FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
Complainant’s case, in brief, is that being allured to the representation of OPs the complainant purchased OPs.’ club membership bearing Membership No. CVKK37TCLUB30LB222956 by depositing Rs.2,41,090/- through Debit Card and entered into an Agreement dated 07/07/2016. Thereafter on or about July 20, 2018 the complainant submitted an application via email to the OPs for holiday vacation in Kodaikanal and Mhabalipuram in the prescribed format as per terms of the agreement. After arriving the Kodikanal on 19/08/2018 the complainant was not provide with studio room or equivalent to that. The manager of the country club informed the complainant that they do not have studio rooms in any of their properties. In Kodaikanal the complainant was provided with only one delux room and one standard room which lacked proper aminities and there was no arrangement for extra cot although in the confirmation voucherit had been mentioned that extra bed would be provided against the payment of Rs.350/-. The bathroom was dirty and unhygienic. In Mahabalipurm also the hotel rooms were not up to the mark. Moreover, the complainant was told by the OPs that no foods would be available after 10pm in Mahabalipuram and the food quality was miserably poor. During the breakfast on28/08/2018 the complainant was served so substandard food which was not consumable. In such circumstances the complainant expressed her grievances via email dated 15/09/2018 to the OPs against which the OP did not gave any satisfactory explanation. Aggrieved by the such conducts on the part of the OPs the complainant sent a legal notice dated 22/02/2019 to the OP1 demanding the refund of total principal sum of Rs.2,41,090/- which is not complied by the OPs. Therefore, the Complainant filed this complaint petition before this Commission for getting relief/reliefs.
The instant consumer complaint is contested by the OPs by filing WV contending inter alia that the complainants have deliberately suppressed and concealed various facts related to membership Agreement as well as efforts made by the OPs to resolve all such issues arising out of it and it does not disclose any deficiency in service. The case of the OPs is that understanding the benefits and after satisfaction complainants decided to purchase the Membership for Rs.2,41,090/- and deposited the amount with full knowledge. The complainant has used her holidays with the OPs from 19/08/2018 to 23/08/2018 for 4 night 5 days at Kodaikaknal and also a holiday at Chennai foe 3 nights and 4 days. The complainant has alleged that she was not provided with studio rooms. But the complainant were aware that the booking is subject to availability as per agreement clause. The complainant herself made the reservation for her holiday at Kodaikanal and her confirmation voucher issued to the complainant as per her choice. The allegations that the complainant, her husband and 3 other members were made to stay in one room is not a decision of the OPs but by the choice of the complainant. In the backdrop of the fact that the complainant having failed to even make out any prima facie case and/or produce any single document in support of her allegations, the submissions made in the complaint should be summarily rejected.
It is admitted fact that complainant has purchased Membership bearing No. CVKK37TCLUB30LB222956 from OPs against payment of Rs.2,41,090/- on 07/07/2016 and also availed service of the OPs for travelling Kodaikanal on 19/08/2018 to 23/08/208(4N/5D) and Mahabalipuram on 25/08/2018 to 23/08/2018 (3N/4D). Ld. Advocate for the complainant argued that despite tendering the full fees as demanded by the OPs for the said membership, the OPs failed to provide the required services as agreed to the agreement. Further it is submitted by the Ld. Advocate for the complainant that as per agreement the complainant is eligible for getting Studio type hotel room but she was provided with sub - standard hotel. Photocopy of the said agreement and Photographs of the said hotel are furnished by the complainant in support of this contention. It is also the case of the complainant that OPs did not take the grievances of the complainant seriously and after repeated follow up offered worthless settlement option. Photocopy of the mail dated 15/09/2018 goes to show that the complainant lodged grievances to the OPs which was replied on 03/01/2019 through e-mail issued by the OPs to the complainant reveals that:
As per your mail we can see that you were not very satisfied with your last vacation but we apologize for the same we would definitely give you the best service in your next trip but if you do not want to continue any further with us are giving you the option of “One time Settlement”, below is the details:
- You can get 2 holidays of 6N/7D with food and without paying your AMC in any domestic property mentioned (2Adults + 2Kids between Feb-Sept.
- You can get 2 holidays, 3N/4D in any of our international properties without paying AMC (2 Adults + 2 kids between Feb-Sept.
In view of the above reply of the OPs it is admitted fact that there was some difficulties faced by the complainant during the tour. As such, OPs have apologize for the same.
Ld. Advocate for the OPs denied the allegations made in the complaint petition and controverting the submission of the complainant. Ld. Advocate for the OPs argued that Clause 16 of the Agreement clearly states about the company policy regarding booking of the rooms which is never available as per request , but on first booking service. It is also submitted by the Ld. Advocate for the OPs that the complainant is trying to exert undue pressure on the OPs by moving beyond the purview of the duly executed membership agreement which states that the bookings are subject to availability. In this context, we want to mention one ruling of Competition Commission of India, in case of Haryana Urban Development Authority, Dept. of Town and Country Planning, State of Haryana and DLF Ltd. who are OPs whereas Belaire Owners’ Association are the complainant and in that judgment being No.19 of 2010 Competition Commission of India has already decided that if in any agreement anyone signs but agreement clauses are unilateral one in of the printed form supplied by the service provider is such a clause is dominating to the purchaser in that case there must be an application and in the application what benefit the customer shall have to get on deposit of the amount shall be specifically mentioned so, chance shall be given to the purchaser to realize what is written in the book in printed form. It is also observed by that judgment that all the companies have decided and reserved so many excuses for grabbing the entire amount as non-refundable amount etc. So, sole discretion are of the company but regarding agreement the notable execution is here and there must be proved and if any clauses are there which is abusive one side and shown as dominance of Company in that case such a clause cannot be binding upon the customers because an agreement must be equitable in dealing with both the sides.In the above circumstances, Competition Commission of India rejected all unilateral clauses in the said agreement to sell in between the parties and fact remains by that judgment the agreement of purchase was modified by the Competition Commission of India on the ground that the agreement form printed by the Company is unilateral one so modified all unilateral clause which has affected the interest of the purchaser and this judgment was also confirmed by the Hon’ble Supreme Court in Appeal. In this regard it is to be mentioned that judgment of Competition Commission of Indiaregarding agreement is binding upon the Fora. Moreover, in the present case the terms of agreement to be entered into with the purchaser was prepared and framed by the company unilaterally without giving the buyer a chance to realize and as a result, the company has already received the considerable amount from the buyer.
Thus, we cannot but to decline with the aforesaid submission of the OPs.It is further submitted by the OPs that they will file supporting evidential documents as Exhibits during the appropriate stages of the case to prove their transparency. But the OPs failed to furnish any piece of evidence in support of such contention. As such, the case of transparency, aforesaid, could not be established by the OPs.
In this context, we are of the opinion that OPs are miserably failed to provide proper service to the complainant for which they have received the consideration from the complainant. This gesture of the OPs is surely falls under negligence in service and unfair trade practice on the part of the OPs. It is also observed by us that the complainant has availed the service of the OPs along with her family. As such, we are not inclined to allow the prayer of the complainant to refund of principal sum of Rs.2,11,000/-.
Therefore, prayer of the complainant is allowed in part.
In result, the case merit succeeds in part.
Hence,
Ordered
That the case be and the same is allowed in part on contest against the OPs with cost of Rs.10,000/.
OPs are jointly and severally directed to refund an amount of Rs.30,090/- (2,41,090-2,11,000 =30,090) to the complainant along with litigation cost within 45 days from the date of this order.
OPs are also jointly and severally directed to pay Rs.20,000/- to the complainants as compensation for causing harassment, mental pain and agony within stipulated period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
