BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    09^th DAY OF OCTOBER 2019

Complainant/s: -                           

Sri.Abhisek Bhagchandka

Age 33 years

House No.58, 1^st Floor, Tavarekere Main Road,

BTM Stage 1,

Opp.Tavarekere Bus Stop, Bengaluru-29.

Inperson

V/s

Opposite party/s:-    

1. Country Vacations

Regd., Office:

Amrutha Castle, 5-9-16, Saifabad, Opp.Secretariat, Hyderabad-500063.

Rep. by Manager, CEO

2. Country Vacations

Corporate office: No.14,

CRS Building, 1^st Floor,

Opp. to Le Meridfan Staff

Gate, Cunningham

Road, Vasanthnagar,

Bengaluru-01.

And also at 11^th Cross

Road, 2^nd Block,

Jayanagar East,

Jayanagar,

Bengaluru-11.

Rep.by Manager, CEO

By Adv.Sri.D.Narase Gowda

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party No.1 & 2 (herein after called as OPs) to refund the paid amount of Rs.1,80,000/- with interest and to pay compensation of Rs.2 lakhs with cost.

2. The brief facts of the complaint are as under:

The Complainant submits that, he has taken the membership of OPs on 29.10.17. Within a day he decided to withdraw the same and visited the OPs office. The Sales Manager of the OPs advised that, as per the provision/clause 34 of the sale agreement, if any customer wants to withdraw the membership, he/she can do the same within 10 days by paying the processing fees by informing the customer care via email or call. Accordingly the Complainant sent an email within 10 days i.e. on 06.11.17 and received the confirmation that the request has been received and forwarded for approval. The Complainant further submits that, after numerous calls and emails with OPs, on 30.03.18 customer care informed that they are coordinating with the accounts department and will update soon. But, thereafter he was informed that ‘money will not be refunded, no matter what is written in the agreement.’ Till he is struggling to get the refund, but went in vain. Hence this complaint.

3. After issuance of notice, OPs did appear and filed version denying the entire allegations made against them. OPs further submit that, the Complainant entered in to purchase agreement dtd.29.10.17 with OPs by paying Rs.1,80,000/- towards the holiday vacations. Upon receipt of the said amount, OPs issued the permanent laminated club membership cards, complimentary spa coupons, one day privilege pass holiday gift voucher to the Complainant. Further, the Complainants are entitled for 6 nights 7 days holiday vacations in a year for a period of 30 years, to which there should be 30 days in advance booking to be made to make necessary arrangements. But, the Complainant not made any booking in this regard. Further, the Club membership is provided for life time. OPs further submit that, they have not received any email from the Complainant that, he is cancelling the membership within cool off period of 10 days and hence requested for refund. In terms of the said agreement, there is no provision for cancellation of the club membership. However, he is at liberty to sell/transfer/gift the membership to any third party. The OPs never rendered any deficiency of service in providing the facilities as agreed. Submitting the said facts, prays to dismiss the complaint.  

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OPs filed affidavit evidence and produced the documents. The Complainant filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?

2. What order?

        6. Our answer to the above points are as under:

Point No.1:- Partly in the affirmative

Point No.2:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OPs. The undisputed facts which reveal from the pleadings of the parties go to show that, the Complainant has availed the membership of the OPs on 29.10.17. After availing the same within a day he decided to withdraw his membership. In this context, he visited the OP office from where he purchased the said membership and was adviced by the sales manager Sri.Sundar Reddy that there is a provision to withdraw the money within the cool off period/10 days.

8. As per the clause 34 of the sale agreement/Ex-A1 inkpage no.4, if any customer wants to withdraw the membership, he/she can do the same within 10 days by paying the processing fees by informing the customer care via email or call. Accordingly, the Complainant sent an email/Ex-A3 found at inkpage no.14 & 15, dtd.06.11.17 to OPs. To which there was no proper response from the OPs and they postponed the matter by one or the other pretext. We placed reliance on the said email/Ex-A3 sent by the Complainant to the OPs, which prima facie evident that, he has put extra efforts in respect of terminating his membership/withdrawal of his membership as per the said clause 34.

9. In similar type of cases, this forum already decided the matter holding that, if the OPs are found to be deficient in providing the services to their customers, under such circumstances, they cannot with hold the membership and to refund by deducting the applicable charges if any i.e. due of annual maintenance charges and any of the bills pending towards taking the services of the club. In the instant case, neither the Complainant nor his family members have taken any kind of service from the OPs. In this context, we are of the opinion that, the membership amount paid by the Complainant to the extent of Rs.1,80,000/- is to be refundable in the light of the latest decision of Hon'ble National Commission reported in 2019(1) CPR 647 (NC) in the case of Chief in Charge of M/s.Country Vacations and Anr. vs. Jayanti Mukherjee, wherein it is held that “no amount can be retained by the service provider without offering any service.”

10. Further as per the another decision of Hon'ble National Commission reported in 2019(3) CPR 161 (NC) in the case of Mahindra Holidays and Resorts India ltd., vs. Col.(Retd) S.P.Putchala and Anr., wherein it is held that,

“Self made rules for own firm have no legal significance if proved contrary to law.”

Consumer Protection Act, 1986 – Sec.19 – Holiday resort – Several benefits of international or domestic holiday offered – membership fees of Rs.1,89,240/- deposited – due to tension caused by Holiday Resorts the Complainant developed syncope effect – Complainant accepted settlement offer from resort – purpose of availing the services of holiday resorts is defeated – deficiency of service by resort proved – mental agony of Complainant proved medical record of the Complainant proves that he had been a patient of syncope effect even before opting for membership of holiday resorts – State Commission directed the Holiday Resorts to pay Rs.2 lakhs together with costs of Rs.5,000/- - Held that, the State Commission rightly awarded compensation costs of Rs.5,000/- enhanced to Rs.20,000/-.

We cited the said decision for the simple reasons that, the rules and regulations made by the OPs are subjected to the judicial scrutiny as to know whether they are fare or contrary to the law.  In the instant case, the sole defense taken by the OPs is that, since the Complainant has agreed the terms and conditions of the sale agreement and subscribed his signature on it knowing the contents mentioned therein, hence, he is to be bounded by the terms and conditions.  The contention taken by the OPs has no legs to stand in the light of the decisions cited supra. Hence, we come to the conclusion that, complaint filed by the Complainant is deserves to be allowed holding that there is deficiency of service on the part of OPs in not refunding the paid amount though he applied for cancellation of the membership within cool off period.  Hence, the Complainant is entitled for refund of the paid amount of Rs1,80,000/- with litigation cost of Rs.5,000/-. Anyhow, we declined to grant any kind of compensation. Accordingly we answered point No.1 partly in the affirmative.

          11. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the Complainant is allowed in part.

2. The OP.1 & 2 both are jointly and severally liable to refund Rs.1,80,000/- to the Complainant along with litigation cost of Rs.5,000/-.

3. This order to be complied by OPs within six weeks from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 09^th day of October 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.15.06.19

Sri.Abhisek Bhagchandka

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OPs dated.27.08.19

Sri.Mohammed Akmal Pasha   

Copies of Documents produced by OPs

            MEMBER                                           PRESIDENT