CC No.210.2015

Filed on 31.01.2015

Disposed on 02.08.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE2^ndDAY OF AUGUST-2016

CONSUMER COMPLAINT NO.210/2015

PRESENT:

     Sri.H.S.RAMAKRISHNA

                               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 31.01.2015U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to refund of Rs.95,000/- towards the purchase of the membership, compensation of Rs.40,000/-, to pay a sum of Rs.5,000/- towards the costand other reliefs. 

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

In the Complaint, the Complainant alleges that the Complainant had received a call from the Opposite Party on 02.12.2013 and was offered to collect holiday vouchers as free gifts.  The Complainant visited the Opposite Party No.1’soffice on 07.12.2013 for collecting the gifts and on that day the Complainant entered into a Membership Purchase Agreement with Opposite Party. After receiving the agreement, the Complainant realized there are disturbances for the agreement and immediately brought to the notice of the Opposite Parties.  As per the assurance, at the time of purchasing the Membership Agreement verbal commitments that the Complainant was entitled 20%reduction on air fare throughout the Country and would not have to pay any maintenance charges if the facilities are not availed.   The Complainant disappointed with false assurance, he requested for cancellation of the Membership Agreement and full refund of the purchase amount.  The Complainant was informed that the Opposite Parties did not have a cancellation or a refund Policy thereof.   The Complainant vide mails dt.21.01.2014 requested the Opposite Parties for cancellation of his Country Club Membership and refund of the purchase amount of Rs.90,000/- along with Rs.5,000/- paid as an EMI interest.   However, no response was received from the Opposite Parties.  The Complainant vide mail dt.07.02.2014 once again brought to the notice of the Opposite Parties that his cancellation request has till date not been approved.   The Complainant received membership cards for his wife and self while no such membership card was received for his daughter. The Membership Agreement carried an annual maintenance charge regardless of the fact that the facilities were being availed or not.  The Complainant was assured of incurring fuel expenditure alone on hiring a taxi which was again not brought forth in the Agreement.  The complainant made efforts through calls and mails to get his membership card and follow the same process for procuring a membership card for his daughter.  The Complainant vide mail dt.27.03.2014 stated the unfortunate sequence of events and the callousness of the customer care executive of the Opposite Parties calling for an immediate cancellation of his membership agreement and a full refund thereof.   However, the same has failed to elicit any response yet.  The various mails dt.28.04.2014, 09.05.2014, 05.07.2014, 12.07.2014, 14.07.2014 and 20.07.2014 tried his level best effort to get an amicable resolution which has only gone down the drain. The Complainant made innumerable efforts to utilize the remaining package plan but failed to elicit any satisfactory response from the Opposite Parties who were not only callous enough to deal with the issue of the Complainant but equally inept and unprofessional to honour the terms of the Purchase Agreement.   The Complainant served a Notice of 15 days on the Opposite Parties stating his grievance calling for an immediate cancellation of the Membership and a refund of the purchase amount of Rs.90,000/- on account of deficiency in services which is not resolved till date.  Hence this complaint. 

3. In response to the notice, the Opposite Partiesput 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.  There is no cause of action, the complaint is vague, bald and devoid of merits.  The Complainant has shown interest to become the Member and to avail Holiday Vacation. The Complainant entered into Purchase Agreement dt.07.12.2013 and in terms of agreement the Complainant has paid amount of Rs.90,000/-.   In terms of the Purchase Agreement, the complainant is entitled 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.   Upon receipt of the above said amount, the Opposite Parties have issued the Permanent Laminated Club MembershipCards to the Complainant and the dependents.  The Complainant knowing the said facts has made false and frivolous allegation against this Opposite Parties.  The Opposite Parties never promised or assured to give or nor forced to become the member and also complaint allegation that duped your company, there was no written documentation and hurried up to his credit card.  The Opposite Parties are always ready to provide the package to the Complainant but there should be 30 days in advance booking to be made to make necessary arrangements.   The Club Membership is for Life Time and it is transferable to their family members providing of accommodation of Holiday Vacations, the Complainant has not made any booking for availing of Holiday Package, at any point of time and denied other allegations made in the compliant and prays to dismissal of the complaint.  

4.      The Complainant, Sangeeth Bhadranhasfiled his affidavit by way of evidence and closed his side.On behalf of the Opposite Parties, the affidavit of one Girish Kumar V.N, working as Manager has been filed.  Heard the arguments of both parties.  

5.      The points that arise for consideration are:-

1. Whether the Complainant has proves 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 NOs.1& 2:- It is the case of the Complainant that on 07.12.2013 the Complainant entered into a Membership Purchase Agreement with the Opposite Parties.  This fact is not denied or disputed by the Opposite Parties.  Further to substantiate this fact, the Complainant in his sworn testimony reiterated the same and produced the Purchase Agreement for Club and Vacation Membership.  By looking into this fact, it is stated that the agreement dt.07.12.2013 entered into between the Complainant and Opposite Parties.  Under this agreement, the Complainant agreed to become a member of the Opposite Parties and also executed the Billionaire Vacations Agreement on the same dayi.e., on 07.12.2013.  By looking into this document, it reveals that the Complainant by paying a sum of Rs.90,000/- agreed to purchase the Membership with the Opposite Parties.  This evidence of the Complainant remains unchallenged.  To disbelieve the evidence of the Complainant, there is no contra evidence, therefore, it is proper to accept the contention of the Complainant that on 07.12.2013 the Complainant by paying a sum of Rs.90,000/- entered into the Purchase Membership Agreement with Opposite Parties.

8. It is the case of the Complainant that the Opposite Parties explained world class facilities being offered along with various attractive amenities.  So as to induce the Complainant purchased Membership Agreement.  The Complainant receiving the Agreement realized it to be a forceful discrepancies and was immediately brought to the notice of the Opposite Parties.There was no written documentations that was provided to the Complainant at the time of purchase of the Membership.  The Complainant was coaxed to make a purchase of Rs.90,000/- without being given any time to go through the documents at the pretext that the same could be cancelled if not found in sync with the verbal commitments. As per verbal assurances, the Complainant was led to believe that the Complainant would be entitled to a twenty percent (20%)reduction on air fare throughout the Country and would not have to pay any maintenance charges if the facilities are not availed which were howevernever brought forth in the Agreement.  The Complainant dissatisfied with false assurance he requested for a cancellation of the Membership Agreement and a full refund of the purchase amount.   This fact is denied by the Opposite Parties in their version.  So it is on the burden of the Complainant to establish the same in order to prove this allegations.  In his affidavit, he has stated that facts contained in the complaint may be read asan integral part of the affidavit.  So as looking into the averments made in the complaint and also the affidavit of the Complainant, the Complainant has not make any specific allegation what are the verbal assurance provided by the Opposite Parties at the time of entering into the Membership Purchase Agreement.  Except pleading that the Opposite Parties have orally assured the Complainant would be entitled to a twenty percent (20%) reduction on air fare throughout the Country and would not have to pay any maintenance charges.  But in support of this, there is no proper evidence.  On the other hand, as looking into the Membership Purchase Agreement, it is not so and there is no such clause, thereby, it is not proper to accept the contention of the Complainant.  On the other hand, it is further allegation of the Complainant, the Complainant was coaxed to make a purchase of the Membership Purchase Agreement for Rs.90,000/-without being given any time to go through the documents at the pretext that the same could be cancelled if not found in sync with the verbal commitments.   When the Complainant beforeexecuting the Membership Agreement by paying Rs.90,000/- it is not necessary to attested his signature, if there is no any discrepancies and there was no clauses as assured by Opposite Parties. The Complainant ought to have refused to sign the Membership Purchase Agreement.  The Complainant is not an illiterate person, the Complainant being the educated man and knowing the worldly knowledge ought to have refuseto sign the agreement, but it is not so, as looking into the evidence of the Complainant himself.   Thereby, it is not proper to accept the contention of the Complainant.  

9. As looking into the averments in the complaint, the Complainant being dissatisfied with false assurance of the Opposite Parties, he requested for cancellation of the Membership Purchase Agreement and for full refund of the Purchase amount.

10. To substantiate this fact, the Complainant produced the mail dt.09.05.2014 addressed to Imran of Opposite Parties and by sending this mail the Complainant requested for refund of Rs.95,000/- at the earliest.   In the said mail, he mentioned that on 17^th December 2015, he had no enough time to read the agreement given by the Opposite Parties officials. The Opposite Parties officials just read the important points in that agreement and asked him to sign.  So even from by looking into this mail also it is crystal clear that the Complainant before signing the Membership PurchaseAgreement, the Opposite Parties officials read the contention of the Complainant then only the Complainant signed the agreement this falsify files the contention taken by the Complainant that the Complainant was coaxed to make a purchase of membership by paying Rs.90,000/- and also produced another mail dt.21.04.2014 this mail sent by the Complainant to the Opposite Parties officials and in this mail he clearly mentioned that he has not started using any facilities and requested to refund the amount, so from this evidence of the Complainant himself it clearly shows that the Complainant had not taken any service facility from the Opposite Parties that there is a deficiency of service on the part of the Opposite Parties and also absolutely there is no evidence to show that the Opposite Parties induced the Complainant to purchase the membership by adopting unfair trade practice.  On the other hand, it is defence of the Opposite Parties in terms of the agreement, the Complainant had paid a sum of Rs.90,000/- in terms of the purchase agreement.  The Complainant is entitled 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 in the Purchase Agreement.  The Opposite Parties upon receipt of the amount issued Permanent Laminated Club Membership Cards to the Complainant and the dependents and also it is the defence that they are Opposite Parties always ready to provide the packages to the Complainant, there should be 30 days inadvance booking to be made to make necessary arrangements.  To substantiate their defence one Mr.Girish Kumar V.N, working as Manager in the Opposite Parties-company filed his affidavit and reiterated the same and also produced the Purchase Agreement for Club and Vacation Membership and also laminated Membership Card in the name of the Complainant and Membership No.#DT41#2139 and also free gift voucher issued to the Complainant.  So from this evidence it is very clear that in terms of the Purchase Membership Agreement, the Opposite Parties have issued the membership card to the Complainant and also gift voucher and they are ready to give all the facilities to the Complainant but on the other hand, the Complainant without taking any facility from the Opposite Parties and for the reason best known to the Complainant. The Complainant himself demanded for refund of the membership amount without any valid reason and also the Complainant has not placed any evidence to show that there is deficiency of service on the part of the Opposite Parties.   As well as, the Opposite Parties by practicing unfair trade practice induced the Complainant to purchase the membership agreement of the Opposite Parties-Company.   Thereby, the Complainant failed to prove that there is deficiency of service by the Opposite Parties.  Hence, this point is held in the Negative.

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

ORDER

The complaintis dismissed.  With no costs.

Supply free copy of this order to both the party. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 2^ndday of August 2016)

  MEMBER         PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. Sri.Sangeeth Bhadran, who being Complainant has filed her affidavit.

List of documents filed by the Complainant:

1. Courier Receipt
2. Correspondence letter 21.08.2014.
3. Mails dt.28.04.2014, 09.05.2014, 05.07.2014, 12.07.2014, 14.07.2014 and 20.07.2014.
4. Purchase Agreement for Club and Vacation Membership dt.07.12.2013
5. Club Membership Purchase Agreement dt.07.12.2013
6. Billionaire Vacations Agreement dt.07.12.2013

Witness examined on behalf of the Opposite Party:

1. Sri.Girish Kumar V.Non behalf of the Opposite Parties by way of affidavit.

List of documents filed by the Opposite Party:

1. Copy of the Purchase Agreement dt.07.12.2013
2. Copy of the Membership Cards
3. Copy of the Balance Statement Rs.50,000/-
4. Copy of the Gift Voucher
5. Copy of the Confirmation Letter of the Member
6. Citations.

MEMBER                                   PRESIDENT