FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The instant petition of complaint is filed by the complainant U/s 12 of Consumer Protection Act, 1986 read with WB Consumer Protection Rule 1986 and other relevant provisions.
The case is taken up for writing judgement. At the time of writing judgment on a close of material on record, it appears that neither of the parties was present on the date of argument but both of them filed the documents and evidence. Hence, the matter is disposed of on merit.
The fact of the case in brief is that the complainant being a resident under the jurisdiction of this commission is a consumer under the OPs 1 and 2 within the scope of CP Act, 1986 as amended up to date. The OP members also running their business under the jurisdiction of this forum/commission.
It is further stated by the complainant that on the allurement given by the OP 3 to her (complainant), she became a member on payment of Rs. 12,000/- out of Rs. 28,000/- and was ready to pay rest of money as per verbal agreement done by and between them. She also put her signature on membership form and other documents as supplied by the OP members but the OP members failed to provide the original agreement till date and also failed to give accommodation at country club properties at Bauripur and Goa. It is further alleged by the complainant that till date the OP did not serve any notice to the complainant for non fulfilment of verbal assurance but the complainant served a notice dated 14.08.2018 to the OP on demand of refund the money paid by her with interest @ 9 % p.a. but the OPs 1 and 2 did not pay any heed to the complainants letter dated 16.08.2018 being the service provider to the complainant.
The complainant annexed a letter dated 16.08.2018 as P1 along with petition of the complaint. It is further stated by the complainant in her petition of the complaint dated 05.04.2018. She received a phone call from phone number 7604099798 from country vacation and country club fitness given congratulation her for being selected to be lucky winner for gift voucher for country club. The caller asked her to visit the office with her family in between 1.00 pm to 5.00 pm and received information and repeated invitation from country club. She along with her husband had been at the office of the country club. Thereafter, a man introduced himself as the Sale Executive offered and proceed to explain their scheme and plan then offered a gift voucher coupon for enjoying freely 3 days and 2 night at Baruipur resort and promised to provide them other gift voucher. She further stated that the representative of the OP member adduced and included them to take a Rs. 28,000/- holidays plan package of Goa at 50 % discount coupled with flight fare departure and return, food and accommodation within cash of Rs. 18,000/-, membership fees, 50 % petrol expanses of car will borne by country club at the time of enjoying site seen at Goa along with accommodation which will 4 show or 5 star category and some photograph or spa, morning tea, spa laundry, swimming gym at the hotel without cost. Then the complainant paid Rs. 12,000/- out of Rs. 28,000/- as per verbal assurance of the representative of OPs 1 and 2 and put their signature thereon.
It is alleged by the complainant that thereafter on so many occasion when she requested the OP member for good accommodation of Bauipur resort for enjoyment of 3 day and 2 night as per gift voucher and Goa package plan. They informed her that room are not available which amounts to penal offence of deficiency in service on the part of the OP members.
It is further stated by the complainant that she served a letter to the OP member dated 16.08.32018 asking them to refund the money which has already been paid by them or to arrange accommodation holiday package but they did not respond the said letter from which the cause of action is going on. Hence, this petition of complaint is filed by the complainant with a prayer to refund a sum of Rs. 12,000 with interest @ 9 % p.a. along with compensation of Rs. 15,000/- and litigation cost of Rs. 5,000/-.
The OP members i.e. Country vacation and other OPs have contested the claim application by filing WV denying all the material allegation levelled against them. It is alleged by the OP member that the complainant filed this case by suppressing the material facts and she has filed this case against the OP members with an intention to harass them. It is further stated by the OP members that the petition of the complaint is baseless and this is not maintainable in its present form and in law.
It is further case of OP members that they have various scheme for exclusive benefit of it members. Once any one desired to become member they would be entitled to get those benefits subject to strictly adhere certain condition. However, the amounts paid by the complainant for taking membership is not refundable under any circumstances as the same has categorically mentioned in the membership agreement/ form itself. It is further case of the OP members that the complainant put her signature on the membership agreement/form knowingfully well and after understanding the meaning of it but she filed this case by suppressing material facts. So, the amount paid by the complainant of Rs. 12,000/- out of total Rs 28,000/- for country club Membership valid for one year is not refundable in any circumstances and it is also stated by the OP members that there is /was no deficiency in service on the part of them and the complainant has no cause of action to file the petition of complaint. Thus, the same is liable to be dismissed with cost.
In view of facts and circumstances, the points of consideration would be as follows:-
- Is the case maintainable?
- has the complainant any cause of action to file this case?
- Is the complainant a consumer within the ambit of cp act?
- Is there any deficiency in service on the part of the OP members?
- Is the complainant entitled to relief as prayed for ?
- To what are the relief/ reliefs is complainant entitled to get relief?
Decision with reasons
All the points mentioned above are taken up together for convenience of discussion and to avoid unnecessary repetitions.
On a close scrutiny of material on record and also evidence of the parties to this case , it is crystal clear that the case is well within pecuniary jurisdiction of this forum and there is/was sufficient cause of action on the part of the complainant to file this case. It is also revealed from the materials on record that the case has been filed by the complainant within the limitation period. Hence, the case is maintainable in its present from and in law.
Admittedly the complainant entered into an agreement with the OP country club and others for getting membership in country club fitness scheme provided by the OPs and paid Rs. 12,000/- out of total Rs 28,000/- valid for one year. From which it revealed that the complainant is a consumer within ambid of CP act, 1986.
Let us see whether there is/was any sort of deficiency in service on the part of the OP members towards the complainant as alleged by her.
On perusal of the materials as well as evidence on record as adduced by both the parties. It is crystal clear that OP members country vacation and another have admitted the fact that the complainant took the membership of the OP country vacation and paid Rs. 12,000/- out of total Rs. 28,000/- for country club membership valid for one year and the complainant put her signature on the agreement form for membership on 05.04.2018. The representative of the OP country vacation offered and proceed to explain their scheme and plan and they offered a gift voucher coupon for enjoying freely 02 days and 03 night at Baruipur resort and also promised to provide them other gift voucher. The representative of country club also adduced and included to the complainant to take a sum Rs. 28,000/- holidays plan package of Goa at 50 % discount coupled with flight fare departure and returned, food and accommodation within cash of Rs. 18,000/-, membership fees, 50 % petrol expanses of car would be borne by country club at the time of enjoying site scene at Goa along with accommodation which would be 4 show or 05 star category and some photograph or spa, morning tea, spa laundry, swimming gym at the hotel without cost. Being convinced with the proposal of the OP members, the complainant paid Rs. 12,000-/ out of Rs. 28,000/- as per verbal assurance and put signature on the agreement form.
It is also admitted by the OP members in their WV that they could not be able to give accommodation to the complainant at their Baruipur resort for 03 days and 02 night trip even on repeated request made by the complainant form.
The complainant also alleged in her petition of the complaint as well as in her evidence that even on her repeated request the country club and others did not give her accommodation at Baruipur resort for 03 days and 02 days night trip and then having no other alternative, the complainants are sent a letter dated 16.08.2018 (P1) with a request to the country club and others either to give her accommodation for 03 days and 02 night at Baruipur resort or to refund the amount of Rs. 12,000/- to her. But the OP even after received the said letter did not response the same and ultimately, they denied to refund the amount of Rs. 12,000/- as paid by the complainant initially claiming that the amount is non refundable in any circumstances.
On a close scrutiny of evidence on record and the documents as filed by the parties to this case as well as the averments of WV of the OP, it is palpably clear that all through the conduct of the OP is/ not satisfactory and the OP tried to deprive its members like the present complainant by any means from the opportunities as promised to give initially at the time of taking their membership rather they adduced the members by giving false promise and after getting the money from them (members) they started to avoid them on different plea and deprived them from getting accommodation in the prescribed resort as mentioned in the agreement for which they entered into agreement which is clearly amounts to deficiency in service and also unfair trade practice on the part of the OP members. Once the OP members received the money for the prescribed scheme. They cannot avoid their duties and responsibility to their members. Hence, in the considered view of this commission, the OP country club and others are liable for deficiency in service. Thus, they caused harassment mental pain and agony to the complainant. Thus, they would be liable to give compensation to the complainant for their deficiency in service and misconduct.
In view the discussion made above, we are of the opinion that the complainant could be able to prove her case beyond be shadow of all reasonable doubts and is entitled to get the relief as prayed for.
The case is properly stamped
All the points mentioned above are thus decided accordingly.
Hence,
Ordered
That the case be and the same is allowed on contest with cost against the OP members.
The complainant to get the decree as prayed for.
The Ops 1 and 2 are directed to refund the amount of Rs. 12,000/- to the complainant jointly or severally along with interest @ 9 % p.a. from the date of filing of this case till the realisation of the amount.
The Ops 1 and 2 are further directed to pay compensation of Rs. 15,000/- to the complainant for harassment mental pain and agony along with litigation cost Rs. 5,000/- within 45 days from the date of this order.
If the Ops 1 and 2 will fail to comply if the direction of this commission then the complainant will also entitled to get interest @ 6 % p.a. on the entire amount from the date of default till realisation.
If the Ops 1 and 2 failed to comply the decree within the stipulated period the complainant will be at liberty to execute the same as per law.
The above order is to be complied by the OPs within a period of 45 days from this date of the order in default, the complainant will be at liberty to put the order into execution as per law.
Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and Judgment be uploaded on the website of the Commission for perusal of the parties.
