Order-18.

Date-19/02/2018.

        Shri Anupam Bhattacharyya, President.

The instant complaint has been filed by the complainants u/s.12 of the C.P. Act, 1986 praying for refund of membership fees of Rs.1,45,000/- along with compensation of Rs.1,00,000/- for deficiency in service and Rs.1,00,000/- for prolonged harassments and inexplicable of mental agony and litigation cost of Rs.30,000/-.

            The complainant’s case, in brief, is that the complainant took membership in Country Club Hospitality and Holidays Ltd; OP1.  Being convinced by OP that they will provide 10 tour within 10 years out of that 7 would be in India and a rest would be in abroad, so that he along with his family members can easily tour in different places of India as well as abroad by making payment of Rs.1,45,000/- through credit card to the OP.  OP assured him that if he get a club membership through their sell agreement for amount of Rs.1,45,000/- as a whole package for tour and travels and food and lodging accommodation like that every facilities complainant can easily get.  As per agreement of OP complainant through a mail on 14-12-2016 desired to visit Manali, Lay-Ladakh from 10-04-20`17 to 18-04-2017 and complainant also submitted to OP the details of persons of his family members for the tour on 22-12-2016.  The OP replied that company takes advance booking in 90 days only and April 10^th date will be open on January 10^th but this issue was not in the agreement and it was imposed illegally.  Finding no alternative complainant cancelled the said tour.  Further on 7^th January, 2017 he made a request through mail desiring to visit in Chanakya Puri Country Club Resort at Baruipur from 21-01-2017 to 22-01-2017 but OP in their reply on 17-01-2017 said that they could not make any arrangement of room of the said Baruipur as the club/OPs had no available dates and also stated that one member can take 2 rooms only.  Again complainant compelled to cancel the tour in Baruipur.  Thereafter, on 03-02-2017 complainant made further request to the OP for visit to Simla, Kulu Manali from 11-04-2017 to 17-04-2017 and again shocked to receive mail from Op on 06-02-2017 that OP could provide only 1 room in Simla and Manali but they could not provide any hotel or arrangement in Kulu though complainant needed at least two rooms in the hotel of Manali and Simla.  Further on 08-02-2017 OP expressed that country club/OP can provide 2 rooms subject to Rs.1,000/- per night per room as a first year utility charges and also request the complainant to deposit Second Year Annual Administrative Charges Rs.8,500/-.  Complainant entered into membership for not exceeding 6 months and whenever complainant made request for trip then OP made demand of annual administrative rental charges.  Regarding the incident of false inducement by the company complainant made request to OP through mail on 10-02-2017 to return back Rs.1,45,000/- and also lodged a complaint before the Bowbazar P.S. on 08-03-2017.  For the act of the OP, complainant suffered irreparable loss and injury and for their unfair trade practice and of deficiency of service complainant filed this complaint before this Forum.  Hence, the case of the complainant.

OP by filing the written version filed by the OP has stated that complainant entered into an agreement with the OP after going through the terms and conditions of the said agreement and duly put his signature.  In the instant case complainant failed and neglected to comply his duty and obligation in terms of the agreement in question and it is the specific terms and conditions of the agreement to get the benefit of the scheme the complainant has to pay Annual Administrative Charges of Rs.8,500/- as per schedule duly mentioned n the agreement clause, but complainant failed to pay the yearly Administrative charges and as such the complainant is no more a consumer of the OP.  According to terms and condition the Annual Administrative Charges are due from the member and this charge is required to be paid irrespective of usage of vacation which the complainant failed to pay.  There is a clear provision in the agreement in question that the member is hereby unconditionally given his irrevocable consent to purchase the membership of the CCIL and the same is non-refundable under any circumstances and is not a deposit and 2. The member unconditionally agreed that this is a non-refundable membership fee, under any circumstances.  As such, the complainant is no way entitled to get refund of the money.  OP further stated that as a Blue season member, the complainant has to approach, for booking of the vacation within 90 days in advance and same was as per the terms of the agreement clause and there is nothing violation committed by the OPs.   Again OP agreed to arrange the accommodation for the complainant at Baruipur resort on January, 23^rd to 27^th and January, 29^th to 31^st as per the availability of vacancy of rooms and as such that cannot be blamed as deficiency on the part of the OP since in terms of the agreement clause the resort, club vacation booking are subject to availability and that was already informed to the complainant at the time of membership.  At the time of booking hotel at Simla and Manali OP intimated the complainant that they had no property at Kulu so they could provide one room at Simla and Manali in the season time.  OP has prayed for dismissal of the case.   Hence, the written version of the OP. Considering the pleading of both sides the following points have been raised.

Points for Decision

1. Whether the case is maintainable in its present form and law?
2. Whether there is any cause of action to file the case?
3. Whether the case is barred by limitation?
4. Whether the complainant is entitled to get the relief as prayed for?
5. What other relief/reliefs the complainant is entitled to get?

Decision with Reasons

Points No.1 to 5  .     All the points are taken up together for the brevity of discussion and convenience.

            The instant complaint is for payment of Rs.1,45,000/- along with compensation of Rs.1,00,000/- for deficiency in service and Rs.1,00,000/- for prolonged harassments and inexplicable of mental agony and litigation cost of Rs.30,000/-.

            Complainant’s main case is that complainant convinced by the OP agreed to sign and made payment for membership for getting facilities of tour in different places of India as well as abroad along with his family members but OP illegally by false inducement of company practiced unfair trade and complainant suffers irreparable loss and injury.

On the other hand, OP Insurance Company’s main case is that complainant by putting signature complainant agreed the terms and conditions of the OP Company and no unfair trade practice has been practiced by the OP Company also the complainant has not complied the terms and agreement as to payment of only administration charges.  Further the terms of the agreement is tht the membership amount is non refundable and the occasion of providing accommodation during tour is subject to availability of vacancy.   Hence, they prayed for dismissal of the case.

            To prove the case both the parties have adduced Evidence on Affidavit and they have filed questionnaires and replies vis-à-vis along with relevant documents in support of their respective case.

            Admittedly, the complainant had membership with the OP Company for availing 10 tour within 10 years out of 7 would be in India and rest would be in abroad by paying membership fee of Rs.1,45,000/-.

            It is also clear from the materials on record adduced by both sides that the complainant could not avail any tour during the concerned period with different excuses.

            In this particular case, the OP has been made out different excuses particularly non-availability of the room at the spot at the relevant time which is in the terms of agreement.

Even that be so, this excuse cannot make out a case that the member concern will not be able to avail any tour programme during the entire such a long period.

            Considering the facts and circumstances, of this particular case we are of view that there is deficiency on the part of the OP as well as question of unfair trade practice by not providing any tour programme to the member concern and for that the complainant is obviously entitled to get refund of the amount paid for the membership for the purpose. 

On the basis of above discussions as a whole we find that all the points are disposed of in favour of the complainant in part and, as such, the complainant is entitled to get refund of Rs.1,45,000/- along with interest  at the rate of7 percent p.a. from the date of filing of this case till realization and litigation cost of Rs.2,000/-.

According to settled principle interest being allowed, the complainant is not entitled to get any further compensation.

Hence,

Ordered

That the instant case no.157 of 2017 be and the same is allowed in part on contest against the OPs.

            OPs are jointly and severally directed to refund the amount of Rs.1,45,000/- along with interest  at the rate of7 percent p.a. from the date of filing of this case till realization along with litigation cost of Rs.2,000/- within 30 days from the date of this order, in default, the OPs to pay fine  at the rate ofRs.100/- per day delay and the amount so accumulated should be deposited to this Forum.

            Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision of the C.P. Act.