Tamil Nadu

North Chennai

CC/273/2018

N.S.Ziaudeen - Complainant(s)

Versus

Country Vacations - Opp.Party(s)

T.Ramkumar

17 Jun 2022

ORDER

Complaint presented on  :12.11.2010    Date of disposal               :17.06.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                   PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                         TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                                         THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,   :MEMBER-II

 

 C.C. No.273/2018

 

DATED THIS FRIDAY THE 17^th   DAY OF JUNE 2022

 

N.S.Ziaudeen,

Son of Mr.G.Abdul Sathar,

No.58/3, Alwarpet street,

Alwarpet,

Chennai-600 018.                                                                    .. Complainant.                                                                          ..Vs..

 

“Country Vacations”

(A Division of Country Club(I) Ltd.,

Rep. by its Manager,

No.11, Sri Vallabha Tower,

College Road,

Chennai-600 006.

                                                                       ..  Opposite party.

 

 Counsel for the complainant                      : M/s. T.Ramkumar,C.D.Sugumar

Counsel for   opposite parties                    : M/s.V.T. Narendiran and others.

 

 

 

 

 

 

 

ORDER

THIRU. G. VINOBHA, M.A., B.L., PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to directing the Opposite party to refund a sum of Rs. 39,000.00 paid by the Complainant to the opposite party with interest @ 24% per annum, to pay a sum of Rs. 20,000.00 towards mental agony and sufferings undergone by the Complainant due deficiency in service by the Opposite party, Rs.2,000.00 towards expenses incurred by the complainant for oral and written representations to the opposite party and Rs.10,000.00 towards cost of the complaint.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.24/2011.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.273/2018.

1.THE COMPLAINT IN BRIEF:

          The complainant submitted that his wife has received a phone call from the opposite party office informing that they have won a prize and requested them to come to opposite party’s office at Spencer Plaza in Mount Road, Chennai to receive the prize.  During the visit the Complainant was requested to join as a member in  opposite party club and avail lot of facilities such as free accommodation for his family in the resorts of their club, life time membership of the country club etc.  The marketing officials of the Opposite party further informed that the complainant would also have the access to their clubs in Chennai at Raja Annamalaipuram, Guindy and T. Nagar which are having the facilities such as swimming pool, children play area, yoga centre, indoor games etc.  Believing the opposite party’s officials statement, the Complainant have decided to subscribe and the membership subscription fee would be Rs.79,000.00 for five years and the same could be paid in two installments.  Accordingly, the Complainant paid a sum of Rs.25,000.00 on 10.06.2010 and Rs.14,000.00 on 21.06.2010.  The opposite party failed to issued neither receipt nor provisional card and the opposite party assured that within 3 days the membership card would be issued but even after one month was passed membership card was not issued.  Finally after running pillar to post and also after the request by the Complainant to refund the amount due to the service deficiency by the opposite party, a provisional membership card was issued on 23.07.2010.  The Complainant had contacted the officials of opposite party to give the details of clubs situated in Chennai and he was informed that he can avail the services of the clubs at Raja Annamalaipuram, Guindy and T. Nagar and also had given the addresses of the clubs.  Based on the above, on 30.07.2010 the Complainant visited the club at Raja Annamalaipuram but to his shock no such club was there and realized that the Opposite party has given misinformation.  Later, the Complainant had visited the other clubs and found no facilities.  The Complainant has come to a conclusion that he has been made to subscribe membership of the opposite party by given false and fabricated assurances. 

2.WRITTEN VERSION OF OPPOSITE PARTY IN BRIEF:

The opposite party denies each and every allegation and stated that the complaint does not constitute a consumer dispute under the consumer protection act and is an abuse of process of law and the complaint has been filed with an oblique motive.  The opposite party contended that the complaint is misconceived on facts and has no merits and deserves to be dismissed as the same is not covered under consumer forum since the entire case is based on the agreements and on contractual agreements and it cannot be tried under Consumer Protection Act and can be filed in Civil Court for proper remedy of specific performance and the complainant as the alleged agreement holder is not a consumer.  The opposite party further contended that the jurisdiction is conferred on courts and forums in Hyderabad hence the complaint is not maintainable in forum at Chennai. The opposite party submits that the Complainant is a defaulter since he paid only a part sum of Rs. 39,000.00 instead of full payment of Rs.79,000.00 and the same was suppressed by Complainant but pleaded as a victim which is legally misconceived and for this reason along the complaint has to be dismissed.  The opposite party stated that they are vacationing and clubbing company and provides for membership/time share for its various resorts in India and abroad and for members who obtain membership of Country Vacations the club membership is complementary (free) and therefore the complainant is not a consumer for the transaction wherein the alleged membership for club is free.  The opposite party stated that they have various club facilities in Chennai and Mahabalipuram which are entitled to be enjoyed by their club members for free, therefore there has been no misrepresentation by them. The opposite party further stated that the complainant misconstrued the whole contract with the intention to seek return the money by stating wrong facts. The opposite party submitted that the membership cards are processed centrally at Head office, Hyderabad after obtaining the documents to prevent misuse and the opposite party cannot be blamed for delay since the complainant only caused delay in submitting documents.  The opposite party submitted that they had given a letter to the complainant as a temporary arrangement to use the club facilities.  The opposite party submitted that complainant made payment for Country vacations and for availing the resort facilities and the club membership is only incidental.  The opposite party submitted that only on full payment of money would the member be entitled to stay resorts and the club at Raja Annamalaipuram was shifted to the present address at Guindy and the accusation by Complainant is false.  The opposite part further stated that complainant’s claim to refund the amount which cannot be done as per the agreement, since it is non cancellable and non refundable agreement and claim for refund is beyond scope and purview of the agreement. The opposite party submittd that they are a well known company owning in operating various resort in the country and having thousands of satisfied customers and the complainant cannot be heard to make unreasonable demands contrary to agreement and to seek the case for deficiency of service where there is no cause of action.  The opposite party states that non-reply to notices would not in any way admit or make the complaint better when the opposite party performed their obligation properly and when the complainant is the defaulter.  The opposite party stated that there is no consumer deficiency or consumer dispute and so there is no cause of action for this complaint.

3. POINTS FOR CONSIDERATION:

1. Whether the opposite party committed any deficiency in service and unfair trade practice as alleged  in the complaint?

2. Whether the complainant is entitled to the reliefs prayed in the complaint.

If, so to what extent?

Complainant had filed proof affidavit and  Ex.A1 to A6 were marked on the complainant side.  The Opposite party filed proof affidavit and  no documents were marked on the opposite party side.

4. Point No.1:-

The complainant’s wife has received a phone call from the opposite party office informing that they have won a prize and requested them to come to opposite party’s office at Spencer Plaza in Mount Road, Chennai to receive the prize.  During the visit the Complainant was requested to join as a member in  opposite party club and avail lot of facilities such as free accommodation for his family in the resorts of their club, life time membership of the country club etc.  The marketing officials of the Opposite party further informed that the complainant would also have the access to their clubs in Chennai at Raja Annamalaipuram, Guindy and T.Nagar which are having the facilities such as swimming pool, children play area, yoga centre, indoor games etc.  Believing the opposite party’s officials statement, the Complainant have decided to subscribe and the membership subscription fee would be Rs.79,000.00 for five years and the same could be paid in two instalments.  Accordingly, the Complainant paid a sum of Rs.25,000.00 on 10.06.2010 and Rs.14,000.00 on 21.06.2010.  Finally after running pillar to post and also after the request by the Complainant to refund the amount due to the service deficiency by the opposite party, a provisional membership card was issued on 23.07.2010.  The Complainant had contacted the officials of opposite party to give the details of clubs situated in Chennai and he was informed that he can avail the services of the clubs at Raja Annamalaipuram, Guindy and T. Nagar and also had given the addresses of the clubs.  Based on the above, on 31.07.2010 the Complainant visited the club at Raja Annamalaipuram but to his shock no such club was there and realized that the Opposite party has given misinformation.  Later, the Complainant had visited the other clubs and found no facilities. Hence, the Complainant has come to a conclusion that he has been made to subscribe membership of the opposite party by given false and fabricated assurances.

5. The opposite party in their written version, proof affidavit and written arguments claimed that this complaint is not a consumer since, the complaint is based on contractual agreements and it cannot be tried summarily under the Consumer Protection Act and it can be filed only in civil court for proper remedy of specific performance as the complainant is only agreement holder and not a consumer and futher contended as per the terms and conditions the court and forum in Hydrabad alone has jurisdiction and also stated that the complainant is a defaulter by not paying the full amount and further contended that the payment was made only for country vacations and for availing the resorts facilities and the club membership is only incidental.  The opposite party admitted that the complainant has paid a sum of Rs.25,000.00 on 10.06.2010 and Rs.14,000.00 on 21.06.2010 and the receipt No. 1428 dated 14.06.2010 for Rs.25,000.00 and receipt No.1477 dated 21.06.2010 for Rs.14,000.00 were issued by the opposite party and the same were marked as Ex. A1 and A2.  The opposite party also issued a letter dated 23.07.2010 to the complainant to continue using the amenities of country club since membership cards are under process in the Central Office at the Hydrabad as a temporary arrangement to enjoy the facilities pending processing of club card which is marked as Ex.A4.  The complainant visited the clubs  after making partial payment and based on this the opposite party had issued letter for using the amenities of country club. Though it is contended by the complainant that when he visited the opposite party club at Rajannamalai puram on 31.07.2010 along with his family members he was shocked to found no such club or amenity and also found there are no facilities such as swimming pool etc., as assured by the opposite party there is no proof for such contention to show that the complainant visited the club on that day. Further the complainant failed to produce the Brochure or manual in respect of issue of membership card. As per the contention of the opposite party during that time the club premises was shifted from Rajaannamalai puram to Guindy and hence it is for the complainant to prove that he has visited the club on that date with his family. But the complainant failed to prove the same.  Further though the opposite party alleged that the entire case is based on contractual agreement no such agreement was filed by the both parties. Though the opposite party contended that the claim to refund the amount cannot be done as per the agreement which does not provide cancellation or refund , the opposite party has failed to prove such contention by filing either the agreement or terms and conditions.  In the absence of the production of the contractual agreement and the terms and conditions by the opposite party, it is found that the complainant herein having paid a part of the amount towards subscription for issue to join as member of the Club is entitled to seek the remedy by approaching this commission.  But at the same time it is found from the documents filed by the complainant that out of total membership amount of Rs. 79,000/- the complainant has paid only two installments totaling to Rs.39,000/- and thereby the complainant has become a defaulter in payment of Member ship Fee.  Without paying the entire membership fee it is not open to the complaint to allege that he has been denied to enjoy the facilities under the card membership.  A person who approaches this commission should come with clean hands and he should not be a defaulter. Without paying the full membership fee the complainant is not entitled to allege deficiency in service on the opposite party. Though it is stated in para.5 of the complaint that a provisional membership card was issued to the complainant the same was not filed by complainant.  It is found from the Ex.A4 that the opposite party is having several branch office all over the India and abroad. The providing of club facility by the opposite party with other amenities which are entitled to be enjoyed by the club members will come under the definition of “service” as per the provisions of Sec.2(42) of Consumer Protection Act 2019 Therefore there is no force in the contention of the opposite party that the complainant has to approached civil court to enforce the contractual agreement.  But at the same time the complainant who approach this commission being a defaulter and approached this commission by suppressing the material fact and also by not fully paying the Card Membership amount is not entitled to allege deficiency in service on the part of the opposite party without fulfilling his part. The complainant failed to prove that there is deficiency in service or unfair trade practice committed by the opposite party.

6. Point No.2.

                Based on the findings given in the Point No.1 it is found that the complainant is not entitled for any of the reliefs claimed in the complaint. Point No.2 is answered accordingly.

                In the result, the complaint is dismissed.  No costs.

          Dictated  by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 17^th day of  June 2022.

 

MEMBER-I                 MEMBER – II                        PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	14.06.2010	Receipt No.1428 issued on behalf of the opposite party
Ex.A2	21.06.2010	Receipt No.1477 issued on behalf of the opposite party
Ex.A3	23.07.2010	Letter given by the complainant seeking repayment of the amount paid to him
Ex.A4	23.07.2010	Letter given on behalf of the opposite party permitting the complainant to use the amenities of the opposite party club.
Ex.A5	09.08.2010	Legal notice issued on behalf of the complainant.
Ex.A6	15.09.2010	Copy of the complaint given by the complaint before the Inspector of Police, Teynampet Police Station Anna salai.

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY:  NIL

 

MEMBER-I                 MEMBER – II                        PRESIDENT

 

 

 

 

CC.NO.273/2018 DATED:17.06.2022 Order Pronounced,                In the result, the complaint is dismissed.  No costs.   MEMBER-I  MEMBER-II    PRESIDENT