FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member

Complainants’ case, in brief is that, being allured to the representation of the OP’s complainants have entered into an  Sale Agreement with OPs by depositing Rs.1,550,000/- through A/C payee cheque in favour of OPs on 11.01.2019. Thereafter complainant suffered serious illness and felt the urgent need to revoke the tour plans of OPs out of doctor’s advice of bed rest. Therefore the complainant requested the OPs to refund the money in writing or alternatively transfer the plan facility to others, other than the complainant but the near relatives of the complainant. But the OPs did not bother to communicate with the complainant. Then the complainant compelled to send an advocate’s notice to the OPs. But the OPs did not turn up. Finding no other option the complainant decided to knock the doors of this Ld. Commission to get relief/reliefs.

The instant consumer complaint is contested by the OPs contending inter alia that the present complaint is false, fabricated and only with the intention to harass the OPs and no cause of action has ever arisen against the OPs and there is no deficiency of service on the part of the OPs. The case of the OPs is that the complainants were well explained about the facilities and benefits being provided to them before execution of the said agreement between the parties. There were no concealment or misrepresentation of facts or contents of the agreement. It is also the case of the OPs that the Membership Fees is non-refundable under any circumstances as the same is categorically mentioned in the Membership Agreement itselfand the said membership is a valid contract and once the parties to the contact accept the terms and conditions thereof, the same cannot be repudiated on unilateral whims of any of the parties.Further it is stated by the Ops that as per Clause No. 34 the consideration paid for the membership is not a deposit. As such, OPs have prayed for dismissal of the instant consumer complaint.

Ld. Advocate for the complainants has advanced the case by adducing relevant evidences and documents but restrained to file questionnaire and failed to reply the questionnaire filed by the OPs in spite of specific order.  Both parties filed BNA. We have gone through all the evidences and documents on record and gave a thoughtful consideration to the entire fact.

Admitted fact is that a Sale Agreement was executed between the parties and the complainant paid an amount of Rs.1,50,000/- by issuing a cheque in favour of the complainant. Fact remains that the complainant had gone under critical condition of health. Ld. Advocate for the complainant alleged that under abovementioned circumstances the complainant had to revoke the tour plans and requested the OPs to refund the money or alternatively transfer the tour facility to others, other than the complainant but the near relatives of the complainant. But the OPs did not bother to respond. On the other hand, O.Ps did not file any document regarding the said agreement on negotiation with the complainants. Ld. Advocate for the OPs denied the allegation made by the complainant by showing terms and conditions where it is mentioned that membership fee is not refundable under any circumstances. No documentary evidence is furnished by the OP with their WV regarding this submission. OPs submitted that the complainants voluntarily entered into the membership agreement. But they did not explain facts as put in the complaint petition by the complainant that complainant requested them to transfer the tour plan facility to near relatives of the complainant. Photocopy of the Sale agreement reveals that it is mentioned in the Clause 27 under Terms & Condition that:

CCHL neither does engage any renting & selling of member’s unused vacations or benefits  nor allow the vacationer to exploit it commercially however in an event that guest would like to gift it to someone  other than the members a guest fee will apply.

In view of the abovementioned clause it is found that they themselves violated their clause by not taking any initiative to transfer the tour plan facility and benefits as requested by the complainant. This gesture appears as gross negligence and deficiency in service on the part of the OPs.

On the contrary, in reply, OPs submitted that they will file supporting evidential documents as exhibits during the appropriate stages of the case to prove their transparency. But the OPs failed to furnish any piece of evidence in support of such contention. As such, the case of transparency, aforesaid, could not be established by the OPs.Therefore we are not inclined to consider this submission. It has further been submitted by the OPS that the complainant has never approached the OPs for availing any service, thus there is no cause of action and question of deficiencyin servicefor thisinstantcasearise.

In this context, it is our considered view that the OPs by being inactive regarding the transfer of the tour plan facilities and benefits as requested by the complainant  andrefusing to cancel the agreement and to refund the deposited sum, is surely indulge themselves in unfair trade practice.

Therefore, complainants are entitled to get relief or reliefs as prayed for after deducting the service charge of Rs.3,800/-.

In result, the case merit succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest against the OPs. with cost of Rs.10,000/-.

OPs are directed to refund Rs.1,46,,200/- (150000 – 3800 = 146200)  to the complainant along with litigation cost within 45 days from the date of this order.

OPs are further directed to pay Rs.10,000/- to the complainants as compensation for causing harassment, mental pain and agony.

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.