By Jayasree kallat, Member
The petition was filed on 07.04.2010. Complainant has filed this petition under section 12 of the Consumer Protection Act. Attracted by the offer of various schemes given by the opposite party complainant had joined and taken the life membership of Holiday Club with country vacation international Holiday Club. Complainant had paid Rs.75000/- while taking the membership of the club on 15.11.2008. Opposite party had agreed to issue the membership card within 30 days as per clause 4 of the agreement. The opposite party had not issued the membership card within the stipulated time. There was a delay on the part of the opposite party for issuing the card which is defective service and unfair trade practice. The complainant had planned for a trip to Bombay along with his family during the school vacation. Due to the non receipt of the card the complainant could not make use of his membership for the holidays at Bombay. As the complainant could not avail the service of the opposite party even though he had paid Rs.75000/- and taken the membership in the holiday club, complainant is alleging deficiency and unfair trade practice on the part of the opposite party. The complainant had suffered mentally and financially. Hence this complaint is filed for compensation for monetary loss, mental agony and loss of reputation. Complainant is also demanding the opposite party to return back the deposited amount of Rs.75000/- along with 10% interest and cost of the proceedings.
Opposite parties 1 & 2 have filed version denying the allegations in the complaint except those that are expressly admitted. Opposite party denies that they have approached the complainant and induced him to buy the membership of the opposite party’s club. There are various schemes offered in providing membership and those are applicable based on membership terms. The complainant had entered into an agreement with the opposite party. It forms part of the contract .Opposite party admits that the complainant had joined the opposite party membership by paying Rs.75000/-. Whose term extends for a period of 5 years. The membership was a joint one with one Nishitha.P.P. The issuance of membership card is not subjected to time limit. The processing takes more time and hence it was not made criteria for the members in enjoying the facilities provided by the opposite parties. Opposite party denies that complainant had spent about Rs.20000/- towards the room facility at Bombay. Opposite party denies complainant’s contention that he could not make use of the facility of the opposite party while he traveled to Bombay. The opposite party’s holiday facility never included Bombay. The complainant had chosen Bombay as destination as his own choice. The contracts entered by the complainant and opposite parties are irrevocable. Opposite party had done every thing in complying the terms of the agreement. There is no deficiency on the part of the opposite parties. The contract entered by complainant and opposite party are irrevocable and it terms can not be agitated before the consumer forum. The complainant can not cancel the binding agreement and ask for refund of his deposit. The complainant is not entitled for any relief as sought in the petition. Hence opposite parties prays to dismiss the petition.
Points for consideration
Point No.1:Whether the complainant is a consumer ? Whether the petition is
maintainable.
Point No.2. Whether the complainant is entitled for any relief if so what is the
relief.
The complainant was examined as PW1 and Ext.A1 to A6 were marked on complainant’s side. No oral or documentary evidence on Opposite party’s side.
Point No.1.
Opposite parties had taken a contention that this complainant can not agitate before the consumer forum as he has entered into a contract between the opposite parties, as per the contract Act he can not cancel the binding agreement. The contracts entered by the complainant and opposite parties are irrevocable according to the opposite parties. More over opposite parties have raised another contention that the complainant alone is not the member, contract is signed by Nishitha the second member also. So this petition to cancel the membership is not maintainable. The issue of whether the complainant can agitate before this forum was discussed in detail and we have come to the conclusion that as per section 3 of the consumer protection act, the provisions of this act shall be in addition to and not in the derogation of the provisions of any other law for the time being in force. The complainant has filed this petition as he has not received the membership card on time. According to the complainant non issuance of the cards is deficiency in service. As the complainant did not receive the cards on time he could not avail the facilities offered by the club. Another contention raised by opposite party is that the agreement is signed by complainant and one Nishitha. Hence the complainant alone can not withdraw from the agreement. We have found that the complainant has paid Rs.75000/- and availed the service of opposite party. Hence the complainant will come under the purview of consumer Protection Act. The complainant has explained that the second membership is signed by his wife Nishitha. Under the consumer protection Act a person can file a complaint on behalf of a beneficiary in this case wife of the complainant. Hence we are of the opinion that this petitioner is a consumer and the petition is maintainable before this forum.
Point No.2.
The case of the complainant is that attracted by the offers given by the opposite party he had joined the country vacation international holiday club and taken the membership after paying Rs.75000/-.Ext.A1 shows that complainant had taken the membership of opposite party by paying Rs.75000/-.As per the membership the purchaser is entitled for a right of occupation at the country vacation international holiday club. Ext.A1&A2 goes to show that complainant had paid Rs.75000/- to the opposite party. Ext.A3 is a document produced by the complainant which is a communication from the country vacation which says that country club membership card is for life time where you use up to three generations. According to the complainant there was a delay in the issuance of the membership cards, because of the delay in receiving the cards the complainant could not make use of the facilities for his travel to Bombay with his family. In this context opposite party has taken the contention that as per the agreement the choice of destination of the complainant does not cover Bombay. If the complainant had opted for the facilities for opposite party as per the agreement he could have availed the service even without the membership card. But the case of the complainant is that he did not receive the membership card which is deficiency of service. The complainant could not avail the service of the opposite party. Argument of the complainant is that the purpose of the card itself is for his identity when he travels to other destinations of the club. If he does not have that he is not willing to continue with the poor service of the opposite party. Opposite party has put forward the contention that once the complainant has entered into an agreement with opposite party he can not cancel the membership. Opposite party has quoted contract Act section 55. Considering the different aspects in this case it has come out that the complainant was dissatisfied with the service of opposite parties. The complainant had to pay for the trip to Bombay vacation. But the opposite parties have stated that Bombay does not include in complainant’s scheme. Apart from this fact the complainant has categorically stated that the services of the opposite parties are deficient. He was not aware of the non inclusion of the Bombay club in his scheme. Still remains the issue that he did not receive the membership card on time. Altogether complainant was not satisfactory with the service of opposite party. According to the complainant the service was deficient. In such a circumstance the complainant had expressed his wish to cancel his membership and to get refund Rs.75000/- which he has paid to opposite party. Opposite parties’ attitude is that once you enter into agreement you can not cancel the agreement. The forum is of the opinion that even after paying Rs.75000/- the complainant did not get a defect free service from the opposite parties. If it is so we are of the opinion that the complainant is entitled to get back Rs.75000/- . Regarding the trip to Bombay as the Bombay destination is not included in the scheme of the complainant as per Ext.A1 agreement holiday club membership terms and conditions clause 7. The complainant is not entitled to get back the money he had expended towards that trip. The forum is of the opinion that as the complainant has found the service of the opposite party deficient and he could not avail opposite parties service even after paying Rs.75000/- the complainant is entitled to get back the membership deposit amount of Rs.75000/-.
In the result the petition is partly allowed and the opposite parties are directed to return Rs.75000/- paid for the membership to the complainant along with a compensation of Rs.5000/- and a cost of Rs.1000/- within one month of receiving the copy of the order, failing which complainant is entitled for an interest of Rs.10% of Rs.75000/- from the date of the order till realization.
Pronounced in the open court this the 28th day of June 2011.
SD/- PRESIDENT SD/- MEMBER SD/- MEMBER.
APPENDIX
Documents exhibited for the complainants.
A1. Purchase agreement dtd. 13.11.2008.
A2. Country International Holiday club receipt dtd.15.11.2008 for Rs.75000/-
A3. Reply letter dtd.30.11.2008 regarding the receipt for membership
A4. Member ship card( 5 in Nos)
A5. Letter to the complainant by opposite party dtd.12.08.09.
A6.Invoice No.DS.23681 dtd15.04.09 of Akbar online bookingCco.Pvt Ltd.
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
PW1. Ali Baramy( Complainant)
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
