Chandigarh

StateCommission

A/2/2023

COUNTRY CLUB HOSPITALITY & FITNESS CENTRE - Complainant(s)

Versus

SATINDER KLER - Opp.Party(s)

PRADEEP SHARMA, B.L. SHARMA & SUKHVIR VOHRA ADV.

24 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

Appeal No.	:	A/2/2023
Date  of  Institution	:	03/01/2023
Date   of   Decision	:	24/04/2023

 

 

 

 

 

[1]    Country Club Hospitality & Fitness Centre, SCO 44 & 45, 2^nd Floor, above P.N.B., Sector 9-D, Madhya Marg, Chandigarh – 160009.

 

[2]    Rajeev Reddy, Chairman-cum-Managing Director, Country Club Hospitality & Holidays Ltd., #6-3-1219/A, C.c. Kool Building, Begumpet, Hyderabad-500016, Telangana.

…. Appellants

 

V E R S U S

 

Satinder Kler wife of Sh. Mohinder Pratap Singh, #487, Swastic Vihar, Zirakpur – 140603.

…… Respondent

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

PRESENT	:	Sh. Pardeep Sharma, Advocate for the Appellants.
		Sh. Mohinder Pratap, Authorized Agent for the Respondent.

 

PER PREETINDER SINGH, MEMBER

 

 

This appeal is directed against the order dated 27.10.2022, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the Consumer Complaint bearing no.CC/144/2020, in the following terms:-

6]   Taking into consideration the above observations & findings, we are of the considered view that the Opposite Parties have remained deficient in providing due services to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties No.1 & 2 and the same is allowed qua them. The Opposite Parties No.1 & 2 are, jointly & severally, directed as under:-

a]  To refund an amount of  Rs.70,000/- to  the Complainant along with interest @9% p.a. from the date of deposit, till realization

b]   To pay Rs.15,000/- as compensation on account of deficiency in service and causing mental and physical harassment to the Complainants; 

c] To pay Rs.10,000/- as cost of litigation;

      The above said order shall be complied with by the Opposite Parties No.1 & 2 within a period of 30 days from the date of receipt of its copy, failing which they shall be liable to pay additional compensatory cost of Rs.10,000/-, apart from the above relief.”

 

2.      Before the Ld. Lower Commission, it was the case of the Respondent/Complainant that she was fleeced by official of Appellant/OP-Company for buying a Holiday Membership on 22.04.2018 at Paras Down town Mall, Zirakpur and promised that she would have hassle free holidays of seven days & six night in a year for five years with a bonus of two weeks from Appellant/OP-Company, which can be availed any time in 5 years in parts through Appellant/OP in India and Abroad.  It was averred that the Official of the Appellant/OP also promised to provide two days’ advance booking by telephone or online booking system and also told that they had partnership with Dial & Exchange (DAE) and if accommodation is not available in Country Club, in other countries, then they would arrange accommodation through DAE by paying 20 to 40 US Dollar/day extra. Accordingly, the Respondent/complainant paid an amount of ₹70,000/- through her Debit Card on 22.04.2018 and 03.05.2018 respectively and was issued Membership.  It was also averred that when the Respondent/complainant requested the Appellant/OP Company for booking, she was told to deposit ₹10,500/- as AMC (Annual Maintenance Charges).  It was further averred that later the Respondent/complainant was told that the Appellant/OP Company was having a three type of membership cards and the Blue Card Membership of Respondent/complainant was of least priority and she could get accommodation if it was left vacant and this was not told earlier to her.  It was alleged that on 22.05.2018, the Respondent/complainant lodged complaint with Appellants/OPs through Central Customer Care for cancellation of her Membership and refund of amount, but nothing was done. Even she also visited the Police Station to lodge complaint against Appellants/OPs, but to no avail. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Appellants/ Opposite Parties.

 

3.      Upon notice, the Appellants/OPs resisted the consumer complaint on the ground that the Complainant availed the Membership of the Company after understanding all the benefits, prices and terms & conditions thereof and as such, executed Agreement dated 03.05.2018. As per Clause 10 of the Vacation Agreement, the Complainant was required to pay Annual Maintenance Charges of ₹10,500/- exclusive of taxes per year.  It was asserted that the welcome letter dated 28.04.2018 clearly states the membership brief details and other descriptions. It was submitted that Dial an Exchange (DAE) card bearing No.P525508 was issued to complainant on 05.05.2018. It was pleaded that vide e-mail dated 22.05.2018, the complainant sought cancellation of membership by making lame excuses and false accusation against their Sales Staff. It was further pleaded that vide e-mail dated 01.06.2018 the Complainant was offered good discount on Annual Maintenance Charges, to which there was no response from her side. While denying that the complainant made any request for booking on phone, it was submitted that per agreement the membership fee is non-refundable and the grievance of the Respondent/complainant was not genuine. On these lines, the cause was sought to be defended and a prayer for dismissal of the Complaint was made.

 

4.      On appraisal of the pleadings and the evidence adduced on record, Ld. Lower Commission allowed the consumer Complaint of the Respondent/ Complainant, as noticed in the opening para of this order.     

 

5.      Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellants/Opposite Parties.

 

6.      We have heard the Learned Counsel for the Parties and have gone through the evidence and record of the case with utmost care and circumspection.

 

7.      The core question that falls for consideration before us is as to whether the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

8.      After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be accepted for the reasons to be recorded hereinafter.

 

9.      There is no denying the fact that the Respondent/complainant took Membership of Appellant/ OP Company by paying an amount of ₹70,000/- on 22.04.2018 & 03.05.2018 respectively. It was the case of the Respondent/Complainant that the Appellants/OPs failed to honour the commitments owing to which she opted out of the Membership. However, there is nothing on record which could show that the Appellants/OPs ever backed off from providing any services in the terms agreed in the agreement. Admittedly, the Respondent/ complainant were asked to deposit Annual Maintenance Charges, to which there was no response. Learned Counsel for the Appellants defend the cause by submitting that they were justified in demanding Annual Maintenance Charge from the Respondent/ Complainant even though the same was after one month of taking membership. We feel in order to straighten the things, it is imperative to peruse the Agreement. After meticulous perusal of the same, it is observed that that Cl.No.10 of the agreement provides that within three months from signing the agreement or before booking of first vacation annual maintenance charges are payable. The Ld. Lower Commission thus wrongly held that the demand for Annual Maintenance Charge just after one month of taking membership was not logical. Moreover, it emerges from the record, the Complainant in Para 2.3 of her Complaint has averred that when requested for booking on phone, representative of the Appellants told her to deposit the annual maintenance charges of ₹10,500/-. The Ld. Lower Commission thus failed to appreciate the record as the said demand was per se in accordance with Cl. No.10 of the agreement and was not in deviation of the same.  

 

10.      The Authorized Representative of the Respondent/ Complainant argued that the Complainant’s request for booking of hotel was not entertained and instead she was told to upgrade the membership by paying more money and despite the payment of ₹70,000/- the Appellants/OPs did not provide due services to the Respondent/Complainant. This limb of argument was hotly contested by the Learned Counsel  for the Appellants on the ground that the Respondent/ Complainant was never denied the membership booking but was demanded annual maintenance charges as per Cl.No.10 of the agreement. To our mind, the Appellants did not mislead the Respondent/Complainant regarding payment of aforesaid charges, especially when the sale agreement was signed by the Respondent/ Complainant in which, clause “Annual Charges” clearly mentioned regarding the said charges of ₹10,500/-.  It is evident from the record that the Complainant herself opted for blue season and the same finds mentioned in the agreement duly signed by her. The Ld. Lower Commission thus erred in holding that the blue card membership issued to the Complainant was of lower priority.

 

11.      The Authorized Representative of the Respondent/ Complainant argued that there was deficiency in service on the part of the Appellants and the Ld. Lower Commission rightly held the Respondent/Complainant entitled for refund along with other reliefs. However, per material available on record, to our mind, Respondent/Complainant is not entitled for the refund in view of Cl.26 of the agreement, which reads as thus:-

 

“26. 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.3800/- to the Company. After deduction of the aforesaid amount (Rs.3800/-) 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, Central Customer Care, 4^th Floor, Asian building, Bagumpet, Hyderabad – 500016 through registered speed post or an e-mail to centralcustomercare@countryclubmail.com. After expiry of the aforesaid period the fee is non-refundable under any circumstances.”

 

Thus, it is manifest that Respondent/ Complainant was entitled for refund within 10 days of signing the agreement and no refund shall be given after that under any circumstances. There is nothing on record to substantiate that the Respondent/ Complainant ever wrote to the Appellants/OPs regarding the cancellation of membership within a span of 10 days after signing of the agreement.

 

12.      It is clearly proved that the Sale Agreement was signed by the complainant. She has failed to prove that she applied for refund within 10 days, as per the aforesaid clause. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as “Dinakar Rao Vs. Green Fields (India) Pvt. Ltd. & ors.” Revision Petition No.1474 of 2007, dismissed the revision petition with the observation that “Purchase Agreement signed by the petitioner specifically provides that membership fee is non-refundable”. Ratio of judgment in the case is fully applicable to the facts of the case in hand. The impugned order passed by the Ld. Lower Commission is therefore based on wrong appreciation of evidence and law on the point and thus suffers from illegality or perversity. There is no deficiency in service on the part of the Appellants.

 

13.      No other point, was urged, by the Counsel for the Appellant.

 

14.      This Commission, therefore, is of the opinion that the impugned order passed by the Ld. Lower Commission allowing the Complaint was erroneous and liable to be set aside. Consequently, the Consumer Complaint is dismissed.

 

15.      In the aforesaid premises, the present appeal is allowed with no order as to costs and the impugned order passed by the Ld. Lower Commission is set aside.

 

16.      The pending application(s), if any, stand disposed off accordingly.

 

17.      Certified copies of this order be sent to the parties free of charge.

 

18.      The file be consigned to Record Room, after completion.

Pronounced

24^th Apr., 2023                                 

Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”