1.      The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 19.12.2017 of the State Consumer Disputes Redressal Commission Haryana (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 699 of 2016 in which order dated 02.06.2016 of Rohtak District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no 243  of 2013 was challenged, inter alia praying for setting aside the order dated 19.12.2017 of the State Commission and 02.06.2016 of the District Forum.

2.      While the Revision Petitioner (hereinafter also referred to as Complainant) was Respondent and the Respondents (hereinafter also referred to as OPs) were Appellants in the said FA No. 699 of 2016 before the State Commission, the Revision Petitioner was Complainant and Respondents were OPs before the District Forum in the CC no. 243 of 2013.

3.      Notice was issued to the Respondents on 20.04.2018. Parties filed Written Arguments/Synopsis on 01.11.2022 and 13.12.2019 respectively.

4.      Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that for inviting membership of their Company for tour packages, OPs got published their advertisement in various newspapers.  The complainant approached the OPs and enquired about the details of membership.  The OPs apprised the complainant of ‘White Billionaires Membership Scheme’ i.e. providing four return tickets to complainant to any destination in India and MGM Plan, 10 years vacation in the lifetime club.  The complainant paid an amount of Rs.90,000/- to the authorized representative of the OPs and on 02.10.2012, he received membership purchase agreement from the OPs.  According to the complainant, the membership got changed from ‘White Billionaire’ to ‘Blue Standard Priority’ without his consent and knowledge vide membership no.  13269 and he has to pay the utility charges at the time of holiday booking for any destination.  The complainant approached the OPs for changing the membership etc but OPs rejected his request.  Being aggrieved, the Complainant approached the District Forum. 

5.      Vide order dated 02.06.2016, District Forum allowed the Complaint.    Being aggrieved of the order of the District Forum, the OPs appealed in State Commission and State Commission vide order dated 19.12.2017 in FA No 699 of 2016, allowed the appeal of the OPs.   Hence, the Complainant is before this Commission now in the present RP.

6.      Petitioner has challenged the said order dated 19.12.2017 of the State Commission mainly on following grounds:

1. State Commission has passed the order in very  haste manner and failed to appreciate the affidavit of evidences and documents of the witnesses carefully.

2. Respondent has not produced any document before the State Commission / District Forum to prove that Petitioner had requested to change the plan of the membership from ‘White Billionaires to ‘Blue Standard Priority’ and State Commission did not consider the principal of ei incumbit probation qui dicit ( proof lies on him who asserts).

3. State Commission failed to appreciate the fact that respondent changed the membership plan without the consent of the complainant which is illegal and amounts to unfair trade practice under section 2 ( 1) ( r) of the Consumer Protection Act, 1986 and placed reliance on the judgment of the State Commission in Zaika Bazar Vs. Hemant Goel 2007 CPJ 96.

4. The State Commission has not given any reasoning while allowing the appeal and is contra legam ( not in conformity with the provisions of law)

5. Agreement of the respondent is not made for lawful consideration and lawful object and respondents have concealed the material fact from the complainant.  Their only intent was to grab the hard earned money of the general public.

7.      Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

7.1.   Counsel for the Petitioner argued that membership plan had been illegally changed from ‘white billionaire’ to sub standard plan ‘Blue Studio’ unilaterally without obtaining prior approval / consent of the Petitioner.  Counsel for the Petitioner further argued that OPs maintained that new plan carries the same benefit as that of ‘White Billionaire Plan’ but Petitioner came to know that there was  a material difference between the two plans. It is further contended by the Petitioner that argument of the respondent that had the complainant asked for change of plan, the respondent might have changed the plan, is a false statement as the respondent never offered the same before filing of the complaint and it was also very late offered.

7.2    Counsel further argued that judgment of this Commission relied upon by the respondent T.V.Sundaram Iyenger and Sons Ltd. Vs. Dr. Muhuswamy Duraiswamy and Anr. II ( 2003) CPJ 176 ( NC) is in consonance with the pleadings of the Petitioner as the contract is void for the want of consensus ad idem as the respondent had misled the Petitioner that both plans are similar and contains the same benefit.  However, later on it turned otherwise and a substandard plan was imposed on higher rate and thus both plans were same only in terms of fee charged. Even the judgment passed by this Commission in Homeopathic Medical College and Hospital Chandigarh Vs. Miss Gunita Virk ( 1996) CPJ 37 ( NC) also does not run counter to the claim of the Petitioner. 

7.3.   Petitioner is a Consumer under  Consumer Protection Act, 1986 and act of changing the membership unilaterally amounts to unfair trade practice and deficiency in service. 

7.4.   Counsel further argued that the Petitioner when sought booking the utility charges for booking were asked to pay and instead of providing return air ticket for couple and two children, only one way air ticket to the couple was offered.  The respondent kept justifying the change of plan from ‘White Billionaire’ to ‘Blue Studio’ to the Petitioner.

 7.5.  District Forum Rohtak had the territorial  jurisdiction to entertain and decide the complaint of the petitioner.

7.6.   It is further contended by the Petitioner that amount of Rs.90,000/- has been obtained by using deceptive methods followed by using the recourse of technical grounds to retain the same. The respondent cannot retain the hard earned money by just inserting non refundable clause unilaterally and illegally. 

7.7    Respondent had not produced even a single document or proof that plan was changed at the instance of the petitioner.

7.8.   Counsel for the Respondent argued that Petitioner had initially opted for ‘White Billionaire Membership’ which was mentioned in the approval form, however the approval form is not a standard agreement and is purely a summary of a membership / scheme opted by the prospective member prior to finalizing agreement between the parties.  Both the parties entered into an agreement dated 24.09.2012 where Complainant opted for final membership scheme under Blue Season Category Membership and executed an agreement titled ‘Membership Purchase Agreement for ‘Billionaire Membership’ and paid the consideration amount for the membership and the State Commission also appreciated the fact that agreement is the final binding  material between the parties.  

7.9    Respondents had no hesitation to change the plan but the Petitioner never asked for the same.

7.10. As per the agreement between both the parties, membership was not refundable.

7.11. State Commission has rightly held that Petitioner in the first instance had opted for a different membership and it was, thereafter at the Petitioner’s request, the same was changed to other one.  It was also rightly held by State Commission that Petitioner was fully aware about his membership and to which Petitioner had in fact consented by signing the agreement.  It was also  rightly held by the State Commission that if the Petitioner really had any grievance about the change in Membership, the Petitioner should have approached the Respondents immediately and should not have waited for about a year for the redressal of the grievances.

7.12. Reliance is placed by the counsel for the Respondent on the findings of this Commission in  Homoeopathic Medical College and Hospital, Chandigarh V Miss Gunita Virk ( 1996) CPJ 37 ( NC) where it is held that Fora constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal.  Reliance is also placed on the findings of this Commission in T.V.Sundaram Iyengar & Sons Ltd. Vs. Dr. Muthuswamy Duraiswamy & Anr. II ( 2003) CPJ 176 ( NC)

8.      As regards contention of Respondent about the territorial jurisdiction of District Forum, the State Commission has observed :

“……..Apart from this, the appellants have also questioned the territorial jurisdiction of the District Forum, Rohtak to entertain the complaint as no cause of action had arisen within the territorial jurisdiction of the District Forum, Rohtak, especially when the membership fee had been paid at Delhi and the insertion of the word ‘Rohtak’ appears to be interpolation made subsequently.”

          From this, it is seen that State Commission has simply stated the assertion of respondent on this issue, but has not given its own definite findings.  District Forum in its order has observed :

          “……As per Approval Form Ex.C2, the complainant has given his approval for the membership of ‘White Billionaire’ with membership fee of Rs.90,000/- and plan offers MGM Plan, 10 years vacation with lifetime club + with return airtickets 2A +2K ( 2 Adults and 2 kids) in India only and as per the writing made on the alleged document Ex.C-2/Ex.R-3, the same is created at Rohtak.  Hence this Forum has jurisdiction to try and adjudicate the matter……..” 

          We have carefully seen the Exb.C-3 document, which bears word ‘Rohtak’’ at the bottom and contains the correspondence address also of Rohtak.  Same address is seen mentioned in Exb.C-2 Agreement, although word ‘Rohtak’ is not mentioned after the address.  Hence we tend to agree with the findings of District Forum regarding territorial jurisdiction.

9.      State Commission in its order has observed that :

“From the documentary evidence produced by the parties, it stands established that the Complainant in the first instance had opted for a different membership and it was, thereafter at his request the same was changed to the other one.  This was fully in the knowledge of the complainant to which he had infact consented by signing the agreement.  The complainant is an educated person and was expected to read the documents before signing the same.  Moreover, if he really had any grievance about the change in Membership etc., he should have approached the OPs immediately and should not have waited for about a year for the redressal of the grievance.  Otherwise also, it was clearly mentioned by the OPs and agreed to by the complainant that the membership fee was not refundable.  Therefore, the question of claiming the refund by the complainant and the ordering for the refund of the same by the learned District Forum does arise………”

          On this point, District Forum  has observed

……… The other plea taken by the opposite parties is that the plan was changed at the request of complainant.  But to prove its contention, opposite parties have not placed on record any document. From the documents placed on record it is proved that the complainant has made approval for ‘White Billionaire’ as per approval form Ex. C3 but as per membership agreement Ex.C2 the plan  name has been changed by the opposite parties to ‘Blue Standard’ which shows the unfair trade practice on the part of the opposite parties..........Act of Opposite Parties of changing the membership plan without the consent of the complainant is illegal and amounts to unfair trade practice. As such opposite parties are liable to refund the membership fee to the complainant.”

10.    We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties.  Membership being ‘White Billionaire’ as per Approval Form ( Exb.C-3) is not in dispute.  This membership, for a fee of Rs.90,000/- entitles the applicant to ‘MGM Plan, 10 years vacation with Lifetime club + with return Airtickets 2A + 2K any Distination in India only.   However, as per ‘Membership Purchase Agreement for Billionaire’ ( Exb.C-2), the complimentary Vacation Membership is ‘Blue (Standard-Priority-Standard pricing), out of  options of following three:

(A)     Red ( High Priority-High pricing)

(B)     White ( Medium Priority-Medium pricing)

( C)   Blue (Standard Priority-Standard pricing)

and the purchase price is Rs.90,000/-. Under the heading ‘Particulars of the Billionaire Membership’, out of the three available options viz.

(A)     Billionaire Club-5 years 2 Night 3 Days

(B)     Billionaire Premium-10 years 6 Night 7 Days

( C)   Billionaire Gold – 30 years 6 Night 7 Days

Option ( B) is seen ticked.

          It is to be seen that signatures of the applicant / 2^nd Party on Exb.C-3 and Exb.C-2 are not same.  In his letter to the OP, the Complainant while objecting to the change of membership from ‘White Billionaire to ‘Blue Standard’, have also stated that on the Membership Purchase Agreement, his signatures were forged by the OP Company.  In the legal notice dated 19.01.2013 also, the Complainant has stated that his membership plan has been changed without his consent.

11.    From the foregoing, we tend to agree with the observations of the District Forum and contention of the Petitioner that Membership Plan was changed by OP without the consent of the Complainant.  There is no evidence on record to show the consent of Complainant for such a change.  The price paid by Complainant for ‘White Billioionaire’- a higher category plan, was Rs.90,000/-.  He has been charged same price of Rs.90,000/- for ‘Blue Standard Priority’, a lower category than ‘White –Medium Priority’.  No one will voluntarily agree for a lower plan subsequently at the price of higher plan.  Hence, we are of the view that OP changed the plan without consent of Complainant and State Commission went wrong in concluding that it was at the request of Complainant that plan was changed. Therefore, we find a material irregularity in the order of the State Commission, hence the same is set aside and order of the District Forum is restored.  Revision Petition is allowed accordingly with cost of Rs.5000/- to be paid by Opposite Party to  the Complainant.  All payments to be made by OP to Complainant within two months of date of this order.

12.    The pending IAs in the case, if any, also stand disposed off.