CC No.1150/2018                                                                        Date of filing:11.07.2018

                                                                                                 Date of Disposal:08.08.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE  8^th  DAY OF AUGUST 2019

CONSUMER COMPLAINT NO.1150/2018

PRESENT:

Sri.   Venkatasudarshan  D.R.  B.Com,LL.M.,              …. PRESIDENT

Smt.  L.Mamatha, B.A., (Law), LL.B.                                        ….       MEMBER

COMPLAINANTS:

N. Parthasarathy,

48 years, F4 VG Enclaves,

5 & 6 Doctors Layout Simha colony,

(In person)          

V/s                                 

OPPONENTS:

Country Vacations India Pvt. Ltd.,

No.102, 1^st and 2^nd floor, No.48,

S and S Corner, Bowring hospital road,

Shivajinagar, Bengaluru-560051.

 (Opponent    By Sri. D. Narasegowda,   Advocate)   

= = = = = = = = = = = = =                               

Written by Sri Venkatasudarshan D.R., President

              ******

// ORDER ON MERITS//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri. N. Parthasarathy against M/s Country Vacations India Pvt. Ltd., praying for a direction to the opponent to process the cancellation of membership contract and to refund Rs.1,50,900/- after deducting Rs.3,800/- as per the terms of the contract.

2. The brief facts of the case of the complainant are that the opponent offered membership of the club to the complainant and family members consisting of his wife Priyalatha son Master Kamalesh Bhargav and daughter Miss Sahana.As a part of membership the opponent offered 10 years vacation package with 6 nights 7 days boarding facility at any of the internationally located opponent’s facilities.The opponent also offered a free international foreign travel to Malaysia with boarding and lodging facilities for the entire family.

3. The complainant took membership of the opponent’s club on 10.06.2018 by paying Rs.1,54,700/- and signed the contract documents.Before signature the complainant got confirmed by the opponent’s representative at J.P Nagar that the complainant can cancel the membership within 10 days cooling off period,if he so chose to do.The complainant was assigned with membership number CVBG2CLUBB253314 for club blue membership.

4. It is the further case of the complainant within a day after consulting the members of the family and due to personal reasons and financial situation the complainant decided to get his membership cancelled on 13.06.2018 i.e., on the 4^th day after becoming member but within cooling off period. The complainant wrote letter to the opponent and also sent E-mail seeking cancellation of membership and to refund the amount as per clause 19 of the contract document.Thereafter the complainant had spoken to the representative of the opponent’s party and made all efforts.But the representative of the opponent’s party by name Mrs. Rebecca at their Shivajinagar office rejected the demand for cancellation and refund and forced the complainant to down-grade his membership to basic membership for Rs.56,800/- and take refund of Rs.98,700 to which the complainant didnot agree.The complainant approached National Consumer care, but of no use and he was directed to approach the Forum for redressal.Hence, this complainant alleging deficiency of service as the part of the opponent.

5. After admitting the complaint, the notice was issued to the opponent.The opponent entered appearance through an advocate and filed version.

6. In the version, the opponent has contended that the complaint is not maintainable, there is no cause of action.The opponent has admitted that the complainant has become member of the club by paying Rs.1,50,900/- and also the purchase agreement dated 10.06.2018 is also admitted.The membership card was also issued.According to the opponent, the amount paid by the complainant was towards the holiday vacations.The opponent has contended that the complainant is not an illiterate person and has entered into purchase agreement dated 10.06.2018 with this opponent.It is further stated that there is no provision for cancellation of the club membership.However, the complainant is at liberty to sell, transfer or gift the club membership to any 3^rd party.The complainant has not made reservation or booking for availing the holiday vacation at any point of time and thus there is no cause to file the above complaint.There is no deficiency in service on the part of the opponent.The opponent has not adopted any unfair trade practice.The opponent has not offered any Gym Air Ticket, Air Ticket for Thyland/Malasia.The allegations made in the complaint are baseless.The complainant has not paid maintenance charges.To avoid payment of maintenance charges the complainant has come up with this false complaint.Hence, prays for dismissal of the complaint with exemplary cost.

7. When the case was set down for recording evidence the complainant got himself examined by filing his affidavit evidence and also got the documents Ex.p.1 to Ex.p.4 marked.

8. On behalf of the opponent Mr. Mohamadh Akmal Pasha, the Manager got himself examined by filing his affidavit evidence and produced copy of the work sheet, copy of the permanent membership card and copy of the AMC detail.

9. Heard the arguments of learned advocate appearing for the complainant and also the advocate appearing for the opponent.

10. The points that arise for our determination are:-

(1) Whether the complainants proves that there was deficiency in service on the part of the opponents ?

(2) If so what is the relief to which the Complainants are entitle ?

Point No.1:- In the affirmative.

Point No.2:- Partly in the affirmative.

Point No.3:- As per the final order for the following.

: REASONS :

12. POINT NO.1:- The undisputed facts of this case are that the complainant has become the member of the opponent club by paying Rs.1,50,900/-.The execution of the purchase agreement/sale agreement dated 10.06.2018 is not disputed.The only point of dispute between the complainant and the opponent is about the right of the complainant to seek cancellation of his membership and get refund.In order to answer this point, in our view no elaborate discussion is needed.Suffice to say that, the affidavit evidence filed by the complainant and the manager of the opponent club are nothing but the repetition of complaint averments and averments made in the version respectively.The only document that needs to be examined to find out whether the complainant is entitled for the reliefs sought or not is the very membership agreement itself.The said agreement has been marked as Ex.p.1 through the evidence of PW.1 about which there is no dispute from the opponent side.So when the document which is an agreement dated 10.06.2018 a membership contract document which is not in dispute, both parties are bound by the terms and conditions of the same.Parties cannot be permitted to pick and choose only such terms and conditions favorable to them.In this context it may not be out of place to refer to thedecision of the Hon’ble National Commission reported in 2018(1) CPR page 335 (MC) in Kavitha Sikka V/s OSS Landmark LLP and another.

13. The opponent has taken a specific contention in the version at para 5 that “In terms of the agreement clause there is no provision for cancellation of the club membership”.Whereas the complainant has contended that there is a specific clause in the form of clause No.19 in the agreement which provides for seeking cancellation of the membership.The learned advocate appearing for the complainant draws our attention to clause 19 of the said agreement Ex.p.1. which reads as under;

“There shall be a cool off period of 10 days from the date of signing of this Agreement wherein 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, Central Customer Care, 4^th floor, Asian building, Begumpet, Hyderabad-500016 through registered speed post or an e-mail to .

From the reading of the above it is clear that within 10 days period which is called a cool off period from the date of signing of the agreement, the member can discontinue the agreement by paying nominal administration charges of Rs.3,800/- and the opponent club has to refund the remaining amount within 120 days from the date of invoking the cool of period.  So as per the terms of this agreement the complainant who has become a member of the opponent club by paying Rs.1,54,700/- as per the documents Ex.p.2 to Ex.p.4  by 10.06.2018 will have 10 days time  from that date within which period he will have an option of discontinuing his membership and claim  refund.  Interestingly and also surprisingly the opponent club does not whisper even a single word either in the version or in the affidavit evidence about this clause.  This shows that the opponent is trying to hide the true fact before this authority and thereby making an attempt to mislead.  When the document in the form of Ex.P.1 which is undisputed is produced, the contents of the document will prevail over oral evidence, as has been held in (2016) (3) 524 of the Hon’ble National Commission.  So when document Ex.p.1 specifically provides in clause 19 for refund of the money if such refund and cancellation of the member is sought within 10 days from the date of the agreement which is called cool off period, how can the opponent refuse to comply by abiding to that condition in the document.   It is a settled principle of law that when the terms of contract are reduced into writing and signed by both the parties, the parties are bound by it.  Any oral evidence contrary to the contents of the document cannot be permitted under law.  It is also interesting to note that in none of the email correspondences made by the opponent to the complainant the claim for cancellation and refund of the amount has been rejected.  On the other hand, the opponent has replied that the matter is under consideration and that they would address his concern at the earliest.  Unfortunately the opponent has not complied with the request of the complainant which made him to file this complaint.   This is a serious defect or fault on the part of the opponent.  This shows that there is acute deficiency of service on the part of the opponent.  Accordingly, we answer point No.1 in the affirmative and in favour of the complainant. 

           14. POINT NO.2 & 3:- In view of the finding recorded on the point No.1 holding in the affirmative the next aspect is to be considered is the relief to which the complainant is entitle.  The complainant has sought for the direction to the opponent to refund his membership fee of Rs.1,54,700/- after deducting Rs.3,800/- being the administration charges as per clause 19 of the agreement i.e., Rs.1,50,900/- (1,54,700-3,800).  This claim is fully justified.  Therefore the opponent should be directed to make payment of the same. 

           15. This amount of Rs.1,54,900/- was paid to the opponent by the complainant on 10.06.2018.  Before the cool off period of 10 days the complainant sought for refund of the same and to cancel the membership.  But the opponent without complying with the request has retained the amount legally repayable to the complainant with it and even to this day the same is not paid.  Thus the opponent is enriching at the cost of the complainant.  Therefore the complainant has be compensated properly for this loss.  The only way to compensate is to award interest.  In this context we may refer to a citation reported in 2017(1) CLT page 368 which says that interest is not a penalty.  But it is an accretion.   Therefore in the light of the said principle the complainant is entitle for interest on the sum of Rs.1,50,900/-.  We deem it fit and proper to award interest at the rate of 10% p.a. on the said sum which is payable from 10.06.2018 till the date of actual payment. 

           16. The opponent by not acceding to the legitimate request of the complainant to cancel the membership and to refund the amount has driven the complainant to file this complaint.  The physical and mental harassment resulting in mental agony which the complainant might have undergone can easily be imagined.  This also needs to be compensated.  Under the facts and circumstances of the case we award a sum of Rs.3,000/- as compensation under this head.

          17. The complainant has filed this complaint against the opponent in the year 2018 and has been fighting this litigation to take the same to the logical end.  Necessarily the complainant must have incurred expenses which also needs to be compensated.  We award another sum of Rs.2,000/- being the cost of litigation to the complainant payable by the opponent.  Accordingly we answer point No.2 partly in favour of the complainant and proceed to pass the following order,

-:ORDER:-

The complaint filed by the complainant Sri. N. Parthasarathy u/s 12 of the Consumer Protection Act is allowed in part as under;

The complainant is entitle to recover his membership fee of Rs.1,50,900/- (One lakh fifty thousand nine hundred) with interest at the rate of 10% p.a. from 10.06.2018 from the opponent.

The complainant is entitle to recover a sum of Rs.3,000/-(Three thousand) onlybeing the compensation amount payable an account of mental agony caused to him and also Rs.2,000/- (Two thousand) only towards litigation expenses from the opponent.

The opponent is directed to comply with the above within 30 days from the date of this order.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the open Forum on 8^th  day of August 2019)                                            

  (L.Mamatha)                                 (D.R. Venkatasudarshan)      

     Member                                                    President.   

Witness examined for the complainant side:

Complainant-Sri. Parthasarathy .N, has examined in chief as PW1.

Witness examined on behalf of the Opposite Parties:

1. Sri. Mohammed Akmal Pasha, working as Manager with the  opposite party  has filed his affidavit.

List of documents filed by the complainant:

1. Back dated sales agreement for downgraded club membership.

2. Copy of the credit card payment receipt for amount Rs.1,54,700/-.

3. Copy of the Cancellation and refund request sent by complainant on 13^th June through email.

4. Copy of the written cancellation request submitted on 13^th June 2018 at opposite party’s JP nagar office.

5. Acknowledge mails received from opposite party.

6. Copy of the reminders send on 22^nd June, 23^rd June and 2^nd July 2018.

7. Copy of the complaint registered with National consumer care helpline on 22^nd June 2018.

List of documents filed by the opponent:

1. Copy of the work sheet.
2. Copy of the permanent membership cards.
3. Copy of the AMC details Rs.9,415/-.