FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.35 of the Consumer Protection Act, 2019.
The brief facts of the case are that on 18.09.2019 complainants had been to the office of OP/ County Vacations as per telephonic call to collect gift and Vacation Voucher. In course of discussion, the representatives of the OP forced them to sign application form/Club & Vacations Sale Agreement against their wishes in order to get gift and also demanded Rs. 50,000/-. Ms. Sharmila Collected Rs. 50,000/- from their residence with an assurance to refund the amount as and when demand. Complainants vide letter dated 27.09.2019 requested the OP to refund Rs. 50,000/- but the OP denied. Complainant sent a legal notice dated 09.01.2020 to the OP through email and the OP. Vide email dated 16.01.2020 replied that deposited amount is non refundable as per terms of the policy. The acts of the OP is vexatious, illegal, mala fide and ulterior motive. Hence, the complainants filed the present complaint for refund of Rs. 50,000/-.
OP despite service of notice of the complaint has failed to file written version within the limitation provided under section 38(2)(a) of the consumer protection Act, 2019. No request for condonation of delay or extension of time to file WV is made. Therefore, right of the OP to file WV is closed vide proceedings dated 27.01.2021. OP even did not choose to file any application to set aside the ex-parte order dated 27.01.2021.
Complainant No. 1 Sailendra Nath Banerjee has filed his evidence by way of affidavit supporting the allegations made in the complaint.
Complainants have taken us through the consumer complaint as also the evidence adduced in support of the complaint. On careful perusal of the Club & Vacations Sale Agreement dated 18.09.2019 it is found that OP is a company under the companies Act, 1956 and are selling such a product in the name of Membership Purchase Agreement. No doubt OP is a service provider and the purpose of providing service is to give holiday resort etc. to the customers. It is true that in the agreement dated 18.09.2019 it is specifically mentioned that there is cool off period of 10 days from the date of signing of the
Agreement (Annexure-A) wherein the member can discontinue the agreement 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 within 120 days from the date of invoking of cool off period. For invoking the cooling off period the member shall send a written communication to the Country Club and after expiry of the aforesaid period the entire membership fee is non refundable under any circumstances. Complainant claimed refund of Rs. 50,000/- vide letter dated 27.09.2019 but the OP denied. Complainants have categorically alleged in the complaint that despite legal notice dated 22.01.2020 (Annexure-B) OP did not refund the deposited amount after deducting Rs. 3,800/- on the ground that the membership fee is not a deposit and non refundable as per the policy of the company (Annexure-D). In order to prove said allegations, complainant No. 1 has filed affidavit reaffirming the allegations. OP has failed to controvert the allegations in the complaint by filing Written Version, the allegations of the complaint are deemed to have been admitted as correct. It is well settled that allegations made in the complaint, if not denied is deemed to be admitted as correct. Therefore, the complainants have proved deficiency in service. Complainant No. 1 in his affidavit supports the allegations in the complaint. Thus, in our view, OP is liable to refund Rs. 46,200/- only (Rs. 50,000/- minus Rs. 3,800/-) to the complainants.
In view of the discussion above, the complaint is allowed ex-parte with following directions:-
- OP is directed to refund Rs. 46,200/- to the complainants.
- OP is also directed to pay Rs. 5,000/- to the complainants as compensation for their mental agony and harassment.
- OP is further directed to pay a sum of Rs. 2,000/- as cost of litigation to the complainants.
- OP is directed to pay Rs. 5,000/- to this commission for indulging unfair trade practice.
- The payments in terms of this order shall be paid within 60 days from today.
With the above observation, the consumer case is disposed of.
Copy of the judgment be provided to the parties as mandated by the CP Act. The Judgment be uploaded forthwith on the website of the commission for perusal of the parties.
