THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.39/2018
Dated this the 1st day of November, 2018
(Smt. Rose Jose, B.Sc, LLB. : President)
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Sri. Joseph Mathew, Member:
This petition is filed under Section 12 of Consumer Protection Act, 1986.
The case of the petitioner is that, enticed by the attractive offers made by Smt. Adheena Praveen, Customer Care Executive of the opposite party that if he is taking a membership of the opposite party Club paying Rs.75,000/- as membership fee, then they will provide so many facilities, benefits and advantages like four days stay in any of their club and fitness centre in every year without any additional charges, that the offer for membership is as good as a one-time deposit scheme and the amount can be withdrawn with its added value as and when the customer desire to discontinue the membership etc. etc. he had taken the membership after paying Rs.75,000/- on 26/02/2017. It is stated that since he is at the age of 82 and was not aware of the terms and conditions of the investment, he had paid the amount believing only the words of Smt. Adheena Praveen, the representative of the opposite party. He was not given sufficient time to read and understand the terms and conditions of the proposal since Smt. Adheen Praveen was in a hurry to give the membership on the spot. Moreover, the terms and conditions of the agreement was invery small letters which was not legible also. At that time he was taking rest after a surgery in his eyes and was not in a position to read the agreement. The agreement was made available to him much after collecting the amount also.
It is further stated that, later he came to know that the said agreement is a unilateral one with all the conditions therein are favourable to the opposite party only. Smt. Adheena Praveen never informed him about the huge Annual Maintenance Charges which is unheard also. Actually the opposite party had cheated him in collusion with Smt. Adheena Praveen by misrepresenting the facts. Inducing a person to make investment against his interest and wishes by misrepresenting facts with intend to make unlawful enrichment is unfair trade practice and also deficiency in service on the side of the other party. So he is entitled to get the invested amount of Rs.75,000/- back, since the amount was collected by the opposite party by misrepresenting the true facts. Though he had requested many times to the opposite parties to cancel his membership and to refund the paid amount, the opposite parties was not ready for the same and so he issued a lawyers notice to the opposite parties on 10/04/2017 demanding refund of the said amount with compensation after cancelling the club membership. The opposite parties received the notice but they have not complied with his demand or even send a reply to that notice. The said act of the opposite parties caused huge financial loss, mental agony and other hardships to him. Hence this petition is filed to direct the opposite parties to refund the invested amount of Rs.75,000/- after cancelling the club membership with 12% interest and compensation for his sufferings and also cost of the proceedings.
The opposite parties received notice issued from this Forum but they didn’t turn up or filed version. So the opposite parties set ex-parte.
The petitioner filed affidavit in lieu of his petition and produced 3 numbers of documents as evidence on his side and was marked as Ext. A1 to A3. Ext. A1 is the purchase agreement of club membership dated 26/02/2017 between the petitioner and Smt. Adheena Praveen, C.C. Executive of the opposite party, Ext. A2 is the copy of lawyer notice dated 10/04/2017 issued by the petitioner to the opposite parties and Ext. A3 is the copy of A/d card signed by the 2nd opposite party dated 10/04/2017.
The petitioner averred that, he had signed Ext. A1 agreement believing the misrepresentation made by Smt. Adheena Praveen, the C.C. Executive of the opposite party, that the payment towards the club membership is as good as a one-time deposit scheme and the same can be withdrawn with its added value as and when the customer desires to discontinue the membership etc. etc. She has not given enough time to read or understand the terms and conditions therein. Only after collecting the amount, the agreement was made available to him. At the time of signing the agreement he was taking rest after a surgery in his eye and so he was not in a position to read and understand the terms and conditions. Moreover the letters of the agreement was very small so that it was not legible also. Since the agreement was obtained by suppressing true facts it became null and void and so liable to be cancelled.
But a perusal of Ext. A1 agreement disproved the said statement of the petitioner that the letters therein was very small and was not legible, so that he could not read or understand the same. In the face of Ext. A1 agreement it is clearly written in bold capital letters that “THE MEMBERSHIP FEES IS NON-REFUNDABLE UNDER ANY CIRCUMSTANCES AND THE MEMBERSHIP FEE IS NOT A DEPOSIT.” Since the wording in Ext. A1 agreement is very clear and unambiguous, the allegation of the petitioner that Smt. Adheena Praveen made him believe that the investment is as good as a one-time deposit and he can withdraw the same with its added value as and when he want to discontinue the membership is not at all acceptable or admissible.
It is to be noted that the agreement is a contract and once it is signed by the parties, the presumption is that the parties therein are conversant with the terms and conditions of that agreement. In case of breach of any of the conditions therein by any of the party to that agreement, then only the other party can withdraw from that agreement. Otherwise both the parties are bound by its terms and conditions. Since the petitioner is a party to that agreement who had paid the amount, he could have take his own time to read and study its terms and conditions and if he was not in a position to read the same as stated then he could have seek the help of any other person who can read it before signing the agreement. So the excuses put forth by the petitioner for the cancellation of the agreement is not acceptable. Moreover the petitioner has no case that the opposite parties had violated any of the conditions in the agreement or denied to provide any of the facilities offered, so as to cancel the agreement and to order refund of the paid amount or any compensation. So considering the facts of the case and on perusal of documents, we didn’t find any merit in this petition and so of the view that this petition is liable to be dismissed.
In the result, this petition is dismissed.
Dated this the 1st day of November, 2018
Date of filing: 02/02/2018
SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Purchase agreement
A2. Copy of lawyer notice
A3. Acknowledgement card
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
None
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
