CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

Case No.298/2017

HARISH GUPTA

S/O SHRI RAMESH CHAND GUPTA

R/O G-135, KALKAJI,

NEW DELHI-110019…..COMPLAINANT

Vs.

M/S JUKASO TOURS

49/50, SUNDER NAGAR

NEW DELHI-110003.…..RESPONDENT/ OP 

Date of Institution-14/09/2017

           Date of Order- 16/06/2022

  O R D E R

RASHMI BANSAL– Member

Complainant filed the present complaint against OP, alleging deficiency in service in performing his part of contract despite receiving the payment and claiming for the refund of his membership fee with interest, compensation and expenses.

Complainant states that he was invited to the OP office on 01.07.2017 by his executive, where he was introduced to different tour packages. He denied finding them expensive, then OP presented a plan stating that it is at reduced rate with benefits like some lucky draw schemes, one gift card for rebate on diamond purchase and easy EMIs, if payment is made through credit card and

further assured a return of interest of Rs.8000/-. Upon persuasion from the OP, complainant had opted ‘Bronze Membership’ for 3 years in the name of his wife as applicant and himself as co-applicant and paid Rs. 50,000/- through his credit card on the same day.  Complainant stated that he was only made to sign Membership Purchase Agreement with assurance by OP that a welcome kit, containing membership card, certificate and season classification chart, will be sent at their home in 4 to 5 working days and thereafter he can plan his tour. Complainant stated that he has not received the welcome kit nor any communication from OP despite many reminders and upon much persuasion and follow ups, OP on 29.07.2017 has informed that the documents will take another 15 to 20 days to reach to him. The complainant by this time has lost all the faith in OP and therefore, he demanded refund of his money. On 30.07.2017, the representative of OP sent a message to complainant that welcome kit will take another 2 to 3 days, however, booking can be started but maintained silence to the demand of refund despite lots of communications, physical visitation to the office of OP. Through its email dated 19.08.2017, OP referred to the complainant’s meeting with his executive and asked him to reconsider his decision for refund of the membership fee stating that 60% membership cost shall be deducted as per company’s terms and conditions. This is grievance of the complainant that he has not been provided any service by the OP despite the payment of the complete membership price at the time of signing of the Membership Purchase Agreement  and on demand of refund, his 60% money shall be deducted, which is illegal as there was lapse on the part of OP in performing his part of contract.  This is further stated by complainant that these terms and conditions were never explained to him not he was allowed to read the documents before signing the above said agreement and that he has been misguided throughout this time and only after not receiving any satisfactory answer from OP, the present complaint is filed, praying for refund of his money along with compensation/damages for the harassment, mental agony and inconvenience caused to him.

The OP chose to not to appear despite service of summons and as such was proceeded ex-parte on 24.07.2017. Also, there is nothing on record to show any application was moved by the OP to set aside the ex- parte proceedings, though a vakaltnama has been filed on behalf of the OP on 29.03.2019, however, thereafter there was no participation by the OP in  the proceedings of the court.

In support of his case the complainant has filed evidence by way of affidavit and written arguments, along with photocopy of the bank statement showing the payment dated 02.07.2017 of Rs. 50,000/- towards OP through credit card, gift certificate no. 80953, Membership Purchase Agreement dated 02.07.2017 showing complainant’s traveller ID 164169, contract ID 80953, CME Id 1481, and various email correspondences with OP, wherein he has substantiated the content of the complaint/application, including email dated 19.08.2017 of OP. 

We have gone through carefully the documents available on record by the complainant and his evidence by way of affidavit. Since OP is proceeded ex– parte, this Commission did not have the benefit of the version of OP, thus, all the averments made in the complaint supported by evidence are deemed to have been admitted by the opposite parties and the evidence led by the complainant stands unrebutted.

Document on record establishes that complainant paid membership fee through the credit card on 02.07.2017 and signed Membership Purchase Agreement on same day. The communication between complainant and OP did not show that any welcome kit has been given to him. Email dated 19.08.2017 of OP also did not have any mention to the the grievances of complainant but confirmed his meeting with OP’s executive and informed about deduction of the 60% of the purchase price of the membership in case of cancellation.

The related clause 8.2 of the Membership Purchase Agreement reads as follows:

“Cancellation by traveler: a traveler can terminate the JHP – 3 years during JHP – 3 years usage period by tendering a request in writing duly signed by both applicant and the co-applicant. In the event the communication for withdrawal of application by the applicant is received beyond 10 days from the date of receipt of the down payment made by him, the request shall be treated as a request for cancellation (as opposed to withdrawal of Application detailed under clause 8.1 above) and the rules for cancellation shall apply. As observed in clause 1.4 above the RHP amounting to 60% of the JHP – 3 years price is non-refundable and only 40% of RUC is payable subject to deduction as stated in clause 8.4 here in below; ….”

The perusal of the documents on record, submissions, communications exchange between complainant and the OP leaves no doubt that OP has adopted unfair trade practice to retain its customer continued as its members by inserting punitive clause in the Membership Purchase Agreement in case they want to opt out from OP’s membership. The clauses of the above said agreement are standard form of contract, prepared by OP, contains wholly one - sided terms, highly favorable to OP, which put complainant to the disadvantage and where the complainant had no opportunity to negotiate or modify the terms. This is settled principle of law that a term of a contract will not be final and binding if it is shown that one party to the contract had no option but to sign on the dotted line, on a contract framed by other party. The contractual terms of the agreement dated 02.07.2017 are ex facie one-sided, unfair and unreasonable.  The incorporation of such one - sided clauses in an agreement constitutes an unfair trade practice as per Section 2(1) (r) of the Consumer Protection Act,

1986. Therefore, unfair terms of contract are not binding on the complainant. The OP has also caused deficiency in services by not providing essential documents to the complainant in the absence of which he could not avail the benefit of membership for which he has paid money instantly.

In view of the above discussion, this commission is of considered opinion that OP is liable for deficiency in its service and unfair trade practice, therefore, is directed to refund the whole amount of Rs.50,000/-  along with simple interest at the rate of 6% per annum from the date of filing the complaint till the date of its realisation along with compensation of Rs.5000/-  towards mental harassment, agony and discomfort caused to complainant and Rs.2500/- towards litigation cost, within three months from the date of pronouncement of this order, failing which the entire amount shall carry an interest at the rate of 10% per annum till the actual realisation from the date of filing the complaint.

The copy of the order be given to the parties free of cost. The file may be consigned to record room. The complaint could not be decided within statutory period because of heavy pendency of court cases. The order may be uploaded at the website www.confonet.nic.in

The order contains 5  pages and bears my signature on each page.

(RASHMI BANSAL)                                                       (MONIKA SRIVASTAVA)

        MEMBER                                                                            PRESIDENT