Presented by: -
Shri Debasish Bandyopadhyay, President.
Complaint Case No. 32/2020
The complainant has instituted this case against the OPs for passing an order to refund of the amount of membership of Rs. 1,10,000/- alongwith interest @ of Rs. 12% per annum till recovery of the said amount and also for payment of compensation amounting to Rs. 1,00,000 and for payment of litigation of Rs. 20,000/-
Fact of this case
Case of the complainant
This case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the complainant is a citizen of India and resident of Village & P.O. Khemasuli, P.S. Kharagpur (Local), Dist. Paschim Medinipur , PIN 721 513 and OP No. 1 is a famous resort, hotel & entrepreneur and having its registered office at 545 G.T. Road (South), Howrah, West Bengal, PIN 711 101 and also situated at Lake Land Country Club, Kona Expressway, P.O. Munshidanga, Howrah, PIN – 711 403 which is within the district of Howrah and the OP No. 2 has its office and business place at Bangalore. It is alleged that the complainant a bonafide reputed person and is connected with several clubs, organizations and other social and cultural organizations of various nature. It is submitted that the agent of the OP No.1 visited the place of complainant and requested him to take membership of the OP No. 1 and the agent of the OP No. 1 promised so many benefits and facilities in the field of hotel, resorts, restaurants and other allied and connected activities. It is also stated that the complainant being influenced by the commitments of the agents of complainant ultimately agreed to take membership of the OP No. 1 and on the 1st day paid an amount of Rs. 30,000 in cash on 11.03.2018 and subsequently paid Rs. 15,000/- in cash on 12.03.2018 and lastly on 23.03.2018 paid Rs. 65,000/- to the agent of the OP No. 1 against proper receipt.
It is alleged that after sometime the complainant has received a membership card of the OP No. 2 and after receiving the same the complainant was astonished as he was not aware about the other activities of OP No. 2 and in the aforesaid circumstances the complainant also applied for withdrawing the membership in writing so many letters dtd. 16.03.2019, 08.06.2019 & 15.07.2019 but the said letters were not responded by the OPs. It is asserted by the complainant side that the complainant has never intended to take membership of the OP No. 2. being convinced by the agent of the OP No. 1 and after long persuasion the complainant agreed to take membership of OP No. 1 but the complainant was never interested about OP No. 2. It is also pointed out that the amount received by the agent of the Op No. 1 has been withheld for a long time and no facilities has been provided to the complainant by the OP No. 1 and as a result of which the complainant has suffered huge mental pain and agony and suffered loss and therefore intended to take refund of the amount of membership of Rs. 1,10,000/-. It is further alleged that the cause of action arose on 16.03.2019, 08.06.2019 and 15.07.2019. For all these reasons the complainant has prayed for granting reliefs as per prayer of the complaint petition.
Defense Case
Even after the service of notice the OPs have not filed any W/V for which this case is running ex-parte.
Framing of issues
On the basis of the pleadings of the parties, this District Commission for the interest of proper and complete adjudication of this complaint case and also for arriving at just and proper decision in this complaint case is going to adopt the following issues:-
(i) Is this case maintainable in its present form and in the eye of law?
(ii) Is the complainant consumer under the OPs or Not?
(iii) Has the complainant cause of action for filing this case or not?
(iv) Has this District Commission jurisdiction to try this case?
(v) Whether the complainant is entitled to get refund of Rs. 1,10,000/- alongwith interest @ of Rs. 12% per annum or not?
(vi) To what other relief / reliefs is the complainant entitled to get in this case?
Evidence on record
In order to prove the case the complainant has filed his evidence on affidavit and against the said evidence on affidavit the OPs have not filed any interrogatories as they are not contesting this case. The OPs also have not filed any evidence on affidavit to disprove the case of the complainant.
Argument highlighted by the parties
The complainant has filed Brief Notes on Argument and also highlighted verbal submission in addition to the filing of Brief Notes on Argument.
Decision with reasons
The first four points of consideration are taken up for discussion at first as because the questions and / or issues involved in the above noted points of consideration are interlinked and / or interconnected with one another.
For the purpose of arriving at just and proper decision in respect of the above noted four points of consideration , this District commission after going through the material of this case record finds that the OP No. 1 is running business at the address of 545, G.T. road (South), Howrah which is falling within the district of Howrah and so it attracts the territorial jurisdiction of this District Commission. Now, the question is whether this District Commission has its pecuniary jurisdiction or not? In this regard, this District Commission on close scrutiny of the pleadings of complainant adopted in this case and also after examining the evidence on record finds that the claim of the complainant is far below than that of Rs. 20,00,000/- and so this District Commission as its pecuniary jurisdiction. In this case another crucial question is whether complainant has a consumer under the OPs or not? In this regard it is very important to note that the evidence on record is clearly reflecting that the complainant paid Rs. 1,10,000/- to the OPs as amount of membership but the OPs have not provided any benefit to the complainant and his family members for taking membership of the OP Nos. 1 & 2. This matter is clearly reflecting that the complainant is a consumer under the Ops and the complainant has cause of action for initiating this complaint case. In this regard it is also important to note that the complainant claimed refund of Rs. 1,10,000/- but the Ops have not paid the said amount.
All the above noted factors are clearly reflecting that the complainant is a consumer under the OPs and he has cause of action for institution of this complaint case against the OPs and this complaint case is maintainable in the eye of law and this District Commission has its territorial and pecuniary jurisdiction to try this case.
These all the above noted four points of consideration are decided in favour of the complainant side.
The point of consideration No. 5 has been framed on the point whether the complainant is entitled to get refund of Rs. 1,10,000/- from the OPs alongwith interest @ of Rs. 12% per annum or not and whether the complainant is entitled to get any compensation and litigation cost from the OPs or not?
For the purpose of arriving at just and proper decision in respect of the above noted points of consideration this District Commission is of the view that there is urgent necessity of making scrutiny of the material of this case record as well as scanning the evidence on record. In this regard this District Commission after going through the evidence on record finds that the complainant for the purpose of taking membership of the OP Nos. 1 & 2 has paid Rs. 1,10,000/- to the OPs and after payment of the said amount the OPs also have provided the membership card to the complainant but the OPs in spite of receiving the amount of Rs. 1,10,000/- have not provided any facilities to the complainant and his family members.
This part of the evidence of the complainant remains unchallenged and / or uncontroverted as because the OPs have not filed any interrogatories against the evidence on affidavit filed by the complainant. There is no reason to disprove the unchallenged and / or uncontroverted testimony of the complainant side. In view of such position it is crystal clear that the complainant by way of adducing ex-parte evidence has proved his case in respect of the point of consideration No. 5 and it is found that the complainant is entitled to get refund of Rs. 1,10,000/- alongwith interest @ 9% from the date of filing of this case.
But fact remains that relating to the fact of awarding compensation and litigation cost the evidence of the complainant has not been corroborated by any other evidence or documents. Moreover, the basis of the claim of the complainant for getting compensation and litigation cost has also not been proved beyond any shadow of doubt.
A cumulative consideration of the above noted discussion goes to show that the complainant is only entitled to get refund of Rs. 1,10,000/- alongwith interest @ 9% per annum from the OPs .
In the result, it is accordingly,
ORDERED
That this Complaint Case being No. 32/2020 be and the same is allowed ex-parte but in part.
It is held that the complainant is entitled to get refund of Rs. 1,10,000/- alongwith interest @ 9% per annum from the OPs from the date of filing of this case.
OP Nos. 1 & 2 are directed to pay the amount of Rs. 1,10,000/- alongwith interest @ 9% per annum from the date of filing of this case (21.01.2020) to the complainant within 60 days from the date of passing of this award, failing which the complainant is given liberty to execute this award as per law.
The parties of this case are entitled to get a free copy of this judgment as early as possible.
Let this judgment / final order be uploaded in the official website of this District Commission.
Dictated & corrected by me
President
