28.5.2015
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The instant Appeal u/s 15 of the Consumer Protection Act, 1986 is directed against the judgment and order dated 31.3.2014 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas in C.C.Case No. 382 of 2013, directing the OPs/Appellants to refund jointly and/or severally to the Complainant/Respondent within 15 days from the date of the order Rs. 92,056/- along with interest @ 18% per annum from the date of deposit till the date of the order and also to pay to the Complainant/Respondent Rs. 1,00,000/- as compensation within the said period, failing which interest @ 10% per annum shall be payable for the entire period of default.
The facts of the case, in a nutshell, are that the Complainant/ Respondent obtained on 1.3.2005 Membership (No. 52828) with validity from August, 2005 to July, 2030 of ‘Club Mahindra Holidays’ from the OPs/Appellants for ‘White’ season against down-payment of Rs. 52,556/- out of total payment of Rs. 1,20,514/- with arrangement for payment of the balance amount in 36 EMI @ Rs. 1674/- per month. Accordingly, the Complainant/Respondent paid to the OPs/appellants Rs. 92,056/- (Running Page-14 of Memo of Appeal) as averred in the Petition of Complaint. But despite such payment for the said Membership the OPs/Appellants did not provide the Complainant/Respondent with any ‘Travel Package’ till 11.1.2013 when the Complainant/Respondent wrote a letter to the OPs/Appellants, followed by reminder dated 1.4.2013 and Advocate’s letter dated 3.7.2013, requesting the OPs/Appellants to refund the amount paid by the Complainant/Respondent till then. In response to the Advocate’s letter dated 3.7.2013 the OPs/Appellants, by a letter dated 8.8.2013, informed the Complainant/Respondent that he was not entitled to the refund of the amount claimed because the request for cancellation of Club Membership and for refund of the paid amount was made after expiry of six months from the date of application for Membership, i.e. 9.2.2005, being the period of limitation for refund as stipulated in Clause-6.2 of the Membership Application Form and Membership Rules which was signed by the Complainant/Respondent and also because the Complainant/ Respondent availed of ‘Travel Packages’ to Goa for the period from 22.7.2006 to 28.7.2006 and to Mussorie for the period from 20.9.2005 to 22.9.2005. The OPs/Appellants having thus denied their liability for deficiency in service as also for refund of the money paid by the Complainant/Respondent, the Complainant/Respondent had filed the Complaint before the Ld. District Forum which passed the order in the aforesaid manner. Aggrieved by such order the OPs have preferred the present Appeal.
The Ld. Advocate for the Appellants/OPs filing BNA submits that the Appellants/OPs were not allowed the opportunity to file evidence on affidavit and that the Appellants/OPs contested the case only filing Written Version and BNA before the Ld. District Forum and hence, the impugned judgment and order was passed in violation of the principle of natural justice.
The Ld. Advocate continues that the Respondent/Complainant, despite having paid the Membership Fees in part, availed of ‘Travel Packages’ to Goa from 22.7.2006 to 28.7.2006 as also to Mussorie from 20.9.2005 to 22.9.2005 which was suppressed by the Respondent/Complainant in his Petition of Complaint and thus the Respondent/Complainant had not approached the Ld. District Forum with clean hands.
The Ld. Advocate also submits that the Respondent/Complainant was not entitled to the refund as claimed in view of the terms and conditions stipulated under Clause 6.2 of the Membership Application Form and Membership Rules, which do not permit any refund if the request for cancellation of the Membership and also for refund is made after expiry of six months from the date of Membership, which was 9.2.2005 in the case on hand.
The Ld. Advocate also submits that besides this, when the deduction of cancellation charges, as specified in Clause 5.3 of the Membership Rules, is taken into account, no amount remains to be refundable to the Respondent/ Complainant.
The Ld. Advocate finally submits that in view of the submission so put forward, the instant Appeal should be allowed, the impugned judgment and order should be set aside, it being unjust and improper, and the Complaint be dismissed.
On the other hand, the Ld. Advocate for the Respondent/Complainant submits that the Appellants/OPs had contested the case before the Ld. District Forum by filing Written Version and exchanging questionnaires to and replies from the Respondent/Complainant by means of cross-examination, apart from filing evidence on affidavit as observed by the Ld. District Forum in Para-2 of the impugned judgment and order.
The Ld. Advocate continues that the issue of joint-membership as raised at this stage was not raised before the Ld. District Forum, and hence, the new fact is not tenable at this appellate stage.
The Ld. Advocate further submits that no scrap of documentary evidence about the travel to Goa and Mussorie, as alleged by the Appellants/OPs, was produced by the Appellants/OPs before the Ld. District Forum even after denying the said allegation by the Respondent/ Complainant by means of reply by the Respondent/Complainant to the questionnaires by the Appellants/OPs and hence, the said allegation is not tenable at this appellate stage.
The Ld. Advocate finally submits that in view of the submission so advanced, which clearly indicates deficiency in service on the part of the Appellants/OPs, the Appellants/Ops cannot deny its liability to refund to the Respondent/Complainant Rs. 92,056/- as paid by the Respondent/ Complainant to the Appellants/OPs as evident from the statement ‘Member Payment Details’ dated 14.4.2007 as available on records, for which payment the Appellants/OPs did not provide any service to the Respondent/ Complainant.
The Ld. Advocate concludes that on the facts and circumstances of the case, as narrated above, the Appeal should be dismissed and the impugned judgment and order be sustained, it being just and proper.
We have heard both the sides, considered their respective submissions and gone through the materials on records.
Materials on records do not contain any documentary evidence in support of the submission of the Ld. Advocate for the Appellants/OPs to the effect that the Respondent/Complainant availed of the ‘Travel Package’ to Goa and Mussorie as argued by the Ld. Advocate for the Appellants/OPs, rendering thereby the denial by the Respondent/Complainant of the said ‘Travel Package’ uncontroverted.
Further, materials on records do not contain any documentary evidence in support of terms and conditions of forfeiture of the amount of Membership Fees as per Clause 6.2 of the Membership Rules, as referred to by the Ld. Advocate for the Appellants/OPs, if the refund is claimed after expiry of six months from the date of Membership which was to remain valid upto July, 2030 as per Certificate of Membership as available on records. Thus, the aforesaid materials on records reveal that the submission of the Ld. Advocate for the Appellants/OPs hereinbefore is not supported by any cogent evidence and hence, the said submission is incapable of being tenable.
In view of the aforesaid discussion we find force in the submission of the Ld. Advocate for the Respondent/Complainant to the effect that there was deficiency in service on the part of the Appellants/OPs and hence, we are inclined to modify the impugned judgment and order to the following extent:
- The Appellants/OPs are directed to jointly and severally refund to the Respondent/Complainant Rs. 92,056/- as paid by the Respondent/ Complainant within 45 days from the date of the order, failing which the Appellants/OPs will pay interest @ 9% per annum to the Respondent/Complainant for the entire period of default.
- The Appellants/OPs are further directed to jointly and severally pay to the Respondent/Complainant Rs. 10,000/- as compensation for harassment and mental agony suffered by the Respondent/ Complainant and Rs. 5,000/- as cost of litigation, which we deem just and proper, within 45 days from the date of the order, failing which interest @ 9% per annum shall accrue on the said amount for the entire period of default.
In the result, the Appeal is allowed in part and the impugned judgment and order is modified to the extent above. No order as to costs.
