CC No.1079.2016

Filed on 04.08.2016

Disposed on.25.05.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 25^th DAY OF MAY 2018

CONSUMER COMPLAINT NO.1079/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

             Smt.L.MAMATHA, B.A., (Law), LL.B.

                      MEMBER

                                       V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 04.08.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay Rs.1,00,000/- paid by swiping the Debit card on 09.08.2014, to pay interest @ 18% p.a. from 09l.08.2014 till payment to the Complainant, to pay mental agony and hardship Rs.50,000/-. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant received a phone call on 09.08.2014 from the Marketing Executive Ms.Mamatha of the Opposite Party to collect a gift of Rs.30,000/- which the Complainant won through Lucky Dip in a mail and called him to the Opposite Party’s office.  The Complainant believing the genuineness of the telephone call made by the aforesaid Ms.Mamatha called on her at the aforesaid address of the Opposite Party on 09.08.2014 at 6.00 P.m and the Complainant was informed by her that the aforesaid gift of Rs.30,000/- will be given only after the Complainant becomes member of the Country vacations Membership Package.  The Complainant was made to sign an agreement of membership of country vacations in an atmosphere of dim light on 09.08.2014 without allowing the Complainant to read and understand the contents of the said agreement and collected Rs.1,00,000/- by swiping the City Bank Debit Card of the Complainant’s daughter Ms.Shruti Shetty and the Complainant was asked to give further sum of Rs.42,500/- by giving his cheque.  The Opposite Party’s marketing executive Ms.Mamatha refused to give a copy of the membership agreement even on request and hence, the Complainant became suspicious of the whole transactions and checked through the internet by sitting in he said place to peruse popularity of Country Vacations and their dealings vis-à-vis their packages which is explained in the meeting.   To the great surprise of the Complainant, there were many members of the said club who gave a number of Complaints and stated their bad experiences with the Opposite Party and hence then and there decided to withdraw from the membership of Opposite Party.  It is submitted that in the light of the above, the Complainant stopped payment of the cheque for Rs.42,500/- given by him to the Opposite Party in view of what is stated in para-7 and also wrote a letter dt.09.08.2014 to the Opposite Party to cancel the membership and refund Rs.1,00,000/-.  The Opposite Party not only failed to refund Rs.1,00,000/- by cancelling the membership but also failed to respond to the subsequent letters dt.15.08.2014 and 15.02.2016.  Even the repeated phone calls of the Complainant remained unanswered by the Opposite Party.  In reply to the Complainant’s registered demand notice dt.25.02.2016, the Opposite Party sent a reply through their Advocate and the Complainant sent rejoinder on 11.04.2016 through his Advocate claiming refund of Rs.1,00,000/-with interest.  The Complainant went to even verify the existence of the Country Vacations Branch at Indiranagar as informed by marketing executive Ms.Mamatha on 09.08.2014 and to the surprise of the Complainant that there was no branch of the Opposite Party at Indiranagar.  The Complainant in his letter dt.09.08.2014 clearly stated that the Complainant does not want to become a member and requested the Opposite Party to refund the amount of Rs.1,00,000/- paid by swiping the card of the daughter of the Complainant.  The Complainant does not want to be a member and utilize any of their so called services and the Complainant is not responsible for any claim or accept any liability on account of making him to sign the agreement hurriedly without allowing him to read and understand in the dim light and that too after 6.00 p.m on 09.08.2014.  The Opposite Party played fraud and mischievously collected Rs.1,00,000/- in the name of membership of their club from him and failed to refund the said amount inspite of the repeated requests made by the Complainant even by visiting the Opposite Party’s office.  The Opposite Party is made deficiency of service collecting money by fraud and hence doing unfair trade practice and the Complainant is entitled for compensation of Rs.1,00,000/- with interest at 18% p.a. from 09.08.2014 till repayment.  Hence this complaint.

3. In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.  The Opposite Party in their version pleaded that the complaint is not maintainable either in law or on facts.  There is no cause of action to file this complaint, the complaint is vague, bald and devoid of merits.  The averments made in the complaint are totally denied as false and in-correct.  The Complainant has shown interest to become the Member and to avail Holiday Vacation.  The Complainant entered into Purchase Agreement dt.09.08.2014 and in terms of agreement.  Submitted that they have received a sum of Rs.1,00,000/- part amount from the Complainant as against agreed amount of Rs.1,42,500/- towards the holiday vacations and also the Complainant balance amount of Rs.42,500/- has filed the above false and frivolous complaint by making baseless allegations.  The Opposite Party upon receipt of the above said amount has issued the permanent Laminated Club Membership Cards to the Complainant and the same was duly acknowledged by the Complainant. That apart the Complainant was provided to access the website through Online by giving ID and Password and also complimentary Spa coupons and one day privilege pass holiday gift voucher was given to the Complainant. As a matter of fact the Complainant is entitle for holiday vacation on all the seasons and entitle to access the website and they can also book the holiday vacation as and when their requirement.  Inspite of that the Complainant for the purpose of filing the above complaint as made false allegation and nothing else.  The main benefits for Club Membership and a Holiday.  In terms of the offer, is entitle for 6 Nights and 7 days Holiday Vacations in a year for a period of 5 Years and Club Membership for life time, subject to the terms and conditions mentioned in the Purchase Agreement and rest of the averments are totally denied as false.   This Opposite Party is always ready to provide the package to the Complainant but there should be 30 days in advance booking to be made to make necessary arrangements.  The Club Membership is for Life Time and it is transferable to their family members the Complainant that in regard to providing of accommodation of Holiday Vacations, the Complainant has not made any booking for availing of Holiday Package, at any point of time and in this regard peace of document has not been produced.   As per the terms and conditions at Clauses, it is very clear that this is a limited and exclusive offer incase full amount towards vacation is not remitted within 45 days from the date of schedule payment or date of allotment of vacation, 90% of the money remitted till the completion of 45 days would be forfeited and vacation allotted if any, would be cancelled within 45 days, the Complainant has to pay the entire membership fee, the fee paid by the Complainant will be forfeited by the Opposite Party.  The Complainant in order to file the above complaint has made all sorts of baseless allegation.  The Complainant has entered into the Purchase Agreement dt.09.08.2014 with this Opposite Party.  The Complainant themselves have produced along with the complaint.  In terms of the agreement clauses there is no provision for refund of amount or cancellation of the Club Membership. However the Complainant is at liberty to sell or transfer or gift the Club Membership to any third party.  Inspite of that the Complainant for the reasons best known to him has filed the above false and frivolous complaint for cancellation.   There is no cause of file the above complaint and even there is no deficiency on the part of the Opposite Party.  The Opposite Party not rendered any deficiency in service nor engaging in the unfair trade practice at any point of time and this Hon’ble Forum has no Jurisdiction to try the above case.  They are providing best services in their field without any blemish and even in the complaint there is no iota of evidence.  But the Complainant suppressing the true facts has filed the above false and frivolous complaint against the Opposite Party.  The Complainant not entitles for any relief much less than they have sought in the complaint.  On plain reading of the complaint and also the documents produced by the Complainant it is crystal clear that the complaint is imaginary, illusory and baseless; they can go to at any heights.   The Complainant for wrongful gain had filed the above complaint, which is liable to be dismissed.   Hence prays to dismiss the complaint.

4. The Complainant, Sri.P.Rathnakar Shetty has filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, the affidavit of one Sri.Mohammed Akmal Pasha has been filed. Heard argument of Complainant.

5.      The points that arise for consideration are:-

1. Whether the Complainant has proved the unfair trade practice adopted by the Opposite Party?
2. If so, to what relief the Complainant is entitled ?

6.      Our findings on the above points are:-

                   POINT (1)      :-  Affirmative

POINT (2)      :-  As per the final Order

REASONS

7.   POINT NO.1:-  It is the case of the Complainant that the Complainant received a phone call on 09.08.2014 from the Marketing Executive Ms.Mamatha of the Opposite Party to collect a gift of Rs.30,000/- won through Lucky Dip in a mail and called him to the Opposite Party’s office.  The Complainant believing the genuineness of the telephone call made by Ms.Mamatha called on her at the aforesaid address of the Opposite Party on 09.08.2014 at 6.00 p.m and the Complainant was informed by her that the aforesaid gift of Rs.30,000/- will be given only after the Complainant becomes member of the Country Vacations.    To substantiate this, the Complainant has filed his affidavit, in his sworn testimony, he has reiterated the same.  This evidence of the Complainant is not been challenged by the Opposite Party.  To discard the testimony of the Complainant.  Therefore, it is proper to accept the contention of the Complainant that on 09.08.2014 the Complainant received a phone call from the Marketing Executive Ms.Mamatha to collect a gift of Rs.30,000/-.  The Complainant believing her words visited the Opposite Party’s office at 6.00 p.m. on 09.08.2014 Ms.Mamatha informed the Complainant aforesaid gift of Rs.30,000/- will be given only after the Complainant becomes member of the Country vacations.

8. It is further case of the Complainant that the Complainant was made to sign an agreement of membership of country vacations in an atmosphere of dim light on 09.08.2014 without allowing the Complainant to read and understand the contents of the said agreement and collected Rs.1,00,000/- by swiping the City Bank Debit Card of the Complainant’s daughter Ms.Shruti Shetty and the Complainant was asked to give further sum of Rs.42,500/- by giving his cheque.  The Opposite Party’s Marketing Executive Ms.Mamatha refused to give a copy of the membership agreement even on request and hence, the Complainant became suspicious of the whole transactions and checked through the internet by sitting in the said place to peruse popularity of Country Vacations and their dealings.   To the great surprise of the Complainant, there were many members of the said club who gave a number of Complaints and stated their bad experiences with the Opposite Party and hence then and there decided to withdraw from the membership of Opposite Party.  In the light of the above, the Complainant stopped payment of the cheque for Rs.42,500/- given by him to the Opposite Party  and also wrote a letter dt.09.08.2014 to the Opposite Party to cancel the membership and refund Rs.1,00,000/-.  The Opposite Party not only failed to refund Rs.1,00,000/- by cancelling the membership but also failed to respond to the subsequent letters dt.15.08.2014 and 15.02.2016 addressed by the Complainant to the Opposite Party.  Even the repeated phone calls of the Complainant remained unanswered by the Opposite Party.  In reply to the Complainant’s registered demand notice dt.25.02.2016, the Opposite Party sent a reply through their Advocate and the Complainant sent rejoinder on 11.04.2016 through his Advocate claiming refund of Rs.1,00,000/-with interest.  To substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and produced Statement of City Bank Account.  As looking into this document, the Statement period is 01.08.2014 to 31.08.2014 this account is with respect to Shruti Shetty.  As looking into this Statement of Account, which clearly reveals that the Opposite Party has received Rs.1,00,000/- on 09.08.2014 from the Account of Shruti Shetty, who is the daughter of the Complainant.  This evidence of the Complainant is not been denied or disputed by the Opposite Party.  Further the Complainant also produced letter dt.15.08.2014.  As looking into this document, it is clear that the Complainant has paid a sum of Rs.1,00,000/- and gave a cheque of Rs.42,500/-.  On 09.08.2014 asked to give a cheque for Rs.42,500/- and informing that the Complainant do not want to continue as a member and requested to cancel the membership immediately and refund the amount paid and the cheque for Rs.42,000/-.   This evidence is clearly goes to show that on 09.08.2014 when the Complainant visited the office of the Opposite Party after receiving the phone call from Opposite Party’s Executive Ms.Mamatha calling the Complainant to receive the Gift amount of Rs.30,000/-.  The Opposite Party Executive Ms.Mamatha demanding the Complainant the gift amount of Rs.30,000/- is given only after the Complainant becomes member of the Country vacations and demanded for membership fee of Rs.1,42,500/- and also on the same day the Opposite Party collected Rs.1,00,000/- from the Account of Shruti Shetty daughter of the Complainant and also the Complainant issued a cheuqe of Rs.42,000/- infavour of the Complainant.  But on the other hand, the Complainant when demanded the copy of the agreement which was forcibly taken by the Opposite Party, the Opposite Party Executive Ms.Mamatha refused to handed over the copy of the agreement, thereby the Complainant got doubt about the same and demanded for refund of the amount of Rs.1,00,000/- as well as cheque issued by him for Rs.42,000/- on 09.08.2014 itself.  But the Opposite Party failed to refund sum of Rs.1,00,000/- .  For that reason, the Complainant issued a letter on 15.08.2014 requesting to cancel the membership.  Inspite of that the Opposite Party fails to act upon.  For that reason the Complainant issued letter on 25.02.2016 demanded for refund of Rs.1,00,000/- but the Opposite Party to this letter issued a reply through their Advocate.  As per clauses of the Purchase Agreement, the Complainant can transfer, sell or gift the membership to any person, subject to the clearance of all dues.  As per the Clause of the Purchase Agreement the Opposite Party does not engage in any renting selling transferring the membership to any other person and to demand the balance due amount of Rs.8,427/- towards AMC and to pay the balance due amount of Rs.42,500/- towards membership fee.

9.  The Complainant issued a Rejoinder to this reply on 11.04.2016.  In the Rejoinder, it is clearly stated that on 09.08.2014 the Complainant has written letter not to process his application as he has verified the unsatisfactory reputation of Opposite Party and he did not want to utilize the alleged services of the Opposite Party. For that reason, the Complainant has to stop payment of the cheuqe for Rs.42,500/- by writing to the Bank on 12.08.2014 after informing the Complainant has to stopping the payment of the cheque in question and demanded for refund of Rs.1,00,000/- the Complainant does not want to become a member. So from this evidence, it is clear that eventhough the Complainant have no faith with the Opposite Party and he has no interest to become the member of the Country Vacation.  For that reason only on 09.08.2014 itself, the Complainant demanded for refund of Rs.1,00,000/- and also made effort to make stop payment by addressing a letter to the Bank for the cheque issued infavour of the Complainant for a sum of Rs.42,500/- and demanded for refund of Rs.1,00,000/-, inspite of that the Opposite Party fails to refund the amount.  Thereafter, he demanded for several times by orally and issuing notices.  Inspite of that the Opposite Party fails to refund the amount. 

10.  The defence of the Opposite Party is that the Complainant has shown interest to become the Member and to avail Holiday Vacation.  The Complainant entered into Purchase Agreement on 09.08.2014 and in terms of agreement they have received a sum of Rs.1,00,000/- from the Complainant as against agreed amount of Rs.1,42,500/- and also Complainant balance amount of Rs.42,500/- has filed the above false and frivolous complaint by making baseless allegations.  The Opposite Party upon receipt of the above said amount has issued the permanent Laminated Club Membership Cards to the Complainant and the same was duly acknowledged by the Complainant. In support of their defence, Sri.Mohammed Akmal Pasha, Customer Care Manager of Opposite Party has filed his affidavit, in his sworn testimony, he has reiterated the same and produced the Button up Confirmation by Member.  As looking into this document, it is in the name of the Complainant the total membership amount is Rs.1,42,500/- the Tenure of Vacation Membership is 5 Years and Club Membership is Life time.  Annual AMC is Rs.7,500/- per year and also produced the Club Membership Purchase Agreement and Vacation Agreement, it is dt.09.08.2014.  This Agreement is executed by the Complainant and Ms.Mamatha on behalf of the Opposite Party.  By looking into these documents, it is clear that the Complainant on the same day paid a sum of Rs.1,42,500/- but there is no evidence placed by the Opposite Party to show that the said Agreements were handed over to the Complainant on 09.08.2014. Eventhough the Complainant demanded for copy of the Membership Agreement, apart from that the said Membership Agreement is executed on dim light, therefore the Complainant is unable to reading the agreements and thereby Opposite Party obtained the signature of the Complainant to this agreements.  For that reason only the Complainant has got doubt and is not interested to become the member of the Country Vacation and address a letter to cancel the membership and also make stop payment of the cheque for Rs.42,500/-.  This clearly falsifies the defence taken by the Opposite Party, if really the Complainant has to become the member of the Holiday Vacation as defence taken by the Opposite Party, the Complainant ought not to have addressed a letter on 09.08.2014 itself and demanded for refund of the amount of Rs.1,00,000/- and addressing a letter for stop payment of the cheque amount of Rs.42,500/-.

11.  From the evidence placed by the parties, it is crystal clear that the Opposite Party has received Rs.1,00,000/- and fails to make refund of the amount as demanded by the Complainant from 09.08.2014 itself, thereby it is crystal clear that the Opposite Party is adopting unfair trade practice and also amounts to deficiency of service. 

12.  The learned Counsel for the Opposite Party argued before us that the Complainant interested to become a member of the Opposite Party on 09.08.2014 by executing the agreement and paid a sum of Rs.1,00,000/-, thereby the Complainant issued Laminated Membership Card and as per the terms of the membership it is clear that membership amount will not be refundable but the Complainant is entitled to transfer gift or resell to the 3^rd party thereby the Complainant is not entitled for any reliefs.  In support of his argument, he relied upon a decisions (1) Revision Petition No.1191/2010 (2) III (2014) CPJ 154 (NC), (3) IV (2014) CPJ 382 (NC), (4) CPJ 2015 1445, Laws (NCD) 2015, 1181, (5) III (2008) CPJ 363(NC). On carful perusal of these decisions referred by the learned Counsel for the Opposite Party, but the law laid down in the said decisions are not applicable to the present case and also it is not proper to accept the argument put forth by the learned Counsel for the Opposite Party.  Since from the evidence placed by the parties, it is clearly reveals that the Complainant on 09.08.2014 itself by addressing a letter not interested to become a member of the Opposite Party and demanded for refund of Rs.1,00,000/-, apart from that the Complainant clearly alleges that the Opposite Party forcibly to execute the agreement in a dim light so that the Complainant is unable to read the contents of the said agreement as well as when the Complainant demanded copy of the agreement with Ms.Mamatha, who is the Executive of the Opposite Party failed to give the copy of the agreement, thereby the Complainant is not interested to continue the member with the Opposite Party and further the Complainant is demanding for refund of Rs.1,00,000/- from 09.08.2014 itself by issuing letter, inspite of that the Opposite Party failed to refund the amount as demanded by the Complainant.  This clearly goes to show that the Opposite Party is adopting unfair trade practice and also deficiency of service.  Hence, this point is held in Affirmative. 

 13. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency of service on the part of the Opposite Party.

The Opposite Party is directed to refund a sum of Rs.1,00,000/- along with interest at 18% p.a from 09.08.2014, till the date of payment. 

The Opposite Party is further directed to pay a sum of Rs.10,000/- as compensation for causing mental agony. 

The Opposite Party is liable to pay sum of Rs.5,000/- towards cost of this litigation to the Complainant.

The Opposite Party is directed to pay aforesaid amount within 45 days from the date of this order.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, dt.25^th day of May 2018).

MEMBER                                                PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.P.Rathnakar Shetty, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Letter dt.09.08.2014 of Complainant addressed to Opposite Party.
2. A Statement of City Bank Account showing payment of Rs.1,00,000/- on 09.08.2014.
3. Letter dt.15.08.2014 addressed by Complainant to Opposite Party by RPAD to their address at Hyderabad/Koramangala together with RPAD Acknowledgement.
4. Letter dt.15.02.2016 of the Complainant addressed to Opposite Party Koramangala Office by RPAD.
5. Notice dt.25.02.2016 of Rsi.H.K.Praveen Kumar addressed to Complainant.
6. Reply legal notice dt.11.04.2016 sent by Complainant to Opposite Party.
7. Acknowledgement card duly signed by the Advocate of Opposite Party.
8. Postal internet print out for having received the reply legal notice to the advocate of Opposite Party on 13.04.2016.

Witness examined on behalf of the Opposite Parties:

1. Sri.Mohammed Akmal Pasha, Manager of Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Copy of the Purchase Agreement dt.09.08.2014.
2. Copy of the Permanent Membership Cards.
3. Copy of the Confirmation Letter.
4. Copy of the Password.

     MEMBER                                                                     PRESIDENT