Author: SHRI RABIDEB MUKHOPADHYAY, MEMBER

This is an application u/s.12 of the C.P. Act, 1986.

That, the Complainants herein, being impressed with the representation of the OP company entered into a Country Vacations Holiday Club Membership Purchase Agreement with the said OP company for Rs. 3,50,000/- only on July 26, 2017.

That the Complainants already paid the said total amount of Rs. 3,50,000/- only in favour of the OP company on different dates against Agreement No. Y540472 and

Membership No. CVKK37PCLUB30LB240040 and the OP company duly acknowledged receipt of the said payment by issuing proper money receipts.

SCHEDULE OF PAYMENT

That, after Execution of Agreement, the OP company sent an E-mail dated 26.07.2017 as ‘Welcome Note’ to the Complainants stating some further terms and conditions as enumerated therein.

That having received the amount of Rs. 3,50,000/-, the executives of the OP company were not being transparent with the Complainants and have been misrepresenting  the facts in such a manner as to create confusion and harassment. The said executives even suppressed about joining gift costing of Rs. 30,700/- only. While receiving iPhone as joining gift which costs of Rs. 30,700/- written in the box but the OP company made the Complainants signed against gift of Rs. 35,000/- only. The customer service desk has failed to give the Complainants transparent information which the Complainants needed. Therefore, the Complainants decided to get back their hard earned money from the OP company.

That, the Complainants noticed a condition mentioned in the Clause No. 15 in page 2 of the Purchase Agreement dated 26.07.2017 runs as follows:

‘There shall be a cool off period of 10 days from the date of signing of the membership Agreement wherein member can discontinue the membership by paying a nominal administration charges of Rs. 3,800/- to the Company. After deduction of the aforesaid amount (Rs. 3,800/-) remaining amount would be refunded to the member. For invoking the cool off period the member shall sent a written communication to the Country Club, Central Customer Care, 4^th Floor, Asian Building, Begumpet, Hyderabad -500016 through registered speed post or an e-mail to  . After expiry of the aforesaid period the Membership Fee is non-refundable under any circumstances as per Clause No. 16 of the membership agreement’.

That, the Complainants further noticed another condition mentioned in the Clause No. 26 in page 4 of the Purchase Agreement dated 26.07.2017 which runs as above.

            That having noticed the said conditions, the Complainants invoked the cool off period on 9^th day from the date of signing of the Membership Agreement by sending a written communication dated 03.08.2017 to their specified address as mentioned in Clause No. 15 in page 2 and Clause No. 26 in page 4 of the Purchase Agreement as well, through Speed Post vide Article No. EW757307968IN which was duly delivered on 12.08.2017. The Complainants also sent an E-mail dated 03.08.2017 to to exercise the right to get the full and final settlement of Membership amount of the Complainants and related payments, as per Clause Nos. 15, provided in the Agreement, after deduction of appropriate amount as per terms and conditions of the Agreement.

            That the OP company also acknowledged by sending reply E-mail dated 03.08.2017 to the Complainants about receipt of their E-mail dated 03.08.2017on cancellation of Membership and request to refund their hard earned money.

            That, though the Complainants were eligible for the gifts of iPhone & 2 complimentary Air Tickets Vouchers as offered in company’s website, the OP company initially did not provide the same. After drawing attention to the same by the Complainants, the OP company misrepresented them about the said offer by E-mail dated 31.07.2017 whereby the flight tickets were not mentioned. After so many persuasions, the Complainants obtained the iPhone worth Rs. 30,700/- though the Complainants were misunderstood by the OP company and compelled to put the signature on acknowledgement paper worth Rs. 35,000/- for the said iPhone. Being dissatisfied with such misrepresentation made by the OP company, while the Complainants opted for cancellation of their Membership within cool of period and sought for refund of their hard earned money on 03.08.2017, the OP company offered them for those Air Tickets Vouchers on 05.08.2017 through E-mail, which the Complainants sternly refused to avail and requested for refund of their earnest money.

            That, being dissatisfied with deficient services provided by the OP company, the Complainant reiterated to refund their hard earned money after deduction of appropriate amount as per terms and conditions of the Agreement. But, the OP company pleaded by pointing out the clause of non-refundable and not a deposit and they also imposed a concocted story of ‘personal reason’ upon the Complainants, as if the Complainants opted for cancellation of their Membership and asked for refund of their money for their ‘personal reason’. This is absolutely a fake statement and cooked up as well. It is mentioned in Clause 15 in page 2 of the said Agreement that after expiry of cool off period, the Membership Fee is non-refundable under any circumstances as per Clause No. 16 of the Membership Agreement. Therefore, plea of ‘non-refundable and not a deposit’ does not suit here, as the Complainants exercised their right within cool off period as designed by the OP company. It is also evident from several E-mail communications between the Complainantsand the OP company that the Complainants were compelled to cancel their Membership due to misrepresentations, deficient service and unfair trade practice adopted by the OP company which were clearly reflected in E-mail dated 12.08.2017, though it was not mandatory to cite any reason for cancellation as per Clause No. 15 of the said Agreement. In the said E-mail, the Complainants clearly clarified that they did have no bookings with the OP company from their E-mail account. The Complainants used their E-mail ID in the process of helping 3^rd party who won a gift voucher from the OP company and in the whole process they further experienced about poor service and system of the OP company.

            It will be most significant to mention here that initially the Complainants have applied for the red season and paid the amount for red season but they offered the Complainants for blue season and therefore, they were allotted with Membership No. CVKK37PCLUB30LB240040according to their E-mail dated 26.07.2017containingWelcome Note. But, when the Complainants expressed their dissatisfaction through several phone surprisingly changed with CVKK37PCLUB30LB240040 as shown in misrepresentation towards the Complainants by the OP company. The E-mail communications between the Complainants and the OP company are themselves proofs of poor service, misrepresentation, deficient service and unfair trade practice adopted by the OP company.

            That, surprisingly, the Complainants received an E-mail dated 08.01.2018 requesting to provide their ID Proofs for activation of their Membership. The Complainants, without  losing any time, replied that they have already opted for cancellation of Membership vide Speed Post & E-mail with ‘Cool Off Period’ as per terms of Agreement and therefore, no question of proving their ID Proofs does arise at all and they are waiting for obtaining their earnest refund money. From the said E-mail dated 08.01.2018, the OP company admitted that the Membership has not yet been activated in the names of the Complainants. Therefore, the Complainants are very much entitled to get the earnest money deposited by them.

            That, suffering from the said mental trauma, agony and harassment, the Complainant-1 had faced miscarriage of her pregnancy on 04.12.2017 and was compelled to be performed by surgery on her on 07.12.2017 and about Rs. 52,439/- only were expended, which should be directed for reimbursement by the OP company to the Complainants on account of mental agony and harassment towards the Complainants, especially towards the Complainant-1 who has lost her child for such unbearable tension caused by the OP company.

            The Complainants stated that a cause of action arose on 26.07.2017 i.e. within limitation period. It is further stated that the territorial jurisdiction and pecuniary jurisdiction are within the prescribed limits.

            The Complainants prayed for refund of Rs. 3,50,000/- with 18  percent interest since date of Execution of the Agreement for Sale of Membership (26.07.2017), Rs. 52,439/-for medical expenditure due to mental trauma, agony and harassment, Rs. 2,50,000/- as compensation for misrepresentation,deficiency in service and unfair trade practice and lastly Rs. 50,000/- on account of litigation cost.

Written Version of OPs

            That the OPs also stated that the Complainant is not a consumer in terms of the Consumer Protection Act, 1986 and it is also evident from the Complaint filed before this Ld. Forum itself. The OPs crave leave to refer to relevant provisions of the law in this regard during the time of hearing.

            That the definition of ‘Deficiency’ as defined in Section 2 (g) of the Said Act does not cover the claims arising under the present dispute and that from the aforesaid definitions, the Complaint is not ‘Consumer’ and the controversy involved in the Complaint is not a ‘Consumer’ dispute.

            Save and except which are matters of record or specifically admitted, all other statement and allegations contained in the petition of Complaint is disputed and denied by the answering OPs.

            OPs also stated that the statements mentioned in para 5 of the Complaint is absolutely false and cooked up story. The Complainants were eligible for the gift and were handed over the gift accordingly, irrespective of anything as alleged, thus the allegations made herein are denied and disputed.

            That the OPs had nothing to state with regard to the statement made in paragraph no. 6 and 7 of the complaint since the same are based upon documents/ facts and the OPs crave leave to deal with the same during the stage of evidence and/or final hearing of this case.

            That the OPs denied and disputed to all the statements and/or allegations made in the Complaint. Since the same are based upon documents and the OPs crave leave to deal with the same during the stage of evidence and/or final hearing of this case.

            That the OPs also stated that the Complainants have filed this instant case only to gain sympathy of this Ld. Forum by averring some hollow and cooked up story and thus somehow make some money out of this instant litigation.           

OPs stated that, in the fact and circumstances as canvassed hereinabove, it is submitted that there is no deficiency in service on the part of the OPs and the Complaint is devoid of any merit and the Complainants approached this Ld. Forum to with a motive to gain sympathy of the Forum by hiding/suppressing facts and circumstances. And it is patent and clear there is no deficiency of service on the part of the OPs. Thus, prayer clause with all the submissions made therein is absolutely wrong and is emphatically denied. The Complainants are not entitled to any relief whatsoever and are not entitled to claim and recover anything from the answering OPs in the light of what is stated above.

            The OPs prayed for dismissal of the case with cost on its merit.

Points for Discussion

1) Whether the Complainants are a Consumer under the OPs;

2) Whether the OPs are deficient in rendering service to the Complainant;

3) Whether the complainants deserve relief.

Critical Analysis and Decision with Reasons

1. At the outset, it needs to be mentioned that the Club Membership Agreement

appears itself confusing and contradictory. At Clause No. 16, it is provided that    ‘Membership Fee is non-refundable under any circumstances’ and ‘Membership Fee is not a deposit’ and ‘not an investment’. But at Clause 15 of the Club Membership Sale Agreement dated nil (26.07.2017), a provision of cool-off period of 10 days is given, in which a Member can discontinue Membership and the deposited amount can be refunded to the Membership holder after deduction of administration charges of Rs. 3,800/-.

This point of cool-off period is repeated at Clause 26 of Vacation Agreement dated nil.

So, the holders of the Club Membership have every right conferred upon them by the OP through the Agreement, to discontinue the Membership Agreement within 10 days of such Agreement, and claim the deducted amount. No reasons need to be advanced for such discontinuation within the cool-off period.

2) As such, the Complainants did not avail of any services of the OPs by way of making tour oftheir sites and did not face any deficiency in service, as they opted for discontinuation of Membership within the cool-off period. But the OPs appeardeficientin the following counts:

i) The OPs did not comply with the contractual obligations by paying back the deposited money of Rs. 3,50,000/- minus administration charges of Rs. 3,800/- as per Clause 15 of the Membership Agreement and Clause 26 of Vacations Agreement, on repeated requests of the Complainants, vide letter dated 03.08.2017 and mail on the same date by Complainant-1 and in subsequent mails also. This non-response to contractual obligations amounts to deficiency in service.

ii) The Assistant Director, CA& FBP sent Memo No. 3860-CA/G dated 31.10.2017 on prayer of the Complainants for mediation of the dispute, as revealed by Assistant Director’s Memo No. 4082-CA/G dated 01.02.2017, to the OP for attending the mediation process but they did not respond. This is an attitude of the OP showing indifference to the Complainants’ repeated requests, which also amounts to deficiency in service. Assistant Director’s email dated November 10, 2017 to OP with the copy to Complainant-1 requesting the OP to refund the deposited money after deduction of appropriate amount as per terms and conditions of Agreement, is found to be unanswered and no payment was made by the given date of 24.11.2017, even till lodging of the case and even during proceedings. This amounts to deficiencyin service.

iii)The Complainant paid charges for the ‘Red Season Platinum’ Membership and had to be allotted Membership Card accordingly. But the OP issued to them the Blue Season Membership bearing no. CVKK37PCLUB30LB2400240. When the dissatisfied Complainant detected the same, lodged Complaint for the same to the OP, they reissued the Membership No. from Blue Season to Red Season and the Club Membership No. was turned to CVKK37PCLUB30LR2400240. The difference between Blue and Red indicates change of facilities. So, it is quite clear that the OP adopted Unfair Trade Practice by initially depriving the Complainants of Red Season Membership and subsequently, on dissatisfaction of the Complainants allowed Red Season Membership.

iv)There are further confusion and contradiction. The OP in their email dated August 6,2017 in reply to Complainant-1’s email dated 3^rd August, 2017 stated that the Complainant mentioned ‘personal reasons’ for refund of money.

We have gone through the Complainant-1’s such email dated 3^rdAugust, 2017 but found nowhere that the Complainant-1 mentioned ‘personal reasons’ for refund.

This is Misrepresentation of fact side-tracking the Complainants’ lawful claim for refund. This is also unfair. This shows lack of transparency of the OPs in dealing with the Complainants.

v) The Complainant-1 clearly alleges through her email dated 05.08.2017, of failure of OP to provide with transparent information to Complainants. Lack of transparency in dealings as per Agreement is highly unfair, which is clear from the facts that the Complainants were made known the price of iPhone (free gift) as Rs. 35,000/- but the printed price was shown to be Rs. 30,700/-. Showing higher valued phone with free air tickets, OPs allured the Complainants to mould their opinion in favour of signing the Membership Agreement and Vacations Agreement and making down payment instantly. The OPs did not deny specifically such statement of the Complainants in their W.V. Such conduct of the OPs seems adoption of Unfair Trade Practice which is dealt with at various provisions of Section 2 (1)(r) of the Consumer Protection Act, 1986.

3) It is also to be made clear that such offered free gifts are actually not free; and value of such free gifts have already been included in the Club Membership price. Had such free gifts not been offered to allure Complainants (and other potential Members), the Membership Fee amounts could be much less. It cannot be ruled out that the OP may have tie-up with the Apple Phone Co. and the Air Liner (of which free air tickets are offered) to sell their products oncommission or otherwise. A Company like the OP, registered under the Companies Act, 1956 has launched business not for loss but for high profits. So, they cannot allow such free gifts from their assets without profit because the OP is a profit earning company.

Such offer of free gifts (prices of which has already been inbuilt with the composition of Club Membership Fee) are called Restrictive Trade Practice for which the Members are compelled to accept the free offer, and they have to pay prices of free giftsbeforehand. By way of adopting Restrictive Trade Practice, the OPs manipulated the price of the Club Membership Fee. This is a case of condition precedent. Restrictive Trade Practice is dealt with Section 2 (1)(nnn) of the CP Act, 1986.

4) The OPs in the W.V. para 9 and 10 averred that in combatting the allegations of Complaint para 6 and 7 in particular, and of all allegations of the Complainants, in general, they would file documents during stages of evidence and final argument. But the OPs lost the opportunity to file E/chief, which was filed at later time after Order No. 10 was passed. The Application under affidavit by OP to accept the E/chief was challenged by the Ld. Advocate for Complainants; and the E/chief of OP was not accepted after hearing of the petition and objection of the Complainant, as detailed under Order No. 12 dated 20.12.2018.

Even on the date of final argument, no Advocate powered by the OPs was present.

So, the defence of OPs vis-à-vis the Complaint is very weak.

5) On perusal of records of voluminous medical documents and bills, it appears that the medicines, testing charges and doctor charges are related to treatment and labour room/ operation charges (South Kolkata Clinic) for delivery/ miscarriage of pregnancy of Complainant-1. The doctor, Soumitra Kumar received payments (M.Rs. 335 and 336 dated 22.12.2017) as charges for professional service rendered.

There is no mention in the documents, of mental trauma leading to miscarriage of pregnancy for which the Complainant claimed Rs. 52,439/- as medical charges.

6) The Complainant filed with B.N.A. copies of final Order/ Judgments in CC-348/2018, CC-510/2017, CC-34/2017, and CC-417/2016 of this Forum, in which the OPs are same as in the instant case and the Complainants succeeded in those cases.

The Complainant also referred a Judgment dated 17.03.2004 of the Honorable Supreme Court, in Ghaziabad Development Authority vs. Balbir Singh, (2004) 5 SCC 65 in which Honorable Supreme Court allowed interest at the rate of  18  percent. The Complainant also claimed such high rate of interest in the instant case.

But we like to submit that the case under reference was related to flat or apartment and after a long time the flat was not delivered. To compensate such deficiency of the OP in the referred case, the Honorable Supreme Court directed the OP to give, inter alia, 18  percent interest to cope with the increased value of the flat. But the instant case relates to tour and has no ratio with the referred case. There is no such chance of losing the value of the flat or increase in value. So, here awarding normal interest shall be justified.

Moreover, the settled Law is that if a party is allowed higher rate of interest, then consideration of compensation to the party has little scope.

7) On the face of records, it is clear that the Complainants paid the Membership Fee in full in anticipation of getting promised service stipulated in the Agreement. So, the Complainants are Consumers in terms of Section 2 (1)(d)(ii) of the CP Act, 1986. The OP in spite of receiving  full amount from the Complainants failed to deliver service as per Agreement and adopted Unfair Trade Practice  and Restrictive Trade Practice, and  is seriously deficient in service in terms of Section 2 (1)(g) read with Section 2 (1)(o) of the Act. OPs are also charged with adoptingUnfair Trade Practice in terms of Section 2 (1)(r)and Restrictive Trade Practice in terms of Section 2 (1)(nnn) of the Act.

            Therefore, the Complainants deserve some relief.

            In the circumstances of above analytical discussions, we are constrained to pass

ORDER

That the Complaint be and the same is allowed on contest against the OPs 1 to 4 in terms of Section 13 (2) (b) (i) of the C.P. Act, 1986;-

That the OPs 1 to 4 represented by Venue Manager, Branch Officeat Kolkata and Registered Office at Hyderabad are directed to jointly and severally return Rs. 3,15,500/- (after deducting administration charges of Rs. 3,800/- and cost of the Apple Phone Rs. 30,700/-) with 8  percent interest from 28.07.2017 (date of payment) till the date of actual payment, to make up the monetary value, to the Complainants within 30 days from the date of this Order;

That the OPs 1 to 4 represented by Venue Manager, Branch Office at Kolkata and Registered Office at Hyderabad are directed to jointly and severallypay Rs. 50,000/- as compensation u/s 14 (i) (d) for physical harassment, mental agony and trauma (Complainant-1), Rs. 40,000/- for adopting Unfair Trade Practice and Restrictive Trade Practice(50  percent of which shall be deposited with the account of this Forum) u/s 14 (i) (hb) and Rs. 10,000/- as litigation cost, to the Complainants within 30 days from the date of this Order;

That non-compliance of any part of above Orders by the OPs within stipulated time shall entitle the Complainants to put the Orders into Execution in terms of Section 27 of the Act ibid.

Let copy of the Judgment be handed over to the Parties when applied for.