BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 18^THDAY OF AUGUST 2022

ORDER

KUM. RENUKADEVI DESHPANDE, MEMBER

1. Complainant had filed this complaint under section 35 of C.P.Act,2019 against the OPs for the following reliefs

1. To Direct the OP to pay sum of Rs.2,00,100/- to the complainant towards membership amount.
2. To Direct the OP to compensate for a tune of Rs.10,00,000/-  as damages along with interest @ 18% from the date of membership and also grant sum of Rs.5,00,000/- towards mental agony caused to the complainant.
3. Grant such other reliefs it deems fit under the facts and circumstances of the case.

2. The brief facts of the complaint are is under:

The complainant submits that the complainant became the member of the OPs as per repeated requests of the OPs and have been called to the complainant by paying complainant saying have own a prize  of Rs.25,000/- worth of crockery’s and   domestic trip as per membership  offered by the OPs. The complainant is entitled for the benefits

1) 06 nights/7 days of accommodation per year for 05 years.

2) Lifetime country club membership-free entry and usage of club facilities-Swimming pool, party hall, indoor games, outdoor games, events & etc.

3) Entry and utilization of fitness

a) Country club fitness  b)Tieup fitness centres

4) Free entry for events conducted at country club located at Bengaluru.

Complementary benefits which the complainant is entitled.

1. 6 Nights/7 days holiday vouchers for 5 years, subject to the terms and conditions of the vouchers.
2. Rs.65,000/- worth flight charges.
3. 2 Nights/ 3 days complimentary  holiday  with food for 2 adults anywhere in domestic.

The OPs manager assured that complainant that to provide better/quality  service as per terms and conditions of the membership. Further, the OPs Manager assures that any dis-satisfaction  towards service and facilities in resorts, the memberships amount paid  will be refunded by deducting Rs.3800/-. Assurance of the OPs Manager and words the complainant has paid  sum of Rs.2,00,100/- through HDFC and RBL credit card on 8^th-9^th June 2019 and complainant received  acknowledgement from the OPs club saying that the complainant became the member of Millionaire premium membership vide card no.CVBG2MPCLUB5LB265015. After 02 days the complainant questioned regard the membership of the club is concerned, then the OP Manager assured  it would take 10 days to get the membership card.

3. After some days the complainant called the OP manager to book the resort of the complainant’s choice, but no one would respond to the complainant call.  Finally, after showing dis-satisfaction towards club services and attitude  through message the complainant texted to them to cancel the membership and refund of Rs.2,00,100/- paid to the OP club. To that response the OP Manager stated that the complainant could only cancel the membership, only after visiting  one place and assailing the feedback. In fact upon their assurance, the complainant planned to go Mysuru, then OP Manager said resort in the Mysure is not good and then complainant optioned to Ooty, then there is no resort services in Ooty. Finally, requested the complainant to proceed to Bandipura. Complainant visited the Bandipura, the OPs made the complainant to wait  for 1 ½ hour   by saying they have not received confirmation yet. Further, at 8.00 pm they directed to back, if they would not received any mails. Finally the complainant shows her dis-satisfaction to the services rendered by the OPs club.   The complainant has given her feed back to  cancel the membership  and refund of Rs.2,00,100/-. Despite several  communications through mails/calls and messages, no action was taken by the manager to refund membership amount, but no effective action  taken by the OPs club, where as the customer care manager has agreed to settle the amount in 90 days and acknowledged the same through mail. Meanwhile, the complainant understood that, the complainant membership is cancelled, but no money refunded. The complainant issued legal notice dt.09.02.2021, no reply was given to the said notice nor complied the payment made by the complainant. The conduct of the OPs amounts to deficiency of service, fault and imperfection in providing the service to the complainant and gross negligence and lack of conscious care  caused  untold misery and psychological truma and mental agony for which the OPs are sole and cause responsible.  Hence, this complaint.

4. After issuance of notice, OP-1 to 3 appeared and filed version denying allegations made against the OPs in their  version. The complaint is not maintainable either in law or facts and liable to be dismissed in limine. The complainant came back to the office of the Ops and told that they thoroughly  heard and understand the terms and conditions of the purchase agreement  and words interested to became the member of the country club hospitality and holiday ltd., through  OPs. The OPs always ready and willing to offer the holidays facilities to the complainant when his requirements subject to booking of 30 days  in advance that entered into the purchase agreement is not in dispute. But there is no provision for refund of amount or cancel of the club membership. Further, the complainant is at liberty to sell or transfer or gift the membership to any third party. There is no cause of action, then OPs not rendered any deficiency  in service. This court may please to dismiss the above complaint with exemplary costs in the interest of justice and equity.

5. The complainant to substantiate the case filed affidavit evidence and produced documents and marked Exhibits P1 to P8, certificate under section 65(b) of Evidence Act read with section 151 of CPC. OPs filed affidavit evidence and produced documents marked as Exhibit R1.

6.            The complainant filed written arguments. OPs arguments is taken as nil.

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

1. Whether the complainant proves deficiency of service on the part of OP? if So, entitled for relief sought for?
2. What order?

8. Our answer to the above points are as under:

       Point No.1:- Affirmative

      Point No.2:- As per the final order.

REASONS

9.  Point No.1: It is proved from  the contents of the complaint as well as  version filed by OPs, the complainant has paid Rs.2,00,100/- towards holyday vacations under purchase agreement dt.08.06.2019. The OPs have issued club membership  in favour   of the complainant and  as entered into agreement dt.08.06.2019 with the OPs. The OPs have not in dispute,  but in terms and conditions of the clause and there is no provision for cancellation of  club membership or for refund of the amount, but the OPs did  not produce purchase agreement document dt.08.06.2019 and also adduce affidavit  evidence of the OPs, but did not produce any documents. Only Exhibit R1 authorization  letter is produced. Even though OPs as per terms and conditions of purchase agreement there is no provision to cancellation of the club membership or for refund of the amount, but as per exhibit A1 mail communication dt.04.01.2020, OPs themselves have agreed return of entire agreement amount within 90 working days and further Ops sent mail to the complaint dt.04.05.2020. As per mail communication  OPs have agreed to refund of the membership amount after lockdown, but till date did not refund. OPs repeatedly promised to the complainant for refund of amount. But best known to the OPs have not refunded the amount till today. It amounts to  deficiency of service, when the services of the OPs is not satisfied. Therefore, having lack of service from the OPs  and also not availed the club facilities, for which complainant is entitled for refund. When such being the fact the complainant is entitled for the reliefs as per relied decision of   the Hon’ble National Commission relied  in 2019(I) CPR 647 (NC) in the case of Country Vacations & another V/s  Jayanthi Mukurji. Where as it is held that  no amount can be retained by the service provider without offering  any service. Hence, in the light of the above said decision, we come to the conclusion the membership fee of Rs.2,00,100/- is liable to refunded with interest at 6% from the date of this complaint till date of realization with cost of Rs.5,000/-. Accordingly, we answer the point-1 in the affirmative.

10.  Point no.2:- In view of the discussions made above and findings given on point Nos.1, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. OPs are directed to refund an amount of Rs.2,00,100/-  along with interest at the rate of 6% p.a. from date of payment till realization to the complainant and to pay Rs.5,000/- towards cost of litigation.
3. The OPs shall comply this order within 60 days from the date of this order, failing which the OPs shall pay interest @ 12% p.a. on Rs.2,00,100/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 18^th  day of August, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 : Nil