Haryana

Kurukshetra

CC/421/2019

Neelam Rani - Complainant(s)

Versus

Country Club hospitality - Opp.Party(s)

Shekhar Thakur

11 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

                                                                    Complaint No.:    421 of 2019.

                                                                   Date of institution:         13.09.2019.

                                                                   Date of decision: 13.05.2022

 

Smt. Neelam Rani w/o Shri Ramesh Kumar, r/o VPO Kheri Ram Nagar, Tehsil Thanesar, District Kurukshetra.

                                                                                       …Complainant.

                                                     Versus

 

1. Country Club Hospitality and Holidays Limited, 6-3-1219/A, Country Club Kool, Begumpet, Hyderabad-500016, through its Managing Director.
2. The Area Manager, Country Club Hospitality and Holidays Limited SCO 44-45, Madhya Marg, near Upstairs PNB Bank, Sector-9D, Chandigarh-160009.

 

...Respondents.

CORAM:   NEELAM KASHYAP, PRESIDENT.    

                   NEELAM, MEMBER.

                   ISSAM SINGH SAGWAL, MEMBER.           

 

Present:       Shri Shekhar Thakur, Advocate for the complainant.            

                   Shri Shekhar Kapoor, Advocate for the Opposite Parties.

 

ORDER:

 

1.                This is a complaint under Section 12 of the Consumer Protection Act, 1986 (for short “Act”).

2.                It is alleged in the complaint that on 26.4.2019, the complainant attended the OPs company’s short briefing at Hyundai Kaushalya Showroom, Kurukshetra regarding holidays and allied benefits given by OPs and after promises of travel related benefits by OPs, she entered into an agreement dt. 26.04.2019 with the authorized representative of OP No.2 and agreed to pay total product price of Rs.106000/- and allied file charges on her part, for obtaining travel related benefits from the OPs. In furtherance of aforesaid agreement, she paid Rs.20000/- in cash to OPs official Mr. Soumen s/o A.K. Mandal, Territorial Office Manager and Rs.40200/- on 26.4.2019 at 18:47:24, Rs.25200/- on 26.4.2019 at 19:17:46 and Rs.15200/- on 26.4.2019 at 18:36:55 through online system and acknowledgement of all three payments have been generated, therefore, total value about Rs.100600/- was paid. As per OPs assurances, the complainant took membership of OPs company and their officials stated that she would get stay of 6 nights and 7 days at CCHHL’s properties each year within India and further enrolment travel services. That was the complainant’s holiday plan for five years and the OPs officials stated that a mandatory card would be issued soon to her to avail the benefits arising under the said membership physically as well as on email. After taking the membership in the last week of April 2019 she waited for almost 80 days including summer vacations, regarding issuance of holidays voucher/holiday card enabling her to enjoy vacations with her family, but to the dismay of complainant, nothing needful was done on behalf of OPs, which ruined the whole enjoyment of the complainant and her family, which is grave deficiency in services regarding not issuing the membership card as well as it was caused breach of trust towards complainant. In this regard, the complainant issued legal notice dated 23.07.2019 from her advocate Shri Shekhar Thakur to do the needful by the OPs, but they neither replied nor did the needful. The act and conduct of OPs amounted to grave deficiency in service, causing her mental agony, harassment and financial loss, constraining her to file the present complaint against the OPs, before this Commission.

3.                On receipt of notice of complaint, OPs appeared and filed their written statement, stating therein that the complainant entered into an agreement during April 2019 titled as “Sale Agreement” which was undisputed by the complainant. The plan opted by the complainant was category “Blue Season” under which, the complainants were entitled to a stay for a period of every year for upto 6 nights and 7 days each year at OPs properties within India for the next 5 years from the date of agreement. It is further submitted that complainant has not complied with the agreement in question. In Blue Season category, holidays can be booked online through the members’ portal or mobile app or by contacting the reservations department of the OP between 60 days to 45 days in advance before the desired holiday. As per clause No.10 under the agreement, complainant are required to make payment towards annual maintenance charges (AMC) of Rs.10,500/- which are applicable from the date of agreement. It is further stated that this Commission does not have territorial jurisdiction to entertain and adjudicate the present complaint. There is no deficiency in service on the part of OPs and prayed for dismissal the present complaint against them.

4.                The complainant, in support of his case, tendered affidavit Ex.CW1/A along with documents Ex.C-1 to Ex.C-6 and closed his evidence.

5.                 On the other hand, the OPs failed to lead any evidence in their defence despite availing various opportunities, as such, evidence of OPs were closed on 31.03.2022 by the order of this Commission.

6.                We have heard the learned counsel for the parties and gone through the case file as well carefully.

7.                At the outset, learned counsel for the OPs raised objections that this Commission has no jurisdiction to entertain and try the present complaint, because, as per Clause No.50 under the Agreement, the territorial jurisdiction of all other Courts were ousted and all disputes was agreed to be submitted to the exclusive jurisdiction of Courts at Hyderabad alone, as such, present complaint be dismissed on this score. But this Commission is not convinced with this contention of the OPs. From the perusal of case file, it is evident that the payment of Rs.1,00,600/- was not made by the complainant, to the OPs at Hyderabad, rather, she made the same to the OPs, online from his vicinity. Moreover, the OPs took the signature of the complainant on the Agreement Ex.C-1, from her vicinity and in this regard, the complainant had not gone to Hyderabad. Furthermore, the complainant is resident of District Kurukshetra. So, from the above, it is clear that all the activities i.e. making of payments, signing of agreement are done between the parties within the territorial jurisdiction of this Commission i.e. at Kurukshetra, as such, this Commission as Kurukshetra has territorial jurisdiction to entertain and try the present complaint and in this regard, objection raised by the learned counsel for the OPs, is baseless, hence, rejected. 

8.                Now coming on the merits of the case.                

9.                In this regard, learned counsel for the complainant argued that on allurement by the OPs, the complainant agreed to pay total product price of Rs.106000/- and allied file charges on her part, for obtaining travel related benefits from the OPs. The complainant paid Rs.1,00,600/- online to the OPs. After taking the membership in the last week of April 2019 the complainant waited for almost 80 days including summer vacations, regarding issuance of holidays voucher/holiday card enabling her to enjoy vacations with her family, but nothing needful was done on behalf of OPs, which ruined the whole enjoyment of the complainant and her family, which is grave deficiency in services regarding not issuing the membership card as well as it was caused breach of trust towards complainant. In this regard, the complainant issued legal notice dated 23.07.2019 to do the needful by the OPs, but they neither replied nor did the needful. To support his contentions, he placed reliance on case law titled Country Club (India) Ltd. Vs. Sanjana Kaundal, First Appeal No.343 of 2016, Date of Institution 27.12.2016, Date of Decision 23.03.2017 by the Hon’ble State Consumer Disputes Redressal Commission, U.T., Chandigarh.

10.              On the other hand, learned counsel for the OPs argued that the complainant entered into an agreement during April 2019, which was undisputed by the complainant and the category “Blue Season” under which, the complainants were entitled to a stay for a period of every year for upto 6 nights and 7 days each year at OPs properties within India for the next 5 years from the date of agreement. It is further argued that complainant has not complied with the agreement in question by not paying the full consideration amount of Rs.1,06,000/- and as per clause No.10 under the agreement, complainant are required to make payment towards annual maintenance charges (AMC) of Rs.10,500/- which are applicable from the date of agreement. There is no deficiency on their part and prayed for dismissal the present complaint.

11.              There is no dispute that the complainant acquired the membership from the OPs under the category “Blue Season”, under which the complainant was entitled to stay 6 nights and 7 days at CCHHL’s properties each year in India for five years and in this regard, complainant made payment of Rs.1,00,600/- to the OPs through online mode, vide documents Ex.C-2 to Ex.C-4.

12.              The main grievance of the complainant is that the OPs failed to issue the Membership Card, physically or through email, due to which, she could not enjoy the vacations with her family, which is an act of grave deficiency service on their part. In the case in hand, the OPs had not issued the Membership Card, to the complainant, despite repeated requests, due to which the complainant could not have availed the benefits of facilities of the holiday packages and might not have allowed to her enter into the premises of the OP Club, to enjoy the facilities of the club, which is an act of deficiency in service on the part of the OPs. In this regard, our view is fully supported by the case law cited (supra) by learned counsel for the complainant titled Country Club (India) Ltd. Vs. Sanjana Kaundal and extract part of Para No.8 reads as under:-

                   “The OP has not denied submission of this form (Annexure C-4) to the OP whereby the complainant provided the photos of her family members with the requisite details to the OP in order to get the individual membership cards which in fact were not issued by the OPs.. For the act of non-issuance of the Membership Card, it can be safely presumed that the complainant might not have availed the benefits of facilities of the holiday packages and might not have allowed to enter the premises of the OP Club to enjoy the facilities of the club, as alleged which would had also caused a lot of harassment to the complainant. Hence, non-issuance of the individual cards amounts to deficiency in service on the part of the OP.   

13.              The complainant further contended that the OPs had not refunded the amount, deposited by her, despite repeated requests. In this regard, the OPs contended that the said amount is non-refundable as per Clause No.26 of the Agreement Ex.C-1 between the parties. But this Commission does not agree with this contention of learned counsel for the OPs and our this view is fully supported by the case law cited supra titled Country Club (India) Ltd. Vs. Sanjana Kaundal and extract part of Para No.4 reads as under:-

                   “According to the complainant, the OP did not refund the amount deposited by her despite repeated requests. It is claimed by the OP that the said amount is not refundable as per the Vacation Purchase Agreement signed between the parties. We do not agree with this contention of the OP being unreasonable and illegal in the eyes of law. It has been clearly held by our Hon’ble State Commission in the case titled as Country Club India Ltd. and anr. Vs. Gurumukh Singh decided on 18.11.2015 that forfeiture of more than 10% of the amount is invalid and unreasonable.

14.              Keeping in view the ratio of the law laid down by the superior Fora in the aforesaid case and the facts and circumstances of the present case, we are of the considered opinion that by not issuing the Membership Card to the complainant and thereafter, by not honouring the request of the complainant to cancel the contract and refund the amount, the OPs are found to be deficient in rendering the services and indulging into unfair trade practice. Hence, the OPs are liable to refund the amount of the complainant after deducting 10% out of the same.

15.              In view of our above discussion, we accept the present complaint against the OPs and direct the OPs jointly and severally, to refund the amount of Rs.1,00,600/-, after deducting 10% i.e. Rs.10,060/- i.e. Rs.90,540/- (Rs.100600 - 10060), to the complainant, alongwith interest @6% simple per annum, from the date of filing the present complaint, by the complainant i.e. 13.09.2019, till its actual realization. The OPs are further directed to pay Rs.10,000/- to the complainant, as compensation for mental agony and physical harassment, caused to the complainant, due to an act of deficiency in service, on the part of the OPs along with Rs.5,000/-, as litigation expenses. The OPs are directed to make the compliance of this order within a period of 45 days from the date of preparation of certified copy of this order, failing which, the award amount of Rs.90540/- shall carry on interest @6% simple per annum, from the date of this order, till its actual realization, and the complainant shall be at liberty to initiate proceedings under Section 26/27 of the Act, against the OPs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

Announced in open Commission:

Dated:13.05.2022.

    

 

                                                                                       (Neelam Kashyap)               

(Neelam)                    (Issam Singh Sagwal)                   President,

Member.                    (Member).                                     DCDRC, Kurukshetra.           
 

 

 

Typed by: Sham Kalra, Stenographer.