This complaint is filed by the complainants u/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not refund the amount for Rs.1,16,800/- till filing of this complaint.
The brief facts of the case of the complainants is that the OPs have approached to the Complainants to sell their holiday offer along with amenities and services “Millionaire Club Premium Package” and after going through the terms and conditions the Complainants being interested to purchase the said service package from the OPs. Thereafter, an agreement dated 16.06.2019 in respect of the said produce was executed by and between the parties and the Complainants paid a sum of Rs.1,16,800/- towards the product cost. The Complainants have made the entire payment through their credit card, ICICI Bank Ltd., which was issued in the name of the Complainant-1. In terms of the agreement it was settled that the Complainants can stay at any property of the OPs i.e. Country Club Hospitality and Holidays Limited for a period of 6 nights and 7 days which will continue for 5 years. As per the terms and conditions, stipulated in the said agreement the Complainants were entitled to avail of a club facilities at the country club and country club fitness which is situated at different places in Kolkata. Due to some unforeseen circumstances the Complainants were not in a position to continue with the said agreement any further and after invoke Clause-27 of the said agreement cancelled the same by an e-mail dated 17.06.2009 and also requested the OPs for refund of the said amount. As per Clause-27 of the said agreement it is stated that “there shall be a cool off period of 10 days from the date of signing the agreement wherein members can discontinue the said agreement by paying a nominal administration charges of Rs. 3800/- and remaining amount would be refunded back to the member within 120 working days.” Where the Complainants have cancelled the said agreement through an e-mail dated 17.06.2019 and requested the OPs to refund the balance amount as per the terms and conditions as stipulated therein, but till date after passing of more than one year the OPs have failed to refund the said balance amount to them. The OPs have deliberately failed to discharge their liability in terms of the said agreement dated 16.06.2019. In spite of receipt of the e-mail for cancellation of the agreement as the OPs did not bother to resolve their dispute till date till date for which the Complainants are facing mental agony, harassment and pain. The Complainants have made several requests over telephone as well as through an e-mail to the OPs to refund the said amount, but in spite of the same the OPs did not pay any heed to their request. In consultation with their Ld. Advocate the Complainants issued a letter dated 21.07.2020 and 5.09.2020 requesting the OPs to refund the said amount within 10 working days from the service of the Advocate’s letter, to no effect. According to the Complainants the OPs having malafide intention did not act upon in an appropriate manner after receipt of the written correspondences. Due to gross negligence and deficiency in services on the part of the OPs the Complainants have been suffering from mental agony, pain, undue hardship and financial crisis. As the dispute of the Complainants have not been redressed by the OPs, for redressal of their grievance the Complainants have approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to refund Rs.1,16,800/-, compensation to the tune of Rs. 50,000/- on account of causing mental agony, paid and harassment and litigation cost of Rs. 20,000/- to them.
After admission hearing of this complaint notices were issued to the OPs through speed post with A/D. On 11.02.2021 this Ld. Commission found that the OPs have duly received the notices on 15.12.2020. But none was appeared on the said date on behalf of the OPs. The Ld. Commission was pleased to give time to the OPs for filing written version, thus date was fixed on 14.01.2021 for filing written version by the OPs. On the said date the OPs remained absent and last chance was given to the OPs for filing written version on 01.02.2021. As no written version was submitted, hence the Ld. Commission was pleased to fix the complaint for adducing evidence by the Complainants. On 02.08.2021 the ld. Counsel for the Complainants has adduced evidence on affidavit and also filed BNA.
We have also carefully perused the petition of complaint, related papers, documents, BNA filed by the Complainant and heard oral argument advanced by the Ld. Counsel for the Complainants at length.
It is seen by us that the Complainants have obtained holiday offer along with amenities and services “Millionaire Club Premium Package” from the OPs and after going through the terms and conditions the Complainants became interested to purchase the said service package from the OPs. Thereafter, an agreement dated 16.06.2019 in respect of the said produce was executed by and between the parties and the Complainants paid a sum of Rs.1,16,800/- towards the product cost. The Complainants have made the entire payment through their credit card, ICICI Bank Limited, issued in the name of the Complainant-1. In terms of the agreement it was settled that the Complainants can stay at any property of the OPs i.e. Country Club Hospitality and Holidays Limited for a period of 6 nights and 7 days which will continue for 5 years. As per the terms and conditions, stipulated in the said agreement the Complainants were entitled to avail of club facilities at the country club and country club fitness, situated at different places in Kolkata. But due to some unforeseen circumstances the Complainants were not in a position to continue with the said agreement any further and after invoking Clause-27 of the said agreement cancelled the same by an e-mail dated 17.06.2009 and also requested the OPs for refund of the said amount. Where the Complainants have cancelled the said agreement through an e-mail dated 17.06.2019 and requested the OPs to refund the balance amount as per the terms and conditions as stipulated therein, but till date after passing of more than one year the OPs have failed to refund the said balance amount to them. The OPs have deliberately failed to discharge their liability in terms of the said agreement dated 16.06.2019. In spite of receipt of the e-mail for cancellation of the agreement as the OPs did not bother to resolve their dispute till date till date for which the Complainants are facing mental agony, harassment and pain. The Complainants have made several requests over telephone as well as through an e-mail to the OPs to refund the said amount, but in spite of the same the OPs did not pay any heed to their request. In consultation with their Ld. Advocate the Complainants issued a letter dated 21.07.2020 and 5.09.2020 requesting the OPs to refund the said amount within 10 working days from the service of the Advocate’s letter, to no effect. According to the Complainants the OPs having malafide intention did not act upon in an appropriate manner after receipt of the written correspondences. Due to gross negligence and deficiency in services on the part of the OPs the Complainants have been suffering from mental agony, pain, undue hardship and financial crisis. As the dispute of the Complainants have not been redressed by the OPs, hence this complaint is initiated by the Complainants for redressal of their grievance praying for direction upon the OPs to refund Rs.1,16,800/- along with cost and compensation.
We have noticed that the Millionaire Club Premium Package Sale Agreement was executed by and between the parties on 16.06.2019 when the Complainants paid a sum of Rs.1,16,800/- to the OPs for the said package. In the Clause no-27 of the said agreement it is enumerated, which runs as follows-
“There shall be a cool off period of 10 days from the date of signing the agreement wherein members can discontinue the said agreement by paying a nominal administration charges of Rs. 3800/- and remaining amount would be refunded back to the member within 120 working days. From the date of invoking of cool off period. For invoking the cooling off period the member shall send a written communication to the Country Club, Central Customer Care, 4th Floor, Asian Building, Begumpet, Hyderabad-500016 through registered speed post or an e-mail …. After expiry of the aforesaid period the fee is non-refundable under any circumstance.”
In accordance with the abovementioned clause the Complainants issued an e-mail to the OPs on 17.06.2019 requesting to cancel their membership as they were unable to continue the membership due to some urgent family issue and also requested to refund them the amount paid by them at the time of purchasing the said offer/membership from the OPs. The OPs have accordingly replied the said e-mail of the Complainants stating that the OPs have noted down their request and forwarded the same to the concerned department, it was also promised by the OPs that they will get back the Complainants shortly. It was further intimated by the OPs that they are trying to release the refund as early as possible. Subsequently the OPs have informed the Complainants that as per the terms and conditions of the agreement nominal charges of Rs.3800/- will be deducted and the remaining amount will be refunded within 120 working days from the date of invoking cool off period. But inspite of such assurances the OPs did not bother to take any step for refund of the agreed amount to the. Being compelled the Complainants have made written correspondences with the OPs, but to no effect. Till filing of this complaint, the OPs did not refund them the agreed amount to the Complainants. Therefore in our considered view as the Complainants have issued an e-mail to the OPs within the stipulated time i.e. COOL OFF PERIOD, hence the Complainants are very much entitled to get back refund of the entire paid amount and as the OPs did not pay any farthing as per their commitment, hence the OPs are not empowered to deduct any amount from the amount as paid by the Complainants.
Admittedly due to harassment and non-compliance of their own commitment in view of the terms and the conditions of the said agreement, the Complainant have to face mental agony, harassment and financial loss for a prolonged period, for which the Complainants are entitled to get compensation from the OPs and the Complainants are also entitled to get litigation cost from the OPs on the ground that due to harassment the Complainants have to approach before the Court of Law and for this proceeding, they have incurred some expenses.
Going by the foregoing discussion, hence it is ordered that the Consumer Complaint being no-CC/236/2020 is hereby allowed exparte against all the OPs with cost.
The OPs shall pay/refund either jointly or severally an amount of Rs.1,16,800/- to the Complainants without any deduction within 45 days from the date of passing this judgment. The OPs shall also pay either jointly or severally compensation to the tune of Rs.8,000/- due to harassment, mental agony and litigation cost of Rs.3,000/- to the Complainants within 45 days from the date of passing of this judgment, in default the Complainants are at liberty to put the entire order in execution.
Let plain copy of this judgment be given to the party/ies free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
