Chandigarh

DF-II

CC/155/2016

Vishal Goel - Complainant(s)

Versus

Jukaso Resorts Pvt. Ltd., - Opp.Party(s)

In Person

30 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

============

Consumer Complaint  No	:	155 of 2016
Date  of  Institution	:	02.03.2016
Date   of   Decision	:	30.09.2016

 

 

 

 

Vishal Goel s/o Late Sh.G.D.Goel, r/o House No.3153, Sector 40-D, Chandigarh.     

 

             Complainant

Versus

 

1]  Jukaso Resorts Pvt. Ltd., 50, Sunder Nagar, New Delhi, through their Managing Director.

 

2]  Jukaso Resorts Pvt. Ltd., SCO 6-7, Sector 8, Chandigarh, through their Authorised Officer.

 

      Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN            PRESIDENT

MRS.PRITI MALHOTRA        MEMBER

           

 

Argued By: Sh.Complainant in person.

None for OPs.

 

 

PER PRITI MALHOTRA, MEMBER

 

                                As per the case, the complainant was convinced to purchase the Membership of OPs worth Rs.1.00 lacs for ten years on assurance that their company has no season system, paid an amount of Rs.25,000/- to the OPs through credit card, as part payment vide receipt dated 2.8.2015 (Ann.C-1). After that the Opposite Parties agreed to convert the membership of the complainant for the period of 25 years costing Rs.1,40,000/- and accordingly, the complainant paid another amount of Rs.15,000/- to the OPs on 5.8.2015 (Ann.C-2).  The remaining amount of Rs.1.00 lakh was paid by the complainant on 12.8.2015 to the OPs vide receipt (Ann.C-3) and as such, a Certificate of Membership was issued in favour of the complainant (Ann.C-4). 

         It is submitted that in Nov., 2015, the complainant called Mr.Vijay Chaudhary, Official of OPs for booking of his vacation for Shimla for the last week of Dec., 2015, which was flatly refused by him saying that no vacation can be booked for the last week of Dec., 2015 and when an enquiry was made, the Opposite Parties informed that the membership of the complainant is of Blue Season, therefore, he is not eligible for booking of vacation for the last week of Dec., 2015.  The complainant raised his grievance with the OPs vide e-mail dated 29.12.2015 (Ann.C-5) followed by another e-mail dated 10.1.2016 (Ann.C-6) but nothing positive was done.  It is pleaded that the OPs sold the membership to the complainant for Rs.1.00 lacs for the period of ten years, which is excessive of Maximum Fixed Price, because the maximum price of said membership was Rs.90,000/-.  It is further pleaded that the OPs have committed the unfair trade practice with the complainant by selling said membership on a false and frivolous commitment that the complainant can book his vacations for a week any time in a year and that there is no season system.  It is also pleaded that the complainant made a call to the Opposite Parties for the booking of Gurgaon for 20.2.2016 vide e-mail dated 11.2.2016 (Ann.C-8), but the Opposite Parties failed to confirm the booking.  Due to the inaction of OPs, the complainant sought for refund of his amount, which the OPs till date failed to refund. Hence, this complaint has been filed alleging the above act & conduct of the OPs as deficiency in service and unfair trade practice.

 

2]       The OPs have filed joint reply stating that the Membership Agreement was signed on 5.8.2015 with the complainant and his wife Smt.Meenu Goel as co-applicant and the ‘Membership Application Form’ was duly signed at Chandigarh containing all terms & conditions, with membership details covering the period of Membership for 25 years with Studio Apartment. A Blue Season membership was given to the complainant with down payment of Rs.1.40 lacs for membership costing Rs.1,99,000/-.  It is stated that the first e-mail received from the complainant by the Opposite Party was on 29.12.2015 (Ann.C-5) wherein alleged complaint was registered with the Opposite Parties showing the grievances of the complainant and his request for refund of his money.  However, the complainant sent e-mail on 10.1.2016 giving approval to the OPs to convert his membership into Red Membership for 10 years for Rs.90,000/- and it was agreed that the annual subscription fee (ASF) was Rs.6500/- annual maintenance and the buffer amount of Rs.50,000/- was adjusted towards annual subscription fee for ten years by giving waiver of ASF of two years. 

         It is submitted that as per the ‘Membership Application Form’, a cancellation request has to be submitted by the joint applicants, as per the rules governed under clause 6 of the membership rules and till date no cancellation request has been moved by the complainant signed by co-applicant and more than 90 days have passed from the date of joining of membership, hence the complainant is not entitled to ask for termination of the membership on account of any reason and the total amount paid by the complainant stands forfeited as per the Membership Claus-6. It is submitted that it is correct that the official of OPs may have refused the booking request for vacation for Shimla for the last week of Dec., 2015 and there was no formal reservation request made by the complainant, as he was advised to make a prior reservation request two months in advance prior to booking his vacation for his desired destination as per the properties of the OPs.  It is submitted that the e-mails are not disputed but the officials of the OPs informed that the issue has been resolved according to the requirement of the complainant.  Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.  

 

3]       Parties led evidence in support of their contentions.

 

 

4]       As none appeared on behalf of the Opposite Parties on the date fixed for arguments i.e. 26.09.2016, we therefore, proceed to dispose of the complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date) even in absence of the OPs.  We have heard the complainant in person and have also perused the entire record.

 

5]       The matter is proved to the extent that the complainant initially availed membership of the OPs for 10 years by paying an amount of Rs.25,000/- as part payment on 2.8.2015 and thereafter got it converted it into 25 years membership plan by paying further amount of Rs.15,000/- plus Rs.25,000/-. Thus, the complainant paid an amount of Rs.1.40 lacs in total to get the membership of the OPs for 25 years plan. 

 

6]       It is disputed by the complainant that when in the month of Nov., 2015, he opted to avail the benefit under the membership by processing a booking for Shimla, his proposal was declined by the OPs stating that it being a case of Blue Season Membership, the booking was not confirmed. It is claimed that at the time of availing the membership, the OPs represented that the Company has no season system and on that assurance, they availed the membership.  Further, it is claimed that being dis-satisfied with the services of the OPs, the complainant vide e-mail dated 29.12.2015 called for the Opposite Parties to refund the amount paid to them.  The complainant also claimed that his second effort to arrange for the booking with the OPs was also failed because of refusal conveyed by them.  The complainant disputed that despite repeated requests, the OPs till date had not refunded the amount, hence filed this complaint. 

 

7]       Denying any deficiency in service, the OPs claimed that they only received e-mail dated 29.12.2015 (Ann.C-5) whereby the complainant showing his grievance requested for the refund of money i.e. Rs.1.40 lacs.  Further submitted that again the complainant vide e-mail dated 10.1.2016, requested to convert his membership into Red Membership for 10 years for Rs.90,000/- and it was agreed that the Annual Subscription Fee (ASF) was Rs.6500/- annual maintenance and the buffer amount of Rs.50,000/- was adjusted towards annual subscription fee for ten years by giving waiver of ASF of two years. It is further claimed that the cancellation request was required to be moved by both the members jointly and claimed that since more than 90 days have passed from the date of joining of the membership, so not entitled to ask for the termination of membership on account of any reason and the total amount paid by the complainant stands forfeited, as per the Membership Clause NO.6.

 

8]       From the submissions/pleadings of the parties and evidence available on record, it reveals that the complainant remained unsatisfied with the inaction of the OPs to provide services under the Membership availed by him and now, is no more interested to continue with the membership of the OPs.  The complainant accordingly had made request to the OPs for refund vide e-mail dated-29.12.2015 and also requested otherwise verbally on telephone. 

 

9]       It is admitted by the OPs that the complainant applied for the cancellation of the Membership with further request to refund the amount paid by him vide e-mail dated 29.12.2015.  It is observed that despite the receipt of the refund request vide e-mail dated 29.12.2015, the OPs observed silence and never intimated to the complainant that he is required to apply for cancellation request by making a joint application duly signed by co-applicant.  The observation of silence by the OPs resulted in lapsation of 90 days i.e. period prescribed under terms & conditions to apply for cancellation of Membership refund. In our opinion, the OPs are liable to make the refund of the amount paid by the complainant as he applied for the cancellation of the Membership and asked for the refund, well within the prescribed period i.e. within the period of 90 days. Thus, the complainant is completely entitled for the refund of his amount as the complainant applied for the refund not only within reasonable period but also within the prescribed period and the objection of the OPs is a mere technicality, which otherwise also is not sustainable.   

 

10]      In our considered opinion, the OPs are not at liberty to forfeit the whole amount of the complainant just taking shelter under Clause 6 of the Membership Rule. 

 

11]      It is admitted by the OPs that the officials of the OPs may have refused the booking request made by the complainant for vacation for Shimla for the last week of Dec., 2015.  For their failure to provide services, the complainant opted to ask for the refund of Membership Fee paid by him to the OPs.  Even after applying for the refund of the amount deposited for the membership, the complainant on the assurance of the OPs again tried to book for Gurgaon and when was again refused to accommodate, then left with no other alternative, the complainant completely make up his mind not to continue with the membership and again asked for the refund of the amount. The record is evident that the complainant has also sent an e-mail dated 10.1.2016 showing his interest to continue with the membership and also requested to change his membership from Blue to Red and asked to adjust the amount in annual charges.  This shows the willingness of the complainant to retain the membership, but since again his request was declined, so he was right in asking for the refund of the amount when experienced that the OPs are reluctant to give the facility under the membership.  Although the OPs have claimed in their reply that they converted the membership from Blue Season into Red season and adjusted the amount of balance of Rs.50,000/- towards annual subscription fee for ten years by giving waiver of ASF (Annual Subscription Fee) of two years, but they have not appended any document to prove the same.

 

12]      In view of the above discussion, we are of the opinion that deficiency in service on the part of the Opposite parties have been proved and thus, the complaint deserves to be allowed against the OPs. Accordingly, the complaint is allowed and the Opposite parties are jointly & severally directed as under:-

a]  To refund an amount of Rs.1.40 lacs to the complainant;

 

b]  To pay an amount of Rs.25,000/- as compensation for causing mental agony and physical harassment to the complainant due to their deficient services;

 

c]  To pay Rs.10,000/- towards litigation expenses.

 

         The above said order shall be complied with by the Opposite Parties within 45 days of its receipt, failing which they shall be liable to pay interest @9% p.a. on the above awarded amount as at sub-para [a] & [b] above from the date of filing this complaint till it is paid, besides paying litigation expenses.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

30^th Sept., 2016                                                                                                                                                             Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

 

 

Sd/-  

 (PRITI MALHOTRA)

MEMBER