Order dictated by:
Mr.Anoop Sharma, Presiding Member
1. Mr.Vijay Kumar Taneja has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant was allotted a vacation plan by the opposite party vide Membership No. CCD 161VIOLB22747. The complainant was approached by the opposite party, who assured lot of facilities to be provided to the proposed allottes including membership of many clubs all over India and abroad. On the assurance of the opposite party, complainant booked one vacation plan which was for 30 years on payment of Rs. 1.5 lac and made the payment of Rs. 1.5 lacs to the opposite party on 6.9.2015 which includes complimentary holiday for Bangkok for 6 nights and 7 days and Dubai 2 nights & 3 days. But when the complainant received letter of membership, he came to know that the vacation membership was for 10 years instead of 30 years and nor there was any tour of Bangkok & Dubai. On receipt of membership letter, complainant approached the opposite party and told that the membership letter issued to him was contract to the proposal made to him. But the opposite party refused to entertain the complaint of the complainant on the ground that they have changed the plan as they can’t offer 30 years vacation plan as promised nor the tour of Bangkok & Dubai. The complainant has sought for the following reliefs vide instant complaint:-
- Opposite parties be directed to issue correct vacation plan for 30 years and issue the tour for Bangkok for 6 nights & 7 days and Dubai for 2 nights & 3 days or in the alternative to refund Rs. 1,50,000/- alongwith interest @ 15% p.a.thereon from date of payment till realization ;
- Compensation of Rs. 1,00,000/- may also be awarded ;
- Opposite parties be also directed to pay adequate litigation expenses.
Hence, this complaint.
2. Upon notice, opposite party No.1 appeared and contested the complaint by filing written version taking certain preliminary objections therein inter alia that present complaint is not maintainable as no cause of action ever arose in favour of the complainant . In parawise reply it was submitted that the complainant opted for 10 years (and not 30 years) vacation at membership fee of Rs. 1.5 lacs which includes holiday for Bangkok for 6 nights 7 days and for Dubai 2 nights & 3 days. Copy of “Only Vacations Agreement (No club/fitness) signed by the complainant shows the period of membership as 10 years. Copy of welcome letter addressed to the complainant also shows the period of membership as 10 years . It is pertinent to mention here that document submitted by the complainant with his complaint showing membership for 30 years is not addressed to the complainant and has never been issued by the opposite party. This document is an old document when this membership used to be issued by the opposite party for 30 years at a membership fee of Rs. 1,50,000/-. However, in the year 2016, the membership is now being issued for 10 years and not for 30 years. The membership of the complainant is made vide agreement dated 22.3.2016, as such it was for 10 years and not 30 tears. It was submitted that without admitting any fault, as a goodwill gesture, opposite party is even ready to issue vacation plan for 30 years and issue the additional vacation for Bangkok for 6 nights and 7 days and Dubai 2 nights and 3 days “room only” as per booking procedure of the company. However, opposite party is not liable to pay any amount on account of compensation and litigation expenses.
3. In his bid to prove the case Sh.Deepinder Singh,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of payment receipt Ex.C-2, copy of facility schedule Ex.C-3 and Ex.C-4 and closed the evidence on behalf of the complainant
4. On the other hand Sh.Ashok Kalia,Adv.counsel for the opposite party tendered into evidence duly sworn affidavit of Sh. Bharat Reddy,Legal Officer Ex.OP1 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by the ld.counsel for the opposite party.
6. Ld.counsel for the complainant has vehemently contended that the complainant got booked one vacation plan for 30 years on payment of Rs. 1.5 lacs and made the payment of Rs. 1,50,000/- to the opposite party on 6.9.2015 which includes complimentary holiday for Bangkok for 6 nights & 7 days and for Dubai 2 nights & 3 days. In this regard complainant has placed on record document showing vacation membership for 30 years and membership fee Rs. 1,50,000/-, copy of the same accounts for Ex.C-4 on record. However, complainant has received membership agreement copy of the same is Ex.C-2 on record showing membership fee Rs. 1,50,000/- but the vacation membership period was shown as 10 years. Thereafter the complainant approached the opposite party and made them aware that the membership letter issued to him was contrary to the proposal made to him. But they refused to entertain the complainant .
7. Whereas ld.counsel for the opposite party has vehemently contended that the complainant is relying upon a document showing membership plan for 30 years but the said document is for the 2015 price list when the membership used to be issued by the opposite party for 30 years at a membership fee of Rs. 1,50,000/-. It was the further case of the opposite party that the said document was not addressed to the complainant and never issued by the opposite party. Whereas the vacation agreement i.e. “ONLY VACATIONS AGREEMENT (NO CLUB/FITNESS) duly signed by the complainant Ex.R-2 and welcome letter Ex.R-3 clearly shows the period of membership as 10 years. In this regard ld.counsel for the complainant has placed reliance on Grasim Industries Vs. M/s. Aggarwal Steel 2009 of the Hon’ble Supreme Court of India wherein it has been held that “In our opinion when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signatures on a document can ever be accepted.”. In the present case also, the document bears the signatures of the complainant as such he is bound by the terms and conditions of the document. It has further been contended on behalf of the opposite party that however in the year 2016 the membership is now being issued for 10 years and not 30 years. The membership to the complainant was issued vide agreement dated 22.3.2016 which is for 10 years and not 30 years. Ld.counsel for the opposite party has vehemently contended that without admitting any fault, as a goodwill gesture , opposite party have offered to issue vacation plan for 30 years for Bangkok for 6 nights and 7 days and Dubai 2 nights and 3 days. The complainant was requested to cooperate with the opposite party and sign a new agreement . But the complainant wanted refund of an agreed non refundable amount alongwith interest and compensation.The complainant did not bring to the attention of the court the express clause under the vacation agreement which states that “The vacation charges is non refundable under any circumstances and the vacation fee is not a refundable deposit”. In such a situation, the claim of the complainant that he is entitled to refund of vacation charges as well as fee , is not tenable. The membership fee is also non refundable under any circumstances. Therefore, complainant can claim only compensation in case he proves unfair trade practice or deficiency in service but he cannot claim the refund of a non refundable amount as agreed to by him. In the case in hand, complainant has failed to prove that any deficiency in service or unfair trade practice has been practiced upon him and in such a situation, he is not entitled to the relief prayed for .
8. But, however, from the appreciation of the evidence on record, it becomes evident that the opposite party is deficient in service . The complainant has obtained membership of the Country Club India Ltd. on 6.9.2015 by making payment of Rs. 1,50,000/- under which complainant is entitled to vacation plan for 30 years which also includes complimentary holiday for Bangkok for 6 nights & 7 days and Dubai 2 nights and 3 days. In this regard complainant has produced on record one document Ex.C-4 showing vacation membership for 30 years , membership fee Rs. 1,50,000/-. However, the plea of the opposite party that the complainant has obtained membership vide agreement dated 22.3.2016 , as such it is for 10 years and not 30 years, is not tenable. In this regard opposite party has produced on record document Ex.R-5 “All India Price List 2016” which shows the membership period 10 years on payment of Rs. 115K and for 30 years on payment of Rs.175K. On the other hand document produced by the opposite party Ex.R-4 i.e. All India Price List 2015 itself fully proves the case of the complainant that the complainant has obtained membership plan for 30 years on payment of Rs. 150 K. As the complainant has obtained the membership plan on 6.9.2015, as such he is entitled for membership plan of 30 years . It is also an admitted fact that the complainant deposited a sum of Rs. 1,50,000/- on 6.9.2015 for becoming the member of the club. It is also an admitted fact that complainant was entitled for complimentary holiday for Bangkok for 6 nights & 7 days and Dubai 2 nights and 3 days. This shows that opposite party is deficient in service. Facts of the case in hand attract to the ratio of law laid down in Harsharan Singh Versus Country Club India Limited & others decided on 1.4.2015 by the Hon’ble State Commission, Chandigarh, wherein it has been held that complainant is entitled for the refund of Rs. 80000/- which he paid to the opposite parties alongwith interest @ 9% per annum which would cater for compensation on account of harassment and mental agony, suffered by him because of deficiency in rendering service, on the part of the opposite parties.”.
9. On account of unfair trade practice being carried out by the opposite party for not providing the facilities as agreed by opposite party to the complainant, the complainant has suffered a great mental pain, agony, harassment at the hands of the opposite party. Act & conduct of the opposite party amounts to gross negligence, carelessness , deficiency in service and unfair trade practice and the complainant is required to be compensated in accordance with law. In our considered view the complainant is entitled to refund of the total fee amount of Rs. 1,50,000/-. Opposite party is also directed to pay compensation to the tune of Rs. 10,000/- on account of harassment suffered by the complainant. Cost of the litigation are assessed at Rs. 5000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of order ; failing which, complainant shall be entitled to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum (Anoop Sharma)
Dated : 25.1.2017 Presiding Member
/R/ ( Rachna Arora )
Member
