Date of Filing – 05.10.2016

Date of Hearing – 06.06.2017

       The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Order No.22 dated 17.06.2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, Ld. District Forum) in Consumer Complaint no. 149/2013.  By its order, the Ld. District Forum allowed the complaint lodged by the Respondents under Section 12 of the Act on contest against the Appellants with certain directions like- (a) to refund a sum of Rs.46,000/-; (b) to pay compensation of Rs.15,000/- and (c) litigation cost of Rs.5,000/- within 30 days from the date of communication of order otherwise it shall carry interest @ 10% p.a. till full realisation.

          The Respondents herein being Complainants lodged the complaint asserting that during the festival season of 2011 some agents of OP Company induced them to draw lucky coupon and also requested them to fill up a form.  On the requests form was duly filled up and agents took the said filled up form and informed them that if luck favours, they may be lucky winner.  On 07.09.2011 the OP Company invited the complainants in their Kolkata office at 86-B/2, First Floor, Gajraj Chamber, Park Circus Connector, Topsia Road, Kolkata – 700046.  On 07.09.2011 when the complainants visited the office of OP Company they were given a holiday gift voucher.  Being persuaded by the officers of that club, the complainants became a member of the club for six years from 2011 to 2016 and the complainants paid a sum of Rs.46,000/- on a receipt.  On 08.09.2012 the complainants requested the OP Company to cancel the membership and refund the money but the OP Company replied that as per Company norms, the membership is not cancellable and no refund could be made.  Hence, the respondents approached the Ld. District Forum with prayer for refund of Rs.46,000/- with interest thereon, compensation of Rs.25,000/- and litigation cost etc.

          The appellant no.1 being opposite party no.1 Company by filing a written version has stated that being impressed by the venues and resorts and after being completely satisfied, the complainants paid Rs.46,000/-.  The OP No.1 has stated that in the purchase agreement, customer care contact Nos. for its member assistance is provided, so that in case of difficulty members can freely call at that numbers and resolve their queries pertaining to booking etc.  It is submitted that the complainants neither visited the website of country vacations nor approached the customer care and as such question of deficiency in services does not arise.

          After assessing the materials on record, the Ld. District Forum by the impugned order allowed the consumer complaint with certain directions, as indicated above, which prompted the OPs to approach this Commission with the instant appeal.

          Mr. Sumeet Chowdhury, Ld. Advocate appearing for the appellants on the threshold of a submission has submitted that the Ld. District Forum should have dismissed the complaint as there was no privity of contract in between the parties.  He has also submitted that as there was no deficiency in services, the Ld. District Forum ought to have dismissed the complaint.  In support of his submission, Ld. Advocate for the appellants has placed reliance to an order dated 22.05.2015 made by the Hon’ble National Consumer Commission in RP/1191/2010 (The Country Club (I) Ltd. – Vs. L. Selvaraj). 

          The respondent no.2, who appears in person has submitted that the respondent no.1 i.e. his wife has been suffering from serious ailments and as such she could not come.  He has also submitted that being a retired employee of BSNL, he and his wife were befooled by the appellant company and under camouflage they had to make payment of Rs.46,000/- to the Country Vacation but never could enjoy any vacation in any of the resorts of the appellant Company.  He has also submitted that due to illness of his wife they wrote letter to the appellant Company requesting them to refund the amount and in reply to the same, the customer care Manager, Country Vacations informed that if they do not wish to avail the membership facilities, they may sell or transfer the same to any one of their personal contacts.

          I have scrutinised the materials on record and also considered the submission of both sides.

          Undisputedly, the respondents on payment of Rs.46,000/- purchased one membership of Country Vacations, a division of Country Club India Ltd.  In the petition of complaint, the respondents arrayed (1) Manager/Authorised Person of Country Vacations (a division of Country Club(I) Ltd.) and (2) Manager/Unauthorised person representing Country Club (India) Ltd. as opposite parties.  The terms and conditions (Annexure-II) of the particulars of the vacation membership indicate that ‘Country Club (India) Ltd.’ should have been impleaded as opposite party.  The respondents have rightly impleaded the Country Club (India) Ltd. as opposite party No.2 and after receipt of the notice when the opposite parties had appeared, I do not find any ambiguity in impleading the parties.  The OP No.1 at best may be considered as unnecessary party but in any case, the OP No.2 (Appellant No.2) is a necessary and proper party.  When an agreement was executed in between the respondents on the one hand and Country Club (India) Ltd. on the other hand, the submission of the Ld. Advocate for the appellants that no privity of contact exists between the parties cannot be accepted.

          The materials on record goes to show that the agents of the appellant Company insisted the respondents to be a lucky winner and on receiving of information, the respondents visited the office of the appellant Company and purchased a membership on payment of Rs.46,000/- for the period from 2011 to 2016.  According to the terms of the agreement, the respondents were entitled to holiday package (room only) of six nights and seven days or two spells of two nights and three days each per year at CCIL Properties in India and Srilanka.  The fact remains that the respondents never received any offer for visiting in anyone of the specified resorts.  It may be pertinent to record that on 12.09.2011 the payment was made and a receipt being No.CVCL-7021 dated 12.09.2011 was issued in favour of respondent no.1.

         In any case, due to serious illness of respondent no.1, the respondents dropped the idea to continue with the membership of appellant Company and requested them to refund the money.  In reply to the same, it has been stated that the membership facilities is not cancellable or refundable.  But the respondents may sell or transfer the same to anyone on their personal contacts.

          Therefore, from the contents of the letter and the terms and conditions I find an apparent inconsistency.  It signifies that the membership is transferrable.  That being so, there is no predicament in refunding the money.  The Ld. District Forum has rightly observed, when the complainants wanted to travel to any place, every time OPs’ replied that the opted places could not be provided at that time.  Perhaps, the Ld. District Forum has made some observation on the basis of reply given by the appellant company on the questionnaire set forth by the respondents.  The appellants did not bring that clear picture before this Appellate Forum by filing the reply given by them against questionnaires set forth by the complainants.

          The decision referred by the Ld. Advocate for the appellants in the case of The Country Club (I) Ltd. (supra) has no manner of application in our case because in the said case it was advertised that in order to acquire membership, an applicant had to pay a lifetime membership fee of Rs.1,45,000/- and in addition to enjoy the facility offered by the club, a complementary plot of land and host of other holiday packages under the scheme.  Attracted by the features of the scheme, particularly the allurement to own of a plot, the complainants applied for its membership, by making initial payment of Rs.20,000/-.  However, the applicants did not make payment the balance amount and as such the Hon’ble Commission held that the petitioner was justified in forfeiting the annual deposit of Rs.20,000/-.

          The referred decision is quite distinguishable with our case because in the instant case, the respondents have made payment of one time purchase of Rs.46,000/- and despite of the fact that the respondents did not make payment any annual maintenance charges of Rs.6,000/-, the appellants Company authorises the respondents to sale or transfer of membership to some other person.  Therefore, I do not find any illegality or incorrectness in passing the order impugned.

          In view of the above, the appeal being devoid of merit deserves dismissal.

          Consequently, the appeal is dismissed on contest with cost of Rs.5,000/- to be paid by the appellants to the respondents.

          The order No.22 dated 17.06.2016 passed by the Ld. District Forum in CC/149/2013 is hereby affirmed.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.