(Delivered on 14/02/2017) Per Mr. S.B. Sawarkar, Hon’ble Member. 1. The present appeal is filed against the order of the District Forum Nagpur passed in complaint No.399/2007 dated 30/5/2008 partly granting the complaint and directing that, i. Opposite party (O.P. for short) No. 1 and 2 is directed to provide the complainant Rs.2,04,236/- from the date of receipt of notice, The 06/11/2006 with interest @ 9% p.a. till final payment. ii. O.P.no,1 and 2 is directed to provide the complainant Rs.10,000/- for physical and mental harassment with Rs. 3500/- as cost of complaint and notice. iii. The complaint is dismissed against O.P.No.3 and 4. iv. O.P.No.1 and 2 to comply the order in the span of 30 days from the date of receipt of the order. 2. The complainant filed a complaint against O.P.No.1 and 2 to be the resort owners providing service to the members. He complained that O.P.Nos.3 and 4 are the agents of O.P. Nos 1&2 . O.P.No.3 got the complainant registered as a member on 03/03/2006 with assurance of providing air conditioning unit by taking payment of Rs.1,41,700/-. The complainant paid the amount through E.M.I. of Rs.10,037/- p.m. and received the certificate on 26/06/2006. 3. However before getting the certificate of membership on 26/06/2006 on 21/06/2006 O.P.No.4 again lured him to be the member with assurance of Air conditioning unit of 1.5 ton after becoming a member. He was assured to appropriate the amount of old membership in to the new membership, hence he paid Rs.21,648/- to O.P.No.1 and 2 through O.P. No. 4 and assured to deposit the remaining 1.22,672/- in E.M.I. installments of Rs.10,222/- from August 2006. He paid total 65,536/-. In both applications of membership he had requested to make his wife Hemali Patel as nominee. 4. On 13/07/2006 he received the certificate of membership of second application but it was in the name of his wife Hemali Patel for which he had never filed the application. Hence he felt it to be deficiency in service of the O.P.No.1 to 4 who did not cancel his old membership and did not give him better membership by cancelling his first membership. He therefore issued a notice to the O.P. However it remained un-replied. Hence claiming that though he had made the second application for cancelling old membership and filed application for improved membership in his name by declaring his wife as nominee, the O.P. Nos. 1&2 issued a certificate in the name of his wife in second application and received the installments through Bank. He had submitted the application in details but without cancelling the earlier membership as assured by O.P.No.4, the O.P. Nos. 1&2 by issuing the certificate in the name of his wife, caused monetary loss to the complainant and issued him two membership of similar nature. Hence caused gross deficiency in service. 5. He therefore filed a complaint with a request to direct the O.P. No. 1 to 4 jointly and severally pay the complainant Rs.2,04,236/- with interest and expenses and cost of litigation. In addition pay Rs.1,000/- for agony harassment and Rs.3,500/- as cost of notice charges incurred by him with a direction to disclose the name of the directors and Executive Members of O.P.Nos.1&2. 6. On notice O.P.No.1 and 2 appeared and filed written version. O.P.No.3 and 4 remained absent in spite of service and hence were declared ex-parte. 7. O.P.No.1 and 2 referred as O.Ps. claimed the dispute to be of Civil Nature and to be tried before the Arbitrator. They claimed to have received the application for membership from complainant in first case and receipt of Rs. 1,41,700/- and was assured 1.5 ton Air Conditioner. 8. The O.Ps. further submitted by submitting the applications filed by the complainant to get the membership on two occasions. They stated that on the second occasion the complainant had filed application in the name of his wife Hemali and hence, the membership was issued in the name of his wife Hemali Patel. The complainant paid the basic amount and then paid three installments. Hence, the O.Ps. received only Rs.52,317/- and not Rs.62,536/- as complained. The O.Ps. further submitted that the complainant was given the certificate in the name of his wife. He was also booked in their Goa Resort for 21st June to 23 June, 2006. However, the complainant did not enjoy the Goa Resort. The O.Ps. submitted that as per the contract, the membership dispute is to be filed in the Civil Court at Chennai. Hence, the learned Forum may not admit the complaint. The O.Ps. further submitted that the complainant and his wife filed the application for membership. The complaint is filed to return the money of membership which does not fall in the jurisdiction of the Consumer Dispute. The O.P Nos. 1&2 submitted that the second application was in the name of Hemali Patel and hence, the membership was given in her name. 9. The O.Ps. categorically submitted that the alleged O.P. Nos. 3&4 have never given any assurance of upgrading or converting or appropriating the amount paid by the complainant with the second application and no such assurance is given. The O.Ps. further submitted that after receiving the notice an officer was sent to the complainant to attend to his grievances, but he only insisted on cancellation of membership and refund of money. He was told that the cancellation is possible only as per the membership rule. The O.Ps. submitted that the membership certificate was given as per the form submitted by the complainant and no deficiency is caused. Therefore, the complaint be dismissed. 10. The learned Forum heard both the parties and held that the complainant was assured the appropriation of first membership in to the new membership. However instead of that he received the membership in the name of his wife. He never filed an application in the name of his wife for which the O.P. did not file any evidence. Hence O.P.N.1 and 2 committed Unfair Trade Practice through O.P.No.3 and 4 and misguided the complainant . Hence the O.P. need to return the entire received amount from the date of notice. Thus the learned Forum passed the order as above. 11. Aggrieved against the order the O.P.Nos. 1 and 2 filed the appeal & hence are referred as appellants. Advocate Shri Vora appeared on behalf of appellants. The original complainant is referred as respondent No.1 and original O.P.No.3 and 4 are referred as respondent No.2 and 3 who remained absent hence they were declared as ex-parte. Advocate Shri Dave is appeared on behalf of respondent No. 1. 12. The appeal was dismissed in default for attendance of appellant vide order dated 05/12/2011. However it was restored in Revision Petition No. 1846/2012 by National Commission order dated 14/08/2012.We heard it thereafter on merit 13. The advocate for the appellants submitted that the respondent No. 1 had filed the second application in the name of his wife Hemali Patel and therefore the membership was given to her. He was not given any assurance of cancellation of previous membership or up gradation of the membership. He has only asked for return of money of both membership . There is no request of service. Hence, the appeal deserves to be dismissed. He reiterated the contentions raised before the learned Forum. 14. The advocate for the respondent reiterated the contentions submitted before the learned Forum and submitted that the appellants are responsible for the acts of their agents (original O.P. Nos. 3&4) respondent Nos. 2&3 who gave assurance of upgrading the membership while filing the second application dated 21/06/2006. He also filed the Xerox copies of the certificate and the application form stating that in both the applications the respondent had filed his name for the membership. However, the appellant with the intention to extract the money displayed unfair trade practice and issued the certificate in the name of the wife of the respondent which name they came to know as her name was given as a nominee in the application. As the appellants have given the certificates in the name of the wife of the respondent when the second application was filed by he himself for up gradation, the appellants have committed unfair trade practice and deficiency in service. Therefore, the learned Forum has correctly evaluated the contentions of both parties. The learned Forum has passed the order which is correct. Hence, the appeal deserves to be set aside by confirming the order. 15. We considered the contentions of both the parties. The proceeding before the learned Forum were called which we perused. We find that the appellant has filed the copy of the application filed by the respondent dated 30/03/2006 before the learned Forum and has mentioned also about the copy of the application filed on 21/06/2006. However, the copy of application dated 21/06/2006 does not appear in the record. We perused the application form which no where has a column to give the name of the nominee. Also there is no name of the wife of the respondent in the application as nominee. 16. The respondent has filed two Xerox copies be dated 30/03/2006 and 21/06/2006 in which only the name of Hitesh Patel appears before the column of member name. But these are the copies of the member acknowledgement form and not original application form coipies. In these two forms, all choice regarding season and apartment are similar. It indicates that the second form dated 21/06/2006 was filed also for a similar membership as the first membership. There is ambiguity of about the name, as to which was the name whether Hitesh or Hemali. But there is no any request or any indication that the second form was filed with the intention of either up grading or merging of second application, in the first membership. Both the forms are filed before two different agents now respondent Nos. 2&3. It is the contentions of the respondent No. 1 that the name of his wife Hemali was given as a nominee in the application. Hence, the appellant came to know the name of his wife. The appellant therefore, sent the membership in the name of his wife Hemali and thereby caused him mental agony and harassment. When we find that, there is no column of nominee in the application form filed by the O.Ps. there cannot be any reason for the appellant to know the name of the wife of the respondent. It settles the ambiguity that the appellants can only know the name unless it is filed specifically in the application form by the respondent No.1 17. We also find that the respondent No. 1 had filed the application for the membership on 30/03/2006 and he received the certificate. The process was complete on the day of receipt of service. The grievance erupted after the filing of second application for a membership on 21/03/2006 which he claimed to have filed in his name but received the certificate in the name of his wife. The respondent No. 1 has never made a grievance regarding enforcement of service or deficiency in service but claimed to return the amount of both memberships when he had filed in two applications through two different agents. There is no evidence, shown by him, that he was assured of up gradation of membership or merging of second membership in the first membership when the acknowledgement form filed by the respondent No.1 are exactly similar and show that they are filed for separate independent memberships. Only the name of the respondent No. 1 appearing on the member acknowledgement form cannot justify his contention that he had filed the application in his name and he was assured the merging or up gradation of the membership when no such entry appears anywhere on the acknowledgement form. 18. It thus shows that the respondent No. 1’s contention of unfair trade practice and deficiency in service only in issuing him the certificate in the name of his wife does not stand to be justifiable. When there is no column to mention the name of nominee, there cannot be any reason for appellants to know the name of the wife of the respondent No. 1 to issue the certificate in her name unless the application is filed by giving her name. Thus the contentions of the respondent No.1, stands crippled without evidence. 19. We find that the learned Forum failed to peruse the copies of the applications filed before it for membership form. Also the respondent No. 1’s request is not for enforcement of right of service but was for the return of money after filing regular application for membership. The learned Forum therefore passed the order on the wrong presumption that the appellant committed deficiency in service when there was no evidence filed to show that the respondent was ever assured of up gradation of his membership and its service. Thus, the order of the learned Forum being based on wrong presumption proves unjustifiable and deserves setting it aside. Hence, we set it aside and pass the order as below. ORDER i. The appeal is allowed. ii. The order of the learned Forum is set aside. In the event the complaint stands dismissed. iii. Stay if any stands vacated. iv. Parties to bear their own costs. v. Copy of order be given to both the parties, free of cost. | 
