ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not providing the amenities agreed and also not refunding Rs.30,000/- paid towards membership fee and for refund of the same along with interest at 18% p.a., along with Rs.3,00,000/- as damages for causing mental agony, torture and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The OP being the hospitality club offered to provide lifelong membership to its clubs and also offered to provide facilities of gymnasium, restaurant facility, resort facility with vacation plans for five years to different exotic places along with hotel bookings and other facilities.  Complainant paid Rs.30,000/- on 11.08.2017 and Rs.30,000/- on 24.08.2017 by using his debit card and credit card. OP also assured that the offer will commence within a week, whereas the gymnasium facilities were not given to him and hence canceled his membership on 18.08.2017 i.e., within 10 days from the agreement as per the conditions therein.  He demanded OP to refund the amount of Rs.60,000/- paid by him by filing this complaint.

3.      Upon the cancellation o the membership OP refunded Rs.30,000/- out of the said amount and for the balance of said amount, OP3 pointed towards OP2 for his consent for commencing the process of refund. Inspite of several request and demands, OPs have not refunded the said amount. hence he had to issue legal notice on 07.01.2019 demanding OPs to refund the same and inspite of the notice which was delivered to OP1 and 2 and refused by OP3, OPs did not complied the demand made in the notice.  Hence to the deficiency in service in not providing the facility and also not refunding the amount paid towards membership fee, which amounts to unfair trade and hence prayed to allow the complaint.

4.      Upon the service of notice, OPs appeared before the Commission through their advocate and filed their version admitting the payment of Rs.60,000/- and availed the membership from it.  It also issued laminated club membership card to the complainant which was acknowledged by him. He was also provided with ID and password to access the website and complimentary spa coupons and pass holiday gift vouchers.  Complainant is entitled to holiday vacations on all seasons and has access to website to book holiday vacation. Himself and his family are entitled for six nights and seven day holiday vacation in a year for a period of five years and the club membership is for life time. Complainant has to inform and book the period which he wanted to avail the facilities 30 days in advance so as to make necessary arrangements. In case full amount towards vacation is not remitted within 45 days as per schedule payment or date of allotment of vacation 90% of amount remitted would be forfeited as per the agreement of sale of membership. The complainant entered into purchase agreement of membership and paid the amount. In terms of agreement cancellation amount is not to be refunded. Whereas, complainant can transfer the membership to his relatives and friends.  The complaint is based on false, imaginary, illusionary and baseless grounds. There is no truth in the allegation made. Complainant is not a illiterate person, whereas he has gone through the terms and conditions of the purchase agreement and hence there is no deficiency on his part and prayed the commission to dismiss the complaint.  

5.      In order to prove the case, complaint filed his affidavit evidence and produced documents. For the reasons best known to OP inspite of getting sufficient opportunity did not adduce evidence. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

7.     POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.   It is admitted by the respective parties that the complainant obtained membership of OP country club by paying Rs.60,000/-. Ex.P1 is the purchase agreement and P3 is the documents produced by complainant to show that he has paid Rs.30,000/- towards acquiring membership on 11-08-2017 and further sum of Rs.30,000/- on 24.08.2017 and the same has been remitted to the account of the OP.

        8.     It is the privilege of the complainant either to continue the membership with the OP or to discontinue the same.  OP cannot pressurize complainant to continue the membership and to pay the subscription.  Within two months complainant cancelled membership and sought for refund of the same, on the ground that the facilities of gym was not extended to him within a week as assured by OP.  When the complainant has not been provided with the facilities assured, complainant has an option to cancel the membership or keep out of the scheme offered by OP.  Notice as per Ex.P4 has also been issued which has been received by OP2.

        9.     According to complainant himself he has received Rs.30,000/- out of Rs.60,000/- and the balance of Rs.30,000/- is to be paid by OP for which OP is dragging on the matter.

        10.   When all the documents pertaining to the transaction is taken into consideration, not providing the facilities agreed and still demanding the complainant to continue with the membership and demanding to pay the money for facilities it has not been extended or provided would definitely amounts to deficiency in service and also unfair trade practice. Retaining of the remaining Rs.30,000/- by the OP also amounts to unfair trade and hence we are of the opinion that there is unfair trade practice and also deficiency in service and hence answer Point No.1 in the Affirmative.

11.   POINT NO. 2:

In the result complainant is entitle for refund of Rs.30,000/- along with interest at 12% p.a., from 24.08.2017 the day on which the complainant paid the said amount to the OP and after ten days withdrew from the membership.  Complainant was put to hardship by OP in not refunding the balance of membership fee of Rs.30,000/- inspite of demand through legal notice which has resulted mental agony and stress to the complainant besides filing this complaint before this Commission by engaging professional versed with law and continuing the complaint to its logical end, for which he has spent time, money and energy. Hence we are of the opinion that if a sum of Rs.5,000/- towards damages and Rs.5,000/- litigation expenses if OPs are ordered to pay to the complainant would meet the ends of justice. Hence we answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OPs 1, 2 and 3 are directed to refund to Rs.30,000/- along with interest at 12% p.a., from 24.08.2017 till payment of the entire amount along with Rs.5,000/- towards damages and Rs.5,000/- towards litigation expenses.
3. The OPs are further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
4. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 31^st day of December 2020)

MEMBER                                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Sale Agreement

Ex P2: Copy of the letter of cancellation of membership

Ex. P3: Copy of the credit card statement issued by City Bank

Ex P4: Copy of the legal notice

Ex P5: Copy of the postal acknowledgement

Es P6: Unopened return cover

Ex P7: Copy of the debit card details cum statement

Ex P8: Copy of the voucher

Ex P9: Certificate under section 65B of the Indian Evidence Act.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                                PRESIDENT