Date of filing: 13.06.2018

                                                               Date of Disposal:20.12.2022

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 20^th DAY OF DECEMBER, 2022

CONSUMER COMPLAINT NO.1003/2018

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Sri.Prashantha Kumar Shetty,

S/o late Dinakara Shetty B.S,

Aged about 33 years,

R/at No.10, Ground Floor,

Sapthagiri Nilaya,

Hulimavu,

Bangalore-560 076. ……COMPLAINANT

Rep by Sri.Mohan Reddy, Advocate

M/s Country Vacations,

(A division of Country Club Hospitality and Holidays Limited),

No.4, 3^rd Floor, S.V.Towers,

Krishnanagar Industrial Layout,

D.H.C.Post, Hosur Road,

Bengaluru-560 029,

Rep by its T.O.Manager, Mr.Harish. ……     OPPOSITE PARTY

Rep by Sri.D.Narase Gowda, advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-12 of Consumer Protection Act, seeking for a direction to the opposite party to pay a sum of Rs.2,00,000/- together with interest at the rate of 18% p.a. from the date of payment till the date of realization and a sum of Rs.2,00,000/- towards the pecuniary, non-pecuniary loss, damage and a sum of Rs.50,000/- towards mental agony and such other reliefs as this commission deems fit in the circumstances of the case. 

2. It is not in dispute that the complainant has taken the country vacations membership on 14.10.2017.  Further, it is not in dispute that the complainant has entered into a purchase agreement dt.14.10.2017 at the time of becoming the member.  Further as per the terms of purchase agreement, the complainant is entitled for holiday vacation for 6 nights 7 days in a year for a period of 5 years and club membership of life time, subject to the terms and conditions mentioned in the purchase agreement.  Further, it is not in dispute that the complainant has paid Rs.2,00,000/- on 14.10.2017.  Further, it is not in dispute that since the complainant has not been satisfied with the opposite party has got issued legal notice in the month of May 2018 to the opposite party seeking for cancellation of membership and refund of the amount paid with interest at the rate of 18% p.a.

3. It is the further case of the complainant that since he did not get the confirmation with regard to the membership, he requested the opposite party through email dt.14.10.2017 not to process the membership until the opposite party confirm all the commitment what he had assured.  Even though several correspondence been made through email, the opposite party did not confirm with regard to the plan explained by the opposite party which was different than the confirmation call times the person explained.  Further, even though the opposite party had assured and acknowledged from the complainant with regard to the receipt of Rs.2,00,000/- towards the life time membership, the opposite party had cheated and duped complainant by sending a Silver Club + 5 years 6N7D plus U12 membership card for the national place only.   Further, the sales person Mr.Harish and Mr.Girish at opposite party Bangalore office said that all the 24 points mentioned and assured in the mail chain is included in the membership and the complainant will be getting a separate agreement with different cards also.  Further, since the opposite party did not fulfil the commitments offered, the complainant on 24.12.2017 requested to cancel the membership and refund the amount.  Since the amount has not been refunded, the complaint came to be filed. 

4. It is the further case of the opposite party that the opposite party never promised or assured to give or nor forced the complainant to become the member of opposite party.  Further, the complainant did not produce any documents for having been assured by the opposite party with regard to that.  The 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.  Further, the complainant has not paid the annual maintenance charges for the last 2 years and in order to escape from the said payment, the complainant has filed the false complaint.

5. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P6 documents.  The Manager of opposite party (RW1) has filed affidavit in the form of his evidence in chief and got marked EX.R1 document.

6. Counsel for the opposite party has filed written arguments. 

       7. The points that would arise for consideration are as under:

i) Whether the complainant proves the deficiency of service on the part of the opposite party?

    ii) Whether the complainant is entitled for the 

         compensation as sought ?

     iii) What order ?

8.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

9.POINT NO.1:- The complainant (PW1) and Manager of opposite party (RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  According to PW1, though the opposite party had assured the Life Time National Plus International Package on AMC of Rs.10,500/- per year with all 24 facilities stated in the affidavit filed in the form of his evidence in chief, the opposite party issued a different plan of membership by sending a Silver Club + 5 years 6N7D plus U12 membership card for the national place only.  Hence, the opposite party had duped the complainant. In this regard, on 14.10.2017 itself the complainant had sent email.  On perusal of the email sent by the complainant to the opposite party on 14.10.2017 referred in page No.31 of the book let, it appears that the complainant had stated in the email that he did not receive confirmation call with clear information and asked the opposite party not to process the membership until the complainant received the confirmation with all the commitment what the opposite party had given.  Further, the membership includes the usage of tie-up gyms like gold gym, snap fitness etc., for lifetime without any extra charges, one complimentary Bandipura trip for 2 night and 3 days for 4 adults and 4 kids with accommodations and food and one complimentary fully paid Singapore and Malaysia trip for 2 adults and 2 kids for 6 night and 7 days.  Further, on 14.10.2017 at 7.03 p.m wrote an email to the complainant stating that they would give all benefits as promised. Further, on 15.10.2017 the complainant had sent an email to the opposite party seeking for the confirmation of all commitment assured.  EX.P4 is the email conversation made in between the complainant and opposite party.

10. Further, it is the contention of the learned counsel for the complainant that the 24 benefits shown in page No.28 to 30 of the paper book vide EX.P4 has not at all been included in EX.P1 sale agreement.  On perusal of the same, it appears that the same has not been included in Ex.P1 sale agreement.    Further, on 15.10.2017 the complainant sent an email to the opposite party seeking to include the 24 benefits in the agreement.  Further, it is the contention of the learned counsel for the complainant that even though several email correspondence been made, the opposite party did not provide the membership of the benefits as assured.  Hence, he sought for cancellation of membership.  Further, it appears that the sale agreement is dt.14.1.2017 and on the said day itself the complainant had intimated to the opposite party with regard to the defect in the membership card and purchase agreement. The condition No.34 of sale agreement contemplates that there shall be a cool off period of 10 days from the date of signing this agreement wherein member can discontinue the agreement by paying a nominal administration charges of Rs.3,800/- to the company.  After deduction of the said amount the remaining amount would be refunded to the member, within 120 days from the date of invoking of cool off period.  For invoking the cooling off period the member shall send a written communication to the country club (opposite party). I feel, the very email communication made by the complainant on 14.10.2017 itself indicates the complainant’s intention to discontinue the agreement.  Hence, the request of the complainant is in compliance of condition No.34 of the purchase agreement.  Since, the opposite party did not refund the amount in compliance of condition No.34, there is deficiency of service on the part of the opposite party.  Accordingly, I answer this point in affirmative.

11.POINT No.2  The complainant claimed a direction to the opposite party to pay a sum of Rs.2,00,000/- with interest at the rate of 18% p.a.  I feel as per the condition No.34 the nominal admission charges of Rs.3,800/- shall be payable to the company.  Hence, the said amount is to be deducted and the opposite party shall return the remaining amount.  Further, the interest at the rate of 18% p.a claimed is highly an exorbitant one and interest at the rate of 9% p.a would suffice in this case.  Further, the complainant is entitled for a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.  Accordingly, I answer this point partly in affirmative.

12.POINT NO.3:- In view of the discussion made above, I  proceed to pass the following;

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.1,96,200/- (2,00,000/- - Rs.3,800/-) with interest at the rate of 9% p.a. from 14.10.2017 till realization.

Further, the opposite party is directed to pay a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.  

The opposite party shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 20^th day of December, 2022)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

Witness examined for the complainants side:

Sri.Prashantha Kumar Shetty, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Copy of the sale agreement dt.14.10.2017.
2. Copy of the letter dt.nil sent by the opposite party.
3. Copies of the membership cards.
4. Email communications between the complainant and the opposite party.
5. Copy of the legal notice dt.09.05.2018 got issued by the complainant through his advocate to the opposite party.
6. Postal receipt.
7. Undelivered RPAD cover.
8. Original C.D.

Witness examined for the opposite party side: 

Sri.Mohammed Akmal Pasha, Manager of opposite party has filed his affidavit.

Documents marked for the Opposite Party side:

1. The Resolution passed by the board of directors in a meeting held on 14.11.2017 authorizing him to appearing in this case and gives evidence.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
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