MRS. M. SHREESHA, MEMBER

Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short, “the Act”) is to the order dated 09.06.2017 in First Appeal No. A/454/2017, passed by the West Bengal State Consumer Disputes Redressal Commission (in short, “the State Commission”).  By the impugned order, the State Commission has dismissed the Appeal preferred by Country Vacations and concurred with the finding of the District Consumer Disputes Redressal Forum, North 24 Parganas (in short “the District Forum”).

2.       The facts in brief are that the Complainant received a phone call on 14.04.2015 that she was a lucky winner and that ten people out of one lakh were the winners and she had to go to the customer care team of Country Vacations (hereinafter referred to as “the Opposite Party”) for claiming the Prize. On 15.04.2015, the Complainant and her husband went to the office and were informed that if they would become members of Country Vacations, they would be able to travel extensively with many perks. Attracted by the offer, the Complainant took membership along with her husband by paying a sum of ₹1,30,000/- and membership card No. CVK37 club 10 LB 198446 and a gift packet was presented to them. After taking the membership, the Complainant came to know that only the Complainant and her husband could avail the gym and nobody else. Subsequently, the Complainant desired to travel to Bishnupur  with her pets  and to stay there for a few days. But the second Opposite Party informed them that there were no vacancies and that they would be informed a little later about the availability. It was averred that the Complainant got to know from a reliable source that the Opposite Party had no resort at Bishnupur. Thereafter, the Complainant wanted to travel to Mandarmoni with her pets but again she got the same  reply that there were no vacancies and also  that there was a  garden at Baruipur where the Complainant and her husband could travel but they had to feed themselves at their own cost and the Complainant did not accept this offer. Thereafter, despite the Complainant not having availed any of the services of the Opposite Party an amount of ₹8,500/- as service tax was repeatedly demanded by several phone calls. In the meantime the Complainant came to know from Ananda Bazar Patrika  dated 15.01.2016 that several people got cheated and got compensation from the District Forum and therefore the Complainant did not pay the said amount of ₹8,500/- as service tax. It was averred that the Complainant and her husband did not travel anywhere and did not avail any service and repeatedly demanded refund of the deposited amount of ₹1,30,000/-, but there was no response. Hence the Complainant approached the District Forum seeking refund of the deposited amount of ₹1,30,000/- together with compensation of ₹25,000/- and cost of ₹5,000/-.

3.       The Opposite Party filed their Written Version stating that they have the largest network of establishments with different types of clubs and resorts and offer the best luxury health and entertainment options. It was admitted that the Opposite Party had contacted the Complainant over the telephone but such an act on the part of the Opposite Party was not a spontaneous communication as the Complainant had duly provided their contact details to the representatives of the Opposite Party after accepting their voluntary interest to learn about the unique offer. The Complainant voluntarily paid the requisite charges and became members and the membership package of 6 nights  and 7 days per year for 10 years and lodging facilities at the location/ places  more specifically mentioned  in the provided brochure along with the membership Agreement with the terms and conditions guiding  the said services was duly signed, sealed and executed between the Parties. It was averred that the Complainant first wanted to go to Bishnupur, West Bengal and demanded that the Opposite Party arrange for their stay and lodging facility therein. The Complainant was very much aware that the Opposite Party does not have any lodging facility and Bishnupur. There was also a demand that they be allowed to visit the lodging facility along with their pets. The Opposite Party pleaded in their Written Version that no pet was allowed in any of the lodging facility offered by the Opposite Party and the same is mentioned in the Agreement dated 15.04.2015. The Complainant in September 2015, once again  demanded that the Opposite Party arrange their stay at Mandarmoni along with their pets. It was intimated to them that lodging facility would be provided on a first come and first serve basis and no pets were allowed during such period. It was further averred  that all members are contractually obligated to pay an amount of ₹8,500/-towards annual fees, maintenance charges. It was stated that there was no unfair trade practice and the same was communicated to the Complainant vide letter dated 15.02.2016.

4.       The District Forum based on the evidence adduced, allowed the Complaint directing the Opposite Parties to refund the amount paid with compensation or ₹5,000/- and costs of ₹3,000/- with a default clause of 12% interest.

5.       Aggrieved by the said order, the Opposite Party preferred an Appeal before the State Commission which observed as follows:

“In any case, it is quite evident that the appellant no.2 demanded Rs.8,500/- on the basis of terms of agreement as annual maintenance charges.  According to the terms of the agreement, the opposite parties/appellants should have offered the respondent a place where she can stay with her husband peacefully.  Nowadays, there are so many travel agencies through which a person may enjoy holidays.  In the case beforehand, the respondent advanced an amount of Rs.1,30,000/- from their hard earn money to enjoy hassle free vacation in the resorts of the appellants.  But all the hopes and aspirations of the respondent went in vain.  In other words, according to terms of agreement, when the appellants did not offer any resorts to the respondent for enjoying her vacation period in accordance with agreement and further claimed amount of Rs.8,500/- as annual maintenance charges, there cannot be any doubt that the opposite parties/appellants were deficient in rendering services.

          The Ld. District Forum, however, should not give any attention to the citation published in a Bengali daily newspaper dated 15.01.2016.  In this regard, the decision of Hon’ble Supreme Court referred by the Ld. Advocate for the appellants in Civil Appeal Nos. 2951-2957 of 2001 (Union of India & Ors. – Vs. – Major S.P. Sharma & Ors.) appears to be relevant.  In Paragraph-83 of the said decision, referring a decision of the Hon’ble Apex Court reported in (2006) 11 SCC 696 (Union of India & Ors. – Vs. – Ranbir Singh Rathaur & Ors.) it has been observed that newspaper reports/statement made by an officer cannot be considered as evidence.  Therefore, the reliance on clippings of newspaper should not be taken into consideration and accordingly, I discard the same.

          However, the observation of the Ld. District Forum that travelling of pets with the complainant does not hold much water appears to be acceptable because the point of violation of terms of agreement on the ground of pets does not stand the taste of scrutiny.  The appellants, in all fairness could write a letter to the respondent requesting her to visit in any of their specified destination without pets but silence in this regard on the part of the opposite parties clearly demonstrates that the observation of the Ld. District Forum in this regard was quite justified.”

6.       Learned counsel appearing for the Revision Petitioner vehemently contended that as the Opposite Party does not have the lodging facility at Bishnupur and even in other lodging facilities pets are not allowed, it was not possible to adhere to the request made by the Complainant and her husband. In fact even in September 2015 Complainant wanted to travel to Mandarmoni and sought arrangement for their pets, which was rejected on account of the fact that pets were not allowed. The Complainant also did not pay an amount of ₹8,500/- towards service charges. Learned counsel further submitted that a copy of the said Agreement was filed by the Petitioners along with Written Version, which stipulates that the annual maintenance charges of ₹8,500/- needs to be compulsorily paid. He further contended that the exhaustive list of all the destinations of Country Vacations was enclosed in the fora below and Bishnupur is not mentioned in the list of places.

7.       As the membership account, the period of membership is not in dispute, the only point that falls for consideration is whether the Petitioner is liable to refund the membership fee as the fact remains that as per clause 32 of the Agreement pets are not allowed and it is the case of the Complainant who is present in person that they cannot travel without their pets as there is nobody else to take care of them and further they vacation only with their pets. The Complainant in person argued that after the phone call, wherein she was informed that she won a lucky draw and she had visited the office of the second Opposite Party, she and her husband were shown a video wherein it was specifically mentioned that the lodging facilities were ‘pet friendly’ though the aspect of the video was not specifically pleaded in the Complaint. The fact remains that the Petitioner cannot offer lodging facilities wherein pets are allowed at the same time the Complainants have not availed any service of the Petitioner as they cannot travel leaving their pets behind. It has been specifically submitted that this clause was not brought to their notice while accepting the membership fees. Be that as it may, keeping in view the peculiar facts and circumstances of the case we are of the considered view that as the situation does not permit the Complainant  to avail any of the services of the Revision Petitioner either in the present or in the near future having regard to the amount of ₹1,30,000/- which has already been paid we are of the considered opinion that the Petitioner cannot retain the amount in such a situation. Hence we find that there is no illegality or infirmity in the concurrent finding of both the fora below warranting our interference in our limited revisional jurisdiction as envisaged by the Hon’ble Supreme court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. 2011 (11) SCC 269.

8.       It is observed that no interest has been awarded by the District Forum on the said amount but interest @ 12% p.a. was awarded only as a default interest, if the Petitioner did not pay the amount within the stipulated period. Though we set aside this interest of 12% p.a. we modify the order to the extent that if the amount of ₹1,30,000/-, compensation of ₹5,000/- and cost of ₹3,000/- awarded by the district Forum is not paid within four weeks from the date of receipt of a copy of this order the entire amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realization.

9.       In the result, this Revision Petition is disposed of with the aforenoted directions. However, no costs.