Order dictated by:
Mr.Anoop Sharma, Presiding Member
1. Dr.Kulvinder Singh has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainants No.1 & 2 alongwith their minor daughter aged 3 years visited Trillium Mall, Amritsar , where they were persuaded by the representatives of the opposite party for having wonderful vacations at different stations. On their persuasions complainants initially deposited a sum of Rs. 65000/- with the opposite party and they were made to sign an agreement on 25.7.2015. The complainants made it clear to the opposite party that they wanted to avail only the hotels for vacation period at different places and they would not pay any extra amount for the health club or any other ancillary charges. The opposite party procured the signatures of the complainant on the agreement dated 25.7.2015 regarding the amount payable to the tune of Rs. 65000/- only for availing the vacations at different destinations. The complainants then approached the opposite party and requested for the booking of hotels in Himachal Pradesh during the summer vacations. But the opposite party No.1 refused booking on the pretext that the complainants should first make the payment of Rs. 35000/- and only then they would consider their request. After refusal of the opposite party to accede to genuine request of the complainants, the complainants demanded back their amount of Rs. 65000/- alongwith interest but the opposite party putting off the matter on one pretext or the other . The complainants have sought for the following reliefs vide instant complaint :-
(a) Opposite parties be directed to pay Rs. 5 lac as damages to the complainants for putting them in trauma ;
(b) Opposite parties be further directed to pay Rs. 65000/- alongwith interest @ 18% p.a.
(c ) Any other relief may also be awarded to the complainants .
Hence, this complaint.
2. Upon notice, opposite parties appeared and filed written version in which it was submitted that complainants showed their interest in club and vacation membership of opposite parties for which they entered into a “Purchase Agreement for Club and Vacation Membership” dated 25.7.2015. It is pertinent to mention here that complainants were in no hurry to take membership and they is why, for making the payment, they told the opposite parties that they will make the payment later on. Accordingly, on the next day i.e. 26.7.2015 , the complainants entered into two separate agreements-Vacations Agreement and Club Membership Purchase Agreement. The complainants paid Rs. 10000/- on 26.7.2015 vide receipt No. DR-308627, Rs. 30000/- through debit/credit card No. 459150012386, Rs.35000/- on 31.7.2015 through debit/credit card No. 512967020121. It was denied that complainants refused the offer to avail the club facilities. The complainants are aware that they need to pay Rs. 8500/- as annual maintenance charges as mentioned in clause 9 under the heading Vacation benefits in Vacations Agreement. It was submitted that complainants at their own freewill put signatures on agreement dated 25.7.2015 as well as 26.7.2015 after understanding the contents thereof for availing vacations as well as enjoying club facilities. It was submitted that complainants have falsely alleged that “a month back” i.e. in April 2016, they approached the opposite parties for booking hotels in Himachal Pradesh, which was refused . There is neither any letter/e-mail which shows that any request for booking was made by complainants which was refused by the opposite parties nor there is any communication demanding the refund of amount deposited. It is pertinent to mention here that even otherwise as stated in agreements, vacations charges and membership fee is non refundable. As such there is no deficiency in service on the part of the opposite parties. While denying and controverting other allegations, dismissal of complaint was prayed.
3. In his bid to prove the case Sh.Munish Kohli,Adv.counsel for the complainants tendered into evidence affidavit of the complainant Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-7 and closed the evidence on behalf of the complainants.
4. To rebut the aforesaid evidence Sh.Ashok Kalia,Adv.counsel for the opposite parties No.1 to 3 tendered into evidence affidavit of Sh.Bharat Reddy, Legal Officer Ex.OP1,2,3/1 and closed the evidence on behalf of the opposite parties No.1 to 3.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file .
6. On the basis of the evidence on record, it becomes evident that on the persuasions of the opposite parties , complainants become members of their company by depositing Rs. 65000/- and signed an agreement on 25.7.2015 , copy of agreement accounts for Ex.C-1 on record. It was the case of the complainant that although the opposite party offered the facilities to the complainants at the Health club located at Trillium Mall, Amritsar which the complainants flatly refused to avail due to shortage of time. It has been contended by the complainants that they wanted to avail only the hotels for vacation period at different places and they refused any other facilities as they would not pay any extra amount. Opposite parties are ready to provide hotel facilities and only after having the approval of the officials of the opposite parties, the complainant deposited Rs. 65000/- with the opposite parties through their credit/debit card , copy of vacations agreement accounts for Ex. C-2 on record . But however, when the complainants approached the opposite parties for the booking of hotels in Himachal Pradesh during the summer vacations, the officials of the opposite party No.1 refused booking on the pretext of deposit of Rs. 35000/- extra and only then they would consider the request of the complainants. The complainants after making several requests for providing hotel facilities in Himachal Pradesh, demanded back their amount of Rs. 65000/- alongwith interest , but to no avail.
7. Whereas ld.counsel for the opposite party has vehemently contended that complainants entered into a “Purchase Agreement for Club and Vacations Membership” dated 25.7.2015 R-2. Thereafter on the next day, executed two separate agreements i.e. Vacations Agreement dated 26.7.2015 and Club Membership Purchase Agreement having details of terms and conditions . In this regard opposite parties have filed some document dated 26.7.2015 R-2 showing the amount to be Rs. 1,00,000/- and Rs. 75000/-. Ld.counsel for the opposite parties has vehemently contended that complainants being highly educated persons, signed the agreements after going through the contents of the same. As such the complainants are bound by the terms and conditions of the agreement. 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.
8. But, however, from the appreciations of the facts and circumstances of the case, it becomes evident that the complainants entered into an agreement of Purchase agreement for Club and Vacation Membership, copy of the same accounts for Ex.C-1 on record. Thereafter complainant again entered into an agreement with the opposite parties dated 26.7.2015, original of the same is Ex.C-5 as well as Ex.C-6 vacation agreement on record , on payment of Rs. 65000/- in which vacation benefits are fully described . But however, on the other hand though opposite party has produced some copy of document i.e. agreement dated 26.7.2015 R-2 showing the alleged agreement worth Rs. 1,00,000/- as well as Rs. 75,000/- but the same cannot be considered as the same is neither legible nor exhibited by the opposite party. The document produced by the complainant is dated 26.7.2015 having No. 25501 Ex.C-2 showing the product price Rs. 65000/- describing vacation benefits. It is not known how a document dated 26.7.2015 is prepared by the opposite parties twice showing different amount. i.e. product price of Rs. 65,000/- as per Ex.C-2 and as per some document produced by the opposite parties alongwith written version showing the price of Rs. 1,00,000/- and Rs. 75000/-. Even otherwise opposite parties have not placed on record affidavit of the person, who read over and explained the contents of the agreement to the complainant. `So the documents produced by the complainant Ex.C-5 and Ex.C-6 are correct . 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.”.As such the complainant is entitled for refund of the fee deposited by the complainant due to refusal of facilities as promised by the opposite parties.
9. On account of deficiency of service 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. 65000/- alongwith interest @ 9% p.a. from the date of order until full and final recovery. Cost of the litigation are assessed at Rs. 5000/-. 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
Dated : 30.1.2017
/R/
