BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

19^th DAY OF AUGUST 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) claiming refund of Rs.30,000/- paid by him together with compensation of Rs.30,000/- for causing mental agony and stress.

2. The brief averments made in the complaint are as under:

That on the repeated calls made by the officials of the OP that they have won a prize worth Rs.30,000/- in a lucky draw the complainant along with his wife went to the club premises of the OP on 31^st January 2014.  The complainant and his wife were taken over to a hall where loud music was put and they were explained about the membership and club facilities by showing colourful brochures of the resorts at different places and made all sorts of false promises like zero interest EMI of Rs.1,666/- for 18 months on trail basis (subject to the satisfaction) for first three years which comes to Rs.30,000/- and further stated that the said offer is valid for the said day only due to their 30^th Anniversary and promised that no additional amount need to be paid and there will be no annual maintenance/administration charges.  The complainant was also informed that he and members of his family could go to their any one of the resorts any time for picnic with maximum 10 members for which no payment is to be made.  The complainant and his wife were forcibly made to sit in the said premises and signatures were forcibly obtained on certain forms despite resistance.

After forcibly obtaining the signatures of the complainant and his wife on certain forms without giving any opportunity for them to read contents of the forms.  Their representative Mr.Manoj came to the house of the complainant to collect money.  On 31^st January 2014, the said Manoj has swiped their debit card for Rs.5,000/- and also collected Rs.5,000/- in cash.  When the complainant questioned as to why they are collecting full amount of Rs.30,000/- despite the complainant opting for EMI scheme.  The said Manoj as well as Ms.Annapurna and one Keshav told them that it will be converted later into EMI scheme and balance amount will be credited back to their account.  The son of the complainant spoke him on 03.02.2014 and asked to cancel the membership immediately and accordingly the complainant went to the office of the OP and handed the letter of cancellation with a request to refund them Rs.30,000/- collected from them.  The complainant also returned the so called gift worth Rs.30,000/- which is not even worth Rs.300/-.  One Mr.Imran Basha who was working in the Customer Care section informed the complainant that it is not possible to cancel the membership and no letters for cancellation will be accepted by him.  However, he told that he would speak to his boss to consider the case of the complainant and his wife as both of them are senior citizens.

Despite submitting the application form for cancellation of the membership on 19.02.2014 the complainant received 3 club membership cards with a payment request of Rs.75,000/- and was also asked to pay Rs.7,500/- towards annual administration charges.  When the complainant contacted the above mentioned Annapurna, who cajoled them to sign the membership form.  She spoke very rudely and used abusive language and threatened to cause physical harm if they dare to come to office again.  The behavior of said Annapurna made the complainant and his wife to spend sleepless nights almost for one month.

For the aforesaid reasons, the complaint prays for a order directing the OP to refund Rs.30,000/- collected from him together with compensation of Rs.30,000/- for causing mental stress and mental agony.

3. In response to the notice issued, the OP appeared through their advocate and filed their version.  The sum and substance of the version filed by the OP are as under.

The complainant has made all sorts of baseless allegations against the OP.  The OP admits receipt of Rs.30,000/- out of the total agreed amount of Rs.1,05,000/- and the complainant is due in a sum of Rs.75,000/-.  Upon receipt of advance payment, the OP has issued the laminated club membership card to the complainant and he has duly acknowledged the receipt of the membership card.  The complainant has entered into a purchase agreement dated 31.01.2014 with OP as per the terms and conditions mentioned therein.  The OP is ready and willing to provide the necessary services to the complainant together with laminated membership cards and the complainant is at liberty to make use of the said club facilities as and when he desirous.  The OP is also ready to provide the holiday vacation to the complainant as and when he requests for the same by booking 30 days in advance.  The complainant without availing the facilities provided by the OP is making false and baseless allegations against OP.  As per the terms of the purchase agreement, the complainant cannot claim refund of any amount or cancellation of the club membership.  However, the complainant is at liberty to sell or transfer or gift the membership to any third party.  The complainant even not paid the annual maintenance amount of Rs.6,742/- due to the OP.  The complainant after having agreed terms and conditions has signed the purchase agreement along with his wife.  The complainant without availing any services from the OP or without availing the club facilities and without paying the balance amount as per the agreement is making false allegations against the OP and has come up with false and frivolous complaint.

For the aforesaid reasons, OP prays for dismissal of the complaint with exemplary costs.  

4. The complainant to substantiate the allegations made in the complaint filed his affidavit by way of evidence.  The OP also filed the affidavit of one Mahammed Nawaz, working as a Manager with them, by way of evidence in support of the contention raised in their version.  The complainant submitted his written arguments.

5. The points that arise for our determination in this case are as under:

6. Heard oral arguments advanced by both sides.  Perused the materials placed on record including the documents produced by both the sides.

7. Our answer to the above points are as under:

REASONS

8. It is not in dispute that the complainant together with his wife visited the office of the OP on 31^st January 2014 in response to the phone calls received from the OP on a promise of certain gift.  The OP also did not deny either in their version or in their affidavit that the complainant and his wife visited their office in response to their phone calls.  Thus it is apparent that the complainant along with his wife visited the office of the OP expecting certain gift/prize from them on becoming member of their club.

9. It appears that the marketing personal of the OP have interacted with the complainant and his wife both of whom are senior citizens and as claimed by the complainant they were cajoled to enter into a purchase agreement for club and vacation membership.  The copies of purchase agreement for club and vacation membership as well as copies of billionaire vacation agreement, club membership purchase agreement dated 31.01.2014 have been produced by both the parties.

10. The complainant claims that though they were not ready to enter into any purchase agreement and sign any such agreement on 31^st January 2014, they were cajoled and forced to sign the said agreement without explaining their contents.  Complainant claims that he resisted to sign the agreement as he has not brought spectacles for reading and understanding the contents of the same.  This allegations made by the complainant is denied by the OP.

11. It is argued on behalf of OP that after having read and understood the contents of the purchase agreement for club and vacation membership, billionaire vacation agreement and club membership purchase agreement the complainant together with his wife have put their signature on the same.  The learned advocate further argued referring to the terms and conditions mentioned in the respective agreement that there is no provision for refund of the money paid for club membership.  Though he admits that an application for cancellation of the club membership was submitted by the complainant within few days from signing the agreement but contends that the complainant is not entitled for refund of money paid towards purchase agreement for club and vacation membership.  It is not in dispute that the complainant has paid total sum of Rs.30,000/- under three separate receipts issued by the OP on 31^st January 2014 and 1^st February 2014.

12. During the course of arguments, the learned advocate for OP brought to our notice that the OP has refunded a sum of Rs.25,000/- to the complainant as gesture of goodwill considering that he is a senior citizen.  The complainant admits the receipt of Rs.25,000/-.  However, the learned advocate for OP failed to explain as to why the remaining Rs.5,000/- is withheld.  In view of the conduct of the OP in refunding Rs.25,000/- to the complainant, we feel it not necessary to go into validity or otherwise of the terms and conditions of the agreement signed by the complainant and his wife.  For whatever reason the OP responded to the request of the complainant and refunded Rs.25,000/- out of Rs.30,000/- paid by him, in pursuance of his application dated 5^th February 2014 for cancellation of his club membership.  If at all the OP is responding to the request of the complainant in view of the fact that he is a senior citizen then they shall refund the entire amount of Rs.30,000/- and not part of it.  The conduct of OP in refunding part of the amount makes the terms and conditions of the agreement irrelevant as far as this case is concerned.  In view of the fact that the OP has volunteered to refund Rs.25,000/- to the complainant during pendency of this case, we feel that it may not be proper to award any compensation as prayed by the complainant.

13. Looking to the facts and circumstances of the case, we are of the opinion that the OP shall be directed to pay the remaining amount of Rs.5,000/- to the complainant together with costs of this proceedings.  In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OP is directed to refund the balance amount of Rs.5,000/- to the complainant together with Rs.5,000/- towards cost of this proceedings.

The OP shall comply the order passed by this Forum within six weeks from today.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 19^th day of August 2015)

MEMBER                            MEMBER                    PRESIDENT

Vln*