Order-7.
Date-17/04/2018.
AUTHOR. RABIDEB MUKHOPADHYAY, MEMBER
The complainant stated in the complaint as below.
That the Opposite Party No. 1 is the branch office of Opposite Party no. 2, which is engaged in hospitality business operating clubs, hotels, fitness centers and selling vacation.
That on 19.07.2017 one person approached the petitioner no. 2 while she was standing beside Lake Mall at Rashbehari Avenue, Kolkata and asked her name and mobile no. and after noting down the same handed over a coupon to her on which a phone no. was written and requested her to receive the call, if any,was made from the said phone no.
That after few days a call had been made from the said phone no. and petitioner no. 2 answered the call as requested. A male voice introduced himself as the representative of opposite party no.1 i.e. Country Club and congratulated the petitioner no. 2 for winning a gift against the said coupon and invited her and her husband i.e. petitioner no. 1 to collect the gift from their Kasba office.
That on 24.07.2017 the petitioners went to the office of the opposite party no. 1 at kasba. The petitioners were greeted along with some other couples who were waiting out there. The petitioners were welcomed for attending the 25th anniversary of country club and the opposite party no. 1 arranged a special presentation of selling its holiday vacation membership to them. The petitioners realized that they were not only invited to collect the gift but the main intention of the opposite party no. 1 was to sell its holiday vacation membership to them but the skillful presentation of O.P. 1 about the benefit of taking the holiday vacation membership took the petitioners to a fantasy world and they were made to believe that it was worth purchasing a holiday vacation membership from the opposite parties which assured Hassel free staying in hotels for short vacation on payment of Rs.95, 000/-.
That on being convinced about the benefits of hazard free vacation the petitioners thought of purchasing the vacation membership from the opposite party no. 1. The opposite party told the petitioners to make an agreement to purchase the membership and to pay a sum of Rs.95, 000/- as Membership fee. Accordingly a purchase agreement was made between the opposite parties and the petitioners on 24.07.2017. A Xerox copy of the purchase agreement is annexed herewith and marked as Annexure ‘B’.
That the petitioners made payment of Rs.95,000/- to the opposite parties. A membership no. being CVKKIV5LW2399H was provided by the opposite party no. 1 to the petitioners. A Xerox copy of the receipt of Rs.95, 000/- is annexed herewith and marked as Annexure ‘C’.
That after 2/3 days the petitioners realized that they have spent huge money for the purchase of holiday vacation membership and it would become a huge financial burden upon them at this stage of life. Petitioners then thought of discontinuing the membership by cancelling the agreement as per Para 25 of the said agreement wherein a member can cancel the agreement within 10 days of signing the agreement which is called the cool off period and get back his entire membership fees after paying Rs.3800/- as administrative charges. The Petitioner no. 1 also sent a letter to OP-1 requesting it to cancel their Membership by refunding Rs 95000/-.
That the opposite party no. 1 sent a reply to the said letter of the petitioner no. 1 stating that the opposite parties were unable to comply with the request of the petitioners of refund Rs.95, 000/- by discontinuing their membership.
That after that the petitioners visited the office of the opposite party no. 1 and requested its concerned officials to refund Rs.95, 000/- by discontinuing the Membership of the petitioners as they wanted to discontinue the same within the cooling off period of 10 days as per Para 25 of the purchase agreement made between the opposite parties and the petitioners. Moreover the petitioners have not availed a single benefit of their membership but the request of the petitioners fell on deaf ears and the opposite parties were not ready to refund the Membership fees of Rs.95, 000/- to the petitioners at any cost.
That there was gross negligence and deficiency in service on the part of the opposite parties.
That the cause of action arose on 21.08.2017 on which date the officials of the opposite parties informed the petitioners about their inability to refund the money of the petitioners and the same is continuing till date.
That in view of the above the petitioners prayedfor refund of Rs.95, 000/- to the petitioners otherwise the petitioners would suffer irreparable loss and injury.
That the petitioners are further entitled to claim compensation to the tune of Rs.50, 000/- for the mental pain and agony suffered by them and litigation cost of Rs.10, 000/-.
The opposite parties be directed to immediately refund Rs.95, 000/-, compensation to the tune of Rs.50, 000/-, litigation cost to the tune of Rs.10, 000/- interest at the rate of 14 percent per annum on the claimed amount.
No Written Version has been filed by the OPs.
POINTS FOR DISCUSSION
- Whether the complainant is a consumer under the OPs;
- Whether the OPs are deficient in rendering promised service to the complainant;
3) Whether the complainant deserves Relief.
DECISION WITH REASONS
1) At the outset, it be mentioned that the OPs did not dare to file Written Version, attend proceedings and remained aloof from the whole episode of complaint in spite of receiving the notice.
2) It also needs to be mentioned that failure to utilize the opportunity of filing reply by a party to any allegation, leads to admission of the concerned points of allegations of the aggrieved party. In this principle, the OPs admitted the grievance of the complainant in not controverting the allegations leveled by the complainant.
3) It need not be mentioned that the employees/agents of OPs approached the complainant no. 2 when she was standing beside a lake mall and gave a card for communication. This is the strategy of the OPs to allure prospective contributors/Members to bring to the trap. Then phone call comes with the intimation for the gift.
4) Question arises why was the gift proposed? How were the names of the complainants chosen for the gift? What did the Complainants do in securing the gift? No reply comes because the proposal came to allure the complainants to invest a large amount in so called Vacation Membership. The appointed employees of the OPs are so crafty having mesmerizing skill that the prospective investors lose their control to determine whether the proposed scheme is beneficial to their interest or not. But when they read the terms and conditions of the Agreement, they face the reality and want to come out of the Agreement.
The exact situation is the instant case.
5) It is very natural that the complainants read all the terms and conditions of the Agreement and smelt something adverse. As per terms and condition clause no. 25 at page 2, there shall be a cool off period of 10 days from the date of signing of the membership Agreement wherein the Member can discontinue the membership by paying a nominal administration charge of Rs 3800/- and the remaining would be refunded to the Member.
6) The complainants sent email intimation on 26/7/2017 to the customercare and again by letter on 29/7/2017 duly received,stating discontinuation of the membership due to a major family financial problem and requested the OPs to refund the amount. This mail intimation was very much within the stipulated period of 10 days. This intimation was also in accordance with clause 25 of the T&C of the Agreement dated 24/7/2017.
7) Instead of honouring the clause 25 of T&C of the Agreement, the Customer Care Team of the OPs sent reply on 21/8/2017 with the contents not relevant to the Agreement as well as adverse to the interest of the complainants.
This step of OPs is the indication of great deficiency of OPs in rendering promised service to the complainant in contravention of T&C clause 25 of the Agreement. So, the OPs are deficient.
8) We observe that as soon as the complainants paid Rs 95000/- to the OPs in anticipation of having some services, they are consumers in terms of section 2(1)(d)(ii) of the Consumer Protection Act, 1986. When the OPs failed to comply with their obligations in terms of clause 25 of the T&C of the Agreement, they are deficient in rendering services in terms of section 2(1)(g) read with section 2(1)(o) of the Act, keeping the complainants awaiting with harassment and anxiety. So, the complainants deserve relief to some extent.
9) The network of the OPs through which they operate and allure potential investors like the complainants, as discussed at para-4 above, leads to unfair trade practice of OPs as stipulated under section 2(1)(r) of the Act.
In the circumstances of above discussions, we are restrained to pass
ORDER
That the complaint be and the same is allowed ex parte against the Opposite Parties -1&2 in terms of section 13(2)(b)(ii) of the Consumer Protection Act, 1986;
That the Opposite Parties are directed to jointly and severally refund Rs 91200/-(Rs 95000/- minus Rs 3800/-, administration charges as per clause 25 of the T&C of the Agreement dated 24/7/2017) with an interest of 8 percent from 26/7/2017(date of mail intimation) till date of actual payment, within 30 days from the date of this order;
That the Opposite Parties arefurther directed to jointly and severally pay Rs 20,000 under section 14(1)(d) of the Act as compensation for physical harassment and mental agony and Rs 5000/- as litigation cost to the complainant, within 30 days from the date of this order;
That the Opposite Parties are also directed to jointly and severally pay Rs 30000/- under section 14(1)(hb) for adopting unfair trade practice, 40 percent (Rs 12000/-) of which shall be paid to the complainant and the rest 60 percent (Rs 18000/-)shall be deposited with this Forum, within 30 days from the date of this order;
That on non-compliance of any of above orders by the OPs within stipulated time, the complainant shall have the liberty to put the orders into execution in terms of section 27 of the Act ibid.
Let copies of the order be handed over to the Parties when applied for.
