Tamil Nadu

South Chennai

CC/47/2015

B.Shivakumar and Radhika Shivakumar - Complainant(s)

Versus

The Manager, Country Vacation , Division of Country Club - Opp.Party(s)

Party in Person

25 Jan 2017

ORDER

                                                                        Date of Filing :   17.12.2014

                                                                        Date of Order :   25.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT             

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

              DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.47/2015

WEDNESDAY THIS  25^TH  DAY OF JANUARY  2017

 

B. Shivakumar  & Radhika Shivakumar,

P3B1A, La Celeste Apartments,

Nethaji Street,

Raja Rajeswari Nagar,

Madananthapuram,

Chennai 600 125.                                                .. Complainant.

                                             ..Vs..

 

1.  The Manager (By Reddy),

Country Vacations (Division of Country Club),

No.4/22, Ramakrishna Street,

North Usman Road,

T.Nagar, Chennai 600 017.

 

2. Mr.Ashok Kumar/Ms. Sathyapriya- Sales Executives,

Country Vacations,

No.4/22, Ramakrishna Street,

North Usman Road,

T.Nagar, Chennai 600 017.                                      ..Opposite parties

 

For the Complainant                   :    Party in person     

For the opposite parties               :    M/s. V.T.Narendiran & another  

 

ORDER

THIRUMATHI.K.AMALA,   ::    MEMBER-I

 This complaint is filed by the complainant against the opposite parties under section 12 of Consumer Protection Act to seek direction to apologize for all the inconvenience and also to pay a sum of Rs.80,000/- and Rs.5,00,000/- towards mental agony and stress and Rs.2,000/- as cost of the complaint.

1.  The averments of the complaint are brief as follows:

      The complainant induced by the opposite party joined as Member in the Country Vacation Club and to the effect he entered into an agreement with the opposite party on 4.5.2014 at T.Nagar office by paying a sum of Rs.80,000/- through master card as full payment.    The receipt was also issued.  

2.     The opposite party informed the complainant that he is entitled to claim vacation stay and country club membership with extra benefits (since the complainant was a lucky winner out of 750 families to avail special offer) and various hospitality facilities at their branches in India and Abroad.    The opposite party made the complaint to sign the general agreement and promised for the revised agreement with the benefits as per the promises made in the discussion from the Head office along with membership kit within seven to ten days.   The opposite party also agreed to dispacth the membership cards within a week and also complementary vacation package apart from the gift voucher in Jade Resort Chennai and can cancel the membership and agreement if not satisfied.  The complainant also claimed about clauses for the same in the agreement for which the opposite party routed to the revised agreement which will be coming from Head office to complainant home address within 7 to 10 days.

3.     As such the opposite party committed with false and fake promises which the complainant came to know when contacted the customer service to make the bookings and none of the promises are applicable on the membership provided.    The complainant was frequently calling and emailing to the opposite party but no reply and finally responded after four weeks and routed back to sales office but there was no response from them.  The complainant also lodged a complaint before the R4 Police Station in Pandi Bazaar, T. Nagar for which  C.S.R. was also issued.     As per the terms of the agreement the complainant was entitled to membership for a period of five years in respect of studio accommodation in any resorts in India and abroad.     The complainant received the phone call from the opposite party-1 on April 30^th 2014 that she won prices worth Rs.30,000/- and was requested to come to their office to collect the prices and the 1^st opposite party distributed brochures to attend their presentation in order to receive the prices.   The opposite party made him sign on printed line in the agreement.  After he signed the tract the complainant had taken the tracts and on reaching home had gone through the terms and conditions of the agreement and found them different from the offer mentioned in the presentation.    

4.     The opposite party mis-represented the facts to him and induced him to become a member of the club and questioned about the clause No.23  in the agreement.   Therefore the opposite parties are not fair in representing the things to the people and make them to sign the agreement offering several fake benefits.    The opposite party told that the amount paid is not deposit and only fee and it is not refundable.   The opposite party failed to keep their promise of paying back the amount to the complainant.  All the acts of the opposite party would constitute deficiency in service on their part and they are liable to pay the amount of Rs.80,000/- to the complainant.          Therefore the complaint is filed.

5. Written Version of  opposite party is in briefly as follows:

        At the outset the complainant does not make out the consumer case or the cause of action made out for deficiency in service.   The consumer complaint in effect is to rescind the signed contract between the complainants and the opposite parties.   Therefore it is beyond the jurisdiction of the consumer forum and the relief is only before the civil court.     

6.     The opposite parties deny each and every allegation of the complaint and puts to strict proof of the same with suitable documentary evidence.    The very complaint seeking refund of membership fee is not maintainable, as it is clearly stated in the written agreement entered into complainant and the opposite party, “that the membership fee is not a deposit and the fee paid is non refundable”  hence the complaint is not maintainable as it is against a signed written contract.

7.     The opposite party submits that country vacation is only a trade name and not a company name as seen in every document field by complainant.     The company name is Country Club India Ltd a company registered under the companies act.   Therefore the complaint is liable to be dismissed for incomplete description of opposite party name and the company is not made a party to the complaint and further as the compliant is only against the employees in their names, which is not maintainable in law and for this reason alone the complaint has to be dismissed.

8.     The opposite parties submits that people out of their own will and without force become members and gift is given as an incentive even if the parties do not become members and the complainant is one such person who is an adult and his wife out of their free will become a member after convinced with the facilities offered by them and they cannot claim they are innocent and being tricked into a become  a members.

9.     The representations and facilities offered by the opposite party was explained and the same was reflected in the agreement.   There is absolutely no truth in the allegation that the representation are different from the one singed by the parties and the said contention is unacceptable and false.    It was explained to the complainants that they had become a member in blue category for the period of five years wherein an AMC is compulsory and all the clauses that were in the agreement was explained to them.  

10.    The opposite party submits that it is true that the complainant is entitled to enjoy the club facilities as agreed in the contract between them and it is for the complainant to use the holidays or he may transfer his accommodation and rights under the agreement and it is not for the opposite party to rent it to him.  

11.    The list of alleged promises filed by the complainants as document No.1 are false and the opposite party rejects them in toto and submits that the complainant is trying to create a false cause of action for deficiency in service.   The opposite parties are willing to provide the facilities  as per the agreement.  Therefore the question of refund of amount is totally un acceptable.   The complainant having signed the agreement cannot plead any relief contrary to the written agreement. 

12.    The allegations made in para-3 to 13 of the complaint are false and for seeking refund of money the opposite party gave a reply notice to his letter but still filed a complaint before this forum.   Therefore there is no case of deficiency of service and the claim for damages for deficiency in service and un fair trade practice, hardship and mental agony is not sustainable and the complainant is not entitled to the said relief.   Therefore the complaint is liable to be dismissed.

 

13.    In such circumstances,  in order to prove the allegation made in the complaint the proof affidavit is filed by the complainant as his evidence, and also Ex.A1 to Ex.A5  are marked.    Proof affidavit of opposite party filed and no document was marked on the side of the opposite party.

 

14.    At this juncture the point for consideration before this Forum is:

1.   Whether there is any deficiency of service on the part of the opposite  party as alleged in the complaint?.

 

2. To what other reliefs, the complainant is entitled for?

 

 

15.    POINT NO.1

        The case of the complainant is that  the opposite parties made them to sign the General agreement and promised for the revised agreement with benefits and accordingly they signed the agreement and paid a sum of Rs.80,000/-.  But the oral promises made by the opposite parties were not present in the agreement and hence they intended to cancel the agreement and sought for refund of the payment.   But the opposite party replied them that as per the agreement the membership fee is not a deposit and it is not refundable.   Aggrieved  by the reply of the opposite parties the complainants has come forward with present complaint seeking refund of the membership fee along with compensation.

16.    Whereas the opposite parties resisted the complaint and filed written version denying the allegations of the complainants.  The 1^st defense raised by the opposite parties is that the opposite parties company name is Country Club India Limited registered company under the companies act therefore the complaint is to be dismissed for mis-description of opposite parties name.   Secondly the complaint is only against employees in their names instead of the company which is not maintainable.   Further the opposite parties also contended that there is no compulsion for the complainants to become members of their club.  Further the complainant and his wife are adults and after the facilities offered by them was explained and same was reflected in the agreement only the complainants signed the agreement and there is absolutely no truth  that the representation made by them were different from the one signed by them.    The complainants are also entitled to enjoy the club facilities whereas claiming for refund without utilizing the benefits cannot be turned as deficiency in service since they are willing to provide the facilities as per the agreement.   As per the agreement the amount paid by them is not deposit and non refundable.   Hence there is no deficiency in service and prayed to dismiss the complaint.  

17.    It is admitted fact that the complainants paid a sum of Rs.80,000/- towards membership fee as per Ex.A2.   The main allegations attributed against the opposite parties  is that the oral promises assured to the complainants mentioned by the complainants in Ex.A1 is not present in the agreement signed by them.    Whereas the opposite parties had denied this contention and stated that the complainants signed the agreement only after being explained about the facilities offered by them.   On  perusing the Ex.A3 it is seen that the said agreement is signed by both the complainants and by the opposite parties.  It also reveals from Clause-21 of the agreement that “the vacation charges is non refundable under any circumstances and the vacation fee is not a refundable deposit.” Hence the contention of the opposite parties that they could not refund the said amount of Rs.80,000/- is acceptable.   It is also found that the complainants has not availed the service of the opposite parties, Moreover the grievance of the complainant is not that the opposite parties failed to provide the facilities offered by them in the agreement.   The opposite parties also contended that they are ready and willing to provide the facilities offered by them in the agreement.   The complainants has not claimed that they could not enjoy the benefits and opposite parties denied benefits.    The complainant had also admitted that they had received the membership card therefore it is clear that as per the agreement the complainants are fully entitled for the benefits and it is for them to utilize the benefits.     It is also seen from Ex.A1 i.e the alleged promises assured by the opposite party is  not signed by the opposite party.  As such the complainant cannot rely on it.

18.    It is also found that 1^st and 2^nd complainant had filed the complaint whereas the complaint and the proof affidavit is signed only by the 1^st complainant.    Further the complaint is also filed in the name of the employees of the company.  Therefore the contention of the opposite parties that due to non inclusion of necessary parties and mis-joinder of parties with whom the complainants has no privity of contract the complaint is not maintainable is also acceptable.  

19.    The complainants also raised allegation that as per the terms of the agreement they are entitled to membership for a period of five years in respect of studio accommodation in any resorts in India and abroad of the opposite parties.   But on perusing the agreement vacation benefits it is seen that the benefits are available to them only within India.  Therefore the complainants demanding facilities apart from the facilities provided in the agreement is not maintainable.  It is also seen that the complainants have not utilized the service of the opposite parties to establish their deficiency of service.     

20.    Taking into consideration all these facts it is clear that the complainants having signed the agreement cannot question the maintainability of the agreement and seek refund of the amount paid by them.  Further as per the agreement the amount paid is also non refundable under any circumstances.  It is also seen from the agreement that there is no any clause for revised agreement as contended by the complainant.    It is also clear that as discussed above the complainants failed to establish the deficiency of service committed by the opposite parties.     Moreover the complainants submitted in the written arguments that they are claiming compensation for the stress, humiliation and mental agony and never claimed refund of membership in the complaint and also orally submitted that they are not claiming refund membership fee.    Which is contradictory to the complaint.    

21.     Considering the facts and circumstances of the case this forum is of the view that the complainants are not entitled for refund of the amount paid by them towards membership fee which is non refundable as per the agreement signed between the parties.  

22.            As discussed above, since the complainants also failed to establish the deficiency in service against the opposite party this forum, can easily come to the conclusion that there is no deficiency of service on the part of the opposite parties.   Thus point No.1 is answered accordingly.  

 

22.   Point No.2

          As per the view concluded in point No.1, the complainants are  not entitled for any relief as prayed for in the complaint.  Thus the point No.2 is answered accordingly.

In the result, the complaint is dismissed.  No cost.

              Dictated by the Member-I to the Assistant, taken down, transcribed and computerized by her, corrected by the Member-I and pronounced by us in the open Forum on this the 25^th  day  of  January  2017.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainants’ side documents:

Ex.A1- 4.5.2014    - Copy of Fake promises and benefits told by the

                              opposite party.

Ex.A2- 4.5.2014    - Copy of payment receipt.

Ex.A3- 4.5.2014    - Copy of Country Vacations Agreement.

Ex.A4- 20.7.2014  - Copy of email correspondences with opposite party.

Ex.A5- 31.7.2014  - Copy of police complaint CSR filed by complainant.

 

 

 

Opposite parties’ side documents:   .. Nil.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.