BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 13^TH DAY OF DECEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1.  Direct the OP to pay Rs.3,00,000/- towards the damage and compensation for mental agony and hardship that has been caused to the complainant
2.  Any other direction or order which the Hon’ble Commission deems fit.

2. The case set up by the complainant in brief is as under:-

The OP has given the opportunity to the passengers to tour, accommodation across India and any part of the world.  The OP was given opportunity to the same of charges of the complainant ‘your holiday packages entitles you to holidays of six nights seven days every year for the next ten years at any of the courtyard holiday world pvt. Ltd., owned or affiliated properties.  The OP has given the package card No.CHWBL6329 and it is valid for 10years i.e., upto 17^th December 2031 for a sum of Rs.1,45,000/-.  

3.       It is further case of the complainant that as per the discussion made earlier with marketing team headed by Mr.Jayaprakash Yadav earlier the complainant request to refund his total membership fee immediately as the complainant unable to continue the membership for further period of 10 years. The OP has given an endorsement to the complainant and again says that as per the agreement the holiday package is non refundable which is mutually signed by the complainant. The complainant has also mentioned that conditions of the OP as follows;

1. To wave off AMC/ASF of Rs.8,000/- + GST for 10 years period as you have committed earlier.
2. To provide 10 years period bonus holidays in place of five years bonus holidays you have committed earlier
3. Free breakfast for three adults(my family strength) including accommodation for all four people when travel booked as you have committed earlier.
4. Not to charges for any extra room/extra bed provision for 3^rd 4^th persons during complete holidays for 10 years period membership as you have committed earlier.

4.       It is further case of the complainant that the OP has not given any opportunity to the complainant, the complainant request to the OP to sell his membership off to the travel club from your end to your known persons soon and transfer the fund of Rs.1,45,000/- and to provide the details of the contact persons with mobile and email ID, who is co-ordinate for arraigns selling of the membership by taking incidental charges of Rs.3,000/- for complying the job.

5.       It is further case of the complainant that the company is fake and fraudulent and they are not honoring the customers point of view as well as the point of view of sales team of the OP and forcibly they have took the signature of the customer to this contract in front of senior manager and they have finally posted the documents which was in line with the documents without showing the content of the contract at the time of signing the customer. Hence the complainant has requested the OP for refund of the amount of Rs.1,45,000/-, but the OP without refunding the amount started threatening the complainant and giving mental agony. The OP has not responded to the phone calls, whatsapp and emails, hence the complainant without having any other option has filed this complaint to direct the OP to pay the amount and compensation with damages.

6.       In response to the notice, OP has not appeared before this Commission, hence OP placed exparte.

7.       The complainant has filed his affidavit evidence and relies on 07 documents.

8.       Heard the arguments of advocate for the complainant.  Heard the arguments of the complainant.

9.       The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

10.   Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

11.    Point No.1 AND 2: perused the complaint, documents and the evidence of the complainant.  Inspite of service of the notice, the OP remained absent and placed exparte.

12.     The allegations made in the complaint and the evidence and documents produced by the complainant remained unchallenged.  The complainant has filed his affidavit evidence reiterated all the allegations made in the complaint, he has also relied on 7 documents. The document NO.1 is the package purchase agreement dated 25.11.2021. the second document is the welcome mail, dated 09.12.2021, Document No.3 is the endorsement dated 02.08.2022, Document No.4 whatsapp of Mr.Jayaprakash Yadav dated 30.12.2021, Document NO.5 is the email dated 10.08.2022 sent by the complainant to Mr.Jayaprakash Yadav,

13.     The main grievance of the complainant that he has become the member of the OP by believing their words and the assurances given by them.  When the OP and their sales team have not given an opportunity to the complainant and the terms and conditions offered by them are not at all accepted by the complainant. He has decided not to continue the membership for a period of 10 years.  After that he has also made several email communications and sent whatsapp messages to refund the amount of Rs.1,45,000/- which was paid to the OP.  The OP have refused to pay the amount alleging that the membership fee is non refundable.  

14.     It is further grievance of the complainant that the OP sales team members have taken his signature forcibly to the contract in front of a senior member and finally posted the documents which was in line with the documents without showing the contents of the contract at the time of signing the customers.  Under these circumstances the complainant has sought for refund of the amount with compensation totally amounting to Rs.3,00,000/-.

15.     On perusal of the documents No.1 to 5 i.e., package purchase agreement and also the whatsapp and email messages as per document No.4 and 5 it is clear that the complainant has requested the OP to refund the amount by sending several mails and whatsapp messages. The OP has send the message stating that they will not refund the annual maintenance charges as per the terms of the agreement.

16.     It is clear from the very allegations made by the complainant that the contract is unilateral and the OP sales team have forcibly taken the signature of the complainant in the document No.1 without disclosing the terms and conditions of the agreement.  The allegations made by the complainant are not at all disputed by the OP. Under these circumstances, there is no reason to disbelieve the evidence of the complainant and the documents produced by him. The conduct of the OP clearly discloses that they have played fraud on the customers and they have prepared the agreement without giving any opportunity to the customers for offering their options. Under these circumstances the terms and conditions of the agreement and the very agreement itself is one sided and it has no validity. When the OP have failed to fulfill the obligations of the complainant, the complainant cannot continue with the membership and hence he has requested the OP sales team for selling the membership and to refund the amount. The OP have flatly refused to refund the amount by giving one or the other reason and they have started threatening the complainant. In view of this the complainant has suffered mentally and financially.  Therefore, the complainant has clearly established the deficiency of service and unfair trade practice and the fraud played by the OP company.  Hence the complainant is entitle for the relief claimed in this complaint.    Hence we answer point No.1 in affirmative and 2 partly in affirmative.

17.    Point No.3:- In view the discussion referred above, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund the amount of Rs.1,45,000/- with 10% interest from the date of complaint till realization.
3. The complainant is also entitled for compensation of Rs.1,00,000/- with litigation expenses of Rs.10,000/-.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.1,45,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 13^TH day of DECEMBER, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL