Date of Filing: 02-06-2016 Date of Final Order: 05-04-2017
Sri Gurupada Mondal, President.
This is an application under Section 12 of C.P. Act, 1986 filed by one Smt. Minati Barman against the Branch Manager/In-charge, Pan Card Clubs Ltd. and the Founder & Chairman, Pan Card Clubs Ltd. praying for refund of maturity amount of Rs.60,662/- & Rs.35,200/-along with interest @ 9% per annum from the date of maturity, compensation of Rs.5,000/- and litigation cost of Rs.2,000/-.
The case of the Complainant in short is that she purchased two numbers of certificates in the name of Relax Holiday from the O.P for a period of 39 months each being Folio No.1004-0139928 & 1004-0152214 for Rs.40,500/- and Rs.25,200/-. The said certificates were matured on 23/03/2015 & 07/11/2015. After the maturity of the first certificate amounting to Rs.40,500/-, the Complainant deposited the same in the Office of the O.P. No.1 for encashment and a Cheque for Rs.60,662/- was issued in favour of the Complainant. The Complainant went to the SBI, Sagardighi Branch, Cooch Behar to deposit the said cheque and came to know that earlier, some cheques issued by the O.P. No.1 were bounced. Then the Complainant contacted with the Office of the Pan Card Clubs Ltd. and the Manager suggested her to deposit the bounced cheque in the Office for NEFT. The Manager, Pan Card Club also informed her that the maturity amount would be paid within March, 2016. Accordingly, the cheque was deposited in the Office of the O.P. No.1 but the Complainant did not receive any payment from the O.Ps.
The second certificate of the Complainant was matured on 07/11/2015 and as per direction of the O.P. No.1, the Complainant deposited the said certificate in the Office of the O.P. No.1 to get the maturity amount through NEFT but the O.Ps did not make any payment. In this connection, the Complainant contacted the Assistant Director, Consumer Affairs & Fair Business Practices for Redressal on 12/05/2016. An hearing was held on 25/05/2016 but the problem remain unsolved. Accordingly, the Complainant has filed the instant case for refund of the maturity amount of Rs.60,662 and Rs.35,200/- along with interest @ 9% per annum from the date of maturity, compensation of Rs.5,000/- for mental pain, agony and harassment and litigation cost of Rs.2,000/-.
The O.Ps filed W/V before this Forum denying all material allegations contending inter-alia that the allegations are false and frivolous one.
Specific case of the O.Ps is that Pan Card Club Ltd. is a Company incorporated under the provisions of the Companies Act, 1956 and having its Registered Office and the O.Ps are engaged in the business of hospitality, industry and selling of room nights in advance under its various schemes for stay at its various hotels, Clubs and Resorts throughout India. The Complainant expressed her desire to utilize the said room night in the hotels of the Company under the Holiday option of Pan Card Club-Relax Holiday Membership for 66 months. The terms and conditions were explained to the Complainant clearly and thereafter, the Complainant signed on the acceptance form. The Complainant purchased room nights/holiday options in advance from PCL in the year 2011 & 2012 for the period of 3 years 3 months for Rs.40,500/- and Rs.25,200/-. The O.Ps accepted the membership under the holiday option of Pan Card Club-Relax holiday for 45 & 28 room nights during the tenure of 66 months commencing from 23/12/2011 and 07/08/2012 and the said membership was expired on 23/03/2015 and 07/11/2015. To that effect, OPs issued certificates in favour of the Complainant.
Further case of the O.Ps is that the Complainant never utilized the room nights of the O.Ps purchased by her and did not avail the services offered by the O.Ps and as such, there was no deficiency of service on the part of the O.Ps. It is further alleged that the O.Ps reserved the right to reject application for surrendering of room nights without assigning any reason. The O.Ps sold the room nights in advance to the Complainant against consideration. It is also alleged that this Forum has no territorial jurisdiction to entertain the present complaint. The Complainant and the O.Ps agreed that in the event of any dispute between the parties, the parties would file suit in Mumbai Court only. On the basis of the aforesaid facts, the O.Ps prayed for dismissal of the case with cost.
Considering the application filed by the Complainant and W/V, the following points are necessary to discuss in order to come into a conclusion.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and perused the evidence on affidavit of the Complainant. Perused the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
It reveals from the case record that the Complainant purchased Pan Card Club-Relax Holiday Membership for 66 months on 23/12/2011 and 07/08/2012 at a consideration price of Rs.40,500/- and 25,200/-. The maturity amount of the first deposit was Rs.60,662/- and Rs.35,200/- as on 23/03/2015 & 07/11/2015.
Consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or need any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or need any system of deferred payment without such use is made with the approval of such person, but does not include a person who obtain such goods for resell or any commercial purpose. Therefore, we find that the Complainant purchased Relax holiday by paying of Rs.40,500/- and 25,200/- and the O.Ps agreed to pay Rs.56,700/- and 35,200/- on different maturity value. Therefore, we are constrained to hold that the Complainant is a consumer. This point is decided in favour of the Complainant.
Point No. 2.
It reveals from the case record that the Complainant purchased Relax holiday by paying Rs.40,500/- and 25,200/- to the O.Ps and the said transaction took place at Cooch Behar. The Branch Office of the O.P. No.2 is situated at Cooch Behar. The pecuniary jurisdiction of this Forum is Rs.20 lakhs but the claim of the Complainant is less than statutory limitation. Accordingly, we hold that this Forum has jurisdiction to try this case.
Point No. 3 & 4.
Both the points are taken up together for convenience of discussion as well as they are related with each other. The O.Ps have admitted in his w/v as well as evidence that the Complainant purchased Relax holiday of Pan Card Club Ltd. for 66 months at a consideration price of Rs.40,500/- and 25,200/-. Admitted facts need not be proved by adducing evidence but from the documents filed by the Complainant, we find that the Complainant purchased Relax holiday being Folio No.1004-01-39928 at a consideration price of Rs.40,500/- and also purchased Relax holiday being Folio No. 1004-0152214 at a consideration price of Rs.25,200/-. The maturity dates were 23/03/2015 and 07/11/2015 respectively.
After the maturity, the O.P issued a cheque being No.394678 dated 08/02/2016 for Rs.60,662/- issued in favour of the Complainant. The Complainant went to the SBI, Sagardighi Branch, Cooch Behar in order to deposit the said cheque but as per advice of the Branch Manager, SBI, Sagardighi Branch, he did not deposit the same on the ground that earlier occasion some cheques issued by the O.P. No.1 were bounced. Thereafter, the Complainant met with the O.P. No.1 and O.P. No.1 received the said cheque in order to pay through NEFT.
The Complainant further deposited the certificate being Folio No.1004-01-52214 in order to receive the maturity amount amounting to Rs.35,280/-. Thereafter, the O.P did not pay the maturity amount in favour of the Complainant. The Complainant met with the O.P. No.1 several times but O.P. No.1 did not pay anything. The Complainant submitted a complaint before the Assistant Director, Consumer Affairs & Fair Business Practices, Cooch Behar for redress of the dispute but all efforts went in vain. On the other hand, the O.P failed to place any evidence against the Complainant. The O.P alleged that the Complainant at his own desire purchased the room nights in the Hotel of the Company under the Holiday Option of Pan Card Club Relax Holiday Membership for 39 months but she did not utilize the same. As per clause 10(5) of the Membership, the Company reserves the right to reject the application for surrender of room nights or change the terms and conditions thereof in its own discretion. But, we find from the evidence that after the maturity of the Folio No.1004-01-39928, the Complainant deposited the said certificate in the Office of the O.P and to that effect, the O.P issued a cheque in favour of the Complainant. Therefore, the O.Ps permitted the Complainant to surrender the certificate and to that effect, a cheque for Rs.60,662/- was issued in favour of the Complainant. The contention of the O.P in such circumstances cannot be accepted. Therefore, from the above made discussions, it is established that the Complainant purchased Pan Card Club Relax Holiday for Rs.40,500/- and Rs.25,200/- and the maturity value of the said certificates was Rs.56,700/- as on 23/03/2015 and Rs.35,280/- as on 07/11/2015. Inspite of such maturity, the O.P did not pay the maturity value to the Complainant which the Complainant is entitled to get in due time.
It has been alleged by the OP that this Forum has no territorial jurisdiction to try this case as there was an Agreement in between the Complainant and the O.Ps that “This Agreement shall be governed by Indian Laws and subject to the jurisdiction of Mumbai Court only”. We have gone through the terms and conditions of the Agreement entered into by the Complainant and the O.Ps. The cause of action arose at Cooch Behar as the Branch Office of the O.P is situated at Cooch Behar. Therefore, this Forum has sufficient territorial jurisdiction to entertain this case. The territorial jurisdiction is conferred either at a place where the cause of action arises and where the Office of the O.P is situated. As per Section 28 of Indian Contract Act, an Agreement perporting to oust the jurisdiction of the courts is illegal and void on the ground of public policy. Therefore, we do not find any leg of the argument of the Ld. Advocate for the O.P.
On the basis of aforesaid discussions, we have come to a conclusion that the O.Ps with an ill-motive did not pay the maturity amount to the Complainant causing irreparable loss and injury to the Complainant. It amounts to un-fair trade practice and deficiency of service for non-payment of maturity amount to the Complainant. As such, the Complainant is entitled to get award as prayed for. Both the issues are disposed off accordingly.
Hence,
Ordered,
That the present Case No. CC/60/2016 be and the same is allowed on contest with cost of Rs.2,000/-.
The O.Ps are hereby directed to pay Rs.95,942/- to the Complainant along with interest @ 9% P.A from the date of maturity of the Relax Holiday Certificate till full payment is made.
The O.Ps are further directed to pay compensation of Rs.5,000/- to the Complainant for causing mental pain & agony of the Complainant. The O.Ps are jointly and/or severally liable to pay the directed amount to the Complainant. The O.Ps are also directed to pay the aforesaid amount within 30 days from this date and in case of making default, the O.Ps shall pay Rs.100/- for each day’s delay and the amount of accumulated deposit shall remit to the State Consumer Welfare Fund, West Bengal.
Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
