FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU , Member

Complainants’ case, in brief, is that complainants haveentered into an agreement for OPs’ Short Term Holiday Plan for 5 years by depositing Rs.70,000/-  vide Application No.18/8511 at the office of the OP3 on 24/06/2018.  Upon making necessary payment and completion of procedural formalities the complainants had received an email confirming their Membership bearing no. CVKKIV5LB253797. Thereafter when they perused the terms and conditions of the said Agreement they realized that there were grave misrepresentation from their end as the terms and conditions contained in the said Agreement was gravely at odds with what the complainants were led to believe by the officials at the office of the OP3 .After realizing the blunder complainants approached the OPs requesting them to cancel the Agreement for Sale and to refund the deposited amount through email dated 29/06/2018 .Despite receiving the mail the OPs did not bother to communicate with complainants. Therefore complainants were forced to send a reminder mail dated 18/07/2018 and thereafter several mails were exchanged between complainants and the OPs. Finally OPs assured the complainants vide letter dated 07/08/2018of refunding the deposited money subject to deduction of nominal charges of Rs.3,800/- within 120 working days from the date of invoking the cooling off period . Meanwhile the complainants send another mail regarding the abovementioned matter. Ops replied the said mail vide letter dated 31/08/2018 with the grounds of company norms. As the OPs did not bother to refund the deposited money even after lapse of 120 days the complainants were forced to send letter on 16/11/2018 seeking explanation from the OPs for their illegal conduct. OPs communicated with the complainants through several mails but failed to provide a definite timeframe within which the refund would be affected. Therefore the complainants gave an ultimatum via letter dated 20/11/2018 to the OPs to refund theamount within 48 hours of receipt of mail failing which the complainants will take legal action. But the OPs did not receive the mail dated 20/11/2018. Finding no other option the complainants send a legal notice to the OPs through their Ld.Counsel  and lodged a complaint to CAD which was registered under Complaint Index No. 66/CAD-Tour/18-19. But the OPs did not turn up to take part in the tripartite meeting on 24/04/2019 and again on15/05/2019 another meeting was fixed. OPs appeared on that day before Cad but showed negligence and unwillingness to amicably settle the issue. Having no other alternative, complainants filed the instant consumer complaint praying for a direction to get refund their hard earned money and for other reliefs.

The instant consumer complaint is resisted by the OPs 2 , 3 & 4 by filing W.V. contending inter alia that the content of complaint are false cooked up stories and it does not disclose any deficiency in service. The case of the OPs 2, 3, & 4 is that the complainants were well explained about the facilities and benefits being provided to them before execution of the said agreement between the parties . There were no concealment or misrepresentation of facts or contents of the agreement. The AMC were disclosed to the complainants before and after execution of the agreement. The complainants themselves admitted in their complaint petition that the OPs 2,3&4 had duly responded to the complainants and OPs 2,3,&4 has never received any letter / notice from or behalf of the complainants . Moreover, The OPs 2, 3 & 4 duly complied and appeared for the tripartite meeting held before the CAD which is reflected in the order sheet signed and delivered by the DAD of Central Consumer Grievance Redressal Cell . Further it is stated by the OPs 2,3&4 that the demands of the complainants are unreasonable and unrealistic.  As such, OPs have prayed for dismissal of the instant consumer complaint.

OP1 did not resist the consumer complaint despite service of notice. No WV is filed by the OP1 within statutory period. Thus, the case runs ex parte hearing against OP1.

Ld. Advocate for the complainants has advanced the case by adducing relevant evidences and documents. OPs 2,3 & 4 have filed WV and prayed fortreating their WV as E-chief by filing a petition supported by an affidavit. The complainant replied to the questionnaire set forth by the adversary of the OPs 2,3 & 4 . But the OPs 2, 3 & 4 failed to reply the questionnaire set forth by the adversary of the complainant. Both parties have filed BNAs. We have gone through all the evidences and documents on record and gave a thoughtful consideration to the entire fact.

It is admitted fact that complainants have purchased Short Term Holiday Plan for 5 years being No. CVKKIV5LB253797 ( NO Club + 5 Years 6ND7D Blue SR U 12 ) from OPs against payment of Rs.70,000/-  on 24/06/2018. Complainant alleged that after purchasing the said Membership they had realized that  they had committed blunder  and sent a mail to OPs for cancelling the said agreement and for refunding the deposited amount of Rs.70,000/-  on 29/06/2018 and also on 18/07/2018 . Annexure E and F of the complaint petition supported their contention. OPs replied the complainant through their letter dated 07/08/2018 assuring the complainants of refunding their money subject to deduction of nominal charges of Rs.3800/- within 120 working days from the invoking cool off period.  Photocopies of email dated 25/08/2018 goes to show that complainants sought an explanation for the delay on the part of the OPs which was replied by the OPs on 31/08/2018 stating that as per the company norms it will take some time. Annexure H of the complaint petition reveals that on 16/11/2018 and on 20/11/2018 the complainants knocked the OPs vide email regarding the abovementioned dispute. Photocopies regarding tripartite meetings arranged on 24/04/2019 and 10/05/2019 at the office of the Dy. Assistant Director , Central consumer Grievance redressal Cell , Consumer Affairs Department , Government of West Bengal furnished by the complainant showing that the mediation between the parties to resolve the dispute failed as the “settlement of the issue is beyond the scope of mediatory procedure at the prelitigation level”.

On the other hand, OPs did not file any document regarding the said agreement on negotiation with the complainants. Ld. Advocate for the OPs denied the allegations made by the complainants stating that the agreement executed between the parties was well explained andread, understood and executed by the complainants after full knowledge of its contents as they were given ample time and opportunity to go through the same before executing it. But there is no whisper in the four corner of the WV filed by the OPsabout the refund back of the  amount deposited by the complainant  after deducting the nominal administration charges of Rs.3800/- as commited by the OPs through mail dated 07/08/2018 . Clause 26 under Terms & Conditions of the said Agreement states that :

“There shall be a cool off period of 10 days from the date of signing of this Agreement wherein member can discontinue the agreement by paying a nominal administration charges of Rs.3800/- to the company. After deduction of the aforesaid amount ( Rs. 3800/-) remaining amount would be refunded to the member within 120 days from the date of invoking of cool off period .”

We have perused the documents carefully and find that hat the complainant signed the Agreement on 24/06/2018 and send awritten communication to the OPs to discontinue the membership on 29/06/2018 which is within cool off period. Therefore no fault is found on the part of the complainants.

It has further been submitted by theOPs that they will file welcome call audio CD and the transcript during the appropriate stages of the case to prove their transparency. But the OPs failed to furnished 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 the gesture of the OPs by keeping mum regarding the cancellation of the said agreement within cool off period and failing to refund the deposited sum, is surely falls under unfair trade practice on the part of the OPs.

In result, the case merit succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest against the OPs 2, 3 &4 and on ex parte against the OP1 with cost of Rs.10,000/-.

OPs are jointly and severally directed to refund Rs.66,000/- to the complainant along with litigation cost within 45 days from the date of this order.

OPs are further jointly and severally  directed to pay Rs.20,000/- to the complainants as compensation for causing harassment, mental pain and agony.

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.