Hence, this case is filed by the complainant with the alleging inter alia that it is a gross negligence and deficiency in service on the part of the OP members which caused financial loss, mental agony and harassment to the complainant. Hence, he prays for giving direction to the OP to refund the money paid by him along with heavy penalty and legal cost.
The OPs have contested the case by filing a WV denying the entire material allegation levelled against them in the petition of the complaint. It is stated by the OP members in their WV, that the case is not maintainable in its present form and law. It is further stated by the OP members that there is/was no deficiency in service on their part has defined in section 2 (g) of the CP Act, 1986 and the complainant is not a consumer at all within the ambit of CP Act, 1986.
It is further case of the OP that there was no cause of action to file the case by the complainant
The further case of the OP members is that they have various schemes for exclusive benefits for its members and of anyone who desires to become member. They are entitled to get those benefits subject to strictly adhere certain conditions. How are the amount paid for the membership is not refundable in any circumstances which is categorically mentioned in the membership agreement itself. Some of those are holiday package etc. which are available to the particular scheme of the membership subject to adherence of the conditions therein. The OPs stated that the complainants having signed on the membership agreement with full knowledge and understanding and has filed this case by suppressing material facts. It is further stated that after fully knowledge the scheme, terms and conditions, the complainant signed purchase agreement for country vacation membership and paid accordingly Rs. 1,10,000/- for the vacation agreement contending personal details as well as terms and conditions which they specially admitted in their petition of complaint. But the complainant prayed for refund of membership fees under the Cool off Period clause of agreement whereby they have asked to refund Rs. 1,06,200/- deducting the administrative charge of Rs. 3,800/- as per the clause of agreement executed.
It is the further case of the OP members that the complainant entered into agreement after knowingly the content of the same and once the acceptance of the terms and conditions thereof the same cannot be repudiated on unilateral whims of any of the parties to the agreement in question. It is further stated by the OP members that the complainant voluntarily entered into membership agreement with them and miserably failed to prove any deficiency in service on the part of the OP parties. Thus, the petition of the complaint is liable to be dismissed and there is/was no deficiency in service or no unfair trade practice on the part of the OP members. Hence, the petition of the complaint is baseless and liable to be dismissed with cost.
In view of the above facts and circumstances, the points of consideration are as follows.
1. Whether the case is maintainable in its present form in law?
2. Whether the complainant has any cause of action to file this case or not?
3. Whether the complaint is a consumer within the ambit of CP Act?
4. Whether there is/was any deficiency in service on the part of OP members?
5. Whether the complainant is entitled to get relief as prayed for?
6. To what other relief or reliefs is the complainant entitled to get?
Decision with Reasons
All the points are taken up together for convenience of discussion and to avoid unnecessary repetitions.
On a close scrutiny of the materials on record, and also considering the facts and circumstances of this case, it appears that this commission has both territorial and pecuniary jurisdiction to try this case. The case is filed well within the period of limitation; at the same time the complainant has/had sufficient cause of action to file the case.
So, it can be held that the case is well within maintainable in its present form and in law. From the paragraph No. 5a and b and also paragraph No 6 of WV as filed by the OP members it appears that the OP members have categorically admitted that the complainant has entered into the membership agreement with them and paid money to that effect and paid a sum of Rs. 1,10,000/- in total to that effect which has been received by the OP members. Subsequently, the complainant became suspicious about the scheme of the OP members in which he entered into a membership agreement with them on 16.07.2019 and ultimately, as per paragraph of 26 of the membership agreement or sale agreement the complainant prayed for refund of the money i.e. Rs. 1,06,200/- after deducting of administrative charges of Rs. 3,800/- to the OP members which is within the “Cool Off” period of 10 days from the date of signing of the agreement. Such clause 26 of the agreement gives liberty to the member to discontinue the agreement by paying a nominal administrative charge Rs. 3,800/- to the company and after deduction of aforesaid of Rs. 3,800/- remained amount would be refunded to the members within 120 days from the date of invoking of “cool off” period.
In the instant case, we found that the complainant demanded the refund of amount of Rs. 1,06,200/- to the OP members within 10 days i.e. within “cool off” period from the date of signing agreement. Out of Rs. 1,10,000/- after deducting administrative charges of Rs. 3800/-.
From the materials on record, it is crystal clear that on receipt of the request or demand letter of the complainant by email the OP members responded by return mail that they will refund the amount of Rs. 1,06,200/- to the complainant within 120 days. But even after lapse of so many months and year till this date the OP members did not refund the amount of Rs. 1,06,200/- after deducting the administrative charge of Rs. 3,800/- out of Rs. 1,10,000/- to the complainant. It is the liberty of the complainant as per clause of 26 of the agreement for sale or membership agreement dated 16.07.2019 to discontinue the membership within 10 days or within the cool off period from the date of sign of the agreement. The OP members cannot bound the complainant to be in the agreement when the complainant did not willing to continue the same as and when the specific clause that the OP members are bound to refund the amounts paid by the complainant in the instant case of Rs. 1,10,000/- if the complainant claimed the same within 10 days from the date of signing of the agreement i.e. within cool off period.
In the instant case the complainant send the demand letter by email to the OP members within 10 days from the date of singing of the agreement i.e. cool off period claiming the refund of Rs. 1,06200/- after deducting the nominal administrative charges i.e Rs. 3,800/- out of Rs. 1,10,000/- as prayed by him. The OP members denied claim of the complainant who is consumer under them and did not refund the money by violating the clause 26 of the membership agreement and cost deficiency in service and unfair trade practice as the service provider to the consumer complaint which cannot be indulged by this commission. The complainant suffered mental pain, agony, harassment and monetary loss only because of service provider OP members for their deficiency in service. Considering the conduct of the OP members, this commission is of view that the OP members caused harassment to the complainant without refund the money to him as per his demand within “cool off” period for which the OP member should be liable to give compensation to the complainant.
In view of discussion made above, this commission is of opinion that the complainant could be able to prove his case beyond the shadow of all reasonable doubts and is entitled to get the relief as prayed for, at the same time the OP members are bound to give compensation to the complainant as prayed for by the complainant.
The case is properly stamped.
Point of consideration are thus, decided favourably to the complainant.
Hence,
Ordered
That the instant case be and the same is allowed on contest with cost against the OP members.
The complainant do get the decree in his favour against the OP members.
The OP members are directed to pay Rs. 1,06,200/- to the complainant either jointly and severally.
The OP members are directed to pay compensation of Rs. 30,000/- along with interest @ 9 % p.a. to the complainant either jointly and severally from the date of filing of this case till realisation.
The OP members are also directed to pay litigation cost of Rs. 2,000/- to the complainant.
The OP members are directed to pay the entire decreetal amount as mentioned above within 45 days from the date of this order in default, the complainant will get interest @ 6 % p.a. on the entire amount from the date of default till realisation.
If the OP members would fail to comply the decree within the stipulated period then the complainant is at liberty to execute the same through court.
Copy of the judgment be supplied to the parties free of costs as mandated by the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the.
