Date of Filing – 18.04.2017

Date of Hearing – 18.05.2017

            The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Judgement/Final Order dated 07.02.2017 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, Ld. District Forum) in Consumer Complaint no. 292/2016.  By its order, the Ld. District Forum allowed the complaint lodged by the Respondent under Section 12 of the Act on contest with certain directions like to refund Rs.1,30,000/-, to pay compensation of Rs.5,000/- and litigation cost of Rs.3,000/- within one month from the date of the order otherwise the amount shall carry interest @ 12% p.a. from the expiry of stipulated time till its realisation.

          The Respondent herein being Complainant lodged the complaint asserting that on 14.04.2015 she received one telephone call where she was informed that she was a lucky winner and requested her to attened the office of the opposite party on the following date.  On 15.04.2015 the complainant with her husband went to City Centre-2, New Town for marketing and also went to the office of the opposite parties.  Being persuaded by the opposite parties, the complainant took membership of OP No.2 along with her husband on paying a sum of Rs.1,30,000/- vide Membership Card No. CVKK 37 Club 10 LV 198446 C and a gift packet presented to the complainant.  Subsequently, complainant desired to travel at Bishnupur with their pets to stay there for few days by the OP No.2 told her that there is no vacancy and it will be informed later on.  Thereafter, the complainant contacted OP No.2 to travel Mandermoni with pets but the OP No.2 also replied in the same fashion and stated that there is a garden at Baruipur where the complainant and her husband may go but they have to feed themselves with their own costs which the complainant did not accept.  The complainant alleged that without giving any service, the OP No.2 demanded Rs.8,500/- as a service tax over phone.  Meanwhile, from the publication of Anandabazar Patrika dated 15.05.2016 they came to know that the opposite parties cheated other persons in the same fashion.  Hence, the respondent approached the Ld. District Forum with prayer for certain reliefs including refund of amount, compensation of Rs.25,000/- and litigation cost of Rs.5,000/-.

          The appellants being opposite parties by filing a written version disputed the claim of the complainant stating that the name of the company is not ‘Country Vacations’.  Country Vacations is the division of Country Club Hospitality and Holidays Limited (formerly known as Country Club India Limited).  The opposite parties have stated that the complainant took the membership of the club voluntarily to avail package of 6 nights and 7 days per year.  The OPs have categorically stated that the complainant first wanted to travel to Bishnupur but they do not have a lodging facility in Bishnupur and further no pet is allowed in any of the lodging facilities offered by the opposite parties.  The OPs have also stated that all member of the Club are contractually obliged to pay an amount of Rs.8,500/- towards annual fees towards maintenance charges and as such the complaint should be dismissed with cost.

          After assessing the materials on record, the Ld. District Forum by the impugned order allowed the consumer complaint with certain directions, as indicated above, which prompted the OPs to approach this Commission with the instant appeal.

          Mr. Sumeet Chowdhury, Ld. Advocate appearing for the appellants on the threshold of a submission has submitted that the Ld. District Forum should have dismissed the complaint as there was no privity of contract in between the parties.  He has further submitted that the Ld. District Forum ought to have appreciated the fact that a newspaper clipping does not constitute evidence in the eye of law.  He has finally submitted that as there was no deficiency in services, the Ld. District Forum ought to have dismissed the complaint.

          The respondent, who appears in person has submitted that she was subjected to mental agony and harassment by the appellants and placing reliance to the BNA filed by her, she has submitted that the impugned order should not be interfered with.

          I have given due consideration to the submission advanced by the parties and scrutinised the materials on record including brief notes of arguments filed on behalf of the parties.

          Undisputedly, on 15.04.2015 a Vacation Agreement was entered into between Country Vacations (a division of Country Club Hospitality and Holidays Ltd.) (in short, CCHHL) a Company incorporated under the Indian Companies Act, 1956 and the complainant/respondent and his husband Sri Tapan Mukherjee.  On the basis of the said Agreement, the complainant has paid a sum of Rs.1,30,000/-.  As per Agreement, a member is entitled to stay for a period of every year for upto six nights and seven days each year at CCHHL properties within India.  The Agreement further goes to show that vacation entitlement also covers CCHHL affiliated/associated properties which are on short/long term list/tie-ups.  As of 2015, the appellants has over 59 vacation properties at different places in India out of which only one in the State of West Bengal at Mandarmoni, East Medinipur.

          Admittedly, the complainant approached the OP No.2 for providing them an accommodation at Bishnupur for stay.  The OP No.2 could not provide the same as there was no resort in their disposal.  Thereafter, the respondent contacted the appellant no.2 for accommodation at Mandarmoni but the appellants replied that there is no vacancy at present and no pets will be allowed.  On the contrary, the appellant no.2 requested the respondent to stay in their garden at Baruipur, Dist- South 24 Parganas but they have to feed themselves with their own costs.

          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.

          Ld. Advocate for the appellants has also referred several decisions including the decision of Roop Kumar’s case passed by the Hon’ble Supreme Court on 02.04.2003 in SLP(C) No.5835/2001 where it has been observed that when there is a written agreement, oral evidences are barred under Section 92 of the Evidence Act.  A Consumer Forum is meant for disposal of a consumer dispute in a summary way for a limited purpose and in this regard, the trappings of Civil Court will not be applicable, particularly, when the agreement is available and the appellants being one of the parties of the agreement is fully aware of the same.  Ld. Advocate for the appellants has also placed reliance to a decision passed by the National Consumer Commission in RP/1485/2012 (Promode Kumr Rai – Vs. – M/s. Sri Ram Transport Finance Co. Ltd.).  The said decision with reference to a hire purchase agreement and in that case it has been settled that as per agreement, the finance company is well within its rights to seize the vehicle, which has no bearance with our case.  Ld. Advocate has also referred a decision of Hon’ble National Commission dated 26.07.2016 (ICICI Home Finance Co. – Vs. – Bhim Sen Lekhra). In the said case, dispute arose regarding procurement of loan of Rs.85,000/- which is also distinguishable with the fact and circumstances of our case.

          The Ld. Advocate for the appellants did not spare to argue that there was no privity of contract in between the parties and as such the Ld. District Forum should have rejected the complaint on that ground alone.  The cause title of the petition of complaint goes to show that – (1) The Chief In-charge of Country Vacations, A division of Country Club and (2) Customer Care Team of Country Vacation Club have been impleaded as opposite parties.  The vacations agreement dated 15.04.2015 depicts that Country Vacations (a division of Country Club Hospitality and Holidays Ltd.) entered into an agreement with the respondent.  There is no reason to raise doubt against whom the respondent lodged the complaint.

          The avowed object of the Act is to protect a consumer.  In Lucknow Development Authority – Vs. – M.K. Gupta reported in (1994) 1 SCC 243 the Hon’ble Supreme Court has observed thus –

          “To begin with the preamble of the Act, which can afford useful assistance to ascertain the legilslative intention, it was enacted, to provide for the protection of the interest of consumers.  Use of the word ‘protection’ furnishes key to the minds of makers of the Act.  Various definitions and provision ......”.

          Keeping in view of the same, a liberal and constructive approach should be taken to protect a consumer, particularly when there is apparent deficiency on the part of opposite parties/appellants.  Therefore, since I do not find any merit in the appeal, it is liable to be dismissed.

          Consequently, the appeal is dismissed on contest.  Considering the facts and circumstances, there will be no order as to costs.

          The impugned Judgement/Final Order is hereby affirmed.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.