BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.27 of 2015

Date of Instt. 30.1.2015

Date of Decision :14.07.2015

Virdevinder Pal Sharma aged about 46 years son of Prem Chand Sharma R/o Ward No.8, Handiaya Tehsil & District Barnala, Punjab.

..........Complainant Versus

1. Country Vacations (A Division of Country Club India Ltd), LFG-12, Viva Collage Mall, Village Paragpur, GT Road, Jalandhar through its Branch Manager.

2. Country Club India, Registered Office:-219, Begumpet, Hyderabad-500016 (Andhra Pradesh) through its Managing Director.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Aabha Naagar Adv., counsel for complainant.

Sh.Vikas Gupta Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that the complainant got a call from country vacations opposite party No.1 that he has won an accommodation gift. The complainant visited the premises of opposite party No.1, on 30.6.2013. The executives of the opposite parties explained the vacation offers and schemes and created such environment and hype that one is tempted to become the member. However when they told that membership fee is about Rs.1 Lac complainant was reluctant at this the then branch manager Kanchan Kumar Singh, reduced the membership fee to Rs.73,000/- and impressed upon the complainant to purchase membership for ten years of opposite party, viz. Country Vacations International Holiday Vacations Membership, which would enable complainant to have holiday packages in, hotel and resorts of opposite parties. The complainant told the opposite party that complainant belongs to Handiaya in Barnala district and his office is in Mahesh Nagar, Barnala and was not carrying any heavy amount to pay for membership. The branch manager of opposite party assured the complainant that a representative of opposite party would visit complainant's office of Barnala to collect the amount and finalise the contract, Branch Manager also requested to pay Rs.5000/- as token amount in cash, which complainant paid on the spot. Opposite party No.1 handed over a Holiday Gift voucher and a receipt to complainant on that day i.e on 3.6.2013. On 12.3.2013, a representative of opposite party, Sh.Naveen visited office of complainant at Mahesh Nagar, Barnala and collected a cheque bearing No.883026 dated 12.6.2013 for Rs.68,000/- favouring opposite party No.2. The said representative also took signatures of the complainant on a agreement, which was pre-filled and signed by branch manager. The said representative of opposite party assured the complainant that a membership card, letter of introduction and a hotel and resort list where complainant can stay would be sent soon. Representative also assured to send user name and password for online booking of hotels and resorts of opposite party soon. However, the opposite party failed to send these even after a lapse of about a year. The agreement was not stamped and sealed by the opposite party. Further the agreement mentioned category of complainant as 'Blue Member'. However, in the entire agreement, opposite party has not defined the term blue member thus keeping the complainant totally in dark. In button up confirmation by member form, opposite party mentioned "Session in Blue" which again is an ambiguous term. The official website of opposite party www.countryclubindia.com meant for online booking (as mentioned in the agreement) does not open. The opposite party had assured that the opposite party was having a number of hotels as its own property as well as tie-ups/affiliations with another hotels. A website www.countryclubindia. net purportedly belonging to opposite party, does not mention even a single hotel under its umbrella. The complainant prefers to stay in hotels as compared to resorts, since resorts are usually situated far away from cities, which eat up time and resources. The opposite party has not appeared to have paid any service tax on the subscription amount paid by complainant. It is thus clear that opposite party has not been running business in legal manner and the complainant will totally abstain from staying in properties not following the laws of the land. When the complainant had visited opposite parties, Jalandhar office, Branch Manager of opposite party had assured that the complainant would be offered a "Cooling off period" and the complainant could take refund of the amount deposited if not satisfied with the service of opposite party after staying in anyone hotel/resort of opposite party for the first time. However, the branch manager of opposite party omitted such a clause from the agreement. To avail the free gift voucher complainant rang up the country vacations office at Chandigarh, where he was informed that repair was going on in their Monali Hotel and after few days complainant received another call from Country Vacations Chandigarh that instead of free gift complainant could avail the membership vacations on payment of advance AMC which is in total contradiction of the condition explained by opposite party No.1. At the time of explaining the conditions it was categorically stated by opposite party No.1 that AMC is to be paid at the time of checking in the Hotel/Resorts. The complainant also contacted Nirbhey Singh Manager of opposite party No.1 who also told the complainant that he had to pay Rs.8500 in advance. Working of opposite parties is not transparent as there is no clear cut mention of the amount of membership fee to be charged from members which tantamount to unfair trade practice on the part of opposite parties. Complainant has not availed any privilege from country vacations so far. In agreement (on button up confirmation page), Annual Maintenance Contract (AMC) has been mentioned as Rs.7500/- per year. However, in the same agreement, in para 3 of terms and conditions, the AMC charges are mentioned as Rs.6500/-. Thus the terms of agreement are self-contradictory. When the complainant contacted opposite party No.1 for booking, the opposite party No.1 told complainant to deposit Rs.8500/- as AMC in advance. Also in the agreement, no such condition was stipulated. Complainant got totally fed up with the callous attitude of opposite party and thus demanded refund of amount with interest in the month of April 2014, which opposite party flatly denied. Above facts clearly establish negligence on the part of the opposite party and in this way, opposite party has indulged into unfair trade practice which tantamount to deficiency in service. On such like averments, the complainant has prayed for directing the opposite parties to refund the amount of Rs.73,000/- alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply pleading that complainant had taken the membership of opposite parties by entering into Vacations Membership Purchase Agreement dated 3.6.2013. This membership includes international vacations and excludes club membership (as is clearly stated in the heading of the agreement itself). This membership is worth Rs.73000/- wherein a sum of Rs.5000/- was paid on the spot and Rs.68000/- were paid after 8 days i.e on 12.6.2013. With the membership complainant is eligible for availing six nights and 7 days vacation every year for 10 years in Blue Season. The annual maintenance charges were Rs.6500/- p.a plus 15% administrative and processing fee which comes out to be Rs.7500/- approx (as is stated in clause 3 of terms and conditions of the membership agreement). The services to be provided to the complainant were strictly as per the terms and conditions of the agreement attached with the complaint, without any deviation or breach thereof, whereas the claim of the complainant is based on mere oral allegations, without any evidentiary proof whatsoever. It is correct that membership worth Rs.1 Lac was given at discounted price i.e at Rs.73000/- to the complainant. It is further correct that vacation membership entitles complainant to have holiday packages in hotels and resorts of opposite parties. It is submitted that the representative of opposite parties are responsible for explaining benefits and details of the membership only and taking membership as per written contract executed by the member is member's sole discretion for which a member can not hold opposite parties or its representatives responsible. Every member signs the membership agreement's terms and conditions, payment schedule etc, at his/her free will. It is submitted that blanks in the agreement were filled on 3.6.2013 as per discussion and negotiations and the agreement was thereafter signed by both the parties on 3.6.2013 itself. It is correct that postponed balance consideration amount i.e balance fee of Rs.68,000/- was paid on 12.6.2015, however it is denied that he signed the agreement at Barnala on 12.6.2013. Membership card, letter of introduction and list of hotels and resorts was duly sent to the complainant on 10.8.2013 through bluedart courier having docket No.13947203513 and the same was duly received by the complainant on 12.8.2013. The online receipt showing the delivery of courier is attached herewith. Further as regards user name and password it was provided on the same day of entering into agreement upon receipt of token money of Rs.5000 i.e on 3.6.2013, the complainant's user name is "virdevinderpals@ yahoo.com" and password is "9417019344" as the same is clearly mentioned in the payment receipt attached by complainant with his complaint. Agreement has been duly signed by branch head of the opposite parties and moreover the agreement is on a stamp paper of Rs.100/- in the name of M/s Country Club, thus merely not bearing stamp of opposite parties has nothing to do with due execution of contract which has not been denied by the complainant. The term blue membership is clearly defined as acknowledged by complainant in the said agreement under the heading terms and conditions clause 4 of which stats that "All holidays are subject to availability.... Blue week-booking can be done between 60th to 45th day from scheduled holidays". Thus there is no question of keeping complainant is dark. Moreover, even otherwise principle of caveat emptor says that buyer needs to be beware of what he is purchasing. Had there been ambiguity complainant was free to clarify it at anytime. After clicking this website www.countryclubindia.com, in order to see list of properties, the page is directed to www.countryclubindia.net which is mentioned in subsequent para (g) by the complainant. Thus there is no questioning of not opening of this website and the allegations are baseless. The list of owned and tie-up properties is very much displayed on the said website. A copy of screen shot of the website is attached herewith. It is no ground to allege that resorts are at far off places from cities. Though only few resorts are at far off places but the complainant was supposed to check his convenience as to access to his preferred resorts at the time of entering into the contract and not at this stage. Complainant has acknowledged in the agreement under the heading "Terms and Conditions" clause 3 which states that annual maintenance charges are Rs.6500 plus 15% on AMC as admin/ processing fee and that same shall be applicable from date of enrollment of membership. The annual maintenance charges or other dues will be a default and members can not utilize the facilities untill dues are cleared. All the obligations of opposite parties are to governed strictly as per terms and condition of the agreement of which no breach has been made by opposite parties. Each and every clause of the agreement is unambiguous. If anything was not understood by complainant, he was free to clarify it but there is not even an iota of evidence that there was any query or ambiguity in the mind of the complainant, whose clarification he ever sought from opposite parties. It denied other material averments of the complainant.

3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of document Ex.C1 to Ex.C6 and closed evidence.

4. On the other hand, learned counsel for the opposite parties has tendered affidavit Ex.OPA and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted by them.

6. So far the objection of the opposite parties regarding Arbitration clause is concerned, it in no way oust the jurisdiction of the Consumer Forum. The remedy provided under Consumer Protection Act is in addition to an not in derogation of any other law. Ex.C3 is copy of agreement, it is duly signed by complainant. In M/s. Grasim Industries Ltd & Anr. Versus M/s. Aggarwal Steel 2010 (1) SC 33, it has been held by the Hon'ble Supreme Court as under:-

"In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise, no signature on a document can ever be accepted."

7. The parties are bound by the terms and conditions of the agreement. The version of the complainant that it was orally agreed that cooling off period shall be provided can not be accepted. There is no clause regarding cooling off period in the written agreement Ex.C3. So in face of written agreement executed by the opposite parties, the oral version that opposite parties agreed to provide cooling off period can not be accepted. So far as, refund of fee of membership is concerned, in the agreement it is specifically mentioned that membership fee is non refundable under any circumstances and it is not a deposit. The contention of the complainant that processing fee can be charged in the beginning for one time only and not every year can not be accepted as in clause 3 of the agreement annual maintenance charges and processing fee to be paid by the member is specifically mentioned. It is further specifically mentioned that failure to pay the said amount or any other amount due shall be default and member can not utilize the facilities until dues are cleared. So far as, list of hotel/resorts of opposite parties are concerned, the opposite parties have attached the list thereof as Ex.OP3. The version of the complainant is that certain terms are ambiguous in the agreement is without any substance. Where any person sings any agreement the presumption is that he has singed the same after fully understanding its contents. Further according to the complainant, he has not received membership card. On the other hand, according to opposite parties the membership card was sent to the complainant through bluedart courier. The opposite parties have also produced document Ex.OP2 in this regard. Counsel for the complainant contended that from Ex.OP2 it is clear that the card was sent to some address at Jalandhar and whereas the complainant is resident of Barnala and further same is shown to have been received by one Rajbir. Counsel for the opposite parties contended that although opposite parties have sent the membership card at the address provided by the complainant but they are still ready to provide the duplicate membership card to the complainant. As already observed, the parties are bound by the terms and conditions of the agreement. The complainant has failed to prove any deficiency in service on part of the opposite parties by leading any cogent and reliable evidence.

8. In view of above discussion, the present complaint is partly accepted and opposite parties are directed to send the membership card to the complainant at the address given in the title of the complaint through registered post. However, in the circumstances of the case, there shall be no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

14.07.2015 Member Member President