BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 693 of 2015
Date of Institution: 3.12.2015
Date of Decision: 02.08.2016
- Mrs.Richa Bansal wife of Sh. Abhishek Bansal ;
- Abhishek Bansal S/o Late Sh.Subash Chander Bansal both R/o H.No. 99/7, Gali Veera Wali, Dhab Wasti Ram, Near HDFC Bank, Amritsar
Complainants
Versus
- Country Club India Limited, Trillium Mall, 3rd Floor, Race Course Road, Amritsar through its Branch Manager/Overall Incharge
- Country Club India Limited. #6-3-1219, Begumpet, Hydrabad-500016 Andhra Pradesh through its Managing Director/Overall Incharge
Opposite Parties
Complaint under section 11 & 12 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant : Sh.Munish Kohli, Advocate.
For the Opposite Parties : Sh.Ashok Kalia,Advocate
Coram:
Sh.S.S.Panesar President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S.Panessar,President.
- Mrs. Richa Bansal & Anr. complainants have brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that complainants were approached by the officials of opposite party No.1 through telephonically to take the membership of Country Club India Limited. Accordingly, complainants visited the local office at Race Course Road, Amritsar and on the allurement i.e. to avail the facility of gift vouchers as well as discounted packages price on the membership as well as life time club membership and fitness benefits etc., complainants became the members of opposite parties No.1 & 2 ON 18.1.2015 by depositing a sum of Rs. 76000/- from time to time. It was further told to the complainants that the discount was availed for only few days. It was further told that as per the offer of the membership, the complainants were entitled to holidays in India as well as Abroad for six nights, seven days in a year, for the two adults and two children. After becoming a member of the opposite parties in the month of February , 2015 , the complainants tried for reservation for accommodation at Goa at the local office of opposite party No.1 telephonically having landline No. 0183-655003. But opposite parties No.1 & 2 failed to give any positive response for accommodation at Goa and to avail facility of gift vouchers. Each time complainants contacted the customer care service numbers of opposite parties No.1 & 2 but to no avail. The complainants further requested for accommodation in the month of March, 2015 for Goa, but their request was not entertained again. Thereafter the complainants visited to Goa at their own expenses and no facilities including accommodation, gift vouchers etc was provided by the opposite parties as settled inter-se parties. The complainants spent a huge amount on travelling as well as on accommodation from their own pocket. Thereafter again, complainants requested for accommodation in Mansoori in the month of July, 2015 but the opposite parties did not consider the request of the complainants and categorically stated that the accommodation was not possible on the required dates and opposite party No.1 instead of providing accommodation in Mansoori, preferred accommodation in Kasoli. When the complainants agreed to get accommodation in Kasoli, opposite parties failed to provide accommodation in Kasoli and preferred accommodation in Dharamshala . On account of this reason, the complainants could not get enjoy holidays with their family at Mansoori as well as Kasoli. On 16th May, 2015 , complainants were astonished to receive an e-mail sent by the opposite parties vide which opposite parties had played an unauthorized tactics at their own without having authority or consent of the complainants by reservation of accommodation of Country Club Hotel Dubai. The complainants had never given any consent to reserve or cancel the accommodation at Dubai as he never intended to go Dubai. At the time of execution of agreement inter-se parties , two copies of agreement were prepared. Opposite party No.1 provided photocopy of the agreement to the complainant and it was told to the complainants that the original agreement will be dispatched at their address through opposite party No.2. But till date no original agreement was ever supplied by opposite party No.2 to the complainants. It was also settled at the time of execution of agreement that the complainants will be eligible for life time club facilities as well as fitness benefits. However, opposite parties have not provided any club facilities to the complainants till date . In this respect complainant sent request to the opposite parties through e-mails on different dates asking about local club facilities which were not provided by the opposite parties to the complainants till date. Complainant visited opposite party No.1 on 24.6.2015 and one of the official of opposite parties namely Mr.Vivek told the complainants that the complainants can enjoy the club services at Lumsden Club, Amritsar. But when the complainants alongwith their family visited the Lumsden Club, Amritsar , they were not permitted to enter into the club premises and degraded in the public at large. Again complainants sent e-mail in this regard to customer care but to no effect. Many times complainants requested the opposite parties telephonically to provide facilities as agreed between them, but to no avail. Finally the complainants sent a legal notice dated 1.10.2015 through their counsel to opposite parties asking for refund of Rs. 76000/- alongwith interest. But no reply by sent by the opposite parties . The complainant has prayed for following reliefs vide instant complaint:-
- Opposite parties be directed to refund an amount of Rs. 76000/- alongwith interest ;
- Compensation of Rs. 50000/- may also be awarded ;
- Opposite parties be also directed to pay litigation expenses to the tune of Rs. 10000/-.
Hence, this complaint.
2. Upon notice, opposite parties No.1 & 2 appeared and contested the complaint by filing collective written version taking certain preliminary objections therein inter alia that present complaint is not maintainable as complainant has not come to the Forum with clean hands and concealed/twisted material facts which are as under:-
(a) Complainant Mrs.Richa Bansal purchased a membership from opposite parties which was worth Rs. 95000/- at a price of Rs. 76000/- as discount of Rs. 19000/- was given to her and accordingly, she was allotted membership number as “CVAMSICLUB5LB192878”. Under this membership, she is eligible for availing 6 nights 7 days vacation every year for 5 years in Blue season alongwith club membership. It is pertinent to mention here that in the present complaint also, the complainant has annexed the receipts worth Rs. 76000/- and is wrongly claiming Rs. 91000/.
(b) No request for the holiday at Goa, Kasauli was ever made by the complainant. The holiday at Dharamshala was extended to her confirmation voucher is attached as Annexure R-2. As checked from records of opposite parties , no e-mails for booking or regarding her expenses for Goa trip has ever been sent by her. Moreover no e-mail or any communication whatsoever has been annexed by the complainant showing that she never requested for vacations at Goa and Kasauli.
( c ) E-mail dated 16.5.2015 sent to complainant for cancellation of Dubai holiday was sent by mistake as it was auto generated mail. This mistake arose as “Dubai” location was mistakenly selected instead of confirming the booking for “Dharamshala”. It is supported by the fact that date of booking in the Holiday Confirmation Voucher for Dharamshala is the same as the date of this e-mail is 16.5.2015.
(d) The original agreement was handed over to complainant then and there at office of opposite parties at Amritsar when the same was entered into.
3. That the present complaint is not maintainable as it is an abuse of process of law and has been filed with a malafide intention to enmesh the answering opposite parties in a vexatious litigation so as to wriggle out of the contract and to pressurize the answering opposite parties to cause wrongful gain to the complainants ; that complainant has filed the present complaint with avaricious mind in order to wriggle out of contract. Thus there is no question of any deficiency in rendering service or any unfair trade practice on the part of the replying opposite parties. The services to the provided to the complainant were strictly as per terms and conditions of the agreement for Club and Vacation membership without any breach thereof. Hence, the present complaint is an abuse of the process of law and as such the same is liable to be dismissed with cost; that the present complaint is only a manoeuvre with the intention to harass and extort money from them and no cause of action has even arisen against them . The present complaint is not at all maintainable against them and therefore, deserves to be dismissed in limini with exemplary cost. In parawise reply, opposite parties submitted that true facts are that upon the goodwill of opposite parties and hearing from their friends, complainants on their own approached the opposite parties at Amritsar showing interest in knowing benefits under various membership plans for holiday vacations available with opposite parties and their respective prices. No telephone call was made to them. The complainants have paid Rs. 76000/- ( and not Rs. 91000/-) towards the membership as she was given a discount of Rs. 15000/-. Thus the complainants have not come to the court with clean hands and have concealed the material facts. The complainants were told that they were entitled to holidays in CCIL (Country Club India Limited) properties within India for 6 nights 7 days every year for 2 adults and 2 children. It is denied that in the months of February, 2015, March 2015 or at any other time, complainants telephonically requested for accommodation at Goa or to avail facilities of gift vouchers. It was further incorrect that they made any telephone call to customer care office of opposite parties. The complainants have not annexed any gift voucher with the present complaint if it had been issued. Thus there is no question of availing any facility of gift voucher by the complainant. It was submitted that complainant did not request for accommodation at Mansoori or Kasauli in the month of July, 2015 or at any other point to time. However, complainant opted for vacations at Dharamshala and accordingly, her holidays were booked at Dharamshala and confirmation voucher was issued , copy of confirmation voucher dated 16.5.2015 is attached. It was submitted that e-mail dated 16.5.2015 sent to the complainant regarding confirmation of cancellation of her accommodation at “Dubai” was sent by mistake as it was auto generated mail. This mistake arose as “Dubai” location was mistakenly selected instead of booking the holidays for “Dharamshala” . Therefore, mistakenly booked Dubai holiday got cancelled and the complainant was provided with the holiday confirmation voucher for Dharamshala. The original agreement was handed over to the complainant then and there at the office of the opposite parties at Amritsar when the same was entered into . It was submitted that nobody told the complainants to enjoy club facilities at Lumsden Club, Amritsar . As far as reply to e-mails of complainants is concerned, it is submitted that opposite parties vide e-mail dated 15.3.2015 informed the complainant that opposite parties had given them the Lifetime Club Facilities and again vide e-mail dated 25.4.2015, the complainants were told that they were eligible to use club-gym facilities for lifetime without paying any charges . But the complainant unnecessarily pressed upon that particular club i.e. Lumsden Club at Amritsar which is near to their home without any valid reason. The opposite parties could not provide access to that particular club as the same is not a property/club of opposite parties nor opposite parties had any tie up with such club. Moreover it was never a part of the agreement to provide access to that club. Remaining facts narrated in the complaint have been denied and a prayer for dismissal of the complaint with cost was made.
4. In his bid to prove the case Sh.Munish Kohli,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of agreement Ex.C-2, copies of payment receipts Ex.C-3 to Ex.C-5, copies of email dated 15.3.2015, 16.4.2015, 16.5.2015, 17.6.2015, 21.6.2015, 28.6.2015,20.7.2015 Ex.C-6 to Ex.C-12, copy of notice Ex.C-13, postal receipts Ex.C-14, CD Ex.C-15, affidavit of sh.Abhishek Sharma Ex.C-16, copy of air ticket Ex.C-17 and closed the evidence on behalf of the complainant.
5. On the other hand Sh.Ashok Kalia,Adv.counsel for the opposite parties made a statement that he does not want to lead any evidence on behalf of opposite parties No.1 & 2 and closed the evidence on behalf of the opposite parties.
6. 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 both the parties.
7. On the basis of the evidence on record, ld.counsel for the opposite parties has vehemently contended that complainant Richa Bansal purchased a membership from opposite parties worth Rs. 95000/- at a price of Rs. 76000/- after availing a discount of Rs. 19000/-. The complainant was thus eligible for availing 6 nights 7 days vacation every year for 5 years in Blue season alongwith club membership. The complainant has wrongly and orally alleged that she requested for the holiday at Goa, Kasauli, which has been denied. It is pertinent to note that no e-mail or any communication whatsoever has been annexed by the complainant showing that she ever requested for vacations at Goa and Kasauli. The holiday at Dharamshala was extended to the complainants vide confirmation voucher Ex.R-2. The email dated 16.5.2015 was sent to the complainant for cancellation of Dubai holiday which was sent erroneously as it was auto generated mail. This mistake arose as “Dubai” location was wrongly selected instead of confirming the booking for “Dharamshala”. Purchase agreement for club and vacation membership Ex.R-2 has various terms and conditions which are binding on both the parties. The agreement has been duly signed by the complainant at her own freewill. As such the complainant cannot wriggle out from the terms and conditions of the contract/agreement in dispute. Reliance in this connection has been placed upon “Grasim Industries Vs. M/s. Aggarwal Steel 2010(1) SCC 83 wherein it has been laid down by the Hon’ble Supreme Court that in our opinion when a person signed 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. The complainant was made aware of the Vacations Agreement wherein in clause I under the heading “Vacation Benefits”, she was entitled to holidays in CCIL (Country Club India Limited) properties within India for 6 nights 7 days every year for 2 adults and 2 children. There is no proof to allege that in the month of Feb., 2015, March, 2015 or at any other time, complainant telephonically requested for accommodation at Goa or to avail facility of gift vouchers or that she made any telephonic call to customer care office of opposite parties. The complainant has not produced on record any gift voucher, if any, issued in that regard. Thus there is no question of availing any facility of gift voucher by the complainant. As far as booking of holidays is concerned, procedure to book holidays is online as is stated in clause No. 16 under the heading “particulars of vacations” of Vacation Agreement Ex.R-2 (colly) . It is important to note that no grievance in this regard has ever been made by the complainant to the opposite party. There is also no proof that complainant requested for accommodation at Mansoori and Kasauli in the month of July 2015. It has been stated by the opposite parties that original agreement was handed over to the complainant then and there at the office of the opposite parties when the same was entered into. There is no communication or evidence that the complainant ever raised any grievance in this regard.
8. Not only that contention of the complainant that she was competent to enjoy club facilities at Lumsden Club, Amritsar, but the same does not find support from perusal of agreement Ex.R-2. No CD has been provided to the opposite parties to verify any alleged allegation at their end or to check the authenticity of the same. As far as reply to email of the complainant is concerned, it is contended that opposite parties vide e-mail dated 15.3.2015 informed the complainant that as per the contract opposite parties had given her Lifetime Club facilities and again vide e-mail dated 25.4.2015, complainant was told that she was eligible to use club-gym facilities for lifetime without paying any charges. But the complainant unnecessarily made a claim upon the opposite parties for a particular club i.e. Lumsden Club at Amritsar which is near to her home without any valid reason. The opposite parties could not provide access to that particular club as the same is neither a property/club of opposite parties nor opposite parties had any tie up with that club . Moreover, it was never a part of the agreement to provide access to that club. Copy of the screenshot of online website showing clubs and resorts of opposite parties as told to the complainant is Ex.R-4. 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 she 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 she proves unfair trade practice or deficiency in service but she cannot claim the refund of a non refundable amount as agreed to by her. In the case in hand, complainant has failed to prove that any deficiency in service or unfair trade practice has been practiced upon her and in such a situation, she is not entitled to the relief prayed for . All the allegations made by the complainant are merely oral and without any proof. Therefore, those cannot be relied upon to prove the deficiency in service on the part of the opposite parties. Reliance has been placed upon Sanjib Kumar Dey Vs. Chabbi Dey 2015(4) CPR 584 (NC) wherein it has been held that it is difficult to fathom without written proof how reliance can be placed on the oral submission of the complainant. The documentary evidence will always get preponderance over the oral evidence because it is well known axion of law that ‘ men may tell lies but the documents cannot ‘- Further the case of the complainant must stand on its own legs.
9. On the basis of the aforesaid contentions , ld. Counsel for the opposite parties has vehemently contended that complainant has failed to make out a case for grant of reliefs claim vide instant complaint. Therefore, complaint being false and frivolous is liable to be dismissed with cost.
10. But, however, from the appreciation of the evidence on record, it becomes evident that the opposite parties are deficient in service. The contract agreement vide which the complainant obtained membership of the Country Club India Ltd, has been admitted by the opposite parties. It is also an admitted fact that the complainant deposited a sum of Rs. 76000/- on 18.1.2015 for becoming the member of the club. It is also an admitted fact that complainant was entitled to holidays in India as well as Abroad for 6 nights 7 days in a year, for two adults and two children. After becoming a member of the opposite parties in the month of February 2015, the complainant tried for reservation for accommodation at Goa at the local office telephonically bearing landline No. 0183-655003. But the opposite parties No.1 & 2 failed to give any response for accommodation at Goa or for availing facility of gift vouchers . The complainants further requested for accommodation in the month of March 2015 for Goa but their request was not entertained again. Thereafter, the complainants visited Goa at their own expenses and no facility including accommodation , gift vouchers, etc.was provided by the opposite parties as settled between opposite parties and the complainants. The complainants had to spend huge amount on travelling as well as on accommodation from their own pocket. Copy of the Air ticket is Ex.C-17 while affidavit in this respect accounts for Ex.C-16. Thereafter the complainants again requested for accommodation at Mansoori in the month of July 2015. But the opposite parties did not consider the request of the complainants and categorically stated that accommodation was not possible on the required dates and opposite party No.1 instead of providing accommodation in Mansoori preferred accommodation in Kasauli. Again when complainant agreed to accommodation at Kasauli, opposite parties again failed to provide accommodation at Kasauli. They preferred accommodation at Dharamshala and on account of this complainant could not get enjoy holidays with their family at Mansoori as well as Kasauli. There is not only mistake of the name of place as “Dubai” instead of “Dharamshala” but rather there is also name of hotel mentioned as “Country Club Hotel” Dubai in Ex.C-8. This shows that opposite parties are 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.”. It was also held by the Hon’ble National Commission, New Delhi in case titled “Country Club Versus Nirmal Kumar Pandey” vide order dated 22.4.2014 that consumer can seek compensation when club and resort membership turned out to be illusory. At the time of execution of the agreement between opposite parties and the complainants, two copies of the agreement were prepared. Opposite party No.1 provided the photocopy of the agreement to the complainants and it was told to the complainants that the original agreement will be dispatched at their address through opposite party No.2. But no such original agreement was ever supplied by opposite party No.2 to the complainant. At the time of execution of the agreement Ex.C-2, it was agreed between the parties that complainants will be eligible for life time club and fitness benefits. However, the opposite parties have not provided any club facilities to the complainants till date and in this respect the complainants sent request to the opposite parties through e-mails dated 17.6.2015 Ex.C-9 and 21.6.2015 Ex.C-10. Reply to said e-mails was given by the opposite parties vide which the complainants were advised to visit the branch to solve the queries . On 24.6.2015 the complainants went to the branch and met Mr.Vivek, who told the complainants to go to Lumsden Club and enjoy the benefits of the same. The complainants went to the said club but they were not allowed to enter the said club premises and in this regard again e-mail dated 28.6.2015 Ex.C-11 was sent to the customer care and again email dated 20.7.2015 Ex.C-12 was sent to the customer care requesting for local club facilities which were not provided by the opposite parties to the complainants till date. It is settled principle of law that in case, two plausible views were available, under given set of facts, the court shall be obliged to the view which was favourable to the consumer. Reference in this regard can be had to “Kulwinder Singh Versus LIC of India “ 2007(1) CLT 303 (Punjab) wherein it has been held that “where two views are possible, the one, which favour the consumer should be taken” .
11. On account of unfair trade practice being carried out by the opposite parties for not providing the facilities as agreed by opposite parties to the complainants, the complainants have suffered a great mental pain, agony, harassment at the hands of the opposite parties. Act & conduct of the opposite parties amounts to gross negligence, carelessness , deficiency in service and unfair trade practice and the complainants are required to be compensated in accordance with law. In our considered view the complainants are entitled to refund of the total fee amount of Rs. 76000/- alongwith interest @ 9% p.a. from the date of order until full and final recovery. Cost of the litigation are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of order ; failing which, complainants 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 (S.S.Panesar)
Dated : 2.08.2016 President
/R/ (Anoop Sharma) (Kulwant Kaur Bajwa)
Member Member
