Date of Filing: 20.07.2016
Date of Order:08.10.2018
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.Vijender, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER.
Monday, the 8th day of October, 2018
C.C.No.351 /2016
Between
B.Yelraj, S/o. Late B.Bheemaiah,
Hindu, aged about 55 years,
Occ: Cook, R/o. H.No.12-1-18,
Plot No.104 & 105, Srinivasnagar Colony,
Bandlaguda, G.S.I. Post,
Uppal Mandal, R.R. District,
Hyderabad – 500068. ……Complainant
And
M/s. COUNTRY VACATIONS,
Rep. by its Manager Mr. Mahender,
Office at: Asian Building, 4th Floor,
Country Club, Begumpet,
Secunderabad – 500016.
(A Division of COUNTRY CLUB
HOSPITALITY & HOLIDAYS LTD., (CCHHL)
Office at Amrutha Castle, 5-9-16, Saifabad,
OPP: Secretariat, Hyderabad-500063.) ….Opposite Party
Counsel for the complainant : M/s. S.Kantha Chary & A.Rajeswari
Counsel for the Opposite Party : Sri Rajesh Jaiswal
O R D E R
(By Sri. Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint is filed under Section 12 of C.P. Act of 1986 alleging unfair trade practice on the part of the Opposite Party have to refund of Rs.1,00,000/- collected from the complainant and interest thereon @ 12% p.a., from 20.07.2016 to the date of payment, to award a compensation of Rs.1,00,000/- for causing mental agony and sufferings to the complainant and cost of legal notice at Rs.3,000/- and costs of Rs.15,000/-.
1. The Complainant’s case in brief is that: his daughter received a message on 06.05.2016 on phone asking to come with couple to Lifestyle on 07.05.2016. But, she ignored this said message. Again on 07.05.2016 at 9:00 a.m., she received a call from the same person who sent message and informed that her cell phone number was selected in a Lucky draw conducted by Manager of the Opposite Party and asked her to come with her parents to collect three free gifts. Immediately she informed it to her parents. Since, the complainant’s felt that the Opposite Party is a popular and known to many people likely to fulfill the promises in good faith they went to Opposite Party Office on the same day at about 10:00 A.M. Two persons viz., Mr. Mahender and Vijayalaxmi said to be employees of the Opposite Party introduced themselves to the complainant and his wife and he asking for three (3) free gifts which were promised in the cell phone call received by her daughter. Then the said persons have provided three (3) gift Vouchers one is Food Voucher for four members second one is Holiday Voucher for one week and third one is Day Usage Voucher. The said three Vouchers contained logs of the Opposite Party. The complainant and his wife were offered to provide (1) Arrangement of Flight Tickets with accommodation up to 40% discount for four members (2) Functional Halls on free of cost for four times in a year at Country Club or White House or Vasanth Vihar (3) Five (5) grams Gold coin free of cost (4) 150 Sq. yards open plot near Jangam, Warangal District on free of cost to the complainant and his wife and they were asked to join as a members with Opposite Party Club.
2. Inorder to induce and cheat the complainant’s wife the Opposite Party provided membership cum sale Agreement Form and asked them to sign of it without explaining the contents and purpose. The complainant and his wife are illiterate people hence could not read the said Form which is in English. They were informed by the representatives of Opposite Party that unless membership Form is signed they will not be entitled for the above said benefits. They were further informed that, after signing the Agreement if they are not interested to continue as members they can ask for the cancellation of membership and to refund the deposited amount. The complainant and his wife believed the same and signed the said Agreement on the same day without knowing the actual contents of the Agreement. Soon after signing of the above said Agreement the Opposite Party representatives demanded them to deposit an amount of Rs.1,75,000/- towards Membership fee. Since, there was a promise of 5 grams gold coin free of cost and other benefits offered the complainant and his wife deposited Rs.1,00,000/- in cash with the Opposite Party on the same day and issued a cheque for Rs.75,000/- drawn on SBH, Nagole Branch in faovur of the Opposite Party and receipt acknowledging the cash payment for Rs.1,00,000/- and delivery of cheque for Rs.75,000/- was issued to the complainant. But, the Opposite Party avoided to fulfill the promises and denied to give 5 grams of the Gold Coin on free of cost.
3. Suspecting the promises made by the representatives of Opposite Party the complainant went to Vasanth Vihar Function Hall and White House function Hall on 09.05.2016 to find out whether the management of the said Halls has any tie up with the Opposite Party and came to know that, the said two function Halls has no nothing to do with Opposite Party. Then, the complainant and his wife have realized that, they were cheated by the Opposite Party. Hence, complainant rushed to S.B.H., Nagole Branch Manager and asked to stop payment of the Cheque amount of Rs.75,000/- and demanded the Opposite Party to refund cash amount of Rs.1,00,000/- collected on 07.05.2016 but, the Opposite Party postponed the same on one or other pretext.
4. On 11.05.2016 complainant went to Opposite Party and asked to return the amount of Rs.1,00,000/- and it was prolonged by Opposite Party by one week. Thereafter, sent Membership Cards in the name of the complainant and his wife. Since the Opposite Party deliberately avoided to fulfill the promises made with regard to benefits to the complainant and his family members and avoided to refund Rs.1,00,000/-. Then the complainant got issued a legal notice on 10.06.2016 asking the Opposite Party to refund the amount of Rs.1,00,000/- with interest @ 12 % p.a., and to pay a damage of Rs.1,00,000/- and cost of legal notice at Rs.3,000/-. The said notice was served on the Opposite Party on 16.06.2016. The Opposite Party got issued a reply on 23.06.2016 confirming the enrolment and his wife as members and has made all false allegations.
5. The complainant inorder to find out whether the Opposite Party is incorporated under the Companies Act and possessed necessary permissions to carry out Business activities got issued a Rejoinder to the reply to the Opposite Party on 29.06.2016 asking to furnish copies of Certificate of Incorporation, Memorandum and Articles of Association / Bye-Laws, Rules and regulations and necessary permissions from GHMC to run business activity to the Health Department, Commercial Tax Department etc. The said rejoinder notice was received by Opposite Party on 30.06.2016 did not respond. The complainant also had sent copy of legal notice dated 28.06.2016 to the Central Customer Care Team of CCHHL by it’s E-mail ID: but there was no response. Hence, the present complaint.
6. The Opposite Party filed written version denying the material averments of the complaint and substance of it’s defence is: it is a leading hospitality Company offering state of the art clubbing facilities, innovative family holiday packages and star-studded entertainment events. It has got its own properties, 25 fitness centers and 42 associated resorts across 4 Countries. It is the country’s largest chain of Family Clubs, recognized by prominent citizens from all walks of life. In the programs conducted by it leading film stars have attended and it members were given an opportunity to meet the said stars and to dine with them. It also conducts events from their family members, which has been recognized by the Guinness Book of World Records for conducting by 15000 people in fourteen (14) locations. It is also involved in CSR activities such as Blood donation camps, providing food and other requirements festivals for the marginally disadvantaged children and it has been in the market for the last 25 years. It invests heavily in recruiting good manpower and training the customer care and reservations staff. It has always worked establish a transparent relationship with members.
7. The complainant joined as Thumps Up Member with the Club on 07.05.2016 agreeing to pay a sum of Rs.1,75,000/- towards nonrefundable Membership fee. He paid a sum of Rs.1,00,000/- in Cash on the same day for the balance amount of Rs.75,000/- he issued a cheque which was accepted subject to realization. On the same day the complainant signed the Membership Agreement for a Membership to himself and his spouse. The Membership fees of Rs.1,75,000/- is nonrefundable as per the terms and conditions of the Membership Agreement signed by complainant and his wife as per terms and conditions of the Membership. The complainant is entitled to book holiday for two (2) nights and three (3) days in a year in its resorts. He has to pay a sum of Rs.5,000/- per year as Annual Maintenance charges irrespective of usage of Club facilities.
8. The Club never offered to arrange flight tickets with accommodation up to 40% discount for four (4) members, function halls at free cost for four (4) times in a year at White House or Vasanth Vihar and also never offered five (5) grams of the Gold Coin and free of cost and 150 Sq. yards of the Plot for free of cost to the complainant and his wife on the condition of their joining as members of the Club. The allegations of the complainant that without explaining him and his wife their signatures were obtained on the Forms and he was never informed that he can seek cancellation of the Membership and ask for refund fees paid within 45 days etc. There was no inducement or compulsion on the complainant and his wife to sign the Membership Agreement. As such the allegation made to their effect which are totally false.
9. The complainant after instructing his Banker to stop payment of Cheque amount of Rs.75,000/- has not paid the balance amount and thereby committed breach of contract. Since, the complainant has not made full payment under the Agreement within 90 days the Club has right to forfeit the money already paid and cancel the allotted vacation and other benefits provided under the Membership Agreement. As per the terms and conditions of the said Agreement the Club has adjusted the amount of Rs.1,00,000/- paid towards part payment. As per the terms and conditions of the Membership Agreement the complainant and his wife were provided with Membership Cards as such there is no deficiency of service to them. To the notice got issued by the complainant with false and frivolous allegations a suitable reply was given.
10. The complainant is entitled to book holidays in advance with the Opposite Party but, he never requested to provide in accommodation. The complainant was allotted a complimentary Plot subject to payment of entire Membership fee and Stamp duty and registration and documentation charges, legal consultation fee and incidental expenses for execution of Gift Deed and the charges for basic development works like marking the plot numbering, Road marking etc., at Rs.50,000/-.
11. As per the terms and conditions of the Membership Agreement the complainant is not entitled to seek cancellation of the Membership or for refund of the amount paid. So, the question of payment of any interest doesnot arise. Since, Membership is a valid contract and once party having accepted the terms and conditions thereof cannot repudiate the same unilaterally. Hence, the complainant is not entitled for any reliefs prayed for.
12. In the enquiry stage complainant has filed his evidence affidavit and substance of the same in tune with the case set out in the main complaint and to support the same he got exhibited 11 documents. Similarly, for the Opposite Party the evidence affidavit of one Mr. C.M.Sridhar stated to be it’s Assistant Manager is filed and to support the contents of the same 5 documents are exhibited through him.
13. Both sides have filed written arguments and supplemented the same with oral submissions.
14. On a consideration of material on the record and hearing of the arguments of both sides the following points have emerged for consideration.
- Whether there is a valid and legal by enforceable concluded contract between the complainant and Opposite Party?
- Whether the complainant is entitled for the amounts claimed in the complaint ?
- To what relief?
15. Point No.1: The entire defence of the Opposite Party is: complainant signed the Membership Agreement under Ex.A1 after agreeing for the terms and conditions incorporated to them. Since the terms and conditions of it clearly says, the amount received towards Membership fee is not refundable and a party to this contract cannot unilaterally seek it’s cancellation. Whereas, the case of the complainant is he is a cook by profession and totally illiterate person and by calling himself and his wife through a phone call to their daughter, the representatives of the Opposite Party made oral promises and induced them to sign Ex.A1 Agreement without explaining the terms and conditions contained therein. It is also the specific case of the complainant that since he is an illiterate the terms and conditions incorporated in Ex.A1 which are in English the same were not explained to him and his wife in a vernacular language. The Opposite party denying this version of complainant. A close examination of the signatures of the complainant and his wife on this Ex.A1 Agreement shows any amount of truth in the complainant version because his signatures in vernacular language with it consist of letters in Telugu not clearly written. It gives an impression that the complainant only learnt signatures above and nothing else. That apart this Ex.A1 Format stated to membership Agreement contains several blanks. At Clause-7 not filled up, the 4th page of this Ex.A1 also contain several blanks which are not filled up does not contain the name of the person except the signature. It also fails to disclose the name of the person though there is a column maintained to mentions the name of the persons signing on behalf of the Opposite party. Similarly Clause No.7, page No.4 of the Ex.A1 also mentions as to mode of payment and Bank details and amount payable in EMIs. Similarly, Clause No.8 is for mentioning name of the Venture in which 150 Sq. yards of the Plot was agreed to be given in the Members and both these columns are not filled up. Only the fourth Clause showing the Membership Agreement as amount of Rs.1,75,000/- and third clause showing the annual maintenance of Rs.5,000/- are filled up.
It is the specific case of the Opposite Party in the written version as well as in the evidence filed on it’s behalf that, it has agreed to allot complimentary Plot to the complainant subject to payment of entire Membership fee, Stamp duty, registration and documentation charges, legal consultation and incidental expenses for execution of Gift Deed and the charges for basic development works like marking the plot numbering, Road marking of Rs.50,000/-. But, neither the plot member nor it’s location map confirmation of accepted by member and details of amounts liable to be made by the member are show even as on today. It is also claim of the Opposite Party that, the complainant has authorized it to levy annual administration charges and only after verification of all the terms and conditions of Membership, he agreed to take Membership. As already said complainant apparently is totally illeterate then, who explained the terms and conditions of Ex.A1 Agreement in the vernacular language known to whom is not stated. What prevented the Opposite Party to mention the name of it’s representatives who explained so called terms and conditions of the Agreement even in the evidence affidavit is not stated. Hence, it is crystal clear that this claim of the Opposite Party is absolutely incorrect.
The Opposite Party in its written version at page No.4 has categorically stated that a call was made to the complainant known as “WELCOME CALL” through telephonic conversation from Opposite Party and the complainant has confirmed his Name, Date of birth, his wife’s name her date of birth details of plot registration amount as well as Stamp duty and annual maintenance charges in English language as well as Telugu and the complainant is neither agitated nor raised any objections that he did not understand the English language. It fortifies the complainant’s version that, his daughter received a message from a representative of the Opposite Party on 06.05.2016 informing the function hall as venue and his attending it on 07.05.2016 at 9:00 A.M., and the same person who sent message and informed that her cell phone number was selected for Lucky draw conducted by Manager of the Opposite Party club asking her to come along with family to collected three free gifts. So there was inducement from the side of the Opposite party for the complainant and his wife to visit the venue fixed by the Opposite Party on 07.05.2016 and after going there the complainant and his wife were made to be believe the false promises made by the representatives and under the said inducement the complainant paid a cash of Rs.1,00,000/-. So neither the payment made by the complainant nor signing of Ex.B1 Membership Agreement was voluntary on the part of the complainant.
There is no acceptable evidence on the record from the Opposite Party to believe that complainant signed Ex.A1 Agreement knowing and understanding it’s terms and conditions. The Opposite Party with it’s representatives were in a dominant position in obtaining the signatures of the complainant and his wife on Ex.A1 Agreement on made them to pay Rs.1,00,000/- on cash believing the oral promises as genuine. As such, there is no valid and concluded contract between the parties. Hence, though Ex.A1 contains the signatures of complainant and his wife it terms and conditions are not binding on them. Accordingly the point is answered infavour of the complainant.
Point No.2: Since, complainant was made to part with an amount of Rs.1,00,000/- under an inducement and false promises taking advantage of his illiteracy he is entitled to seek for refund of the same. The Opposite Party has caused mental agony to the complainant and reliable to pay a compensation also. The Opposite party is directed to refund the entire amount of Rs.1,00,000/- with interest @ 12% p.a., from 07.05.2016 to the date of payment. Opposite Party also shall pay a sum of Rs.1,00,000/- as compensation to the complainant and a further sum of Rs.10,000/- towards costs of this complaint. Time for compliance is one months from the date of service of this orders to the Opposite party.
Point No.3: In the result, the complaint is allowed in part directing the Opposite Party to refund the entire amount of Rs.1,00,000/- with interest @ 12% p.a., from 07.05.2016 to the date of payment. The Opposite Party also shall pay a sum Rs.1,00,000/- as compensation to the complainant and a further sum of Rs.10,000/- towards costs of this complaint.
Time for compliance is one months from the date of this orders to the Opposite Party.
Typed by Typist, corrected and pronounced by us on this the 8th day of October, 2018.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
PW1 DW1
Sri B.Yelraj, Mr. C.M. Sridhar,
Assistant Manager
Exs. filed on behalf of the Complainant:
Exhibit: A-1 is Original of Membership Sale Agreement, dt.07.05.2016.
Exhibit: A-2 is Original receipt, dt.10.05.2016
Exhibit: A-3 is Original Membership Card-2016 in favour of the complainant.
Exhibit: A-4 is Original Membership Card-2016 in favour of the complainant’s wife.
Exhibit: A-5 is a copy of Legal Notice, dt.10.06.2016.
Exhibit: A-6 is Original Postal receipt, dt.10.06.2016.
Exhibit: A-7 is Original Postal Acknowledgment, dt.16.06.2016.
Exhibit: A-8 is Original Reply Notice, dt.23.06.2016
Exhibit: A-9 is a copy of rejoinder to reply notice, dt.29.06.2016.
Exhibit: A-10 is original postal receipt, dt.29.06.2016.
Exhibit: A-11 is a copy of Acknowledgment, dt.30.06.2016.
Exs. filed on behalf of the Opposite Party:
Exhibit: B-1 is a copy of Voice record CD of Welcome call.
Exhibit: B-2 is a copy of Reply notice, 23.06.2016.
Exhibit: B-3 is a copy of Membership Agreement.
Exhibit: B-4 is a copy of a few facts of the concept.
Exhibit: B-5 is a copy of Button up Form.
MEMBER PRESIDENT
kps
