Tamil Nadu

South Chennai

CC/297/2014

Rema Devi Sudhakaran - Complainant(s)

Versus

Country Vacations, A Divin of Country Club India Ltd., - Opp.Party(s)

R.Dhanalakshmi

01 Mar 2019

ORDER

                                                                        Date of Filing  : 09.07.2014

                                                                          Date of Order : 01.03.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP., : MEMBER-II

 

C.C. No.297/2014

DATED THIS FRIDAY THE 01^ST DAY OF MARCH 2019

                                 

Mrs. Rema Devi Sudhakaran,

W/o. Mr. S.E. Sudhakaran,

No.15/21, Zenith Flats,

Brindavan Street,

R. H. Road,

Mylapore,

Chennai – 600 004.                                                      .. Complainant.                                                    

 

      ..Versus..

 

1. Country Vacations,

A Divn. of Country Club India Ltd.,

Represented by its Manager,

No.16/11, Sree Vallabha Tower, 1^st Floor,

Park Circle, College Road,

Nungambakkam,

Chennai – 600 006.

 

2. The Managing Director,

Country Vacations,

Country Club (India) Ltd.,

Amrutha Castle,

5-9-16, Saifabad, (Opp. to Secretariat),

Hyderabad – 500 063.                                            ..  Opposite parties.

          

Counsel for the complainant           : M/s. R. Dhanalakshmi

1^st Opposite party                              : Exparte

Counsel for the 2^nd Opposite party : M/s. V.T. Narendiran & others

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays to refund the consideration paid for a sum of Rs.1,64,000/- and to pay a sum of Rs.2,00,000/- towards compensation for mental agony and sufferings caused to the complainant due to deficiency in service committed by the opposite parties herein with cost of Rs.50,000/-.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that she and her husband joined as a member of the opposite party, International Holiday Club registered under the Indian Companies Act, 1956 and has paid a sum of Rs.1,64,000/- towards membership fee.   The complainant submits that she has filed this case for and on behalf of her husband who is also a member of the opposite party as per the Purchase Agreement.  The complainant submits that on the date of entering into the Agreement dated:17.05.2013, the authorised signatory of the opposite party has issued a letter stating that “We promise you that we will give you 6N/7D Accomodation at Kullu/ Manali with 4 flight tickets “To and fro for four family members that the above offer should be availed within 12-18 months from becoming membership.  For flight tickets, 46 days before the complaints want to inform the opposite parties”.  Hence, the complainant and her husband along with 2 children prepared to go Kullu and Manali and contacted the 1^st opposite party regarding arrangements.  The 1^st opposite party has informed the complainant and her husband to go and enquire with the main branch at Nungambakkam and later Hyderabad Office etc.   Even after repeated personal requests, through phone and emails, the opposite parties failed to respond and comply the undertakings, assurances etc and ill-treated with hard words.  Hence, the complainant and her husband decided to cancel the membership and sent a letter dated: 13.03.2014 narrating the disappointment, ill-treatment using hard words etc and requested to refund the membership amount.   But the opposite parties has not sent any reply and not refunded the amount.  The act of the opposite parties caused great mental agony which leads to deficiency in service and unfair trade practice.  Hence, the complainant issued legal notice dated:08.05.2013 and 20.05.2013 and the same were received by the opposite parties but not come forward to settle the demands of the complainant.  Hence, the complaint is filed.

2.     Inspite of receipt of notice, the 1^st opposite party has not appeared before this Forum and hence, the 1^st opposite party was set exparte for non appearance.

3.      The brief averments in the written version filed by 2^nd opposite party is as follows:

The 2^nd opposite party specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.    The 2^nd opposite party states that the complainant and her husband jointly entered into an agreement with the opposite party and paid the membership fees.    The 2^nd opposite party states that the definition of man and woman is very clear that ‘they are the individual persons’.  Without adding the complainant’s husband, this case has to be dismissed for non-joinder of necessary party.  The 2^nd opposite party states that the letter dated:17.05.2013 filed along with the agreement is false, concurred and forgery.   The 2^nd opposite party states that the complainant seeking refund of membership fee is not maintainable as the terms and conditions entered between the complainant and the opposite party clearly states that “the membership fee is not a deposit and the fee paid is non refundable”.  The 2^nd opposite party states that the compensation claimed is exorbitant and imaginary.  Therefore, there is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A5 are marked.  Proof affidavit of the 2^nd opposite party is filed and no document is marked on the side of the 2^nd opposite party. 

5.      The points for consideration is:-

1. Whether the complainant is entitled to get return of a sum of Rs.1,64,000/- paid in consideration of the agreement as prayed for?
2. Whether the complainant is entitled to a sum of Rs.2,00,000/- towards compensation for mental agony with cost of Rs.50,000/- as prayed for?

6.      On point:-

The 1^st opposite party remained Exparte.  Both complainant and the 2^nd opposite party filed their respective written arguments.  Heard their Counsels also.  Perused the records namely the complaint, written version, proof affidavit and documents.  Admittedly, the complainant and her husband joined as a member of the opposite party, International Holiday Club registered under the Indian Companies Act, 1956 as per Ex.A1.  It is also admitted that the complainant and her husband paid a sum of Rs.1,64,000/- towards membership fee which is seen from Ex.A1, Purchase Agreement and also the receipts as per Ex.A2.   Further the contention of the complainant is that the complainant has filed this case for and on behalf of her husband who is also a member of the opposite party as per the Purchase Agreement, Ex.A1.  The complainant has not added her husband as a party in this case.  The learned Counsel for the complainant contended that the law is well settled that the complainant is entitled to plea for her husband also.   Further the contention of the complainant is that on the date of entering into the Agreement, Ex.A1 dated:17.05.2013, the authorised signatory of the opposite party has issued a letter stating that “We promise you that we will give you 6N/7D Accomodation at Kullu/ Manali with 4 flight tickets within 12-18 months.  For flight tickets, 45 days before you want to inform us”.  Thereby, the complainant and her husband along with 2 children prepared to go Kullu and Manali and contacted the 1^st opposite party regarding arrangements.  The 1^st opposite party informed the complainant and her husband to go and enquire with the main branch at Nungambakkam and later Hyderabad Office etc drove the complainant from pillar to post.   Even after repeated personal requests, through phone calls and emails, the opposite parties failed to respond and comply the undertakings, assurances etc and ill-treated with using hard words.   Hence, the complainant and her husband decided to cancel the membership and sent a letter dated: 13.03.2014 as per Ex.A3 narrating the disappointment, ill-treatment using hard words etc and requested to refund the membership amount.   But the opposite parties has not sent any reply and not refunded the amount.  The act of the opposite parties amounts to deficiency in service and unfair trade practice.  Hence, the complainant was constrained to issue legal notice as per Ex.A4 dated:08.05.2013 and 20.05.2013 were received by the opposite parties and turned deaf ears.  Hence, the complainant was constrained to file this case claiming refund of the membership amount Rs.1,64,000/- paid to the opposite parties.  The learned Counsel for the complainant further contended that eventhough in Ex.A1, Purchase Agreement, it is mentioned that the membership amount is not refundable since it is not a deposit.  The law is well settled that if the terms and conditions of the agreement violated by the opposite party such condition will be unsustainable.  In this case, the opposite parties on the date of entering into the agreement itself undertakes to the tour for 6 nights and 7 days harassed the complainant and her husband in such a manner proves the deficiency in service and unfair trade practice.

7.     The learned Counsel for the 2^nd opposite party would contend that as per Ex.A1, the complainant and her husband jointly entered into an agreement with the opposite party and paid the membership fees.  But this case is filed only by the complainant without adding her husband as a party proves that this complaint is barred for non-joinder of necessary parties.  But on a careful perusal of records and proof affidavit, it is seen that the complainant and her husband jointly entered into an agreement and paid the amount.  Equally, the complainant and her husband along with their 2 children had taken steps to go for a tour to Kullu and Manali and made all preparations.  Further the contention of the 2^nd opposite party is that the definition of man and woman is very clear that ‘they are the individual persons’.  Without adding the complainant’s husband, this case has to be dismissed for non-joinder of necessary party.   But it is not denied that the complainant and her husband entered into an agreement with the opposite parties.  The complainant has every right to plea for her husband and can adduce evidence on behalf of her husband also.  In the summary trial cases, the question of necessary parties, vital parties, muchless impleadment of their own spouses is not a mandatory criteria.   

8.     Further the contention of the 2^nd opposite party is that the letter dated:17.05.2013 filed along with Ex.A1 agreement is false, concocted and forgery.  The author of the letter S. Nithin has not issued any such letter.  But the 2^nd opposite party has not filed any affidavit to prove such contention.  Equally, the 2^nd opposite party has not taken any steps to prove the falsity of the document handwritten dated:17.05.2013.  On the other hand, the complainant pleaded in the complaint and proof affidavit that the authorised signatory S. Nithin issued the letter in due compliments to be a member entered into an agreement as per Ex.A1.   Further the contention of the 2^nd opposite party is that as per Ex.A1, the amount paid is a membership fee and it is not a deposit.  The said amount is not refundable.  But the violation of terms and conditions leads to deficiency in service and unfair trade practice leads to refund of the amount.  In this case, it is very clear from the records that the complainant has taken steps and prepared for a tour to Kullu and Manali and approached the opposite parties in accordance with the terms and conditions and was ended in vain proves the deficiency in service and unfair trade practice.  Further the contention of the 2^nd opposite party is that the compensation claimed is exorbitant and imaginary.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 & 2 shall refund a sum of Rs.1,64,000/- towards the membership fee paid by the complainant and pay a compensation of Rs.30,000/- towards mental agony with cost of Rs.5,000/- to the complainant.

  In the result, this complaint is allowed in part.  The opposite parties 1 & 2 are jointly and severally liable to refund a sum of Rs.1,64,000/-  (Rupees One lakh and sixty four thousand only) being amount paid towards membership fee by the complainant and a sum of Rs.30,000/-(Rupees Thirty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.  

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 01^st day of March 2019. 

 

MEMBER-II                                                              PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	17.05.2013	Copy of Country Vacations Purchase Agreement
Ex.A2	18.05.2013	Copy of permanent receipts issued by the opposite party
Ex.A3	13.03.2014	Copy of letter issued by the complainant to opposite party
Ex.A4	08.05.2014	Copy of legal notice issued by the complainant to the opposite parties
Ex.A5		Copy of acknowledgement card from both the opposite parties for the receipt of the legal notice dated:08.05.2014

 

2^ND OPPOSITE PARTY SIDE DOCUMENTS:-  NIL

 

MEMBER-II                                                              PRESIDENT