Date of Filing: 01-06-2016 Date of Final Order: 18-04-2017
Sri Gurupada Mondal, President.
This is an application under Section 12 of CP Act, 1986 filed by one Smt. Malati Sarkar against the Branch Manager, Pan Card Club Ltd. Cooch Behar and the Manager, Pan Card Club Ltd., Mumbai praying for refund of maturity amount of Rs.1,08,000/- alongwith interest, Rs. 25,000/- for mental pain, agony and unnecessary harassment, Rs.20,000/- for unfair trade practice and deficiency of service and Rs.10,000/- towards cost of proceeding.
The case of the Complainant in short is that she purchased certificate of Delight Holiday Scheme amounting to Rs.50,500/- from OP No.1 on 22.12.2008 for a period of 6 years 3 months. After the maturity as on 22.03.15, the Complainant went to the Office of the OP No.1 several times in order to get the maturity amount but the Complainant did not get any response from the OP No.1. Thereafter, in the month of January, 2016, the OP No.1 requested the Complainant to submit personal Bank details to get the maturity amount but all efforts went in vain. The OPs intentionally delayed in paying the maturity amount with a fraudulent intention or for the purpose of cheating the Complainant, as a result of which, the Complainant suffered irreparable loss and injury due to negligent of the OP. Accordingly, the Complainant has filed the instant case against the OP for proper Redressal.
The OPs, in order to contest this case, filed a written objection denying all material allegations contending inter-alia that the instant case is false and frivolous one and the allegations made in the complaint are false and fabricated.
Specific case of the OPs is that the OP is a Company incorporated under the provisions of the Companies Act, 1956 having its Registered Office and the OPs are engaged in the business of hospitality, industry and selling of room nights in advance under its various schemes. The OPs admitted that the Complainant expressed her desire to utilize the said room nights in the hotels of the Company under the Holiday Option of Pan Card Club’s Delight Holiday Membership for 66 months and the Complainant signed in the undertaking of the terms and conditions. The Complainant after paying Rs.50,500/-accepted the Membership under the Holiday Option of Pan Card Club – Delight Holiday for utilizing 56 room nights during the tenure of 75 months commencing from 22.12.08 and expiring on 22.03.15 and to that effect, the OP issued a certificate being Folio No.Coo-59119. The Complainant never utilized the said room nights and no services were offered to the Complainant by the OPs and there was no question of deficiency of service.
Further case of the OPs is that the OPs have right to reject the application for surrender of room nights without assigning any reason. There was no deficiency of service from the end of the OPs and this Forum has no territorial jurisdiction to entertain this complaint on the ground that the jurisdiction of this Forum was ousted by a contract dated 22.12.2008 in between the parties. On the basis of aforesaid fact, the OPs 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 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. Perused the entire documents in the record and also heard the argument as advanced by the parties at length.
Point No.1.
It reveals from the case record that the Complainant Smt. Malati Sarkar purchased Pan Card Club’s Delight Holiday Membership of Rs.50,500/- for a period of 66 months on 22.12.2008 being Folio No.COO-590119 from the OP No.1. The maturity amount of the said certificate was Rs.1,08,000/- and the date of maturity was 22.03.15.
The Complainant went to the Office of the OP No.1 to get the maturity amount. The monetary transaction took place at Cooch Behar. Therefore, the relations between the Complainant and the OP are buyers and sellers. On the basis of the said certificate, the OP promised to pay the maturity amount of Rs.1,08,000/-. Therefore, the Complainant is a consumer as per CP Act, 1986. Accordingly, this point is decided in favour of the Complainant.
Point No. 2.
It reveals from the case record that the Complainant purchased Pan Card Club’s Delight Holiday Membership of Rs.50,500/- for a period of 66 months. The said transaction took place at Cooch Behar. The Branch Office of the OPs is situated at Cooch Behar. Therefore, the cause of action took place at Cooch Behar. It is evident from the terms and conditions that Delight Holiday Membership that “The Agreement shall be governed by Indian laws subject to jurisdiction of Mumbai Court only”. We have gone through the terms and conditions of the Agreement entered into in between the Complainant and the OPs. The cause of action arose at Cooch Behar. The Branch Office of the OP No.2 is situated at Cooch Behar. The territorial jurisdiction is conferred either at a place where the cause of action arises and where the Office of the OPs is situated. As per Section 28 of Indian Contract Act, an Agreement purporting to oust the jurisdiction of the courts is illegal and void on the ground of public policy. Therefore, this Forum has sufficient territorial jurisdiction to entertain this case. This point is also decided in favour of the Complainant.
Point No. 3 & 4.
Both the points are taken up together for convenience of discussions as well as points are related with each other. The Complainant produced some documents before this Forum. From the Annexure-A/1, it reveals to us that Complainant purchased Pan Card Club’s Delight Holiday Membership of Rs.50,500/- on 22.12.2008 for a period of 6 years 3 months from the OPs. The date of maturity was 22.03.15 and the estimated surrender value was Rs.1,08,000/-. It reveals to us that after the maturity of the said certificate being Folio No.COO-59119, the Complainant went to the Office of the OP No.1 to get the maturity amount and to that effect, the Complainant submitted Bank details which is specifically mentioned in Annexure “C”. It further reveals to us that after the maturity of the said certificate, the OP did not pay the amount of Rs.1,08,000/- to the Complainant which the OPs are duty bound to pay. The conduct of the OPs is bad and it amounts to deficiency of service and as such, the Complainant is entitled to get decree as prayed for alongwith other reliefs.
Ld. Advocate for the OPs submitted that this Forum has no territorial jurisdiction to entertain this complaint. It reveals from the terms and conditions of the Delight Holiday Membership that the Complainant and the OPs entered into an Agreement. As per Clause No. 10 (5) of the terms and conditions of Delight Holiday Membership, it is mentioned that the Company reserves the right to reject the application for surrender of room nights without assigning any reason and/or change the terms and conditions thereof in its sole discretion. We have gone through the terms and conditions of Delight Holiday Membership. The terms and conditions are nothing but unfair trade practice. It is also mentioned in the said terms and conditions that “The Agreement shall be governed by Indian laws subject to jurisdiction of Mumbai Court only”. We have already discussed that this Forum has territorial jurisdiction to entertain this claim. The cause of action took place at Cooch Behar. The Office of the OP No.2 is situated at Cooch Behar. The territorial jurisdiction is conferred either at a place where the cause of action arises and where the Office of the OPs is situated. As per Section 28 of Indian Contract Act, an Agreement purporting to oust the jurisdiction of the courts is illegal and void on the ground of public policy. Therefore, this Forum has sufficient territorial jurisdiction to entertain this claim and the case of the Complainant is maintainable. Both points are decided in favour of the Complainant.
Hence,
Ordered,
That the present Case No. CC/59/2016 be and the same is allowed on contest against the OPs with cost of Rs.10,000/-.
The OPs are hereby directed to pay the maturity amount of Rs.1,00,800/- to the Complainant alongwith interest @ 10% per annum from the date of maturity i.e. 22.03.15 till full payment is made.
The OPs are further directed to pay a compensation of Rs.25,000/-to the Complainant for causing mental pain, agony and unnecessary harassment to the Complainant. The OPs are further directed to pay Rs.20,000/- to the Complainant for their unfair trade practice and deficiency of service.
The aforesaid amounts shall be paid to the Complainant by the OPs jointly and/ or severally within 30 days from the date of passing the order, and in case of making default, the OPs shall pay Rs.100/- for each day’s delay and the amount so accumulated be deposited in the Consumer Legal Aid Account.
Let a copy of the 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.
