Tamil Nadu

South Chennai

CC/387/2013

N.Phani Kumar & Sathi Suneetha - Complainant(s)

Versus

Authorized Signatory 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. 387 / 2013

THIS WEDNESDAY  13^TH DAY OF JULY 2016

                                                                         

N. Phani Kumar &  Sathi Suneetha,

G2, Ashok  Manor,

Porur Street,

East Tambaram, Chennai.                                       .. Complainants.

                                                         - 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 party.

 

For the complainant             :      Party in person      

For the opposite party          :      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 a sum of Rs.33,000/- with interest  and also to pay Rs.2,000/- towards mental agony  and Rs.500/- as cost of the complaint.  

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

         The complainants submit that they paid a sum of Rs.33,000/- as advance payment to the opposite party through Kotak Mahindra debit card on 6.10.2013 towards the membership upon false assurance given by the staff of the opposite party.   The opposite party gave one week time to pay the remaining balance amount.   But they did not give any receipt for the payment.   The complainant agreed only because of the reason of cancelling membership option mentioned by the opposite party at the time of presentation.   The opposite party given some false promises / commitments as follows:

1. Life time Club Membership Holiday strip can be availed once in a year at any of their Holiday spots.  Accommodation of their properties with free of cost and the pickup, drop and sightseeing is taken care by the opposite party with free of cost.
2. Bonus week will be provided if booking of vacation trip happens before 10 days.
3. Rs.6 lakhs personal accidental insurance and Rs.50,000/- Medical Insurance.
4. Life time concession upto 40% in air fare up and down trip for the entire family and sightseeing arrangements can be taken care of the company.
5. Facilities such as Gym, Spa, Swimming pool without fee for members for the Life time.
6. Summer camps for children.
7. Selling / transferability of the membership can be allowed, renting also possible to get double amount of paid money.
8. Cancellation can be possible with in cooling off period of purchase agreement if customer does not want continue (because opposite party has the membership of AIRDA, which has code of ethics cooling off period).
9. One party / occasion is allowed per year with their country vacations spots like function halls situated at anywhere in the country.
10. Temporary membership card will be issued within one or two days.  Permanent Membership card will be issued within  15 days.

Among the above mentioned facilities some of them are not mentioned in the agreement.   Complainant was not provided permanent membership card.  On 7.10.2013 the complainant contacted the Country Vacations and requested them to send a mail or to provide a copy of membership benefits as most of the promises made on 6.10.2013 were not present in the agreement but the opposite party had not responded his call.   On 8.10.2013 the complainant visited their office and asked to cancel the proposed membership and return the money paid by him.   But the opposite party replied that the membership is in process and membership number already generated so not possible to cancel it.   

2.     The opposite party agreed to transfer the membership within two days and the complainant waited up to six days but no response from the opposite party.  On 15.10.2013 the complainant checked with AIRDA team and sent a mail to the opposite party requesting to cancel membership and return the money.  But the opposite party has not replied for his mail.   The complainant also saw many bad reviews in the internet for country vacation fraud.  Hence on 23.10.2013 he sent a mail to the opposite party and enquired about the cooling of period towards the  agreement.   On 5.11.2013 the complainant again sent cancellation mail to the opposite party.   The opposite party staff replied that they are not ready  to process the refund formalities as per terms and conditions and try to utilize the services according to the payments.   They also stated that they were ready to give services worth of Rs.80,000/- for Rs.33,000/- only.  The complainant was shocked by this mail.   The complainant did not receive any proper response from the opposite party for two months.   The opposite party being member if AIRDA teams do not follow their guidelines.   At the time of presentation the opposite party showing this cancelling membership within cooling off period if do not want to continue but when come into real situation the opposite party not at all considering it clearly shows that they are cheating people money.    It is the duty of the sales team to give the true picture of services to the members and not to cheat with false promises which is absolutely against the business ethics and code of contract.  The opposite party did not give any reasonable time to decide but told that it was a last day for the offer and forced to pay Rs.80,000/- for these benefits.  The plea taken by the opposite party that as per the terms and conditions of the impugned contract the membership fee once paid is non refundable is also not sustainable as the impugned agreement is one sided standard form of contract, which the opposite party got prepared accordingly to save their interest and the complainants were supposed to sign only on the dotted  lines.    The opposite party had committed unfair trade practice to sell the membership on false promises.  Hence the complainant filed the above complaint for refund the amount of Rs.33,000/- with 12% interest from the date of complaint to till the date of realization and Rs.2,000/- towards mental agony and 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 complaint 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 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.    The complainant had agreed to pay total sum of Rs.80,000/- and had only paid an advance of Rs.33,000/- and liable to pay Rs.47,000/- within one week as he admitted and without paying the balance he is trying to get over his default by making false case of consumer deficiency against the opposite party.  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 vacationing for the complainants and his family and admittedly the complainant had not paid the full amount and defaulted in paying Rs.47,000/- cannot claim for membership card or vacation privilege and having default in payment of the sum agreed the customer has no locustandi  in claiming benefit.     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  deserve 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 contract is not being disputed or challenged and hence any damages suffered by the complainant is due to the 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.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A11 were marked on the side of the complainant.   Proof affidavit of  Opposite party filed and no document was 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 complainant, the written version filed by the opposite party, proof affidavits filed by both the parties  and the documents Ex.A1 to A11 filed on the side of complainants and considered the arguments of the both sides.

9.     The complainants contended submit that they paid a sum of Rs.33,000/- as advance payment to the opposite party through Kotak Mahindra debit card towards the membership upon false assurance given by the staff of the opposite party.   The opposite party gave one week time to pay the remaining balance amount.   But they did not give any receipt for the payment.   The complainants agreed only because of the reason of cancelling membership option mentioned by the opposite party at the time of presentation.   The opposite party given some false promises / commitments as follows:

i)  Life time Club Membership Holiday strip can be availed once in a year at any of their Holiday spots.  Accommodation of their properties with free of cost and the pickup, drop and sightseeing is taken care by the opposite party with free of cost.

1. Bonus week will be provided if booking of vacation trip happens before 10 days.
2. Rs.6 lakhs personal accidental insurance and Rs.50,000/- Medical Insurance.
3. Life time concession upto 40% in air fare up and down trip for the entire family and sightseeing arrangements can be taken care of the company.
4. Facilities such as Gym, Spa, Swimming pool without fee for members for the Life time.
5. Summer camps for children.
6. Selling / transferability of the membership can be allowed, renting also possible to get double amount of paid money.
7. Cancellation can be possible with in cooling off period of purchase agreement if customer does not want continue (because opposite party has the membership of AIRDA, which has code of ethics cooling off period).
8. One party / occasion is allowed per year with their country vacations spots like function halls situated at anywhere in the country.
9. Temporary membership card will be issued within one or two days.  Permanent Membership card will be issued within a 15 days.

The complainant further contended that among the above mentioned facilities some of them are not mentioned in the agreement.   Complainants were not provided permanent membership card.  On 7.10.2013 the complainants contacted the Country Vacations and requested them to sent a mail or to provide a copy of membership benefits as most of the promises made on 6.10.2013 were not present in the agreement but the opposite party had not responded his call.   On 8.10.2013 the complainants visited their office and asked to cancel the proposed membership and return the money paid by him.   But the opposite party replied that the membership is in process and membership number already generated so not possible to cancel it.   The opposite party agreed to transfer the membership within two days and the complainant waited up to six days but no response from the opposite party.  On 15.10.2013 the complainant checked with AIRDA team and sent a mail to the opposite party requesting to cancel membership and return the money.  But the opposite party has not replied for his mail.   The complainants also saw many bad reviews in the internet for country vacation fraud.  Hence on 23.10.2013 he sent a mail to the opposite party and enquired about the cooling of period towards the  agreement.   On 5.11.2013 the complainant against sent cancellation mail to the opposite party.   The opposite party staff replied that they are not ready  to process the refund formalities as per terms and conditions and try to utilize the services according to the payments.   They also stated that they were ready to give services worth of Rs.80,000/- for Rs.33,000/- only.  The complainants were shocked by this mail.   The complainants did not receive any proper response from the opposite party for two months.   The opposite party being member of AIRDA team do not follow their guidelines.   At the time of presentation the opposite party showing this cancelling membership within cooling off period if do not want to continue but when come into real situation the opposite party not at all considering it clearly shows that they are cheating people money.    It is the duty of the sales team to give the true picture of services to the members and not to cheat with false promises which is absolutely against the business ethics and code of contract.  The opposite party did not give any reasonable time to decide but told that it was a last day for the offer and forced to pay Rs.80,000/- for these benefits.  Hence the complainants attributed allegation of unfair trade practice against the opposite party and filed the above complaint for refund the amount of Rs.33,000/- with 12% interest from the date of complaint to till the date of realization and Rs.2,000/- towards mental agony and cost of the complaint.

10.    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.  

11.    The opposite party further stated that 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 as made a false cause of action by raising the issue of refund which is in admissible in law.  The complainant had agreed to pay total sum of Rs.80,000/- and had only paid an advance of Rs.33,000/- and liable to pay Rs.47,000/- within one week as he admitted and without paying the balance he is trying to get over his default by making false case of consumer deficiency against the opposite party.   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 vacationing for the complainants and his family and admittedly complainant had not paid the full amount and defaulted in paying Rs.47,000/- cannot claim for membership card or vacation privilege and having default in payment of the sum agreed the customer has no locustandi  in claiming benefit.  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 stated 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.

12.    The opposite party further stated that they are still ready and willing to fulfill their obligations as per the agreement as the complainants are 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 contract is not being disputed or challenged and hence any damages suffered by the complainant is due to their own commission and omission and the opposite party cannot be blamed for the same.  Hence the opposite party contended that the complainants are not entitled to any relief or remedy as they had come with unclean hands and has suppressed material facts and prayed to dismiss the complaint.

13.       It is found from Ex.A1 that the complainants and the opposite party had entered into agreement dated 6.10.2013 which is a club membership purchase agreement.  Ex.A1 reveals that the complainants had paid a sum of Rs.33,000/- as advance amount towards the membership fee of the opposite party club.   The above facts are not disputed by the opposite party.  On perusing the agreement it reveals that the purchase price has been mentioned as Rs.80,000/- whereas the complainants has paid only a sum of Rs.33,000/- as advance amount.   Hence as per the agreement the complainants ought to pay the remaining amount of Rs.47,000/- to become a member of the opposite party.

14.    The grievance of the complainants is that the opposite party approached them and offered false promises to become member of the country vacations and forced them to pay the total amount of Rs.80,000/- to enjoy the benefits.   But the complainant has paid advance amount of Rs.33,000/- and signed the agreement and  the opposite party also given one week time to pay the balance amount.  When the complainants came to know that certain commitments orally offered by the opposite party was not mentioned in the agreement and also membership card was not issued they intend to cancel the membership and requested to refund of money but the opposite party failed to refund the money.    

15.    The contention of the complainants that only upon oral promises offered by opposite party they signed the agreement is not acceptable since the complainants are well aware of the benefits mentioned in the agreement and only after perusing the same they have signed the agreement.    

16.    Further the grievance of the complainants that the opposite party had not issued the membership card is also not sustainable since as per the agreement they had paid only a sum of Rs.33,000/- and according to which they still ought to pay  balance amount of Rs.47,000/- to become a Member.    The complainants also raised grievance that the opposite party had not issued receipt for the payment of Rs.33,000/- however Ex.A3 reveals that they had issued membership fee receipt for the amount paid by them.   Hence the contention of the complainants that the opposite party had not issued receipt is not sustainable.  

17.    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. 

18.    However the relief sought for by the complainants in this case is for refund of the amount of Rs.33,000/- being advance payment towards membership fee to the opposite party since they intend to cancel the membership. The email transaction dated 15.10.2013 also reveals that the complainants sought for refund of money.    Whereas the opposite party refused to refund the amount paid by the complainants through email i.e. Ex.A9 relying on the terms and condition on the agreement.   It reveals from Ex.A2 i.e. the agreement that it has been entered between the parties upon mutual understanding between them that the agreement will contain the total purchase amount of Rs.80,000/- but initially they received Rs.33,000/- as advance and agreement will come into force only upon receiving the entire balance amount of Rs.47,000/-.  It shows that the agreement was entered upon implied contract as such the agreement will come into force only upon receipt of the entire membership fee since the opposite party themselves admitted that the complainant has to pay balance amount of Rs.47,000/-.  Meanwhile the contract is unenforceable.   Therefore the opposite party cannot rely upon the terms and conditions of the agreement that the membership fee is not refundable.    Moreover the agreement reveals that there is no stipulated condition or any entry  mentioned in agreement that the balance amount of Rs.47000/- should be paid within a fixed period.    In the absence of any such condition or entry in the complaint mentioned agreement it will not bind on the complainants.   Moreover the complainant had relied upon the AIRDA rules i.e. Ex.A11. in which it is found that “After a purchase has been made, AIRDA recommends a cooling off period of 10 clear working days, during which customers have the option to revoke, rescind and made void ab intitio, any sales agreement entered into” . It is found that there is no such clause in the agreement.  Moreover the complainants has established through documents i.e. Ex.A4 that they sought for cancellation of the membership and refund of the amount paid within the AIRDA stipulated period of 10 days.    Hence the act of opposite party refusing to refund the amount paid by the complainants cannot be acceptable. Further the contention of the opposite party that the complainants are defaulter and cannot seek invoke AIRDA clause is not acceptable since the complainants sought for refund within ten days as per the AIRDA clause.   Therefore the complainants are entitled for refund of the amount paid by them towards membership fee.  

19.    Considering the facts and circumstances of the case and upon the above discussions we are of the considered view that the opposite party cannot refuse to refund the advance paid towards the membership fee relying upon the terms and conditions of the agreement since unless the entire amount of membership fee is paid it is not a full-fledged agreement and as such the opposite party cannot rely upon the terms and conditions of the agreement.  Hence the opposite party is liable to refund the advance amount of Rs.33,000/-  towards club membership fee along with interest at the rate of 9% p.a. from the date of complaint i.e. 2.12.2013   to till the date of realization and also to pay a sum of Rs.5,000/- towards litigation charges.    Considering the facts and circumstances of the case we are not inclined to grant any compensation and accordingly the points 1 & 2 are decided.  

 

        In the result the complaint is partly allowed.  The opposite party is directed to refund the amount of Rs.33,000/- (Rupees thirty three thousand only) with interest at the rate of 9% p. a. from 2.12.2013 to till the date of realization and also to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation charges to the complainants within six weeks from the date of this order.  

        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- 6.10.2013  - Copy of Kotak Mahindra debit card payment slip.

Ex.A2- 6.10.2013  - Copy of Membership Purchase agreement.

Ex.A3- 6.10.2013  - Copy of Mail acknowledgement for the payment of

                               Rs.33,000/- received from Country Vacations. 

 

Ex.A4- 15.10.2013         - Copy of Cancellation mail to country vacation and AIRDA.

Ex.A5- 23.10.2013         - Copy of Cancellation mail to country vacation and AIRDA

Ex.A6- 23.10.2013         - Copy of email from country vacation.

Ex.A7- 5.11.2013  - Copy of cancellation mail to country vacation and AIRDA.

Ex.A8- 6.11.2013  - Copy of email from country vacation.

Ex.A9- 8.11.2013  - Copy of cancellation mail to country vacation and AIRDA.

Ex.A10-8.11.2013 - Copy of email from country vacation.

Ex.A11-22.11.2013- Copy of document proof of AIRDA membership.

 

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

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.