the services of the club even pending issue of card,  which is not denied by the complainants.    Hence the contention of the complainants that the opposite party had not issued the membership card is not sustainable. 

18.    Moreover Ex.A7 reveals that since the alleged benefits / facilities were not provided to the complainants the complainants intended to cancel the membership and sought for refund.  With respect of the relief of refund of membership fee the agreement Ex.A2 was signed  by the complainants accepting the terms and conditions of the agreements in which there is a clause that “ the 2^nd opposite party i.e. the complainant unconditionally gives their irrevocable consent to purchase the club membership of ccil and they understand that the membership fees is not refundable under any circumstances and the membership fee is not a deposit.   Hence as per this clause once the agreement is signed by the parties the membership fee is not refundable is acceptable as per the contention of the opposite party.  

19.    Moreover the submission of the counsel for the opposite party that there is no any deficiency in service on their part since the complainants had not utilized the service is also acceptable.   

20.    From the above facts we are of the considered opinion that the opposite party had not committed any deficiency in service or unfair trade practice.  On the other hand  the contention of the complainants that they signed the agreement only on the false hopes given by the opposite party is not acceptable since both the complainants had gone through the terms and conditions of the agreement and signed the agreement.   As such as per the agreement the complainants are not entitled for refund of the membership fee.  

21.    But the contention of the opposite party that the company name i.e. Country Club of India has not been made party is not acceptable since from the Vakalth filed by the opposite party it reveals that the opposite party is a division of the Country Club of India.   

22.    However the opposite party is duty bound to issue the club membership card to the complainants, in order to avail the benefits of the club as agreed by the parties in the agreement.   Hence we observe that the opposite party should issue the membership card immediately to the complainants.   Further the opposite party should extend the facility / benefits / services of the club to the complainants which were not enjoined by them during the period of pendency of the litigation and allow the complainants to enjoy the same in future.

23.    Since the opposite party also admitted in their evidence that they are still ready and willing to fulfill the obligation as per the agreement we feel that the complainants are entitled to all the benefits as per the agreement.

24.    Considering the facts and circumstances of the case we are of the opinion that as discussed above the complainants are not entitled for refund of the membership fee and as such they are also not entitled for the other reliefs sought for in the complaint and as such the complaint is liable to be dismissed.  Considering the facts and circumstances of the case the parties are to bear their own costs.  Accordingly the points 1 & 2  are answered.

        In the result the complaint is dismissed.  No cost.

                Dictated directly by the Member-I to the Assistant and computerized by her, corrected by the Member-I and pronounced by us in the open Forum on this the 13^th   day of  July   2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1-  29.12.2012 - Copy of SBI credit card payment slip.

Ex.A2- 29.12.2012         - Copy of Membership purchase agreement.

Ex.A3- 29.12.2012         - Copy of Holiday Gift voucher.

Ex.A4- 31.12.2012         -  Copy of Mail acknowledgment for the payment of

                               Rs.40,000/- received from country vacations.

 

Ex.A5- 1.1.2013    - Copy of email to country vacations.

Ex.A6- 2.1.2013    - Copy of email to Country Vacations.

Ex.A7- 19.1.2013  - Copy of email to country vacations.

Ex.A8- 2.2.2013    - Copy of SBI Credit card complaint “Disputed Transaction

                               Form”.

Ex.A9- 13.2.2013  - Copy of email to Country Vacations.

Ex.A10- 4.6.2013  - Copy of email to Country vacations.

Ex.A11- 5.6.2013  - Copy of email to Country vacations.

Ex.A12- 9.6.2013  - Copy of email to Country Vacations.

Ex.A13- 10.6.2013 – Copy of email from Country vacations.

Ex.A14- 11.6.2013         - Copy of email from SBI Credit Card.

 

Opposite party’s Exhibits:-     .. Nil ..

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.