FINAL ORDER/JUDGEMENT
SMT. SAHANA AHMED BASU, MEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
Complainants’ case, in brief, is that being allured to the representation of the Agent of O.Ps. complainant has entered into an agreement for O.Ps.’ club membership by depositing Rs.1,00,000/- through his credit card on 05/01/2017. After realizing the blunder, on 08/01/2017 complainants approached the O.P.-1 for refund of their money and to cancel the agreement over telephone and also through e-mail. Complainants sent another e-mail on 14/02/2017 requesting the O.ps. to cancel the agreement and to refund their deposited sum. In reply, on 21/02/2017 O.Ps. refused to refund Rs.1,00,000/-. Again, on 28/03/2017 complainants requested through e-mail to refund their money to meet medical expenses but in reply on 03/04/2017 they again refused such prayer n the ground that the amount of Rs.1,00,000/- is non-refundable one. It is also the case of the complainants that they could not be able to read over the agreement as the fonts are microscopic. Finding no other alternative, complainants filed the instant consumer complaint praying for a direction to get refund their hard earned money of Rs.1,00,000/- and for other reliefs.
The instant consumer complaint is resisted by the O.Ps. by filing W.V. contending inter alia that the petition of complaint is vindictive, motivated, harassing and misconceived and it does not disclose any deficiency in service. The case of the O.Ps. is that the complainants are not the consumer in terms of the C. P. Act, 1986. Complainant has visited the O.Ps.’ office on his own volition. Understanding the benefits and after satisfaction expressed their interest to take the Blue Season Membership (6N/7D) for Rs.1,15,000/- and deposited Rs.1,00,000/- after swiping his credit card with full knowledge and remaining Rs.15,000/- was to be paid by the complainants within 45 days from the execution of agreement, which is not paid till date. It is also the case of the O.Ps. that the vacation charges is non-refundable under any circumstances, not an investment and that vacation fee is not a refundable deposit. Moreover, the e-mails sent by the complainant were not readable. O.Ps. offered an alternative to the complainants to 70 percent towards settlement in view of the medical ground of the complainants. As such, O.Ps. have prayed for dismissal of the instant consumer complaint.
In light of the above facts, following points are arising for determination :-
- Whether the attitude of the O.Ps. tantamount to deficiency in service.
- Whether the complainant is entitled to get relief / reliefs as prayed for.
Points No.- 1 & 2.
Both the points are taken up together for the sake of convenience and brevity in discussion.
Ld. Advocate for the complainants has advanced the case by adducing relevant evidences and documents. Per contra,O.Ps. have failed to questioned the complainant though replied to the questionnaire set forth by the adversary of the complainant. We have gone through all the evidences and documents on record and gave a thoughtful consideration to the entire fact.
It is admitted fact that complainants have purchased Holiday Club Membership from O.Ps. against payment of Rs.1,00,000/- out of Rs.1,15,000/- on 05/01/2017. Cmplainant alleged that after purchasing the said Membership they realized that they had committed blunder and on the same day they contacted one Mr. Ajeet Mahato, T.O. Manager of the O.P.-1 over phone for cancelling the said agreement and also sent e-mail dated 08/01/2017 for cancellation of the Membership. Annexure-13 of the complaint petition supported their contention. No reply was received from the O.Ps. Then, complainants sent a letter dated 14/02/2017 requesting to cancel the Membership and refund the amount of Rs.1,00,000/-. By e-mail dated 21/02/2017OPs refused to refund money.. Complainants sent another letter dated 28/03/2017 to O.P.-1 intimating that huge amount is to be required for their medical treatment with a request to refund the deposited sum of Rs.1,00,000/-on humanitarian ground. On 03/04/2017, O.Ps replied by e-mail seeking medical documents of the complainants.
On the other hand, O.Ps did not file any document regarding the said agreement on negotiation with the complainants. Ld. Advocate for the O.Ps denied the allegation made by the complainant by showing terms and conditions where it is mentioned that the membership fee and the vacation Charges are not refundable and not an investment, which are not a refundable under any circumstances. We have perused the documents carefully and find that there is no ‘pull off’ period regarding cancellation of the membership. In our considered view, it is an unfair trade practice on the part of the O.Ps.
In reply to the questionnaire of the complainants, O.Ps. submitted that the complainants visited the O.Ps.’ office on their own free will. But they did not explain the fact as put n the questionnaire by the complainant that one Trisha Das of the O.Ps.’ company sent message on 04/01/2017 requesting the complainants to attend the office of the O.Ps. on 05/01/2017 to receive some gifts. In reply, O.Ps. submitted that they will file welcome call audio CD and the transcript during the appropriate stages of the case to prove their transparency. But the O.Ps. failed to furnished any piece of evidence in support of such contention. As such, the case of transparency, aforesaid, could not be established by the O.Ps.
It has further been submitted by the Ld. Advocate for the O.Ps. that as the refund claimed by the complainant was purely on medical ground, they offered an alternate solution to the complainants time and again and offered 70 percent of the deposited amount towards settlement but the complainants did not agree with said amicable settlement offer. In reality, we could not find any piece of documents in the entire case record, which can support such offer of the O.Ps. Thus, we cannot but to decline with the afore said submission of the O.Ps.
Another plea is taken by the O.Ps. that the copy of e-mails are not readable. But on careful perusal of the photocopies of such e-mails, we do declare that those photocopies are very much readable and / or legible. Therefore, it can safely be said that this plea of the O.Ps. i.e. questioning the legibility of e-mails is measurably failed.
It has further been submitted by the O.Ps. as the complainant did not avail any service from the O.Ps., the question of deficiency in service does not arise. In this context, we are of the opinion that the gesture of the O.Ps. by refusing to cancel the agreement and to refund the deposited sum, is surely falls under unfair trade practice on the part of the O.Ps.
Therefore, complainants are entitled to get relief or reliefs as prayed for. Thus, all the points under termination answered in the affirmative.
In result, the case merit succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the O.Ps. with cost of Rs.5,000/-.
O.Ps. are directed to refund Rs.1,00,000/- to the complainant along with litigation cost within 30 days from the date of this order.
O.Ps. are also directed to pay Rs.20,000/- to the complainants as compensation for causing harassment, mental pain and agony.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
