CC No.562.2016

Filed on 06.04.2016

Disposed on.25.10.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 25^th DAY OF OCTOBER 2017

CONSUMER COMPLAINT NO.562/2016

PRESENT:

 Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

         PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                       MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 06.04.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an order directing the Opposite Parties to pay sum of Rs.86,000/- along with interest 18%, to pay additional sum of Rs.2,00,000/- towards mental agony, inconvenience, apprehension, harassment, loss of time and pecuniary loss and other reliefs.

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Opposite Party approached him through a phone call stating that he had won a prize when he had visited a shopping mall and to collect the prize he has to visit the Opposite Party along with his wife, as a couple, and attend a seminar.  The address of the seminar was given by the person from the Opposite Party’s office.  As per the information given by the Opposite Party, the Complainant visited the said address along with his wife on 23.04.2014.  To his surprise, the Opposite Party’s representative started giving information about various facilities, investment schemes, mode of payment and annual maintenance charges and etc offered by the Opposite Party.  The Complainant questioned the Opposite Party about aspects related to mode of payment through credit card, interest if any for the EMI deductions, date of payment of maintenance charges in order to clarify his doubts about the same.  For which the Opposite Party’s representative answered that your Company has tie up with some banks mainly including ICICI, HDFC and the Banks will not deduct interest.  Also maintenance charges will be deducted only after five years from the date of membership.  The Opposite Party’s representative immediately persuaded the Complainant to affix his signature on a copy of the agreement related to purchase and vacations.  The representative influenced him and misguided him.   The Complainant with all good faith and with a bonafide intention signed in the above-mentioned agreement and paid an amount of Rs.86,000/- through his credit card on 23.04.2014 and subsequently he was given his membership number as CVBG2CLUB5LB174035 and the club membership card also and the welcome letter along with acknowledgement for receipt of Rs.86,000/- and complimentary spa coupons.  In the Month of June, 2014 he noticed Bank Account Statement of ICIC Bank that there was a deduction of Rs.900.45 towards interest as EMI and Rs.111.30 as tax.  He was shocked to see the statement as the Sales Representative had told him that there would be no deduction of interest and tax.  The Complainant to clarify about the same, made calls to country vacation and complained about the same to sales executive Ms.Clara and Mr.Hemanth.    After making many calls, he sent emails to the Opposite Party’s official email id on 11^th, 14^th, 18^th and 24^th of June 2014, for which he did not receive any reply.   On the other hand, the Bank deducted an EMI of Rs.858.24/- and tax of Rs.106.08/-.  Again the Complainant sent an email to email id of Ms.Clara asking for immediate clarification on the above mentioned discrepancy.  Ms.Clara replied on 31^st of August, 2014 saying that she has reported about the problem and the concerned department will do the needful at the earliest.  But the concerned department also failed to resolve or even react properly to the problem.  On the other hand, the Bank deducted an EMI of Rs.784.24 and tax of Rs.96.95 on 31^st August 2014.  The Complainant sent an email to email id of Ms.Clara and she failed to reply.  Failing which the Complainant personally tried to visit the Opposite Party’s office and sought for an appointment to visit the Shivajinagar Office.  He got an appointment and visited the Opposite Party’s office.  The Opposite Party’s employees, instead of solving his problem they gave evasive replies.  The Complainant sent many emails seeking for cancellation of his membership and return of Rs.86,000/- along with upto date Bank deductions.  Moreover he started receiving calls for payment of annual maintenance charges of Rs.8000/- which the Sales Representative had promised that it would be deducted after 5 Years from the date of membership.  As a last attempt the Complainant sent a letter through RPAD to the Opposite Party’s Branch Office at Bangalore as well as Head Office at Hyderabad.  The Complainant through his Advocate issued Legal Notice to the Opposite Parties which was received by the Opposite Party No.1.  In their reply, they state that the contentions in the notice are false and they deny all the averments made in the Notice. Whenever the Complainant approached the Opposite Party, they kept on postponing the same on one or the other pretext.  The Opposite Party is neither responding to any of the phone calls made by the Complainant nor replying to the emails.  That the conduct of the Opposite Party has caused severe harm, distress, agony, pecuniary loss and anguish to the Complainant and his family members.    Hence, this complaint. 

3. In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.  In the version pleaded that the complaint is not maintainable either in law or on facts.  The complaint is vague, bald and the devoid of merits.  The complaint has shown interest to become the Member and to avail Holiday Vacation. The Complainant entered into Purchase Agreement dt.23.04.2014 and in terms of agreement the Complainant has paid amount of Rs.86,000/-.  In terms of the Purchase Agreement, the complaint is entitle for Holiday Vacation for 6 night 7 days in year for a period of 5 Years and Club Membership of life time, subject to the terms and conditions mentioned in the Purchase Agreement and rest of the averments are totally denied as false.    The Opposite Party upon receipt of the above said amount has issued the Laminated Club Membership Card to the Complainants.  The Complainant knowing the said facts has made false and frivolous allegation against this Opposite Party.  The Opposite Party never promised or assured to give or nor forced to become the member.  The Complainant questioned the Opposite Party about aspects related to mode of payment of through credit card interest if any for the EMI deductions date of payment of maintenance charges, will be deducted only after five years from the date of membership all are false.  And officials by name Ms.Clara and Mr.Hemanth after making many calls and Bank deducted an EMI of Rs.858.24 and tax of Rs.106.08 at the time of giving the explanation about the Opposite Party functions many facilities, all denied as false and incorrect.  As a matter of fact the Complainant is entitle for holiday vacation on all the seasons and entitle to access the website and they can also book the holiday vacation as and when their requirement.  In spite of that the Complainant for the purpose of filing the above complaint as made false allegation.  The entire allegation made in the complaint is baseless and for which there is no piece of document produced by the Complainant to establish that the Opposite Party engaged in un-trade practice and also rendered deficiency in service.  This Opposite Party not received the alleged E-mail sent by the Complainant and the said communications are created for the purpose of filing the above complaint and nothing else.   It is well settled law that the electronic documents cannot be looked into unless otherwise it is duly authenticated by the competent authority.  The Complainant is not an illiterate person and after enjoying the benefits and services of the Club Membership it trying to get the reimbursement for the expenses incurred by him by filing the above complaint. Therefore, viewed from any angle the complaint is not maintainable and liable to be dismissed.   Hence prays to dismiss the complaint.

4. The Complainant, Sri.Kiran Kumar filed her affidavit by way of evidence and closed his side.  On behalf of the Opposite Parties, the affidavit of one Sri.Girish Kumar V.N has been filed. Heard the arguments of both parties.

5.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):-  Negative

POINT (2):-  As per the final Order

REASONS

7. POINT NO.1:- As looking into the allegations made in the complaint and the version of the Opposite Parties, it is not in dispute that the Complainant entered into Membership Agreement with the Opposite Parties dt.23.04.2014 by paying a sum of Rs.86,000/-.  Further in support of this, the Complainant in his sworn testimony, he has reiterated the same and produced the Club Membership Purchase Agreement. By looking into this Agreement, it is clear that this Agreement is dt.23.04.2014 entered into between the Complainant with the Opposite Parties and as per the terms of this Agreement, the Complainant purchased the Membership of Opposite Parties by paying a sum of Rs.86,000/-.  This evidence of the Complainant remains unchallenged.  Hence, it is proper to accept the contention of the Complainant that the Complainant purchased Club Membership with Opposite Parties on 23.04.2014 by paying a sum of Rs.86,000/-.
8. It is further case of the Complainant on 23.04.2014 the Complainant along with his wife visited the Opposite Parties given address, the Opposite Party’s representative giving information about various facilities, investment schemes, mode of payment and annual maintenance charges and etc offered by the Opposite Parties.  The Complainant questioned the Opposite Parties about aspects related to mode of payment through credit card, interest if any for the EMI deductions, date of payment of maintenance charges in order to clarify his doubts about the same.  For which the Opposite Party’s representative answered that your Company has tie up with some Banks mainly including ICICI, HDFC and the Banks will not deduct interest.  Also maintenance charges will be deducted only after five years from the date of membership.  The Complainant with all good faith and with a bonafide intention signed in the agreement and paid an amount of Rs.86,000/-.  In the month of June, 2014 the Complainant noticed in his Bank Account Statement of ICICI Bank that there was a deduction of Rs.900.45/- towards interest as EMI and Rs.111.30 as tax.  The Complainant to clarify about the same, made calls to country vacation and complained about the same to sales executive Ms.Clara and Mr.Hemanth.  After making many calls, he sent emails to the Opposite Party’s official email id on 11^th, 14^th, 18^th and 24^th of June 2014.  On the other hand, the Bank deducted an EMI of Rs.858.24/- and tax of Rs.106.08/-.  Again the Complainant sent an email to email id of Ms.Clara asking for immediate clarification.  Ms.Clara replied on 31^st of August, 2014 saying that she has reported about the problem and the concerned department will do the needful at the earliest and also failed to resolve.  On the other hand, the Bank deducted an EMI of Rs.784.24 and tax of Rs.96.95 on 31^st August 2014.  Even by looking into this allegation of the Complainant, only allegation is that at the time of purchasing the Membership, the Sales Executive are promised there will be no deduction of EMI or Tax and others as against their promised there is a deduction of EMI and Tax but there is no any allegation against the Opposite Parties that there is a deficiency in service.  Further to substantiate this, except the interested version of Complainant and the email correspondences, the Complainant has not placed any other evidence that the Opposite Parties representative informed the Complainant the Company has tie up with some Banks i.e., ICICI, HDFC and the banks will not deduct interest.  Also maintenance charges.  On the other hand, as looking into the Club Membership, Purchase Agreement.  It is very clearly mentioned that the Complainant agreed to pay taxes and other levies as levied by the Government i.e., Luxury Tax, Service Tax and additional taxes as may be applicable from time to time and to this Agreement the Complainant affixed his signature.  The Complainant is not an illiterate person.  On the other hand, the Complainant well educated and he knows English before affixing his signature.  The Complainant ought to have known through the terms and conditions and thereafter he has to affix his sign.  But it is not so.  On the other hand, it is the case of the Complainant, the Opposite Parties representative persuaded the Complainant to affix his signature but it cannot be acceptable one, thereby, it is not proper to accept the contention of the Complainant that the Opposite Parties Sales Executive on the time of purchasing the club membership give false assurance that there will be no deduction in EMI and Taxes.  On the other hand, as stated earlier except this allegation the Complainant has no other allegation there is a deficiency of service on the part of the Opposite Parties.
9. On the other hand, as the defence taken by the Opposite Parties that upon receipt of the above said amount has issued the Laminated Club Membership Card to the Complainant. The Complainant enjoining the benefit and service of the Club Membership.  To substantiate this, Sri.Girish Kumar V.N, Manager of Opposite Parties Company, he has reiterated the same and produced the copy of the Permanent Membership Cards and also password and others.  The Opposite Parties after executing the Club Membership Agreement with the Complainant by receiving a sum of Rs.86,000/- issued permanent membership cards to the Complainant as well as password, thereby, absolutely there is no deficiency of service on the part of the Opposite Parties.  Hence, the Complainant fails to prove that there is deficiency of service on the part of the Opposite Parties.  Hence, this point is held in the Negative. 

10. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is dismissed. No cost. 

Supply free copy of this order to both the parties

   (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 25^th day of October 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Mr.Kiran Kumar, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Purchase Agreement dt.23.04.2014.
2. Vacations Agreement dt.23.04.2014.
3. Welcome Letter, Acknowledgement for receipt of Rs.86,000/- and complimentary spa coupons.
4. All relevant Bank Statements.
5. All emails forming part of communication.
6. Copy of letter posted by the client.
7. Postal receipt and RPAD acknowledgement of said letter.
8. Copy of Legal Notice.
9. Postal receipt and RPAD Acknowledgement.
10. Reply to the Notice given by the Opposite Party No.1.

Witness examined on behalf of the Opposite Parties:

1. Sri.Girish Kumar V.N, Manager of the Opposite Parties by way of affidavit.

List of documents filed by the Opposite Party:

1. Copy of the Purchase Agreement
2. Copy of the Permanent Membership Cards
3. Copy of the Confirmation Letter
4. Copy of the Password

       MEMBER                                                          PRESIDENT