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

DATED 1^st DAY OF APRIL 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complainant files complaint under Section 35 of C.P.Act, 2019 (herein after referred as an Act) for the following reliefs against the OPs:-

(a) Direct the OPs to award damages/compensation of Rs.2 lakhs for the monetary loss and mental harassment.

(b) Direct the OPs to pay an amount of Rs.58,100/- with 18% interest p.a. from the date of payment till the date of realization.

(c) Award cost of the complaint including litigation expenses and advocate fees.

(d) Any other reliefs.

2. The case set up by the complainant in brief is as under:-

The complainant having entered into sale agreement dated 06.05.2018 with OPs to get certain services by paying Rs.58,100/- on 06.05.2018.  As per the terms and conditions, the complainant had an opportunity to exercise his option to request cancellation of agreement in writing within cool period of 10 days.  Accordingly, the complainant had exercised his option as per cool of period on 07.05.2018.  Even though, the OPs received this E-mail and subsequent E-mails failed to refund the amount within 120 days from 07.05.2018 after deducting Rs.3,800/- as stated in the agreement.  This act of the OPs of non-refunding of amount, despite receipt of legal notice dated 26.07.2021 amounts to deficiency of service and unfair trade practice.  Hence, this complaint for the above reliefs.

3. In response to the notice issued to OPs, they appear and file version.  The OPs having admitted the payment of amount and agreement dated 06.05.2018 contends that the complainant was liable to pay maintenance charges of Rs.8,000/- + applicable taxes.  But, the complainant failed to adhere to terms and conditions.  The OPs also contends that as per the terms and conditions of agreement, the amount paid towards membership fee is not refundable.  Therefore, the OPs request to dismiss the complaint. 

4. The complainant has filed affidavit and relies on 10 documents.  No evidence is adduced on behalf of the OPs. 

5. Heard the arguments on behalf of complainant only.

6. The following points arise for our consideration:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

7. Our answers to the above points are as under:

       Point No.1:  In the affirmative.

      Point No.2:- Partly in the affirmative.

      Point No.3: As per final orders

REASONS

8. Point Nos.1 and 2:  Even though, OPs appeared and filed version.  But, evidence of the complainant remains unchallenged and OPs have not lead any contra evidence.  But, documents produced by the complainant are not in dispute.
9. It is proved from Ex.P.2, copy of the agreement that the complainant and OPs have entered into sale agreement dated 06.05.2018 for having received Rs.58,100/- from the complainant.  It is true that there is a Clause in the first page of the sale agreement that the charges are not refundable deposit and not an investment.  The fee is not refundable under any circumstances.  But, the condition No.19 of the sale agreement empowers the complainant to exercise his option for cancellation of sale agreement in writing within cool of period of 10 days from 06.05.2018.  The Clause No.19 read thus:-

There shall be a cool off period of 10 days from the date of signing 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 of an e-mail to

10. Ex.P.3 indicates the payment of Rs.58,100/- by the complainant.  Ex.P.4 E-mail dated 07.05.2018 clearly indicates that the complainant has exercised his option during the cool of period and requested for cancellation of sale agreement.  It is also relevant to note that the complainant has filed Ex.P.1 Certificate under Section 65(B) of Evidence Act.  The complainant on subsequent dates also requested the OPs to refund his amount.  Despite legal notice dated 26.07.2021, the OPs failed to refund amount of Rs.58,100/- minus Rs.3,800/- deductable in case of cancellation of agreement.  As per the terms and conditions of sale agreement, the OPs are entitled to deduct only Rs.3,800/- towards administrative charges when option of cancellation or discontinue of agreement came to be exercised within 10 days cool of period.  Under such circumstances, the OPs were not right in retaining the balance amount i.e. (Rs.58,100/- minus Rs.3,800/-) would be come to Rs.54,300/-. The non-payment of Rs.54,300/- within 120 days from 07.05.2018 amounts to deficiency of service.  Even though, OPs were entitled to 120 days from 07.05.2018 to return the balance amount of Rs.54,300/-.  The OPs having failed to comply the request of the complainant about refund of balance amount is clearly deficiency of service.  The OPs are liable to refund Rs.54,300/-.
11. The complainant claims 18% interest p.a. from the date of payment.  There is no base and there is not privity of contract with regard to payment of interest at 18% p.a.  The complainant also claims compensation of Rs.2,00,000/- for monetary  and mental harassment.  This claim of Rs.2,00,000/- as a compensation not only disproportionate and it has no basis.
12. It is true that the Consumer Protection Act has been enacted to safe guard the interest of consumers.  But, that is not meant to make wrongful gain at the cost of the others.  Therefore, it is not a fit case to award 18% interest p.a. from the date of payment and Rs.2,00,000/- as compensation.  But, the OPs having failed to refund balance amount of Rs.54,300/- from 07.09.2018 is liable to compensate the complainant.  When the amount refundable is only Rs.54,300/-, it is proper to direct the OPs to pay compensation of Rs.15,000/-.  The complainant has engaged the service of an advocate. The consideration amount of service is Rs.58,100/- and no court fee was payable, when the consideration amount for service is less than Rs.5,00,000/-.  Therefore, cost of litigation is quantified at Rs.2,000/-.
13. Point No.3:- Having regard to the discussion made above, the complaint requires to be allowed in part.  The OPs are liable to refund Rs.54,300/- with compensation of Rs.15,000/- and Rs.2,000/- towards cost of litigation.  We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OPs shall refund Rs.54,300/- with compensation of Rs.15,000/- and Rs.2,000/- towards cost of litigation to the complainant.
3. The OPs shall comply this order within 60 days from this date.    
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 1^st April, 2022)

Documents produced by the Complainant which are as follows:-