Present : Sri. C.T. Sabu, President
Smt. Sreeja. S., Member
Sri. Ram Mohan R., Member
15th day of December 2022
CC 197/20 filed on 09/03/2020
Complainant : Benny K.K., S/o Kochappu, Kolangara House,
Cheroor P.O., Thrissur – 680 008.
(By Adv. M.S. Basanth, Thrissur)
Opposite Party : Manager, Country Club Hospitality & Holidays Ltd.,
Fourth Floor, Capital Centre, Opp. Secretariat,
Thiruvananthapuram – 695 001.
(Ex-parte)
F I N A L O R D E R
By Sri. Ram Mohan R, Member :
- Summary of the complaint, as averred :
The complaint is filed under Section 12(1) of the Consumer Protection Act, 1986. The complainant, previously an expatriate and presently settled at Thrissur in Kerala on 21/06/17 availed membership of the opposite party company, paying a sum of Rs.2,00,000/-, the Membership Number allotted being CCC0211V3021372529. The opposite party company is statedly engaged in the business of operating resorts, both overseas and domestic, apart from being conductor of tours. At the time of issuance of Membership, the opposite party made the complainant believe their promises of providing him and his family facility for free accommodation at the opposite party’s resorts, as well as free travel and stay at places like Dubai, Malasia and Bangkok for 3 nights and 4 days. Allegedly being allured by the said promises, the complainant states to have availed membership of the opposite party company. In spite of his having repeatedly urged the opposite party company, he had not statedly been provided with any such facility. Subsequently on 16/07/19, the opposite party offered the complainant to provide him with all the assured facilities, if the complainant pays them a further sum of Rs.15,500/-. The complainant gave heed to the said demand of the opposite party and paid them a further sum of Rs.15,500/- on the same day. The opposite party, allegedly has not so far effectuated the promises they gave. The complainant alleges deficiency in service and adoption of unfair trade practice on the part of the opposite party. A lawyer notice issued by the complainant also statedly elicited no result. Hence the complaint. The complainant prays for an order directing the opposite party to refund the entire sum he paid, apart from other reliefs of compensation and costs.
2) NOTICE :
The Commission issued notice to the opposite party. The opposite party failed to enter appearance, nor filed their version before the Commission, in spite of their having received the Commission’s notice to that effect. Accordingly, proceedings against the opposite party were set ex-parte.
- Evidence :
The complainant produced documental evidence that had been marked Exts. A1 to A4 apart from affidavit and notes of argument. Proceedings against the opposite party being ex-parte, no documents produced on their part.
4) Deliberation of facts and evidence of the case :
The Commission has very carefully examined the facts and evidence of the case. Ext. A1 is the opposite party’s letter dtd. 24/07/17 addressed in to the complainant. Ext. A2 is print out of receipt dtd. 16/07/19 issued by the opposite party in favour of the complainant, receiving from him a sum of Rs. 15,500/-. Ext. A3 is copy of the lawyer notice dtd.22/01/2020. Ext. A4 is Postal Receipt.
5) Points of deliberation :
(i) Whether the act of the opposite party is tantamount to unfair trade
practice or whether there is any deficiency in service on the part of
the opposite party and whether the complainant is entitled to refund
of the sum he paid ?
(ii) Whether the complainant is entitled to receive any compensation
from the opposite party ? If so its quantum ?
(iii) Costs ?
6) Point No.(i)
Ext. A1 letter explicitly evidences the opposite party’s receipt of Rs.2 lakh from the complainant towards issuing him membership of the opposite party company with Membership No. CCC0211V3021372529. By Ext. A1, the opposite party further assures the complainant that he is eligible for “6 nights and 7 days holidays for 31 years”. Ext. A2 receipt is revelatory of the opposite party’s receipt of further sum of Rs.15,500/- from the complainant on 16/07/19. In the absence of any evidence to the contrary we find no reason to disbelieve the allegations raised by the complainant regarding the opposite party’s noncompliance of their promises. The opposite party had obviously received funds from the complainant giving him hollow and tall promises. The opposite party failed to adhere to the promises they had given the complainant while issuing membership to him after receiving Rs.2 lakh from him. The opposite party’s deceptive act of defrauding is certainly an unfair trade practice which at the same time constitutes deficiency in service on their part, as well. The opposite party had also not cared either to enter appearance or to file their written version before the Commission, in spite of their having received the Commission’s notice to that effect. This recalcitrant and neglectful demeanour of the opposite party unveils their blatant disregard to the process of law. The opposite party’s conscious failure to submit their written version amounts to admission of allegations levelled against them by the complainant. The Hon’ble National Commission expressed the same view by its order dtd. 09/10/17 in RP 579/2017 [2017 (4) CPR 590]. The complainant is undoubtedly entitled to receive from the opposite party a refund of the entire sum i.e. Rs.2,15,500/- that he paid.
8) Point No.(ii) & (iii) :
The complainant who expended a handsome sum of Rs.2,15,500/- believing the promises made by the opposite party, could not enjoy its fruits owing to the wrong doings on the part of the opposite party. This is certainly an act of unjust enrichment made by the opposite party. The opposite party is liable under the doctrine of ‘Nemo Debet Locupletari ex Aliena Jactura’, as well, which means that no one should grow rich out of another person’s loss. The misdeeds on the part of the opposite party have evidently inflicted financial loss, mental agony and hardship on the complainant. The opposite party has necessarily to compensate the complainant. We are of the considered view that the complainant is entitled to receive from the opposite party a sum of Rs.75,000/- towards compensation for the financial loss, agony and hardship he underwent and a sum of Rs.5,000/- towards costs.
In the result, the complaint is allowed and the opposite party is directed to
- refund to the complainant a sum of Rs.2,15,500/- (Rupees Two lakh fifteen thousand five hundred only),
- pay the complainant a sum of Rs.75,000/- (Rupees Seventy Five thousand only) towards compensation for the financial loss, agony and hardship he underwent, and
- pay the complainant a sum of Rs.5,000/- (Rupees Five thousand only) towards costs,
all with 9% interest p.a. from the date of filing of the complaint till the date of realisation. The opposite parties shall comply with above direction within 30 days of receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 15th day of December 2022.
Sd/- Sd/- Sd/-
Sreeja S. Ram Mohan R C. T. Sabu
Member Member President
Appendix
Complainant’s Exhibits :
Ext. A1 opposite party’s letter dtd. 24/07/17 addressed in to the complainant. Ext. A2 print out of receipt dtd. 16/07/19 issued by the opposite party in favour
of the complainant, receiving from him a sum of Rs. 15,500/-.
Ext. A3 copy of the lawyer notice dtd.22/01/2020.
Ext. A4 Postal Receipt.
Id/- Member
