DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No. 460 /2013

Sh. Satish Walia                                                   (Senior Citizen)

202-B, LTH Laburnum,                                          70 years

Sushant Lok1,

Gurgaon-122009                                                  ……Complainant

Versus

1.       Country Club (India) Ltd.

          through its Manager/In-charge

          25, UGF, Community Centre,

          East of Kailash,

          New Delhi

2.       Country Club (India) Ltd.

          Through its Managing Director

          Amrutha Castle

          5-9-16, Saifabed, Opposite Secretariat

          Hyderabad-500063  

     ……Opposite Parties

                                            Date of Institution          : 03.09.2013              Date of Order        : 04.03.2017

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

O R D E R

SH. N.K. GOEL, PRESIDENT

According to the complainant, OPs are engaged in hospitality business operating clubs, hotels and resorts for which they invite general public to become members of their club.  OP No.1 approached him during the last week of September, 2012 and he was offered Lifetime Clubbing Plus Vacation (10 yrs.) Membership with membership fee of Rs.90,000/-.  OP No.1 assured the Complainant that if he avails the membership, in addition to other regular benefits as a member he would get complimentary 7 days and 6 nights free stay at Kerala at their resort alongwith free two return air travel tickets, utility, 1 day spa and massage and a candle light dinner. The said proposal was confirmed by the OPs vide letter dated 29.09.12. OPs also made assurances/ promises that their club would provide the following facilities/benefits to him. The details of the various facilities/benefits to be provided by the OPs were as follows:

• Lifetime club membership
• 7 days and 6 nights complimentary stay for 10 years across the country at their clubs and affiliated properties.
• Life time free event passes.
• Stay in Kerala for 6 nights 7 days for couple (including airfare, utility, 1 day spa and massage and a candle light dinner).
• Stay at Sri Lanka for 7 days 6 nights.

He accepted the proposals of OPs. A Membership Purchase Agreement for Billionaire Membership was executed between the OP company and the Complainant. He paid Rs.90,000/- as membership fee and he was allotted a membership No.CCDL10BPCLUB  10LB13638. The Complainant wanted to celebrate his 40^th marriage anniversary on 01.02.13. Accordingly, he telephonically informed the OP to book for him and his wife for stay at Kovalam, Kerala from 01.02.2013 to 07.02.2013 but the OPs did not confirm the bookings despite numerous telephonic calls and messages. Complainant left with no other alternative booked return air tickets by Indigo Airlines for himself and his wife from Delhi to Trivendram. Complainant has further stated that he was shocked to receive confirmation of the aforesaid Kovalam booking vide e-mail dated 12.01.13 of OPs when he notice that the booking was done only for two nights i.e. from 4^th to 6^th February, 2013 with checkout in the morning before 12 p.m. On 13.01.2013 he sent an email to the OPs stating that he had already booked airline tickets for his return on 7^th February, 2013 and required three nights stay till 6^th February and check out to be on 7^th morning. He also informed the OPs that he had not received complementary vouchers as stated in the package. When he did not receive any response from the OPs he sent emails dated 18.01.13 and 22.01.13 to the OPs for booking of three days i.e. from 4^th to 7^th February but the OPs demanded Rs.2100/- as utility charges to be deposited before sending revised voucher. He was shocked to know that the OPs were not providing free airfare, utility, 1 day spa and massage and a candle light dinner which were included in the package as stated in the letter dated 29.09.12. He was left with no other alternative but to make his own arrangements. He was able to get booking at Ashtmudi about 80 k.m. away from the main city of Trivendram at Club Mahindra Resort from 01.02.2013 to 03.02.2013 and stayed there till morning of 4^th February, 2013. Thereafter, he shifted to the resort of the OPs.  He had to spend extra expenses of Rs.41,476/- due to the false promises made by the OPs. The details of the expenses incurred by the Complainant given in para No. 14 of the complaint are as follows:-

          Airfare for himself and his wife                            :      Rs.24,376/-

          Stay at Resort from 04.02.2013 to 07.02.2013  :       Rs.   2100/-     Other expenses (spa, dinner and taxi fares etc.) :           Rs.15,000/-              

The Complainant demanded his money back from the OPs as they failed to fulfill their promises but they refused to pay back the amount despite legal notice dated 21.02.13 sent to the OPs. Hence, pleading deficiency in service on the part of the OPs, the Complainant has filed the present complaint for the following reliefs:-

1. Direct the OPs to pay Rs.90,000/- to the Complainant alongwith interest @ 12% per annum since 08.10.12 for the amount paid to the OPs for the membership,
2. Direct the OPs to pay Rs.41,476/- towards expenses which the Complainant would have got free from the OPs in terms of their offer dated 29.09.12,
3.  Direct the OPs to pay Rs.31,000/- to the Complainant towards legal expenses which the Complainant had to incur due to the deficiency in service on the part of the OPs,
4. Direct the OPs to pay compensation of Rs.1,50,000/- for causing harassment, mental agony, humiliation and physical torture to the Complainant and also for pursuing the matter and expenses incurred in visiting the office of OPs numerous times.

OPs in their written statement have stated that the Complainant himself had approached them to take their membership. It is submitted that the OPs has provided TAB, Vacations and AIR coupons to the Complainant. It is admitted that membership was given to the Complainant vide membership No. CCDL10BPCLUB10LB13638. It is stated that the Complainant has not annexed the full membership agreement and copy of the full agreement is Annexure-B.  It is specifically denied that booking was not confirmed by the OPs. It is submitted that the Complainant availed the services of OPs twice i.e. first Complainant went to “ZEN GARDEN HOTEL ATCHENNAI” from 01.01.2013 to 03.01.2013” and the second time at “COUNTRY SPA KOVALAM” “from 04.02.2013 to 07.02.2013”. The OPs also sent the discounted Air tickets voucher on 4^th April, 2013 to the Complainant. It is admitted that Rs.2100/- was demanded by the OPs as the utility charges but the confirmation voucher was already sent to the Complainant and as per the agreement the OPs can demand the utility charges. It is submitted that the Complainant himself had asked for 3 night booking as per annexure 6 of the complaint which was provided by the OPs. The Complainant had already planned his holidays that first he will go to Trivendrum as the Air tickets were booked on 10.01.2013 from Delhi to Trivundrum. It is submitted that that the legal notice was duly replied by the OPs but in order to retain the member the OPs approached the Complainant for an amicable settlement which was also approved by the Complainant and (he) accepted 4 discounted air tickets vouchers which were sent by the OPs by email to the Complainant. Denying any deficiency in service on their part, the OPs have prayed for dismissal of the complaint with exemplary cost.

 Complainant has filed a rejoinder to the written statement submitted by the OPs. He has not denied the fact that earlier he had availed the services of OPs and had gone to Zen Garden Hotel at Chennai from 01.01.2013 to 03.01.2013. So far as the amicable settlement, which according to the OPs had been arrived at between them and the Complainant is concerned, the version of the Complainant is as follows:-  

          “…Respondents submission made in this para that tickets were given to the complainant on settlement is a bald attempt to mislead this Hon’ble Forum. The fact is that these discounted air tickets vouchers were given not in terms of the offer made vide letter dated 29.09.2012 but on other account which the complainant was already entitled in addition to tickets offered by the said letter dated 29.09.2012 and moreover it is a separate subject matter not related to the issue involved in this case.”  

Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Bharat Reddy, Legal Officer has been filed in evidence on behalf of OPs.

Written arguments have been filed on behalf of both the parties.

We have heard the arguments of the Complainant and have also gone through the record very carefully.

The complainant has not disclosed the first date on which he had telephonically informed the OPs to book for him and for his wife for stay at Kovalam, Kerala from 01.02.13 to 07.02.13 or the subsequent telephonic calls made by him to the OPs made in this regard.  The complainant has not exhibited any of the documents in his affidavit but he has relied on several documents in the complaint as Annexure-1 to Annexure-8. According to him, he had booked the two return air tickets by Indigo Airlines for himself and his wife from Delhi to Trivendrum on 10.01.13. We understand that Trivendrum and Kovalam are two different cities located at two different locations.

In his affidavit the OP’s witness has relied on the copies of the documents as Ex. OP/1 to OP/3 and the copy of Air coupons as Annexure-F.  Vide email (copy Annexure-4 filed by the complainant) the complainant had been confirmed his booking for two adults at Kovalam from 4^th to 6^th Feb., 2013 as per the telephonic conversation. The communication is dated 12.01.13. There is no dispute so far as this fact is concerned.  Vide email (copy Annexure -5 filed by the complainant) the complainant had asked the OPs to inform him about complimentary booking and other facilities vouchers such as Candle light dinner, usage of Spa, Utility and breakfast at Kovalam beach during his stay from 4^th to 6^th  Feb., 2013 and check out on 7^th Feb., 2013. Therefore, vide this email the complainant had not made any complaint with regard to non-booking of any resort for him and his wife at Kovalam w.e.f. 01.02.13 to 04.02.13 by the OPs.  Vide email dated 15.01.13 (copy Annexure-6 filed by the complainant) the OP had confirmed complainant’s booking for Kovalam from 04.02.13 to 06.02.13 but the complainant was asked to pay the utility charges of “Rs.700 per and for 2 nights/3 days was Rs.1400/- in the account of the OP for issuing confirmation letter.”

The complainant had signed the agreement with the OPs out of his free will and consent as it is not his case that he was made to sign the agreement under some misrepresentation or playing fraud upon him. Copy of the Membership Purchase Agreement has been filed on the record on behalf of the OPs but the same is not legible. However, at the same time, the complainant has not disputed the version of the OPs that the said agreement contained a clause thereby authorizing the OPs to levy annual administration charges plus additional taxes, if any, applicable from time to time. Therefore, the demand of the OPs of Rs.2100/- towards utility charges, in our considered opinion, was perfectly justified and was within the four corners of the agreement. By accepting the booking of three days’ stay at Kovalam from 04.02.13 to 06.02.13 the complainant should be deemed to have waived off his earlier booking, if any, stated to have been made by him from 01.02.2013 to 06.02.2013. The onus to prove that the complainant had been given 4 discounted air ticket vouchers not towards an amicable settlement but “on other account which the complainant was already entitled in addition to tickets offered by the said letter dated 29.09.2012 and moreover it is a separate subject matter and not related to the issue involved in this case” was on the complainant. But, however, very surprisingly enough the complainant has not disclosed any such fact in this regard and has rather preferred not to deal with this fact in his affidavit. Therefore, in our considered opinion, the complainant has not come to this Forum with clean hands and has intentionally suppressed the material facts from this Forum which have been brought to our notice by the OPs.

Therefore, in our considered opinion, the OPs did not commit any deficiency in service so far as the grievance made in the complaint is concerned. Accordingly, we dismiss the complaint with no order as to costs.

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 04.03.17.