DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Complaint Case No : CC/58/2019

Date of Institution : 03.06.2019

Date of Decision : 16.09.2019

Meena Rani wife of Kamal Jindal resident of Kothi No. 57, Aastha Enclave, Dhanaula Road, Barnala, District Barnala.                              …Complainant

Versus

M/s Tybros Holiday and Retreat India Pvt. Ltd., Tybros House, 5/54, Main Shankar Road, Rajinder Nagar, New Delhi-110060 through its Managing Director.  

…Opposite Party

Complaint Under Consumer Protection Act.1986.

Present: Sh. RK Singla counsel for complainant.

Sh. Gagandeep Garg Proxy counsel for opposite party.

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

3. Smt. Manisha : Member

(ORDER BY KULJIT SINGH, PRESIDENT):

    The complainant namely Meena Rani has filed the present complaint under Consumer Protection Act (in short the Act) against Tybros Holiday and Retreat India Private Limited, New Delhi. (in short the opposite party). 

2. The facts leading to the present complaint as stated by the complainant are that on 26.8.2016 the officer of the opposite party namely Amit alongwith his team invited the complainant at Radiant Plaza, Barnala to tell her about their business and told that the opposite party have resorts in all over India and members of their company can enjoy holidays up to seven nights per year alongwith their spouse free of cost all over India and food will also be provided free of costs. The member can take any person with him and hotel accommodation will be provided free of cost to the members in case resort is not available in the said area. The member will have to pay Rs. 65,000/- in installments for five years and if the member pay the amount in lump sum, he will have to pay Rs. 57,500/-. The complainant trusting the words of the representative of the opposite party paid a lump sum amount of Rs. 57,500/- through credit card on the same day. 

3. It is further alleged that the complainant received a letter dated 1.9.2016 welcoming the complainant to their EON Club as member for five years and illegally demanded Rs. 6,000/- from the complainant as annual subscription fee as this was not demanded when accepting membership fee from the complainant and told the complainant that no annual fee will be charged. The complainant called the opposite party for trip to Mumbai and Goa alongwith her brother in law's family but the representative of the opposite party avoided the complainant by excusing that there is no resort available but on many requests the opposite party asked the complainant to come on 19,20 and 21 January 2017 for the trip. On reaching Goa the representative of the opposite party told the complainant to limit their trip to Goa only as there is no availability of resort at Mumbai and complainant and her relatives were forced to re-arrange their trip. 

4. Further, in November 2017 the complainant approached the opposite party for a trip but the opposite party offered other destination than demanded by the complainant and also illegally demanded Rs. 6,000/- as annual fee which is clear cut deficiency in service and unfair trade practice on the part of the opposite party. The complainant also got served a legal notice dated 11.2.2019 but to no effect. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite party may be directed to refund the amount of Rs. 57,500/- alongwith interest at the rate of 18% per annum from the date of deposit till realization.    

2) To pay Rs. 1,00,000/- on account of mental tension, agony and physical harassment.           

3) To pay Rs. 11,000/- as litigation expenses.  

4) Any other relief this Forum deems fit. 

5. Upon notice of this complaint, the opposite party filed written reply taking preliminary submissions that the complainant opted for the membership in opposite party company EON Club specifically for the purpose of stay in the properties offered by the opposite party. The complainant opted for the membership of the opposite party on 26.8.2016 and paid a sum of Rs. 57,500/- and duly executed the form which visibly explained the terms and conditions of membership on the basis of which the complainant was entitled to stay in hotel/resorts as per the rules mentioned in the form. As per rules the reservation of the properties of the opposite party is subject to the availability and booking shall be made on the sole basis of first come and first served. But the complainant failed to adhere the rules of the reservation and applied for reservation without confirming the availability on the location. The complainant seeking the refund of the amount deposited at the time of availing the membership but as per rules after 90 days from the date of execution of membership form the member shall not entitled to ask for termination of membership on account of any reason. Further, the complainant is not a consumer of the opposite party and there is no deficiency in service on the part of the opposite party. Further, this Forum has no jurisdiction to try the present complaint as opposite party has no office at the place of institution of the present complaint and all the transactions have taken place at New Delhi, so this Forum has no jurisdiction as even no cause of action has taken place at Barnala. 

6. On merits, it is submitted that while applying for the membership the complainant agreed to all the terms and conditions of the membership form so now she cannot wriggle out from these terms and conditions. It is also mentioned in the membership form that member has to pay an annual subscription fee as per the type membership selected by the member. However, the opposite party waived of the annual subscription fee of the complainant for the first year. Further, the complainant was notified in advance that there is no availability of room at Mumbai accommodation so she had to limit her trip to Goa only. Further, the complainant will have to pay Annual Subscription Fee   which is also mentioned in the membership agreement. There is no deficiency in service and unfair trade practice on the part of the opposite party and lastly the opposite party prayed for the dismissal of the present complaint. 

7. In support of her complaint, the complainant tendered into evidence her own affidavit Ex.C-1, copies of welcome letter Ex.C-2, copy of holiday Gift Voucher Ex.C-3 and Ex.C-4, copy of legal notice  Ex.C-5, copy of postal receipt Ex.C-6, copies of emails Ex.C-7 to Ex.C-28, copies of bank receipts Ex.C-29 and Ex.C-30 and closed the evidence.   

8. To rebut the case of the complainant, the opposite party  tendered into evidence copy of extracts of minutes of meetings Ex.OP-1/1, copy of membership form Ex.OP-1/2, affidavit of Rakesh Kumar Ex.OP-1/3, copy of bank receipts Ex.OP-1/4 and closed the evidence. 

9. We have heard the learned counsel for the parties and have gone through the record. Written arguments filed by the parties have also been gone through. 

10. It is admitted fact between the parties that the complainant is the member of the opposite party by paying the amount of Rs. 57,500/- to them and signing the membership form Ex.OP-1/2. It is also admitted between the parties that the opposite party waived of the annual subscription fee for the first year of the complainant. The main grievance of the complainant in the present complaint is that the opposite party offered the other destination than demanded by the complainant and also demanded annual subscription fee of Rs. 6,000/- from her. 

11. The most important document in the present complaint is the copy of the membership form Ex.OP-1/2 in which at Page No. 3 Point No. 12 it is mentioned that “ I/We understand that Thril needs to maintain the resort towards which I/We confirm having agreed to pay Annual Subscription Fees (ASF), irrespective of the fact whether I/We has/have availed the holiday in a particular year or not and non payment of ASF for 2 consecutive years shall result in my/our disentitlement from the use of and/or cancellation of Thril membership.” In this point it is clear by the opposite party that non payment of annual fee for two consecutive years shall result in cancellation of membership. Further, at point No. 19 it is mentioned that “ I/We confirm that there are no other verbal/written promises or any other assurance not mentioned in the membership rule that been made by any Thril personnel.” In this point it is clear by the opposite party that they are not bound by any verbal assurance given by their personnel. It is important to mention here that this membership form specifically this page No. 3 is duly signed by the complainant and this page is also signed by co-applicant Kanwal Kumar Jindal. Further, at page No. 5 in Rule 3.5 it is mentioned that “All Holiday Reservations for the members shall be done on a first come first serve basis and are consequently subject to eligibility and availability of apartment (As per the eligibility of the member based on the membership plan opted) at any of the Thril notified resorts. Request for reservation (For availing the membership benefits) can be made by a member in advance as per the detail given below: From 3 months prior to the proposed date of reservation till 2 days prior to the proposed date of reservation (Depending upon the type of membership opted).” In this rule it is clear by the opposite party that reservation only be done on the availability and eligibility of the member. This page is also properly signed by the complainant. Further at page No. 7 at Membership Rules 8.1 it is mentioned that “After 90 days from the date of execution/signing of the membership application form member shall not entitled to ask for the termination of membership on account or any reason and the total amount paid by the member towards the membership fee shall be forfeited by Thril.” In this rule it is clear by the opposite party no member shall entitle to ask for cancellation of membership after 90 days of the date of execution of the application form. This page No. 7 is also duly signed by the complainant. On the last page also the complainant duly signed the membership application form alongwith date and place. Further, on every page it is mentioned I/We have gone through the terms and conditions and have understood the same. I/We are aware of Thirl terms of membership and agree to abide by same. In this way, the opposite party only made the complainant to be a member of his company only after signing this membership form by her, agreeing all the terms and conditions of the membership. As the complainant signed all the relevant pages of the membership form agreeing terms and conditions of this agreement, so in our view now she cannot wriggle out from these terms and conditions of the agreement and cannot ask for the refund of the membership fee. Further, this Forum cannot change or alter the terms and conditions of this agreement.

12. In view of the above discussion, as the complainant already agreed to the terms and conditions of the agreement, so by not refunding the membership fee by the opposite party is not at all any deficiency in service and unfair trade practice on their part. Accordingly, there is no merit in the present complaint and same is dismissed. However, no order as to costs or compensation. Copy of this order be supplied to the parties free of costs. The file be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN FORUM:

    16th Day of September 2019

 

 

            (Kuljit Singh)

            President

              

(Tejinder Singh Bhangu)

Member

 

(Manisha)

Member