Tamil Nadu

South Chennai

CC/175/2017

V.Swaminathan - Complainant(s)

Versus

M/s.Country Club India Ltd., - Opp.Party(s)

K.M.Malarmannan

13 Jun 2022

ORDER

Date of Complaint Filed :17.05.2017

Date of Reservation      : 18.05.2022

Date of Order               : 13.06.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                      THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                  :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,          : MEMBER II

 

CONSUMER COMPLAINT No.175/2017

MONDAY, THE 13^th DAY OF JUNE 2022

Mr. V. Swaminathan

S/o R. Venkatraman,

Aged 52 years

No.FF6 – Pace Royal Apartment,

No.81, Venugopal Street,

Mugappair West,

Chennai- 37.                                                                    ... Complainant                               

 

..Vs..

1.Country Club India Ltd.,

   Represented by its Assistant Manager,

   Customer Care,

   Country Vacations,

   Ramakrishna Street,

   North Usman Road,

   T.Nagar, Chennai.

 

2.Country Club India Ltd.,

   Represented by its Manager,

   Amruta Castle,

   No.5-9-16, Saifabad,

   Opp:Secretariat

   Hyderabad – 500 063.                                               ...  Opposite Parties

 

******

Counsel for the Complainant             : M/s. K.M. Malarmannan

Counsel for the 1^st Opposite Party      : Exparte

Counsel for the 2^nd Opposite Party     : M/s. V.T. Narendiran

 

        On perusal of records and after having heard the oral arguments of both, the Counsel for Complainant and the Counsel for the Opposite Parties, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to refund the amount a sum of Rs.1,91,000/- with interest at 24% per annum from the date of payment by the Complainant and to pay a sum of Rs.5,00,000/- for mental agony pain, sufferings, financial stress caused to the Complainant along with cost.

2.     The averments of Complaint in brief are as follows:-

        The 2^nd Opposite Party canvassed the Complainant and his family members to join as a Member of the Club under the name mentioned as the 1^st Opposite Party having its Head office at Hyderabad, and the said Opposite Parties are engaged in Hospitality business, operating clubs, Hotels and resorts and marketing of club and vacation memberships. The 2^nd  Opposite Party is doing the business in India and other world wide countries like Singapore, Bangkok, etc., the 1^st Opposite Party has given promises for 30 years vacations and to provide life time club membership and connected facilities and 2 complimentary vacations abroad with Air Tickets and other facilities etc., to the Complainant. The Opposite Parties have offered the club membership to him and his family members and Opposite Parties have requested to pay the amount by EMIS and to handover the credit card of the Complainant for swiping the 1^st EMI amount of Rs.7085/- towards the total Club Membership amount of Rs.1,70,000/-. On believing the words of the 1^st Opposite Party, the Complainant had handed over his credit card of HDFC Bank to the Opposite Party at his office in T.Nagar, Chennai. But the 1^st Opposite Party representing on behalf of the 2^nd Opposite Party have swiped the entire amount of Rs.1,70,000/- from the Complainant’s credit card and the Complainant was shocked and stunned at the above incident of swiping the whole amount by the 1^st Opposite Party, the Complainant shouted on him and asked him to repay the said sum immediately otherwise criminal action will be take before the concerned Police against the Opposite Party. The Complainant was not satisfied with their service because at the 1^st instance itself the Opposite Parties have cheated the Complainant after that the 1^st Opposite Party had convinced the Complainant and have entered into an agreement with the Complainant on 27.04.2014 on behalf of 2^nd Opposite Party having their office at Hyderabad. The 1^st Opposite Party have informed him through e-mail on 27.04.2014 itself that, the Complainant had paid the entire amount of club membership fees deposit, and that amount had been converted into EMI’s and the interest and processing fee of Rs.21,556/- will be paid from the company through D.D to the Complainant. After that the Opposite Parties sent the copy of the agreement dated 27.04.2014 to him. In the said agreement corrections were made in the term of vacation period by them as 10 years of vacations instead of 30 years of period. The Opposite Parties have either provided club membership card nor the facilities to him and his family members according to the terms and conditions of the agreement made between the Opposite Parties and the Complainant. On 21.05.2014 the Complainant had sent a letter to Opposite Parties enquiring about the membership facilities and they have not responded. The Complainant asked the Opposite Parties the reason for not providing the additional facility of complimentary stay of 7 days per year for 30 years as promised and two complementary vacations at their properties abroad with two free air tickets but they have not replied to the Complainant so far.  Meanwhile, after a long period of 19 months time, the Opposite Parties had sent another agreement dated 19.12.2015. In that agreement, the Opposite Parties have agreed to provide vacation facilities for 30 years to the Complainant and their family members. Due to their irresponsible activities, the Complainant had claimed the Opposite Parties to cancel the above agreements and refund the amount, by sending mail letters dated 10.04.2015 and 01.04.2016. After that, the 1^st Opposite Party have made discussions with the Complainant on 29^th and 30^th of March 2016. Based on the discussions, the Complainant offered his willingness to get back the total amount of Rs.1,91,556/- as the Opposite Parties were unable to provide the facilities mentioned in the vacations agreement. Further the Opposite Parties accepted to settle the issue amicable through their mail dated 21.04.2016. The Opposite Parties have sent the club membership card only on 18.03.2017 by post instead of refunding the above said amount. The Opposite Parties have issued a club membership card only after 3 years. In the said period of duration the Complainant has not utilized club membership scheme facilities and also he has not accepted the club membership card as it was issued by them after very long period of time. The Opposite Parties have not provided club membership to the Complainant even after receiving the above entire amount from him. It absolutely shows the deficiency of service on the part of the Opposite Parties. He has been undergoing tremendous mental agony, pain and sufferings and financial stress because of the Opposite Parties activities for the past three years. In spite of several attempts made by the complainant though phone calls, mails and personal contacts to settle the issue but all ended in vain. The 2^nd Opposite Party made an agreement with the Complainant through the 1^st Opposite Party and both the Opposite Parties violated the terms and conditions of the agreements dated 27.04.2014 and 19.12.2015. So both the Opposite Parties are liable to pay the above said amount with compensation as claimed by the complainant. Hence this complaint.

3.   Written Version filed by the Opposite Parties are as follows:-

        The Complainant does not make out a consumer case (or) is the cause as action made out for deficiency of service and submits that the contract between the Complainant and the Opposite Party is governed by the Agreement entered by them on 27.04.2014 and 19.12.2015. The insinuations made against the Opposite Party’s personnel by the Complainant and contended  that  what was found in the written agreement was only promised to him by the Opposite Party’s personnel and denies the allegation that the Opposite party had offered the complainant monthly instalments (EMI) and had swiped the whole amount, which allegation is false as the same was done only with the consent and permission of the Complainant. When the Complainant wanted to later convert the said amount in EMI the Opposite Party had with an intention to appease him obliged him and informed him but the Complainant did not cooperate with the Opposite Party and provide them with the bill as requested and was insistent on cancelling and getting back the amount under the agreement, which was impermissible, hence it was due to the Complainant’s failure and in any event the same is not a deficiency in service and the very complaint is misconceived on facts and has no merits and deserves to be the dismissed. Even after that they had obliged the request of the Complainant and had offered to give back the processing fee and interest to the Complainant as requested by him and provided him the member ship card, but however the Complainant is trying to mask his claim for refund and is putting up a false case of consumer deficiency, which is not true and based on facts and records as the documents themselves disclose the falsity in the Complainant’s case and does not amount to deficiency of service and unfair trade practice. The Complainant is trying to cover up his claim for refund of amount, that is prohibited under the agreement between the parties, by claiming consumer deficiency, when all along the Complainant never requested for any services from the Opposite Party and only sought for refund and therefore no claim for consumer deficiency arises. The cancellation and refund is prohibited by express condition in the agreement entered into between the Complainant and the Opposite Party, therefore the Complainant cannot maintain a complaint seeking refund and also their personnel had informed the Complainant that they would accommodate him and he is entitled to all facilities as per the agreement and the same was also conveyed to him, but however the Complainant was only interested in getting a refund and it shows act of the Opposite Party does not amount to deficiency of service or unfair trade practice therefore the question of granting relief refund along with interest does not arise and also the question of compensation and other relief does not arise. The documents filed by the Complainant produced itself does not show any deficiency except that he had requested for refund and averments made by him that the Opposite Party had promised him RCI Membership is false and imaginary and there is no mental agony or deficiency of service committed by the Opposite Party and there is no loss incurred by the complaint due to the Opposite Party and there is no cause of action for the consumer deficiency and there is no documentary proof for the deficiency of service and it’s a mere imaginary deficiency of the Complainant. When the contract is not being disputed or challenged and hence any agony or damages suffered by the Complainant is due to his Commission and omission and the Opposite Party cannot blamed for the same. They are a well known company owing in operating varies resort within the country and thousands of satisfied customer and the Complainant cannot be heard to make unreasonable demands and seek to make the case for deficiency of service when there is no cause of action and the Complainant cannot seek any facilities or favours beyond what was agreed. The Complainant has come with unclean hands and has suppressed material facts and the damages have alleged to have been suffered by him is only imaginary. Hence the complaint is to be dismissed.

4.     The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-11 were marked. The 2^nd Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the 2^nd Opposite Party, No documents were marked.

5.     The 1^st Opposite Party did not appear before this Commission even after sufficient notice given to them. Hence the 1^st Opposite Party was set ex-parte.

6.     Points for Consideration

1. Whether the act of the Opposite Parties amounts to deficiency of service?

2.Whether the Complainant is entitled for the reliefs claimed in the complaint?

3.Whether the Complainant is entitled for any other relief?

7.   Point No.1:-

        Admittedly, the Complainant was agreed to provide Club Membership of the Opposite Parties on 27.04.2014 and had executed Ex.A-1, purchase Agreement for Club and Vacation Membership.

        The dispute raised by the Complainant is that the Club Membership of Rs.1.70 lakhs had been taken in full without his consent by swiping his Credit Card later convinced and have agreed to pay processing charges of Rs.21,556/-. Further the Opposite Parties agreed to provide membership for 30 years with other benefits to him, but had sent an agreement Ex.A1 only for 10 years by correcting the year without mentioning other benefits which were agreed by the Opposite Parties and further the Complainant and his family members were not provided with Club Membership Card. The Complainant had sent a letter dated 21.05.2014 (Ex.A3) but not received any reply. Thereafter received a fresh agreement dated 19.12.2015  (Ex.A5) for 30 years, the comparison of Ex.A1 to Ex.A5 would show that the Opposite Parties had not adhered to the commitments given to the Complainant, hence due to the irresponsible acts of the opposite Parties the Complainant had sought for cancellation of Ex.A-1 & Ex.A-5 and to refund his amounts paid under Ex.A-4 and Ex.A-6, for which Ex.A-7 a mail dated 05.04.2016 was sent by the Opposite Parties to settle the issue amicably. Under Ex.A8 dated 19.05.2016, a mail sent by the Opposite Parties providing fresh agreement starting from 2016 for a period of 30 years till 2046 with other benefits and by Ex.A-9 a mail dated 29.05.2016 sent by the Opposite Parties regretting for the happenings and to provide a fresh membership agreement from 2016 as a special case, assuring to release fresh membership cards to entire family members within no time and also to release EMI interest amount or to give gift worth on interest amount, instead of refunding the amounts of Rs.1,91,000/- sent club Membership cards only on 18.02.2017 by post, i.e only after 3 years. From 2014 to 2017 he had utilized Club Membership scheme & since membership cards issued after very long period of time had not accepted the said cards of the Opposite Parties, by the act of the Opposite Parties he had undergone tremendous mental agony, pain & sufferings and financial loss for 3 years and issued a legal notice dated 28.03.2017 explaining the same under Ex.A-10 which was acknowledged by both the Opposite Parties under Ex.A-1 and not responded. The contention of the Opposite Parties is that the Complainant is not entitled for any relief when he has not challenged the written contracts, and as per Ex.A-1 the membership fee is not refundable and only what is agreed in the contracts alone could be provided by the Opposite Parties, are not sustainable, when the Opposite Parties right from execution of Ex.A1 had not fulfilled their commitments as promised to the Complainant, as evidenced from Ex.A-5 a Fresh Agreement dated 19.12.2015 as well as from Ex.A-8 mail dated 19.05.2016. The acts of the Opposite Parties would clearly amounts to Unfair Trade Practice and deficiency of service. Hence this Commission is of the considered view that the Opposite Parties had committed unfair trade practice and deficiency of service.

8.  Point No.2 & 3:-

        As discussed and decided Point No.1 as against the Opposite Parties, the Complainant is entitled for refund of Rs.1,91,000/- together with interest at the rate of 9% per annum from the date of filing of the complaint i.e., 17.05.2017 to till the date of this order and for a sum of Rs.25,000/- towards mental agony and financial stress and also for a sum of Rs.5000/- towards cost. And the Complainant is not entitled for any other reliefs.

In the result, the complaint is allowed in part. The Opposite Parties 1 and 2  are directed jointly and severally to pay a sum of Rs.1,91,000/- (Rupees One Lakh Ninety One Thousand Only) together with interest at the rate of 9% per annum from the date of filing of the complaint i.e., 17.05.2017 to till the date of this order and for a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) towards mental agony and financial stress and also for a sum of Rs.5000/-(Rupees Five Thousand Only) towards cost, within 8 weeks from the date of this order, Failing which the above amounts shall carry interest at 9% per annum from the date of this order to till the date of realization.

In the result the complaint is allowed.                     

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on  13^th of June 2022.  

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

 

Ex.A1	27.04.2014	Purchase agreement for club and vacation membership
Ex.A2	-	A letter to the Complainant by the Opposite Party
Ex.A3	21.05.2014	A letter to the 1st Opposite Party by the Complainant.
Ex.A4	10.04.2015	A letter to the 1st Opposite Party by the Complainant.
Ex.A5	19.12.2015	Vacations agreement
Ex.A6	01.04.2016	A letter to the 1st Opposite Party by the Complainant
Ex.A7	05.04.2016	A letter to the Complainant by 1st Opposite Party e-mail copy.
Ex.A8	19.05.2016	e-mail letter with regard to membership details sent to the Complainant by the 1st Opposite Party
Ex.A9	29.05.2016	e-mail letter to the Complainant by the 1st Opposite Party
Ex.A10	28.03.2017	Legal Notice issued to the Opposite Parties by the Complainant along with postal receipt.
Ex.A11	-	Acknowledgement cards

 

List of documents filed on the side of the 2^nd Opposite Party:-

NIL

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                              PRESIDENT