Date of Filing:29/12/2018

Date of Order:31/12/2019

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 31^stDAY OF DECEMBER 2019

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI. D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.2049/2018

Vs

ORDER

BY SRI.D.SURESH, MEMBER.

1.     ThisComplaintisfiled by the ComplainantsU/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in serviceand to cancel the membership and refund the amount of Rs.1,18,544/- and to pay interest on the principal amount of Rs.1,18,544/- totaling Rs.16,435/- and to pay a sum of Rs.1,00,000/- toards the mental agony suffered by the complainant  and to pay Rs.1,00,000/- rectify the mistake expenses incurred financial losses and to pay Rs.25,000/- towards cost of the litigation and such other reliefs as this Hon’ble Forum deems fit. 

2.     Brief facts of complaint are that OP invited complainants on 3^rd  May 2017 at his Bangalore office  stating that they are lucky  winners of free coupons and movie tickets  and that they are eligible for free gift. When the complainants approached OPs,  OP’s  Marketing team leader convinced the complainant to take country club membership and also offered a deal of Rs.1,000/- discount and the offer was valid for that day only same day, and pressured the complainant to take the membership. OP canvassed that they are having own/leased country club and country club fitness at various locations in India which will entitle them to free usage of C.C fitness center, swimming pool and other several facilities.  Fitness membership would be for lifetime for member and spouse and for 25 years for children and welcome vacation for 3 nights and 4 days  stay within  India for two members valid for 1 year.  Complainant were emotionally forced by OP and they were taken  to a separate room where 5 of the OP employees forced the complaint to sign the agreement on the dotted line and were told to pay Rs.1,59,100/.

3.     At the time of payment,  it was agreed to convert the membership fee to 24 months EMI.  OP used the debit card of   1^st complainant and the payment was done on the same day in the presence of OP staff Vinay Kumar. Later he told that swipe transaction for Rs.59,272/- failed, whereas complainant informed that the said amount has been debited from his credit card account. Again Vinay Kumar insisted the complainant to do another transaction for the same amount and assured  that even if it is debited, it will be refunded within 3 working days.   Believing his words, complainant swiped his HDFC credit card and made another transaction for Rs.59,272/-.  When 1^stComplainant checked his credit card, later to his surprise, he found that both transactions were converted  to EMI,  OP converted both transaction to 24 month EMI.  After adjusting the amount for EMI, complainant asked for refund.  OP promised that the same will be refunded by way of D.D.  Even after several correspondences, he never received the said amount.  Complainants were cheated by the OP  by giving false promises and misleading them and emotional black mailing to pay the entire amount of Rs.1,18,544/-  with interest of Rs.14,292 + 2143  totaling Rs.1,34,979/-. Complainant sent mails and tried to canceltheir membership, Ops did are not cancel their membership.  Hence this complaint.

4.     Upon issuance of notice, Complainants themselves shown interest to become the member and to avail holiday vacation.Complainants entered in to purchase agreement, dated 3.5.2017 and in terms of agreement paid a sum of Rs.1,18,544/-.  This OP Upon receipt of the above said amount has issued the permanent laminated club membership card and also provided complimentary Spa  coupons and one day privilege pass holiday gift voucher was given to the complainant.  Complainant  is entitled for holiday vacation for 2 nights and 3 days in a year. OP never forced  the complainants to become member.  Vinay Kumar never assured that they will refund the amount debited through complainant’s credit card.  E mail correspondences are created for the purpose of filing the above complaint and nothing else.  The main benefit of club membership Holiday vacation package and that the member are entitle for 3 Nights and 4 days holiday vacations in a year for a period of 1 year.   OP is always ready to provide the package to the complainant but there should be 30 days in advance booking  to be made to make necessary arrangement. Club membership is transferable to their family members.  Complainant has not made any booking for availing of holiday package at any point of time. 

5.     As per clause No.12 of  the purchase agreement, noprovision for cancellation of the club membership.  However complainant is at liberty to sell or transfer or gift the club membership to any third party.  There is no iota  of evidence that has rendered any deficiency in service in providing the facilities as agreed.  Hence OP prayed to dismiss  the complaint.  

6.     In order to prove the respective case, the complainant and O.Ps. have filed affidavit evidence reiterating the contents of the complaint and their version respectively.  Perused the documents produced by complainant and O.P. Heard the arguments.

7.     The following points arise for our consideration.

1. Whether the complainant has proved deficiency in service on the part of the Opposite parties?

2. Whether the complainant is entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT 1:         In the affirmative 

POINT 2:         Partly in the affirmative

For the following:-

REASONS

POINT No.1:-

9. On careful scrutiny of the complaint, version, oral and documentary evidence of the parties, OPs offered free gift movie tickets, when they approached the OPs, complainants were induced to purchase membership. The complainants have accepted season membership by paying a membership fee of Rs.59,272/- by swiping credit card.  OP used the debit card of   1^st complainant and the payment was done on the same day in the presence of OPs staff Vinay Kumar. Later he informed that swipe transaction for Rs.59,272/- has failed but complainantsinformed that the said amount has already been debited from his credit card account. Again Vinay Kumar insisted the complainants to swipe transaction for the same amount and  assured  that if it is debited,  it will be refunded within 3 working days.   Believing his words complainant swiped his HDFC credit card and made another payment of Rs.59,272/-. 

10.   Further, the representative of OP lured the complainants that club owned which includes resorts, clubs having restaurants, and also assured free usage of C.C. fitness centre, vacation package for life time. Thereafter, the complainants and OPs entered into purchase agreement there by complainant got the membership card.

11.   After entering into the agreement,  1^st complainant checked his credit card, and found that both transactions were converted  to EMI, to be paid in 24 month EMI.  After adjusting the amount for EMI, complainant asked for refund.  OPs, promised that the same would be refunded by way of D.D.  Even after several correspondences, Ops  did not returned the amount.  Complainants were cheated by the OPs by giving false promises and assurances.

12.   Though promise was made by the OPs  to receive  the member ship fee in installments, OPs was received the  same  fraudulently in one lumps by swiping  1^st complainant’s debit card twice and from it is clear that OP has been unfair trade practice and cheated the complainants.

13.   As per assurance complainants were to be given  EMI facility but OP  received  the said amount from the complainant’s accounts fraudulently by swiping the card two times and did not provided  local and sight seeing and free paid holiday facility.

14.   The complainants were not happy with the service provided by the Ops and as the Ops have cheated them  andcomplainants intended to cancel the membership and sent a communication to Ops on 12.12.2018  to cancel the membership and refund the amount. There after complainant contacted OP Company many a times to get resolved the issue, butdid  not receive any fruitful reply from the OP. Further it is clear from the signed agreement   that in case of cancellation, refund of amount is not possible. As we have gone through the prevailing law and statute, it is clear that when the service is not obtained, automatically it cannot be held responsible to pay any charges for the same.  Hence     object of consideration must be legal.  Section 23 of Indian contract Act is confined to the object of the transaction and not to the reasons or motive which prompted it. In determining the validity of the contract, the object of the agreement and not action actually taken under the agreement should be considered. The section invalidates agreements whose object and consideration is unlawful which would defeat the provisions of any law. The court regards it as immoral, and opposed to the public policy. In the present case, OP received money from the complainant to provide holiday facility. The main object of this transaction is to provide holiday facility to its customer at the given and agreed time. If such purpose is frustrated, after receiving membership fee, the very act of OP becomes invalidates the contract and opposed to the  public policy and the complainants were made to sign the contract a dotted lines which is one sided and as held by Hon’ble Supreme Court and Hon’ble National Commission. The same cannot be acted upon.

15.   There is no material breach by the complainant under the agreement in performing its promise as articulated in the agreement and the supremacy of the agreement is un-reasonability of the clause or incorporating such clause which violates specific provisions of law. Further the Ops to prove that the facility offered to the complainant was equivalent to the description.Whereas complainant pointed out that the same were not equivalent to the assured facilities of their  entitlement. Hence in the absence of production of any cogent evidence by the OP that it has accommodated the offered service, we hold it amounts to deficiency in rendering service on the part of the OP and is of unfair trade practice. Thus complainant is entitled to the claim of refund of amount and damages from the OP.   Accordingly we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

16.   On the basis of aforesaid discussion, the complainants deserves for  the refund of a sum of Rs.1,18,544/- which they had paid towards membership fee along with interest at 12% per annum. O.Ps have put the complainant under physical and mental stress for which O.P has to compensate them for which, we assess the damages at Rs.10,000/-. The act of the O.Ps made the complainant to file this complaint by engaging advocate by paying his professional fee and also spent money in attending the forums hearing on each and every day.  We are of the opinion that if a sum of Rs.5,000/- if awarded towards litigation expenses ends of justice will be met.  Hence we answer POINT NO: 2 PARTLY IN THE AFFIRMATIVEand proceed to pass the following:-

ORDER

1. The complaint is partly allowed with cost.

2. OPs are jointly and severally liable to pay a sum of Rs.1,18,544/- to the complainants along with interest at the rate of  12% per annum from the date of filing of the complaint i.e. 29.12.2018 till realization.

3.  Further O.Ps are hereby directed to pay Rs.10,000/- towards damages and Rs.5,000/- towards cost of the litigation expenses to the complainant.

4.  O.Ps arehereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the complaints/ version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by her corrected and then pronounced by us in the Open Forum on this 31^stDay of December 2019)

MEMBER                          PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Original membership Agreement.

Ex P2: Receipt for having received Rs.59,100/-

Ex P3: Letter sent by HDFC Bank treating the amount paid by the complainant.(2 Nos.)

Ex P4: Email Correspondences.

Ex P5: Photoshot of the SMS wherein Rs.59,273/ have been paid twice to the OP on May 2017

Ex P6: Credit card Bills for having paid EMI’s

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Mohammed Akmal Pasha, Manager of OPs.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorization letter.

MEMBER                        PRESIDENT

A*