BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                             BENGALURU – 560 027.

DATED THIS THE 4^th DAY OF APRIL, 2022

CONSUMER COMPLAINT NO.1190/2019

PRESENT:

                    SMT.REKHA SAYANNAVAR,:MEMBER

Don Mathew,

Aged about 28 years,

No.12, 2^nd Floor, Block-2,

Nr:Swapna Apartments,

Karnataka,

Inperson

V/s

Branch Manager/Head of the Branch,

Country Club Hospitality and Holidays Limited,

Country Club Kool,

No.6-3-1219, 4^th Floor,

Begumpet,

Hyderabad-16.                            …….      OPPOSITE PARTY-1

Take over Manager/Branch Manager/

Head of the Branch,

Country Hospitality & Holidays,

No.3802/B, MKB Towers,

Indiranagar,

Bangalore-560038. ..….OPPOSITE PARTY-2

(Opposite party no.1 & 2, Sri.D.Narase Gowda, Adv)

******

//JUDGEMENT//

BY SRI.SHIVARAMA,K, PRESIDENT

The complainant has filed this complaint u/s 12 of the Consumer Protection Act-1986 seeking for a direction to the opposite parties to pay a sum of Rs.1,49,000/- as cost to the complainant (membership fee) and a sum of Rs.15,00,000/- as compensation for the financial difficulties, physical strain and mental agony  faced and a sum of Rs.2,500/- towards cost of this petition. 

 2. It is not in dispute that the complainant has become the member of Country Club Hospitality and Holidays Limited, on April 4^th, 2019 and he has paid a sum of Rs.1,49,000/- towards membership fee and he was issued silver card membership.  It is also not in dispute that on 03.04.2019 the complainant sent a mail to close his membership and on 14.05.2019 one more mail was sent to cancel the membership and to refund the membership fee.

3. It is the further case of the complainant that he called one Sri.Punith representative of opposite party-company for booking the complimentary trip in India and he assured that he would arrange within 2 weeks but he did not arrange for the same.  Hence, the complainant thought to leave the complimentary trip and chosen to 6 nights and 7 days holiday stay and he told the opposite party representative to book for the same and thereafter the complainant was asked to pay the Annual Maintenance Contract (AMC) since the opposite party did not co-operate in arranging the trip.  The complainant lost patience and trust in the company.  Hence, he called the customer care of the opposite party company and asked for refunding of membership fee and sent emails.  In spite of that, the complainant did not return the membership fee.  Further the complainant did not avail any services from the opposite party club.  Hence, the complaint came to be filed. 

4.  The opposite party no.1 & 2 had denied the averments of the complaint other than the admissions made as stated above.  It is the further case of the opposite parties that the opposite party company, Country Club India Limited has been changed with effect from 27.11.2014 from Country Club India Limited to Country Club Hospitality and Holidays Limited. Further the complainant has shown Keen interest to become the member and had entered into purchase agreement on 04.04.2019.  Further the opposite party was always ready and willing to provide the holiday vacation to the complainant as and when requirement arose subject to booking of 30 days in advance.  The complainant neither requested nor booked the holiday vacation so as to facilitate to the complainant.  Further in terms of the offer, the complainant is entitled for 6 nights and 7 days holiday vacations in a year for a period of 5 years and club membership for life time, subject to the terms and conditions of the agreement.  Further the membership is transferable to their family members.  Further the member as per the agreement has to pay annual charges of Rs.10,500/- excluding taxes every year irrespective of the usage.  Further the member cannot utilize the facilities until the dues cleared i.e., annual charges.  Hence, there is no deficiency of service on the part of the opposite party.  Further there is no provision for cancellation of club membership.  Hence, the complaint is an imaginary, illusory and baseless and sought to dismiss the same. 

5. To prove the case of the parties, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 document.  The representative of opposite party no.1 & 2 also filed affidavit in the form of his evidence in chief and got marked EX.R1 to R7 documents. 

          6. Heard the arguments.

        7. The points that would arise for consideration are as under:

i) Whether there is deficiency of service from the side of the opposite parties ?

ii) Whether the complainant is entitled for the compensation as sought ?

iii) What order ?

  8.   Our findings on the aforesaid points are as follows:

Point No.1 :  In Affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

9. POINT NO.1 & 2:- In order to avoid the repetition of facts, I have discussed both the points together. PW1 and RW1 have filed their respective affidavits in the form of their evidence in chief.  They have reiterated the fact stated in their respective pleadings, in the affidavit filed.  There is no dispute with regard to the bill for a sum of Rs.1,49,000/- as membership fee paid by the complainant.  Since, the opposite party is a registered club and the complainant has become its member, we feel the complainant is a ‘Consumer’ as defined under Section-2(7) of Consumer Protection Act, 2019. 

10. Admittedly, the complainant did not avail any facility from the opposite party club.  According to the complainant, the opposite parties did not provide the facilities and did not book for complimentary trip in India and not provided any trip.  Hence, the complainant lost trust in the company and was fed-up.  According to RW-1, the complainant did not seek for any bookings in the club and did not pay the annual administration charges of Rs.10,500/-.  Hence, there is oath against oath by the parties. 
11. According to PW1, as stated by one Punith the representative of the company, the complainant has not been provided the complimentary trip at the inception period.  Thereafter, PW1 called the customer care, at that time they started to demand annual maintenance charge and it was assured that the same would be payable at the end of every year.  According to RW1, the annual maintenance charges of Rs.10,500/- shall be payable irrespective of the usage of the facility by the member to the country club.

12. Clause-34 of Club and Vacations Sale Agreement says as under ;

There shall be a cool off period of 10 days from the date of signing of this agreement wherein member can discontinue the agreement by paying a nominal administration charges of Rs.3,800/- to the Company.After deduction of the aforesaid amount (Rs.3,800/-) remaining amount would be refunded to the member, within 120 working days from the date of invoking of cool off period.For invoking the cooling off period the member shall send a written communication to the country club.Central customer care, 4^th Floor, Asian Building, Begumpet, Hyderabad-500016 through registered speed post or an e-mail to

13. As per Cluase-34 member can discontinue the membership by paying nominal administration charges of Rs.3,800/- within the cool off period of 10 days. For invoking the cooling off period the member shall send a written communication to the country club.    In the case on hand, the consumer has sent the written communication to close his membership on 13.05.2019 and he has become the member on 10.04.2019.  EX.R3 is the agreement dt.04.04.2019.  EX.P1 is the email communication dt.14.05.2019.  On perusal of the email dt.14.05.2019 sent by the opposite party to the complainant, it appears that the opposite party had informed the complainant that the membership fee was not a deposit and it was a non-refundable as per the company policy.  On 13.05.2019 also the complainant had sent mail that he wants to close his membership. 

14. Nodoubt, while sending the written communication by the complainant to the opposite party cool off period of 10 days was over.  But admittedly, the complainant has not been given any facility by the opposite party company.  Hence, we feel the complainant is entitled for return of the membership fee.  It is the principle that no one shall have wrongful gain as contemplated under Section-72 of Indian Contract Act.  Therefore, we feel the complainant is entitled for refund of the membership fee after deducting Rs.3,800/- nominal administration charges. 

15. The complainant has claimed a sum of Rs.15,00,000/- towards financial difficulties, physical strain and mental agony he has suffered.   We feel, since the opposite party did not provide the facilities to the complainant as assured, there is deficiency of service from the side of opposite party as stated in Section-2(11) of Consumer Protection Act, 2019.  We feel the complainant has undergone mental agony and suffered lot.  Therefore, under this head the complainant is entitled for Rs.5,000/- and Rs.5,000/- towards litigation expenses and costs.  Further the complainant is entitled for interest at the rate of 9% p.a. from the date of order till realization on the above said amount.  Accordingly, we answer point No.1 in affirmative and point no.2 partly in affirmative. 

16. POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite parties are directed to pay a sum of Rs.1,49,000/- - Rs.3,800/- = Rs.1,45,200/- and a sum of Rs.5,000/- towards mental agony and a sum of Rs.5,000/- towards litigation expenses.  In total the complainant is entitled for a sum of Rs.1,55,200/-. 

 In case, the opposite parties fail to pay the above said amount within 30 days, the complainant is entitled for interest at the rate of 9% p.a. from the date of order till realization.  

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 04^th day of April, 2022)                                            

• REKHA SAYANNAVAR)                          (SHIVARAMA, K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Don Mathew, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Email communications between complainant and opposite parties.

 Witness examined for the opposite party side:         

 Sri.Vaseem Ullah, Assistant Administrative Manager of opposite party-company has filed his affidavit.

Documents marked for the Opposite Parties side:

1. Copy of authorization letter.
2. Copy of the membership application.
3. Copy of the membership sale agreement.
4. Copy of the presentation letter dt.04.04.2019.
5. Copy of the work sheet.
6. Copy of the letter of indemnity for credit/debit card payment.
7. Copy of the payment charge slip.

• REKHA SAYANNAVAR)                            (SHIVARAMA, K)    
•