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

DATED 13^TH DAY OF SEPTEMBER 2022

ORDER

KUM. RENUKADEVE DESHPANDE, MEMBER

1. This complaint has been filed under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1. Direct the OP to pay the total amount of Rs.1,30,400/- to pay complainant.
2. Direct the OP to pay the damages of Rs.20,000/- and deficiency charges of Rs.1,00,000/-
3. Direct the OP to pay the litigation charges of Rs.20,000/-
4. Grant the costs of this petition.
5. Grant such other reliefs.

2. The brief facts of the complaint is as follows:

The complainant submits that he has taken the membership of OP on 16.06.2019 within two hours on the same day, the complainant had applied for cancellation of the membership and visited the OP office.  As per the provision/clause 34 of the sale agreement, if any customer wants for cancellation of the membership, he can do the same within 10 days by paying the processing fee by informing the customer care via email or call.  Accordingly the complainant sent email within 10 days i.e., on 16.09.2019 and received the confirmation that the request has been received and the OP company promised the complainant to repay the amount within 50 days.  The further submits that had contacted the OP via mails and phone calls, but no proper response by the OP company executives.  Instead of returning the money, the OP threatened the complainant that he will never recover his money even though the complainant will approach the police and court.  The sentence stated by OP, to the complainant was “We know how to tackle judiciary and police despite receipt of legal notice dated 27.07.2020, amounts to deficiency of service and unfair trade practice.  Hence this complaint for the above reliefs.

3. After receipt of the notice, OP appeared and filed version denying the entire allegation made against them, OP submits that the complainant entered into purchase agreement dated 16.06.2019 with OP by paying Rs.78,200/- and another sum of Rs.52,200/- towards the holiday vacation, upon receipt of the said amount, OP issued (total Rs.1,30,400/-).  The permanent laminated club membership card, complimentary spa coupons for one day privilege, pay holiday gift voucher to complainant.  Further the complainant is entitled for six nights, 7 days holiday vacations in a period of 30 years to which there should be 30 days in advance booking to be made to make necessary arrangements.  But the complainant not made any booking in this regard.  Further the club membership is provided for life time.  OP further submits that have not received any emails from the complainant that he is cancelling the membership within cool off period of 10 days and hence requested for refund.  In terms of the said agreement there is no provision for cancellation of the club membership.  However he is at liberty to sell/transfer/gift the membership to any third party.  The OP never rendered any deficiency of service in providing the facilities as agreed.  Submitting the said facts, prays to dismiss the complaint.  
4. The complainant to substantiate the case filed affidavit evidence and produced documents and marked Ex.P1 to P10 and application filed u/s 65(B) of Indian Evidence Act 1872. OP files affidavit evidence and documents are not produced. Heard arguments both sides.  We peruse the record.
5. The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OPs, if so, entitled for the relief sought for?
2.  What  relief or order?

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

       Point No.1:- Partly in the affirmative

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

REASONS

7. Point No.1:   It is proved from the contents of the complaint as well as version filed by the OP.  The complainant has paid Rs.1,30,400/- towards holiday vacation, under purchase agreement dated 16.06.2019.  The complainant has availed the membership of the OP.  After availing the same within two hours he decided to cancel his membership.  As per clause 34 of the sale agreement Ex.P2, if any customers want to cancel the membership he can do the same within 10 days by paying the processing fees by informing the customer care via emails or call.  Accordingly, the complainant sent an email.  Ex.P4 dated 16.06.2019 t OP, the complainant was intimated to OP company and OP company promised the complainant to repay the amount within 50 days.  Ex.P6 is the complainant had contacted the OP company via mails and phone calls, but no proper response was given by the OP company executives.  The complainant’s efforts to set back money went in vain.  As a last resort the complainant issued a legal notice for recovery of money on 27.07.2020 vide Ex.P8. The postal receipt is marked as Ex.P9 is unclaimed postal cover.
8. OP is found to be deficient in providing the service to their customer.  Under such circumstances, they cannot with hold the membership and money without by deducting the applicable charges. In case of request for refund during lock up period of 10 days, OP is entitled to deduct Rs.3,800/- towards charges an balance shall be refunded within 120 days.  Ono refund of balance amount of Rs.1,26,600/-  within 120 days amounts to deficiency of service. In this context we are of the opinion that the membership amount paid by the complainant to the extent of Rs.1,26,600/- is to be refundable in the light of the latest decision of Hon’ble National Commission reported in 2019(1)CPR 647 (NC) in the case of M/s Country Vacations and another –vs- Jayanti Mukherjee, wherein it is held that “no amount can be retained by the service provider without offering any service”.
9. Further as per another decision of Hon’ble National commission, wherein it is held that “self made rules for own firm have no legal significance if proved contrary to law” we cited the simple reasons that, the rules and regulations made by the OPs are subjected to the judicial scrutiny as to know whether they are fare or contrary to the law.
10. In the instant case, the sole defence taken by the OP is that, since the complainant has agreed the terms and conditions of the sale agreement and subscribed his signature on it, knowing the contents mentioned therein, hence he is to be bound by the terms and conditions.  The contention taken by the OP has no legs to stand in the light of the decisions cited supra.

Hence we come to the conclusion that, complaint filed by the complainant deserves to be allowed holding that there is deficiency of service on the part of the OP in not refunding the paid amount though he applied for cancellation of the membership within cool off period.  Hence, the complainant is entitled for refund  of an amount of Rs.1,26,600/- with interest at 6% p.a., from 16.10.2019 till the date of realization with cost of Rs.5,000/-. Accordingly we answer point No.1 in the Affirmative. 

11. Point No.2: In view of discussion made above finding given on Point No.1, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund an amount of Rs.1,26,600/- along with interest at 6% p.a., from 16.10.2019 till realization to the complainant and to pay Rs.5,000/- towards cost of litigation.
3. The OP 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.1,26,600/- 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 13^TH day of September, 2022)

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

1. Ex.P1:      Copy of payment receipt
2. Ex.P2:      Copy of club and vacations sale agreement
3. Ex.P3:      Copy of credit statement
4. Ex.P4:        Copy of my letter to OP
5. Ex.P5:      Certificate u/s 65(B)
6. Ex.P6:      Bunch of email correspondences
7. Ex.P7:      Payment receipt
8. Ex.P8:      Copy of legal notice dated 27.08.2020
9. Ex.P9:      Postal receipt
10. Ex.P10: Unserved postal covers

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

HAV*