The instant appeal under Section 15 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of opposite parties to impeach the final order/judgement being Order No. 21 dated 23rd August, 2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short ‘Ld. District Forum’) in Consumer Complaint No. 580 of 2015. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondents under Section 12 of the Act with the direction upon the appellants/opposite parties to refund the amount of Rs. 1,10,000/- along with interest thereon @ 9% p.a. w.e.f. 29.05.2013 till compliance within one month, to pay an amount of Rs. 50,000/- for unfair trade practice, Rs. 10,000/- as litigation cost and failure to comply with the order will entitle the respondents/complainants to put the order in execution and in that event the appellants/opposite parties will be liable to pay penal damages @ Rs. 5,000/- per month.
The respondents herein being complainants lodged the complaint before the Ld. District Forum asserting that the opposite parties had approached them with lucrative offer to avail their services in tourism sector and on persuasion they had filled up an application for membership of the opposite parties without having a glance at the terms and conditions mentioned therein keeping faith upon the representation of the opposite parties and an agreement to that effect was executed on 27.05.2013. After filling up the application form, the opposite parties demanded a sum of Rs. 1,10,000/- and the complainants had paid the sum of Rs. 1,10,000/- only to the opposite parties. The opposite parties had presented a microwave oven to the complainants as welcome gift. Thereafter, in the year 2013-14 the complainants had planned to make a trip to Kashmir and to that effect they approached the opposite parties for the said tour at Kashmir but the opposite parties told the complainants that they would have to pay to the opposite parties for such arrangement. The complainants have stated that on several occasions they requested the opposite parties to cancel their membership and refund the hard earn money but the opposite parties did not pay any heed to the same. Hence, the respondents being complainants approached the Ld. District Forum with prayer for several relies, viz.- (a) a direction upon the opposite parties to cancel the membership and to refund the amount of Rs. 1,10,000/- only along with interest thereon @ 15% p.a.; (b) to pay litigation cost of Rs. 20,000/-; (c) to direct the opposite parties to pay Rs. 2,00,000/- for adopting unfair trade practice; (d) to direct the opposite parties to pay Rs. 1,00,000/- for compensation for harassment and mental agony etc.
The appellants being opposite parties by filing a written version resisted the allegations made by the complainants and stated that the complainants duly signed the contract at the office of opposite party being completely satisfied with the norms, rules, terms and conditions of the Company. It is stated that the membership agreement dated 27.05.2013 is not a deposit for earning profit and the same is not refundable.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite parties. Challenging the said order, the opposite parties have come up in this Commission with the present appeal.
Mr. Sumeet Chowdhury, Ld. Advocate for the appellants has submitted that the respondents have been very specific with regard to their grievances against the appellants and the same only being that appellants have failed to provide accommodation to the respondents in Kashmir in the year 2013-14. He has further submitted that they will be under no contractual obligation whatsoever in providing accommodation to the respondents in Kashmir. Ld. Advocate for the appellants has also submitted that they do not carry out a business akin to that of a travel agent and does not undertake the task of booking hotels for its members. The sole and singular essence of the membership whosoever buys membership from the appellants are entitled to free lodging in the hotels/resorts either owned by appellants or the hotels/resorts with which the appellants have tie up and the list of such hotels/resorts are available in the website of the appellants which are provided to its member.
Mr. Keka Chakraborty, Ld. Advocate for the respondents, on the other hand has contended that by virtue of agreement dated 27.05.2013 the respondents obtained Billionaire Vacations Agreement under which the respondents were entitled to stay for a period of 6 nights 7 days per year at Country Club (India) Ltd. within India for the next 5 years from the date of registration of the agreement but the appellants had never offered any such offer of stay in anywhere in India and as they were deficient in rendering services and adopted unfair trade practice, the Ld. District Forum was quite justified in passing the order impugned.
I have considered the rival contentions of the parties and scrutinised the materials on record.
Undisputedly, on 27.05.2013 the respondents had entered into an agreement with Country Vacations of Country Club (India) Ltd. for Billionaire Vacations Agreement and paid Rs. 1,10,000/-. The fact remains that after the said agreement, in the year 2013-14 the respondents approached the Company with a desire to visit Kashmir but the appellants have refused to arrange the accommodations to the respondents with tour vacations. The respondents approached the appellants to arrange for their stay at Kashmir but the appellant Company have stated that such an arrangement can only be done on payment. Thereafter, being disappointed with the performance of the appellant Company, the respondents requested the complainants to cancel their membership and claimed refund of amount of Rs. 1,10,000/- per month by them but the appellant have refused to refund the amount on the ground that it was non-refundable.
On perusal of Billionaire Vacations Agreement, I find that in the head of ‘Particulars of Billionaire Vacations’ means a stay for a period of 6 nights and 7 days per year at CCIL properties within India for the next five years from the date of registration of the agreement. It means and indicates that the respondents were entitled to stay for a period of 6 nights and 7 days per year at CCIL properties within India for the next five years. Admittedly, the respondents were never offered for stay in any CCIL properties for stay of 6 nights and 7 days in anywhere within the country.
Therefore, it is quite clear that the respondents took club membership by payment of Rs. 1,10,000/- but they were offered no benefit under the said agreement. Therefore, there is hardly any scope to differ with the view of the Ld. District Forum that the opposite parties have utilised the deposited amount of the complainants for their own gain without rendering any services or giving any benefit of tourism, travelling stay at any resort to the complainants. This conduct of the appellants is not only indicates deficiency in services but also a clear evidence of unfair trade practice within the meaning of Section 2(1)(r) of the Act.
In that view of the matter, I do not find any illegality or shortcoming in passing the order impugned by directing the opposite parties to refund the amount of Rs. 1,10,000/- along with interest thereon @ 9% w.e.f. 29.05.2013 till compliance or for awarding of Rs. 50,000/- for unfair trade practice and Rs. 10,000/- as litigation cost.
However, I do not find any reason for imposition of penal damages of Rs. 5,000/- per month in case of putting decree in execution in accordance with Section 25 read with Section 27 of the Act. Normally, penal damages are awarded against a conscious wrong-doing unrelated to the actual loss suffered. Such a claim has to be specifically pleaded. The appellants having no notice of such claim of penal damages, the said order is contrary to the principles of fair procedure and natural justice. Therefore, the order of imposition of penal damages of Rs. 5,000/- per month is liable to be set aside.
In view of the above, the impugned final order/judgment is modified to the extent that the opposite parties/appellants shall have no liability to pay penal damages of Rs. 5,000/- per month. However, the impugned order relating to refund of Rs. 1,10,000/- along with interest thereon @ 9% w.e.f. 29.05.2013, Rs. 50,000/- for unfair trade practice and litigation cost of Rs. 10,000/- imposed by the Ld. District Forum are maintained.
With the above observations, the instant appeal stands disposed of.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
