DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.151/2015
Sh. Avinash Chander Nayar (Senior Citizen
S/o Shri Satya Prakash Nayar 73 years old)
R/o H.No. 7, Road No.29,
Top Floor, Punjabi Bagh Extension,
New Delhi ….Complainant
Versus
Country Club (India) Ltd.
C-Block, Ansal Plaza, Mall CG-06,
Hudco Place, Andews Ganj,
New Delhi-110049
Also at:
Community Centre,
Near Sapna Cinema, East of Kailash,
New Delhi-110065
Also at:
16, Saifabad Near Secretariat,
Hyderabad -500063 ….Opposite Party
Date of Institution : 05.06.15 Date of Order : 21.12.18
Coram:
Sh. R.S. Bagri, President
Ms. Naina Bakshi, Member
Ms. Kiran Kaushal, Member
Naina Bakshi, Member
ORDER
Briefly stated, the case of the complainant is that on 04.04.14 the complainant entered into an Vacation Agreement with the OP through Mr. R. Rama Krishna, Manager Administration as the complainant was offered various vacation benefits as per agreement at a product price of Rs.1,85,000/- for white season category for 30 years against total membership fee for Rs.2,10,000/- and a discount of Rs.25,000/- was allowed to the complainant by acquiring said membership by making a full payment of membership fee of Rs.1,85,000/- vide membership No.CCDL11CLUB30LW18116 and Purchase Agreement dated 04.04.14. It is submitted that on 23.03.14 the OP through email issued money receipts to the complainant, after receiving a sum of Rs.1,85,000/- the OP sent holiday gift voucher to the complainant with the market value of Rs.25,000/- can be enjoyed by paying a nominal administration fee. It is stated that as per holiday gift voucher, various guidelines were issued by the OP to the complainant. These guidelines were very lucrative and their purpose was to induce the complainant to become an active member of the OP. It is further stated that after making the member of the OP, the OP also demanded a sum of Rs.8,500/- from the complainant towards annual administrative charges by providing the following facilities to the complainant:
Facility description
Gym Valid upto 2015
Holiday 6 nights & 7 days for
32 years white card facility
It is further submitted that OP had also sent membership smart card for member spouse, vacation smart (white season ) UAE smart card No.P51513II, copy of the Agreement alongwith two voucher towards flight ticket coupon code to the complainant email ID after getting the aforesaid required necessary documents from the complainant the OP directed the complainant to contact their Central Customer Care and other sale associates as well as customer care at their Delhi Office. It is further submitted that the OP told the complainant that their all hotel are four star or five start at the time of vacation, the OP was providing them three start hotel. OP also told the complainant that they will provide studio apartments alongwith small kitchen to their members , but actually the complainant enquired and he found that there was no such facility being provided by the OP to their any of member at the time of vacation tour. OP told the complainant that the hotel which are under OP were not paying anything to them, but the OP were charging a sum of Rs.600-700/- per day from their members. It is submitted that the OP provides facility of white card, by providing any booking within a week but the complainant did not receive any booking from OP even after three months. OP had given two free ticket one side anywhere in India within prior information, but when the complainant enquired from the OP the complainant had to pay in advance a sum of Rs.5,500/- and the balance amount will be refund to the complainant after deducting a sum of Rs.1100/-. It is submitted that the OP No.1 insisted the complainant to contact the OP No.2 & 3 them on phone but the OP No.2 & 3 are not available on phone at any time. Being a senior citizen the complainant was not having any facility of computer, nor he has any training to operate the computer but the OPs did not provide any information on phone to the complainant but always insisted that the complainant was bound to get any information from the OP No.3, as the complainant could not get any information either from OP No.1 or OP No.2. The OPs were insisting the complainant to deposit a sum of Rs.8,500/- towards annual maintenance charges for studio apartment but the OPs have not provided any kind of service to the complainant as having free coupons in their hands despite repeated requested by the complainant several times. The complainant sent a legal notice to the OPs. The OPs sent the reply dated 01.12.14 to the legal notice. Hence, pleading deficiency in service on the part of the OP, the complainant has filed the present complaint for the following reliefs:-
- Direct the OPs to refund the amount of Rs.1,85,000/- to the complainant towards their membership fee .
- Direct the OPs to pay Rs.50,000/- towards pain and suffering as the complainant was mentally disturbed and cheated badly by the conduct and behaviour of the OPs.
- Direct the OPs to pay a sum of Rs.50,000/- as the complainant was compelled to sent legal notice to the OP and also compelled to move this complaint before this Forum.
- Direct the OPs to terminate the membership of the complainant and also to pay a sum of Rs.2 lakhs towards damages and compensation as the OPs committed breach in executing their vacation agreement.
OP in the written statement has inter-alia stated that the complainant had visited the OP on his own volition and enquired about different products and service available and the terms and conditions thereto.The complainantafter carefully deliberation and on being thoroughly satisfied with all the terms and conditions enumerated as well as after going throughthe fine print of the agreement and understanding the benefits of membership, the complainantexpressed and interest in purchasing the membership/services offered by the OP and then, he decided to purchase a membership of the OP worth Rs.2,10,000/- which was offered to him at a discount of Rs.25,000/-. The complainanthas paid an amount of Rs.1,85,000/- to the OP. The complainantwithout any coercion or inducement voluntary paid the entire membership fee and accordingly he was allotted a membership No.CCDL11CLUB30LW18116. It was made clear to the complainantthat the membership fee so paid was not refundable. The welcome letter, membership card and DAE card were duly sent to the complainantas per clause5 of the Agreement, the complainantwas given two complementary holidays namely (i) one holiday for 6 nights and 7 days for Bangkok (ii) one holiday for two nights and 3 days at Dubai.As per clause 19 of the Agreement, the complainantwas eligible for two one way air ticket vouchers which were provided to complainant on his registered email address.
It is submitted that the registered office of the OP is in Hyderabad the complainant ought to have approach the court of jurisdiction at Hyderabad as this Forum lacks the jurisdiction to entertain the present complaint. It is submitted that the membership amount deposited by the complainant is non- refundable since it is not a deposit. The same is written on the face of the application form which was filled by the complainant. Being an educated person the complainant knew the details of the membership which he was purchasing.
It is further submitted that the main grievance in the complaint pertains to refund of the membership fee paid by him and unavailability of five start properties. All allegations made by the complainant against the OP are patently false.It is submitted that the complainantinstead, was well advised to follow the steps mentioned in clause 16 of the Agreement for availing the holidays or contract the following alternative members of Delhi Customer Care for any query, further the complainant could have visit the Delhi Office of at East of Kailash.It is further submitted that inability of the complainant to assess web record due to computer illiteracy does not make the OP liable for deficiency in service. Hence, there is no deficiency in service on the part of the OP.The complainant filed the frivolous case against the OP. OP has prayed for dismissal of the complaint.
Complainant has filed replication to the written statement of the OP and reiterating the averments made in the complaint.
Complainant has filed her own affidavit in evidence. On the other hand, affidavit of Sh. Bharat Reddy, Legal Officer has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties and have also gone through the file very carefully.
The complainant has copy of Vacation Agreement as Annexure-A to A/1 and paid an amount of Rs.1,85,000/-. The fee receipts issued by the OP has been filed as Annexure-B to B/2. The OP vide email dated 16.03.14 informed the complainant regarding holiday voucher as Annexure C to C/2. The OP vide letter dated nil confirmed the membership form as Annexure-E. The complainant sent a legal notice dated 24.09.14 as Annexure-F. The OP sent reply dated 01.12.14 to legal notice of the complainant as Annexure-H.
Admittedly, the entered into an Vacation Agreement with the OP at Rs.1,85,000/- for white season category for 30 years against total membership fee for Rs.2,10,000/- and a discount of Rs.25,000/- was given to the complainant as the complainant the made the full payment of membership fee of Rs.1,85,000/- vide membership No.CCDL11CLUB30LW18116 and Purchase Agreement dated 04.04.14.
Undeniably the registered of the OP is situated in East of Kailash, New Delhi and hence this Forum has territorial jurisdiction to entertain the complaint.
It may be correct that some negotiation had taken place between the complainant and the OP’s representative before executing the Vacation Agreement but, however, the Agreement had been signed by the complainant and it is not his case that the same was got signed from him under false pretext out of his free consent. If it is so, the written Agreement between the parties will be binding upon them. Despite there being enforceable contract between the parties, the OP was also supposed to comply with the terms and conditions thereof in letter and spirit. Email messages exchanged between the parties have been filed on the record, a perusal of which goes a long way to prove that the complainant was not satisfied with the services to be provided to him by OP and he had started making correspondence in this regard from very beginning and requested for refund of the amount and cancellation of the membership. The contract did not give any opportunity to the complainant to get rid thereof under any circumstances and it was one sided agreement.
There must have been included at least one clause in the agreement whereby the purchaser must have been given a right to cancel the membership within a particular period (freelook period) though subject to some conditions and deductions but, however, no such liberty has been afforded to the customer/ consumer in this case. Agreement is thus not conscious and justified to that extent.
The complainant had not availed any services of the OP as he requested to refund the amount. Therefore, the OP must have considered the request of the complainant to refund the entire amount paid by him. However, as stated hereinabove, no such freedom had been given to the complainant in the one sided agreement which contained total beneficial stipulations in favour of the OP.
Even on merits also, we do not find that present complaint is a case of grant of compensation. The material on record shows that the complainant had enquired from representatives of OP about different services available and thereafter had signed the Agreement. Brochure/Terms and Conditions were supplied by the OP to the complainant before joining the OP Club. The Purchase Agreement was signed after being satisfied with the terms and conditions of the same. The rational of charging administrative charges was also mentioned in the Agreement. In these circumstances, the complainant is not entitled for compensation by way of interest on the deposited amount.
Therefore we hold the OP guilty of deficiency in service and unfair trade practice so far as providing no option to the member to cancel the membership within a reasonable time subject to some deduction is concerned. OP must have incurred some amount of money towards administrative charges. Keeping in view the above facts discussed hereinabove, we allow this complaint and direct the OP to pay sum of Rs.1,85,000/- to the complainant including cost of litigation within 30 days of receipt of copy this order, failing which the OP shall become liable to pay interest @ 6% p.a. on the amount of Rs.1,85,000/- from the date of filing of complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 21.12.18.
