FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU , Member ,

Complainants’ case, in brief, is that being allured to the representation of the Agent of OPs complainant had entered into an agreement for OPs’ club membership by depositing Rs.3,20,000/- through his credit card on 26/11/2018 and thereafter an amount of Rs.36,000/- by cash on 31/01/2019. After realizing the blunder complainants requested the O.P.-2 for cancelling the membership through e-mail on 29/11/2018.  In reply, OPs’ Marketing Executive Mr. Sanjeev Nandi informed the complainants that it is mentioned in the Agreement that the company would never refund any amount and therefore it would be better to withdraw  the cancellation request dated 29/11/2018 and the said Marketing Executive promised that he would sell the complainants vacation to other members to recover the membership cost . But that did not happen. On the contrary OPs made multiple calls to  the complainants for paying maintenance cost of Rs.36,000/- for 5 years and the complainants paid the said amount through card and cash. Then the complainants decided to utilize the membership and accordingly contacted the OPs’ Resevation Executive on 20.07.2017 and provided by list of 15 destinations . But at the time of booking OPs failed to book tours . Thus the complainants could not avail any service and benefit from the OPs.The complainants had lodged complaint to DAD , CAD , on 11/09/2019 for mediation. But mediation failed . Finding no other alternative, complainants filed the instant consumer complaint praying for a direction to get refund their hard earned money of Rs.3,56,000/- and for other reliefs.

The instant consumer complaint is resisted by the OPs by filing WV contending inter alia that the petition of complaint is false ,laced and fabricated and is not maintainable for the reason that the averments made in the present complaint are not supported by evidentiary proof thereof and it is not verified as per the law 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.3,20,000/- and deposited the amount through his credit card and cash with full knowledge . It is also the case of the OPs that the vacation charges is non-refundable under any circumstances, not an investment and that vacation fee is not a refundable deposit. Moreover, the complainants had mailed the OPs about their desire to cancel the membership after lapse of 10 days Cool-Off period. The complainant had entered into the agreement on 26/11/2018 and mailed the OPs for cancellation on 08/12/2018 . At the time of execution of the membership agreement the complainants were well aware about the AMC and it was mentioned in bold letters in the agreement itself under clause no.15. OPs have time to time  as and when called upon attended the meetings held for mediation before the CAD, but could not agree for any settlement as it was wrong  and unfair on the part of the complainant to file such an obnoxious , vague and baseless complaint just for the sake of harassing the OPs and with the mala fide intention to extort monies. As such, OPs have prayed for dismissal of the instant consumer complaint.

Ld. Advocate for the complainants has advanced the case by adducing relevant evidences and documents. Per contra, OPs have filed the questionnaire on 30.06.2022 after passing the order of closure of the said opportunity and filed a MA bearing No. 472/2022 with the prayer for acceptance of questionnaire  on 19.07.2022 and the prayer was not allowed. OPs have  failed to file questionnaire/ E-Chief in spite of specific order. 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 the Membership from OPs against payment of Rs.3,20,000/- on 26.11.2018 and an amount of Rs. 36000/- on 31.01.2019 . Complainant alleged that after purchasing the said Membership they realized that  they had committed blunder  and on 29.11.2018 sent e-mail requesting to cancel the membership and  refund the deposited amount . Annexure-17 of the complaint petition supported their contention.   They also contacted one Mr. Sanjev  Nandi ,  Marketing Executive  of the OPs over phone for cancelling the said agreement .The complainant submitted that said Marketing Executive informed the complainants that as it is mentioned in the agreement the company would never refund any amount , therefore it would be  better to withdraw the cancellation request dated 29.11.2018. Annexure 18 of the complaint petition goes to show that complainants had withdrawn the cancellation request and expressed their willingness to continue the membership through email dated 08.12.2018.

On the other hand, O.Ps did not file any document regarding the said agreement on negotiation with the complainants. Ld. Advocate for the OPs denied the allegation made by the complainant by showing terms and conditions where it is mentioned that the membership fee and the vacation Charges are not refundable and not an investment, which are not a refundable under any circumstances. We have perused the documents carefully and find that there is a ‘cool off’ period of 10 days regarding cancellation of the membership.It  is clearly mentioned in the Clause 34 under Terms & Conditions of the said Agreement 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 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 .

Complainants had entered into the agreement with OPs on 26.11.2018 and requested for cacellation of the said membership on 29.11.2018 through e-mail . No reply or communication on the part of the OPs is found by us regarding the said e-mail . Moreover OPs  submitted  that the complainants had mailed the OPs about their desire to cancel the membership and refund them the money paid which was done beyond the cool off period i.e. after lapse of the 10 days cool off period . No documentary evidence is furnished by the OP with their WV regarding this submission . Therefore we are not incined to consider this submission . In our considered view, it is an unfair trade practice on the part of the OPs.

            OPs submitted that the complainants visited the OPs’ office on their own free will. But they did not explain the fact as put in the complaint petition by the complainant that one female representative of the OPs’ called over phone  the complainants in the month of November 2018 requesting the complainants to attend the office of the OPs at Kasba for a meeting and accordingly complainants visited the said office of the OPs and met with OPs representative Ms.Reshmi who insist the complainants and  said this is a life-time holidays can be enjoyed with family as the complainants can use their future yearly holidays clubbed with the current ones to accommodate their other accompanying  guests and also insist them to take a 30 years membership promising them very fulfilling vacation in India and Worldwide. In reply, OPs submitted 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.

It has further been submitted by the OPs as the complainant did not avail any service from the OPs., the question of deficiency in service does not arise. In this context, we are of the opinion that the gesture of the OPs by refusing to cancel the agreement and to refund the deposited sum, is surely falls under unfair trade practice on the part of the OPs.

Therefore, complainants are entitled to get relief or reliefs as prayed for.

In result, the case merit succeeds.

Hence,

   Ordered

That the case be and the same is allowed on contest against the O.Ps. with cost of Rs.10,000/-.

            OPs. are directed to refund Rs.3,56,000/- to the complainant along with litigation cost within 60 days from the date of this order.

            OPs. are also directed to pay Rs.25,000/- 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.