FINAL ORDER/JUDGEMENT

SHRI REYAZUDDIN KHAN,MEMBER

This is an application U/S..35 of the C.P. Act, 2019.

The case of the complainant, in brief that the complainant got a telephone call from one Anil Prasad representative of OP.No.1 and intimated that the complainant have won one lucky draw prize and he needed to attend their Country Vacation office at City centre Kasba,Kolkata on 22.02.2019.After long discussion the complainant convinced and took the lifetime membership.The complainant also stated that  the terms and conditions agreement’s text fonts were too small to read and understand. However, the complainant paid Rs. 70,000/- (Seventy Thousand)only the membership charges by cash via Receipt no.219-CVKK-37683 on 22.02.2019. But on 27.02.2019 the complainant sent one email requested the OPs for refund of the membership amount due to some personal problem.

on 12.03.2019 OP.No.1 via email had informed that he forwarded the refund request to the concerned department and accepted the cancellation of membership after deducting the nominal charges of Rs.3800/-and  the remaining amount to be paid within 120 working days from the date of invoking cool off period.On 18.12.2019 the complainant lodged a complaint to Dy.A.D CCGRC.11A,Mirza Galib Street,Kolkata against the OPs.for reconciliation but the OPs remained absent on the date fixed. Finally the Dy. CCGRC vide letter No.87(5) CAG dated 24.04.2020 advised the complainant to file the statutory complaints before the appropriate commission.

Finally, the complainant filed the case before the commission and  prayed for refund amount of 70,000/ and  compensation of Rs.50,000/- for the mental agony and harassment. 

      In support of his case the complainant has tendered evidence supported by affidavit and also relied upon documents annexed with the complainant petition. Complainant has also filed written argument. We have heard argument on merit and have also perused the record.

OPs contested the case by filing the WV.It is contented in WV that the complaint petition is not maintainable and that  totally false and fabricated and there is no any kind of unfair trade practice on the part of the OPs.The OPs dully attended the tri-party meeting and the complainant was assured about the refund of the membership amount as per “cool off clause” in the agreement.The OPs stated that the complaint filed against the OPs is only with the intention to harass as no cause of action has ever arisen and hence the complaint is  liable to be dismissed

The WV as filed by the OPs on 15.03.2021 that has no basis and hence there is no leg to stand in the instant case.As the OPs have failed to refund the  amount of the  complainant and the complainant is in regular in touch with the OPs to get his amount back,hence this is a continue cause of action until the OP refund the amount to the complainant. It is our considered view that the complaint  is very much maintainable  in the instant case under consumer Protection Act 2019.

Decision with Reasons

Upon perusal of the consumer complaint coupled with evidence of the complainant including photocopies of the money receipts amount Rs 70,000/ dated 28.02.2019,along with the “Millionaire Club Premium Package Sale Agreement” dated 22.02.2019  we find that the complainant had deposited 70,000 ( Seventy Thousand) only and took the membership of the mentioned club.But after few days later due to some personal problem ie. On 27.02.2019 the complainant sent an e-mail to OP1 and asked to withdraw the membership agreement and refund of the deposited membership charges of Rs 70,000 during the “Cooling Off Period” as mentioned in the package sale agreement clause 27. In response of the e-mail dated 12.03.2019 the OP1 confirmed the receipt of the mail and request of cancellation of  membership and agrees to refund the money after deducting the nominal charges of Rs,3800/ within 120 working days from the date of invoking cool off period.Inspite of the development  the OPs failed to discharge their contractual obligations regarding payment of the said amount and making unnecessary delay on the part of the complainant.

The OPs are fully aware that they are liable to pay the deposited amount including interest thereon to the complainant. Complainant deposited  his hard earned money with the OPs. The OPs deliberately make their illegal gains and to deprive the complainant from his lawful right withheld the deposited amount. Thus, the OPs have adopted unfair trade practice, and in fact, withhold the deposited amount of Rs. 70,000/( Rupees Forty seventy thousand) only  along with accrued interest. Complainant have filed his affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs.70,000/ ( Rupees Seventy thousand) - the OPs have failed to refund the said amount. In absence of any explanation for failure to comply with the stipulation of refund of deposited amount, we have no hesitation in concluding that the OPs have committed deficiency in service and also has indulged in unfair trade practice

The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent  legislation cannot be overlooked and its object is not to be frustrated. The complainant has deposited Rs70,000/ ( Rupees Seventy thousand) to the OPs for membership of the tour package but due to some personal problem he was compelled to cancel the same and requested for refund of the amount.. The OPs failed and neglected to pay deposited amount Rs 70,000/ to the complainant and the act and conduct of the OPs are  clear case of deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not deposited his money with the OP,  he would have deposited the same elsewhere. The complainant cannot be wait indefinitely to get the said amount. The complainant has suffered mental agony, pain and harassment. It is settled principle of law that the compensation should be commensurate with loss of suffered and it should be just, fair and reasonable and not arbitrary. To get relief, the complainant has to wage a long drawn and tedious legal battle. In these circumstances, the complainant is entitled to refund of deposited amount along with  compensation.

In the result, the case succeeds .

Hence,

Ordered

That the complaint case be and the same is allowed contested against the OPs.

OPs are directed to refund the deposited amount Rs,66,200 ( Rupees Sixty Six  thousand two hundred) only after deducting the nominal charges of Rs,3800/ as per agreement.

OPs are further directed to pay Rs. 15,000/- (Rupees Fifteen thousand) only as compensation for causing mental agony, pain and harassment to the complainant within the stipulated period.

Complainant put the order in execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.