Order No.14
Date-07/09/2018.
Author: RABIDEB MUKHOPADHYAY
This is an application u/s.12 of the C.P. Act, 1986.
The Complainants’ case in short is that the Complainants, senior citizens being convinced about the approach and facilities assured by the OP-1, purchased agreement being No.DTJ#0939 dated 04.08.2017 for membership at Kolkata for five years vacation membership. Complainants paid an amount of Rs.70,750/- by Cash on 04.08.2017 to the OP-1 and OP-1 issued money receipts. Complainant-1 had undergone operation of choletectomy in June, 2012 and Cystojejuncotomy for pancreatic cyst in the year 2015 and as per advice of doctors the Complainant -1was under complete bed rest and also under medical checkup by Dr. Supriya Ghatak & Dr. Hridish Narayan Chakravarti at Kolkata. For the purpose of treatment the Complainants needed huge money for further management and Complainants decided to discontinue the membership. So, the Complainants without delay went to the OPs of the OP-1 and made an application vide letter dated 06.08.2017 prayed for cancellation of the said contract dated 04.08.2017 and requested to refund the amount of Rs.70,750/-. The letter was received by staff namely Mr. Ranjit Singh, duly received by putting his own signature. Complainants further sent a letter dated 10.08.2017 for refund of the deposited amount after deducting Rs.3,800/- as per agreement. The Complainants also sent a mail dated 10.08.2017 but the OPs did not bother to make a single response against the said letter and mail. As per terms and conditions it was categorically mentioned in page-2 in clause 25 that ‘ there shall be a cool off period of 10 days from the date of signing of the membership0 agreement wherein member can discontinue the membership by paying a nominal admission charges of Rs.3,800/- to the Company. After deducting the aforesaid amount, remaining amount would be refunded to the member ‘In spite of that the OPs kept mum and as per agreement which also amounts to deficiency in service and unfair trade practice on the part of the OPs. Due to deficiency in service and unfair trade practice Complainants have been suffering great mental pain, agony and harassment and approached before this Forum with a prayer for direction upon the OPs for refund of the amount of Rs.66,950/- along with 18 percent interest p.a. till the date of payment and also to pay compensation of Rs.1,00,000/- and litigation cost of Rs.15,000/-.
The OPs in their W.V stated that the complaint is not maintainable either in law or in fact and instant complaint petition is vindictive, motivated, harassing and misconceived one. The complaint petition does not disclose any deficiency in service on the part of the OPs so as to be adjudicated by the Consumer Court in a summary trial. In fact, the Complainants have not paid a single paise towards any transaction to the OP neither in his personal capacity nor in his official capacity. There is no relationship be it contractual or any other nature with the Complainant. The Complainant himself states the Company is incorporated under the Indian Companies Act, 1956. The OP never came up with an advertisement in any newspaper or otherwise mentioning of any offer whatsoever and the Complainant is challenged by the OP to prove the same by furnishing the relevant newspaper before the Ld. Forum. The instant matter appears to have been signed, sealed and executed by and between the Complainant and one SikhaPanja and Country Vacations, A Division of Country Club Hospitality and Holidays Ltd. and it proves that no such Agreement was ever executed by and between the Complainant and the OP. The OP states that the Complainants have also not filed either the original or any copy of any Money Receipt issued by the OP. The OP also states that whatever had happened in 2012 and 2015 has no relevance with anything that took place in 2017. The Complainant not having entered into any agreement with the OPs and cannot claim any relief from the OPs for any action and / or inaction allegedly committed by Country Vacations, A Division of Country Club Hospitality and Holidays Ltd. The OP states that since the OPs have no idea of the Agreement and under which circumstances the Complainant executed the same and / or did not receive any communication from the Complainant, thus the OPs are not in a position to comment on the same and it would be legally a wrong act to hold them accountable under the Consumer Protection Act. Summarily, OP states that they have no relations with the Complainant based on money receipts establish nothing to prove the involvement of the OPs with the Complainant and the case fails on grounds of non-joinder of necessary parties and in this regard the OPs state that a meticulous reading of the complaint filed by the Complainant and the evidences brought on record will reveal that the Complainants have no complaints and/or allegations against the OP. Complainants have so miserably failed to make out any case and it could not reveal even prima-facie a case against the OP. In fact, this case is filed by the Complainants as a sinister ploy of trying to squeeze out some money from the OP which the Complainants are not legally and /or contractually entitled to.
On the above facts and circumstances of the case and also in accordance with law, the instant complaint may be dismissed in limini with cost as not maintainable as also on its merits.
Point for Discussion
1) Whether the complainants are consumers under the OPs;
2) Whether the OPs are deficient in rendering service to the complainants;
3) Whether the complainants deserve relief.
Decision with Reasons
1)On proper evaluation of materials on record, the complaint petition, written version, e-mails addressed to the OPs, letter dated 6th August, 2017 written to the OP, Country Vacations (A Branch of Country Club Hospitality & Holidays Ltd.), letter dated 10th August to the Manager, Country Vacations (A Branch of Country Club Hospitality & Holidays Ltd.) with copy to the Authorized Officer, Country Vacations (A Branch of Country Club Hospitality & Holidays Ltd.), 86B/2, 4th Floor, Gajraj Chamber, Park Circus Connector, Topsia Road, Kolkata-700046(OP-1), with Track Reports of sending, Payment Receipt by Country Vacations (A Branch of Country Club Hospitality & Holidays Ltd.), and other documents lying on record, it is evident that complainants went to the OP-1’s chamber.
2) We have seen in the WV filed by OPs that OPs denied all allegations of the complainants. OPs stated in the WV that they have no contractual or any other relations with the complainants (WV para-3), they have not executed any Agreement with the complainants and the complainants did not file copy or original of the Agreement signed between the complainants and Country Vacation, A Division of Country Club Hospitality and Holidays Ltd. (WV para-6& 7), the OP emphatically denied receiving any money amounting to Rs 70750/-(WV para-7). At para-8, OP admitted that the Agreement might have been executedbetween the Complainant and one SikhaPanja and Country Vacations, A Division of Country Club Hospitality and Holidays Ltd. and it proves that no such Agreement was ever executed by and between the Complainant and the OP.
The OP also denied that it is incorporated under the Companies Act, 1986 (WV para-4).
3) In reply to such submissions of OP, we may like to refer copy of the Agreement signed between the complainants and Country Vacations, A Division of Country Club Hospitality and Holidays Ltd., the latter being represented by one AjeetMahato, T. D. Manager. Real OP is Country Vacations, A Division of Country Club Hospitality and Holidays Ltd. who received money from the complainants under Receipt No.0187-CVKK-29549 and 29551 dated 07/08/2017. The complainants deposited letter dated 06 August, 2017, sent letter dated 10/8/2017 through speed post and through DTDC and email dated 09/8/2017, all for cancellation of the Agreement, to this OP,Country Vacations, A Division of Country Club Hospitality and Holidays Ltd. So, how can the OP claim submissions at various paragraphs as noted at analytical para-2 above?
4) Moreover, the OPs denied being OPs; then how could they receive copy of the complaint? Why are they filing written version? Had they not been the OPs, they could have refused receiving the summons of the Forum on 09/01/2018 and 10/01/2018 and could have avoided attending the Forum and filing the WV. Stated Money Receipts show OPs received the consideration money of Rs 70750/-. Moreover, that OP,Country Vacations, A Division of Country Club Hospitality and Holidays Ltd. is incorporated under the Companies Act, 1956 is mentioned at the 3rd line, 1st page of the Vacations Agreement dated 04/8/2017.
5) Whether OPs do not accept the plea of Complainant-1’s illness supported with a lot of medical treatment, we do not bother their objection. The complainants are entitled to get back the money in terms of clause 25 of terms and conditions of the agreement dated 04/08/2017 where a pulling cooling period of 10 days has been provided during which the customer can discontinue membership and in that case the amount would be refunded subject to deduction Rupees 3800/- as administration charges from the paid amount. So in terms of this clause of the agreement the complainants are entitle to get back Rupees 70750/- – Rupees 3800/- that is Rupees 66950/-.
6) Since the complainants paid the consideration amount of Rupees 70750/- to the OPs in anticipation of getting service, the complainants are the consumers under the OPs in terms of section 2 (1) (d) (ii) of the consumer protection Act 1986.
as the opposite parties did not render the promised service of rendering the refundable amount in terms of clause 25 of the agreement dated 04/08/2017, the OPs are deficient in terms of section 2(1) (g) read with section 2 (1) (o) of the said Act. The OPs even did not respond to the letters and mail of the complainants requesting refund of the deducted amount.
So the complainants deserve some relief.
In the circumstances of the above detailed discussions we are constrained to pass
ORDER
That the complaint be and the same is allowed on contest against the opposite parties, Country Vacation (A Division of country Club Hospitality and Holidays Limited.), in part in terms of section 13 (2) (b) (i) of the Consumer Protection Act 1986;
That the Authorized signatory/ T.D. Manager of Opposite Parties, Country Vacation (A Division of country Club Hospitality and Holidays Limited) is directed to refund Rupees 66950/- with an interest 7 percent from 09/08/2017 till date of actual payment, Rupees 10000/- as compensation for physical harassment and mental agony of the complainants and Rupees 5000/- as litigation cost to the complainants, within 30 days from the date of this order ;
That non-compliance of any of the above orders by the Authorized signatory/ T.D. Manager of Opposite Parties, Country Vacation (A Division of country Club Hospitality and Holidays Limited) within the stipulated time of the 30 days, shall entitle the complainants to put the orders into execution in terms of section 27 of the Act ibid.
Let copies of above order be handed over to the parties when applied for.
