Order-16.

Date-04/04/2017.

        Shri Kamal De, President.

This is an application u/s.12 of the C.P. Act, 1986.

The Complainant’s case in short is that OP is a Company incorporated under the Companies Act., 1956 and running business of Holiday Vacation Ownership. One Sri Dhrubo Coomer, OP’s Sales Man / Representative contacted the Complainant over phone on 06.11.2015 and fixed an appointment on 08.11.2015 for the membership of Vacation Ownership. On 08.11.2015,the OP’s representative visited the residence of the Complainant with various catalogues of Resorts and other things and asked to own Vacation Ownership Plan. The Complainant was asked to sign a printed form and he also signed on Bank’s form at the request of such representative for deduction of EMI from SBI Savings Account of the Complainant. The Complainant was informed to pay Rs. 81,922/- as down payment and balance amount  of EMI to start from December,2016. The Complainant was informed that the Vacation Ownership Plan Certificate along with terms and conditions would be despatched on 9^th November,2015. An amount of Rs.81,922/- was debited from the Account of the Complainant on 08.11.2015, but OP was not provided with any documents like terms and conditions etc. The Complainant received kit on 24^th December,2015. On 5th January,2016 the Complainant received an email from OP asking to pay Annual Subscription Fees of Rs.8,540/- for the year 2015. The Complainant could not go through the kit owing to heavy preoccupation. The Complainant, however, paid an amount of Rs.8,540/- on 5^th Jabnuary,2016 towards Annual Subscription Fes. The Complainant on 19.03.2016 had some time to look into the details of the Holiday Kit and found certain discrepancies. It is alleged that down payment of Rs.81,922/- was collected by OP on 08.11.2015, and further Annual Maintenance Charge of Rs.8,540/- for 2015 was demanded by the Company on 05.01.2016. Vacation Kit was received by him on 24^th December, 2015. It is alleged that down payment was shown in the letter as ‘0’. The Complainant thereafter decided to cancel the membership on 29.03.2016 and requested the OP for such cancellation vide email dated 29.03.2016 and return of Rs.90,462/-, but OP did not take any step. The Complainant  has alleged deficiency of service and unfair trade practice against then OP. Hence this case.     

OPs have contested the case in filing w.v. contending inter alia that the case is not maintainable in law and in fact and is harassive and speculative and is liable to be dismissed. It is stated that Starling Holiday was set up in 1986 with the mission of delivering comfortable and fun-filled holidays at the best of vacation destinations. It is stated that Complainant had shown interest to avail the membership of the Starling Holiday Vacation Certificate Plan and he also tendered payment towards joining fee and the Complainant thereby made himself binding to the terms and conditions of the membership plan. The Complainant was fully aware of the terms of the membership prior to receipt of the welcome kit and the Complainant put his signature on the Application Form on going through the same. The Complainant put his signature on the Application Form and had agreed to the points and Complainant cannot deny or dispute or raise objection in any manner. It is stated that the OPs are entitled to Annual Maintenance Charge for 2015. It is also denied that year of becoming member is of January, 2016. It is alleged that petitioner cannot whimsically decide to cancel the membership without disclosing cogent reason. It is stated that the Complainant never requested for services and the only issue which has been raised by the Complainant is refund of money. It is also stated that the complaint is not maintainable since the Ld. Forum is not vested with the territorial jurisdiction to entertain the instant complaint. This OP has prayed for dismissal of the case.

Point for Decision

1)         Whether the OPs have been deficient in rendering service to the Complainant?

2)         Whether the OPs have indulged in unfair trade practice ?

3)         Whether the Complainant is entitled to get relief as prayed for?       

Decision with Reasons

All the points are taken up  together for the sake of brevity and convenience of discussion.

We have travelled over the documents on record i.e. photocopy of SBI Gold Card Monthly Statement, photocopy of intimation dated 05.01.2015 for Annual Subscription Fees (ASF), photocopy of Welcome Kit of OP dated 22.12.2015, photocopy of Vacation Ownership Plan Certificate, photocopy of email dated 19.04.2016 for cancellation and refund, photocopy of email of revised ASF and other documents on record.

            It is argued from the side of the OP that the present complaint is not maintainable since this Ld. Fora is not vested with the territorial jurisdiction to entertain the complaint. Section 11 of CP Act envisages as follows .

“A Complainant shall be instituted in a District Forum within the  local limits of whose jurisdiction,-

1. the Opposite party  or each of the Opposite parties, where there are more than one, at the time of the institution of the complaint, actually and volu9ntarily resides or carries on business or has a branch office or personally works for gain “

It appears OP has a branch office in Kolkata, at Shakespeare Sarani which is obviously well within the jurisdiction of this Forum. Moreover, we find that the agreement was signed by the parties in Kolkata and the payment were also remitted through SBI debit card at Kolkata. So, the cause of action in part arises within the limits of territorial jurisdiction of this Ld. Fora. The case as such is maintainable.

It appears from the evidences on record of representative of OP Company visited the residence of the Complainant with proposal of Membership of Vacation Ownership. It is also appears that the representative of the OP took the signature of the Complainant on a printed form and also on a Bank Form for deduction EMIs from the Complainant’s SB Savings Bank Account. Subsequently, an amount of Rs.81,922/- was deducted from the SB Savings Bank Account  of the Complainant. It is also appears that he was not provided with any agreement of Starling Holiday Vacation Certificate, containing terms and conditions.

It also appears that the down payment of Rs.81,922/- was collected by the OP on 08.11.2015 and the Vacations Kit along with Vacation Ownership Plan Certificate was issued to the Complainant on 22.12.2015 which was received by the Complainant on 24.12.2015 with terms and conditions at the back of it. It also appears that the down payment shown in the letter as Rs. ‘0.00’. The reason for such delayed delivery of Vacation Kit along with Vacation Ownership Plan Certificate to the Complainant is not explained before us. It is not also intelligible  to us as to why the down payment was shown in the letter as Rs.’0.00’.It is also alleged by the Complainant that the Complainant was told at the time of taking Plan about a discount of maximum 3 percent will be given. But, in the column of total discount in the Plan details it is mentioned as Rs.’0.00’.

We find that the Complainant got no opportunity to go through the terms and conditions of the agreement of the Vacation Ownership Plan Certificate at the time of signing of it.  In fact we find that OP Company managed to obtain the signature of the Complainant on a printed form without explaining the terms and conditions therein. We find that the agent Complainant signed on such printed form in good faith as per the representation of the Salesman / Agent of the OP Company. We find that the agent of  OP, brought an application form for Holiday Vacation Ownership Plan for the Complainant’s signature, and the Complainant signed on such form in good faith and could not even dream about the terms or conditions as otherwise highlighted through verbal presentation. We also find that OP till then had not issued any receipt for money collected from the Complainant as EMI. The Complainant thereafter was informed either to agree to the terms of the said agreement or to leave the scheme as there was no option of any cash refund to the Complainant. The Complainant in the meantime was compelled to pay Annual Subscription amount to Rs.854/- for the year, 2015.

We also find that the Complainant’s effective year on becoming membership was January,2016 because application was signed on 08.11.2015 and the Complainant received the Vacation Kit on 22.12.2015 and it was not possible to avail benefits of Vacation Ownership Plan at such short notice. So, we think that the Complainant’s effective year of becoming membership was January,2016. Hence, we think that Annual Maintenance Charge for the 2015 was not applicable to the Complainant. We also find that the OP obtained the signature of the Complainant after collecting the membership fees of Rs.81,922/- and without giving any opportunity to the Complainant to go through the contents of the Agreement.

We find that OP had push sold a 25 years Membership to the Complainant. We find that the agreement is Computer printed andthe print appears to be in very small font, previously prepared and the points of which are totally one sided. It is also drafted by OP Company.

We think that “informed consent” was not obtained from the Complainant.  “Informed consent” is full disclosure of information. The printed form appears to be a common stereotyped form used to all purposes and it cannot be said that valid consent is procured from the Complainant. “Consent “, we think should be real and valid which means that the Complainant must have the opportunity to go through the terms and conditions. The Consent should be voluntary and free as envisaged under Section 10 of the Indian Contract Act.

A duty is cast upon the OPs to prove that OP did not use any undue force or misrepresentation to get a legally valid consent from the Complainant and OP had at no point of time utilized its dominant and superior position in obtaining consent from the Complainant. We think that no valid consent or informed consent was procured from the Complainant before signing of the agreement. Moreover, we find that OPs collected an amount of Rs.81,922/- from the Complainant much before the delivery of kit of Vacation Ownership with terms and conditions at the back of it. We also find that the terms and conditions of Starling Holidays Vacation Ownership Plan are printed in a previously prepared printed form containing some terms and conditions and in very small font.

We think that OP Company is guilty of deficiency in service and unfair trade practice.  It appears that the agreement was never provided to the Complainant prior to the payment. We think that the scheme is just designed to raise money by unfair trade practice.

We find that OP is trying to take advantage of the terms of the agreement without rendering any service to the Complainant and obtained the signature of the Complainant on a printed form without obtaining valid consent from the Complainant and procuring payment before signing of the agreement. We think that the OP has indulged in unfair trade practice and the deposit in the name of so-called non refundable clause has been designed to raise money for unfair trade practice. Moreover, we think that Holiday Vacation Ownership Plan cannot be sold in such manner by way of purchase agreement. No goods or movable or immovable property was sold in lieu of consideration by the OPs. We also find that Vacation Kit was supplied to the Complainant 47 days after payment of Rs.81,922/-. The date of covering letter of Vacation Kit is dated 22.12.2015 i.e. 45 days after down payment and the Complainant received such kit on 23.12.2015. Complainant did not also avail any benefit under the scheme.

We think that the OP has indulged in unfair trade practice and deposit the amount in the name of so-called non-refundable clause has been designed to raise money for unfair trade practice.

The issues are thus answered in favour of the Complainant as against the OP.

In result, the case merits success. Hence,

Ordered

That the instant case be and the same is allowed on contest against the OPs.

            OPs are jointly and severally directed to refund an amount of Rs.90,462/- to the Complainant within one month from the date of this order apart from litigation cost of Rs.5,000/-.

            OPs are also directed to pay an amount of Rs.10,000/- to this Forum for indulging unfair trade practice within the said stipulated period

Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act .