COMPLAINT FILED ON: 23.12.2010
DISPOSED ON:28.11.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM AT BANGALORE (URBAN)
28th DAY OF NOVEMBER 2011
PRESENT:- SRI.B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.A.MUNIYAPPA MEMBER
COMPLAINT NO. 2979/2010
COMPLAINANTS Mr. Hasmukh G Lodhia,
Aged about 64 years,
S/o. Late Gokaldas Lodhia,
Residing at No.688,
11th B Main Road,
2nd Block, Rajajinagar,
Bangalore- 560 010.
(Adv: S.M.Anees Ahmed)
V/s.
OPPOSITE PARTY COUNTRY VACATIONS,
International Holiday Club
Marketed by:
Country Vacations,
( A Division of Country
Club (I) Ltd.,
No.48, S & S Chambers,
Next to Kamath Hotel
Bowring Hospital road,
Bangalore-01.
( Adv: G.A.GOPI)
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a complaint filed by the complainant u/s. 12 of the Consumer Protection Act of 1986, seeking direction to the Opposite Party (herein after called as O.P) to cancel the membership of the complainant and to refund Rs.1,05,000/- paid towards membership fees and to refund Rs.10,000/- paid by the complainant towards accommodation and transportation charges, compensation of Rs.1 lakh towards mental agony and suffering on the allegations of deficiency in service on the part of the O.P.
2. The brief averments made in the complaint are as follows.
On 20/8/2009 the executive of OP called upon the complainant and informed that complainant and his wife have won the gift voucher amongst the distinguished guests being the lucky couples had been asked to come and collect the gift in the office of OP. Accordingly complainant and his wife went to the office of OP and one of the representative by name Halima induced the complainant to become the member of OP Company by paying an amount of Rs.1,05,000/-. The complainant and his wife along with 2 children will become members of the Country club for a period of 99 years and during that period complainant and his family can enjoy the benefits free of charges. Further it was assured that for a period of 5 years complainant can fly to foreign countries including Arab countries and also Dubai and any where in India of which the accommodation of ‘A’ grade lodging will be provided free of charge. Complainant has to pay only transportation and shopping charges. Complainant can go to any of the clubs at Bangalore and any of 42 clubs in India which will be free of charges. Complainants can fly to Arab countries and accommodation in International Hotels will be provided free of charge. But stipulated the condition that complainant should decide then and there only on the same day because if decided the next day fees will be much more. Thus complainant is forced to accept the plan. The Manager of OP informed the complainant that another opportunity of getting a laptop and many other facilities and told the complainant to complete the formalities by paying Rs.1,05,000/- immediately and to sign the document and other forms. Complainant told OP that he would pay cash of Rs.20,000/- same day and balance of Rs.85,000/- by way of cheque. But OP insisted for self cheque so that the amount could be withdrawn on the next day. OP took the signature of the complainant and his wife on the blank forms and informed the complainant to come after 10 days for collection of laptop. OP collected Rs.20,000/- by way of cash and Rs.85,000/- on 25.08.2009 by way of self cheque. After 10 days complainant called OP regarding laptop. OP asked the complainant to wait for some time.
3. Complainant intended to go to Mumbai and then to Ahmedabad. Hence informed the same to Manager of OP before 45 days. OP assured that they will make arrangement for the accommodations at Mumbai. OP gave the name of the Hotel for staying at Mumbai also told that vehicle would pick up their family at Dadar to the Hotel at Andheri. Assuring the said promise made by OP complainant along with his wife got landed at Mumbai went through the vehicle of OP Company and went to the Hotel named by OP. The Manager of the said Hotel informed the complainant that there was a booking of rooms but told the complainant to deposit the amount towards booking as the said Manager of Hotel had no trust over OP Company, since OP had committed default on earlier occasions and told the complainant to pay Rs.500/- towards transportation charges. Wherein complainant could have taken other mode of transportation by paying only Rs.100/-. Shocked by the incident, complainant called OP office at Bangalore and narrated the facts. It was assured by OP that there was some misunderstanding and OP informed the complainant to pay the entire bills including lodging and OP will return the same. Left with no other alternative Complainant paid the amount from his own pocket and collected the bill. Complainant went to next trip at Ahmedabad and contacted the number given on vacation confirmation voucher, so as to come to Hotel for accommodation but to the surprise of the complainant it was informed that there was no bookings from OP Company and further informed the complainant that not to come to their residency. Immediately Complainant contacted OP. OP replied that there is misunderstanding and admitted fault and apologized for their acts and told the complainant to get the bills and assured of reimbursing the said bill. Left with no other alternative Complainant once again paid the bills from his pocket and returned to Bangalore and submitted the bills for refund through letter dated:18-11-2009. OP informed that same will be sent to Hyderabad for getting an order and asked the complainant to contact after 7 days whenever complainant called OP regarding reimbursement, OP tried to drag on the request. At last told the complainant that Head office got approved only a part payment and asked the complainants’ account number so as to deposit the amount. Even after giving the account number. OP failed to refund the amount. OP informed that it cannot make reimbursement but same will be adjusted towards the maintenance charges during the next year. Thus OP gave false assurances never bothered to keep up the promise in providing the accommodation free of charges. Hence complainant lost confidence in OP, got issued legal notice on 30-9-2010 calling upon OP to cancel the membership and refund the amount along with compensation within 15 days. OP gave untenable reply and failed to refund the amount. Hence complainant felt deficiency in service against O.P. Under the circumstances he is advised to file this complaint against O.P. for necessary reliefs.
4. On appearance OP filed the version admitting the receipt of sum of Rs.1,05,000/- towards membership fee and issuance of membership card. OP admits offer of vacations for a period of 5 years. Holiday one week per year for family member and club membership for life time. In addition OP has offered a laptop to the complainant and same was issued to the complainant on 15-09-2009. Inspite of receipt of laptop complainant has suppressed the said fact in his complaint. The photo copy of the laptop duly acknowledged by the complainant is produced. Complainant without giving any intimation of 45 days to accommodate the facility had been to Mumbai abruptly, due to early booking OP could not make arrangement to the complainant. As per agreement clause 9 & 10 there is no provision for cancellation of club membership. Complainant is at liberty to sell or transfer or gift the membership to any third party. Complainant has not paid annual maintenance charges of Rs.7991/-. To avoid the same has filed this false complaint. Complaint is barred by law of limitation, same is not filed within the period of 2 years. Complainant is not entitled for refund of amount and compensation. There is no deficiency in service on the part of O.P. Among other grounds OP prayed for dismissal of the complaint.
5. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced purchase agreement dated 21-08-2009, receipts for Rs.1,05,000/-, receipt for Rs.4000/- massage coupon, receipt for Rs.4000/- towards transportation charges to pearl residency Bombay, correspondences, emails copy of the legal notice and reply notice. On behalf of OP Mohammed Akmal Pasha Manager filed his affidavit in support of his defence version and produced photo copy of the acknowledgment of laptop issued to the complainant, maintenance charges bill. Heard arguments from both complainant and O.P. side.
6. In view of the above said facts, the points now that arises for our consideration in this complaint are as under:
Point No.1:- Whether the complainant
proved the deficiency in service
on the part of the OP ?
Point No.2:- If so, whether the complainant is
entitled for the relief now claimed?
Point No.3:- To what Order?
7. We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
8. At the out set it is not in dispute that complainant attracted by the offer made by OP became the member of Op club, under the name and style country vacations International Holiday Club, OP accepted the membership of the complainant and collected the amount towards membership fees. OP promised so many benefits such as foreign tour to Arab countries, a grade accommodation in international hotel free of charge, can avail any of the club facility in Bangalore and any of the 42 clubs in India free of charge, free laptop. Complainant paid Rs.20,000/- in cash Rs.85,000/- by way of self cheque. OP issued the receipt acknowledging receipt of amount. Op entered into purchase agreement dt.21.08.2009 contract No.DTB(88)0387. Agreement is produced. The complainant along with his family went to Mumbai and Ahmedabad but paid the room booking charges and transportation charges from his pocket. OP failed to provide free accommodation as promised. Hence complainant sought for refund. OP failed to refund the amount. Hence complainant approached this Forum for appropriate relief.
7. As against the case of the complainant the defence of the OP is that OP has already provided laptop to the complainant on 15.09.2009 itself. Complainant suppressing the said fact has filed this complaint. In support of its defence OP has produced the copy of the Photo delivering the laptop to the complainant on 15.09.2009 itself. The complainant has failed to mention this fact in his complaint.
10.It is contended by the complainant that he has intimated OP before he started his tour to Mumbai and Ahmedabad. The Manager of OP gave the name of he hotel at Mumbai. When complainant reached Dadar along with his family to reach the hotel at Andheri, though OP has booked the room’s complainant was forced to pay the booking charges and transportation charges by himself. We have perused expenses bill produced by the complainant for Rs.400/- towards Massage coupan, Rs.4,000/- towards transportation Rs.4515 towards accommodation expenses. Complainant sought for reimbursement of expenses incurred vide his letter dt.04.02.2010 and emails. OP has failed to refund the expenses incurred by the complainant towards accommodation and transportation etc by its email dt.09.05.2010.
11.Even at Ahmedabad. OP has failed to book the accommodation for the complainant when complainant contacted office of OP, they apologized for the same and informed the complainant that there is some misunderstanding and assured the complainant of reimbursing the said bills. Hence complainant paid the bills from his pocket and sought for refund. OP failed to refund the amount, in spite of repeated request letter and emails. Delivering laptop is one of the assurances made by OP the same is fulfilled. OP has failed to provide free accommodation at Mumbai and failed to make advance booking of the accommodation at Ahmedabad thereby made the complainant to incur heavy expenses. Op has failed to reimburse the expenses incurred by the complainant in spite of repeated requests. Hence complainant sought for refund of membership fee. In its reply notice OP has informed that complainant failed to make advance arrangement. This fact is denied by the complainant. Complainant has sworn to the fact that 45 days prior to journey he has informed the OP. Though OP has assured to provide the facilities but failed to provide the same. Hence the defence of the OP that membership fees paid is nonrefundable and complaint is banned by limitation has no merits. OP has failed to provide the facilities as assured at the time of complainant becoming member of the OP club. This act of non fulfilment of promises/assurances made amounts to deficiency in service on the part of OP. We are satisfied that complainant is able to prove the deficiency of service on the part of OP. Under the circumstances, we are of the considered view that complainant is entitled for refund of the amount paid after giving deductions of Rs.20,000/- towards the value of laptop with interest at 12% p.a. as compensation and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following
O R D E R
This complaint is allowed in part. OP is directed to refund Rs.85,000/- paid towards membership fees together with interest at 12% p.a. from 25.08.2009 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.
This order is to be complied within four weeks from the date communication of this order.
Send the copy of this order both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 28th day of November 2011.)
MEMBER MEMBER PRESIDENT
Cs.
