FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
Complainant’s case, in brief, is that being allured to the representation of the OPs the complainants took OPs.’ membership being No. CLPRKPV4637 for three years by depositing Rs.46,000/- through her Credit Card on 02/12/2021 with offers of 3N/4D (C.P) (India) + 1st year Anniversary Dinner for 2 Adults valid till November 2022 and 6N/7D for a period of 3 years with Membership Eligibility of 2 Adults and 2 Kids (<12year) subject to payment of Rs.7,999/- as AMC. Thereafter the complainant received an email on 07/12/2021 wherein the OPs provided with the booking format to be followed for booking purpose. After taking Membership there was a financial emergency emerged in the family of the complainant and thus the complainant wanted to cancel the said membership and contacted the representatives of the OPs. They only gave assurance but did nothing.The complainant was given a restaurant coupon which she wanted to try on her Anniversary on 01/03/2022 and for that reason called up the representatives of the OPs but there was no response. Finally after lots of persuasion and enquiry the complainant received one voucher in her mail for the aforesaid dinner. Thereafter the complainant wanted to go on a holiday on and for that purpose contacted the OPs through mail on 10/03/2022 for hotel booking at Darjeeling. As per OPs they have two hotels namely Summit Montana and Omega and the complainant selected Summit Montana and assured by the OPs regarding confirmation email. But the OPs confirmed the booking of the complainant in a completely different hotel namely Hotel White Yak and the complainant asked the OPs to change it but the OPs did not reply for 7 days that’s why the complainant had no option to agree to stay in said hotel. After receiving the booking voucher of the hotel the complainant called up that hotel but came to know that no booking amount was paid to them and the booking will automatically cancelled within 15 days if advance booking is not paid. The complainant could not contact with the OPs as either their phone was switched off or their representative did not call back the complainant. On 14/04/2022 the hotel authority mailed the complainant stating that due to non-payment of advance booking they have released the rooms. The complainant send several mails to the OPs for refund of her membership fees. In spite of several calls, reminder, letters the OPs did not process the same. Having no other alternatives the complainant approached before this Commission praying for relief/reliefs.
OP despite service of notice of the complaint have failed to file Written Version within the limitation provided u/s 38(2) of the Consumer Protection Act, 2019. No request for condonation of delay or extension of time for filing written version is made. Therefore, right of the OPs to file WV is closed.
Complainant has filed his evidence by way of affidavit supporting the allegations made in the complaint. Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced of the complainant.
It is admitted fact that complainant has purchased Membership being MembershipID CLPRKPV4637from OPs against payment of Rs.46,000/- on 02/12/2021. Ld. Advocate for the complainant argued thatfrom the very beginning the OPs are negligent to the services they have committed to provide with. The OPs issued abrochure along with an welcome offer letter wherein it is mentioned that the complainantis eligible for 3N/4D with breakfast in Indiaand 1st year anniversary dinner till November 2022 and Membership Details goes to show that the complainant can utilise6N/7D per Year for 3 years using the said Membership.Complainant alleged that after purchasing the said membership due to some financial crisis she requestedthe OPsthrough mail dated 03/12/2021 furnishing her bank detailsto cancel the membership and refund the deposited amount. On reply OPs asked for some information details vide mail dated 04/12/2021 which was duly supplied by the complainant to the OPs. On 01/04/2021 theOPs intimated the complainant vide email that: Note: The Booking is non refundable, non cancellable or non amendable.Terms and Conditions of the saidMembership reveals that there is no cancellation period for the said membership and in the Clause 2 it is mentioned that Membership Fee is non - refundable and non- cancellable which curbs the rights of the consumer. Moreover Clause 21 of the Terms and Conditions states that:
The member understands that it is a vacation membership arrangement and availability of Properties is subject to limitation. So if properties/rooms/accommodation on your required dates, you are unable to utilize your stay entitlements then the Company shall not be liable for the same in any manner.
It appears as one sidedand only benefitting the OPs to us and a gesture of willingness not to take responsibility on the part of the OPs.In this context, we want to mention one ruling of Competition Commission of India, in case of Haryana Urban Development Authority, Dept. of Town and Country Planning, State of Haryana and DLF Ltd. who are OPs whereas Belaire Owners’ Association are the complainant and in that judgment beingNo.19 of 2010Competition Commission of India has already decided that if in any agreement anyone signs but agreement clauses are unilateral one in of the printed form supplied by the service provider is such a clause is dominating to the purchaser in that case there must be an application and in the application what benefit the customer shall have to get on deposit of the amount shall be specifically mentioned so, chance shall be given to the purchaser to realize what is written in the book in printed form. It is also observed by that judgment that all the companies have decided and reserved so many excuses for grabbing the entire amount as non-refundable amount etc. So, sole discretion are of the company but regarding agreement the notable execution is here and there must be proved and if any clauses are there which is abusive one side and shown as dominance of Company in that case such a clause cannot be binding upon the customers because an agreement must be equitable in dealing with both the sides.In the above circumstances, Competition Commission of India rejected all unilateral clauses in the said agreement to sell in between the parties and fact remains by that judgment the agreement of purchase was modified by theCompetition Commission of India on the ground that the agreement form printed by the Company is unilateral one so modified all unilateral clause which has affected the interest of the purchaser and this judgment was also confirmed by theHon’ble Supreme Court in Appeal. In this regard it is to be mentioned that judgment of Competition Commission of India regarding agreement is binding upon the Fora. Moreover, in the present case the terms of agreement to be entered into with the purchaser was prepared and framed by the company unilaterally without giving the buyer a chance to realize and as a result, the company has already received the considerable amount from the buyer.
Ld. Advocate for the complainant submitted that 2 Delux rooms were booked for the complainant at the hotel The White Yak in Darjeelingby the OPs through Golden Reservationsfor the period of 02/06/2022 to 04/06/2022. But on 14/04/2022 the Golden Reservations informed the complainant that:
Kindly note we got this query a few weeks back, due to non-payment of advance booking amount we have released the rooms, as of now.
So we are not holding any rooms for this agency as of now.
Thereafter the complainant sent a legal notice to the complainant which remained unanswered.
On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(7)(i)(ii) of the C.P.Act 2019 hired the services of OPs on consideration and OPs have failed to fulfil their part of obligations as per Membership Agreement dated 02/12/2021and thereby deficient in rendering services towards the complainant within the meaning of Section 2(11) read with Section 2(42) of the Act. Therefore, the complainant is entitled to some reliefs. Despite payment of bulk consideration amount, when the complainants was deprived from having the services for which the OPs are committed, certainly it caused tremendous mentally agony and harassment for which they are entitled to compensation and considering the loss suffered by him. Under compelling circumstances, the complainant has to knock the door of this Commission constituted under the Act.
It is pertinent to note that despite service of notice of the complaint, OPs did not put in appearance nor the OPs filed Written Version in response to the complaint. As the OPs have failed to controvert the allegations in the complaint by filing Written Version, the allegations in the complaint are deemed to have been admitted as correct. It is well settled that the allegation made in the complaint, if not denied is deemed to be admitted as correct. The complainants in their affidavit did support the allegations in the complaint. Therefore, it cannot be said that complainant has failed to prove deficiency in service. We think that OPs are guilty of unfair trade practice. We are constrained to hold that the OPs have set up a gesture of unfair trade practice apart from establishing a bad example of deficiency of service.
In the light of the above observation we are convinced to hold that no doubt OP adopted unfair trade practice and managed to sell the same to the complainants but complainants failed to realize the fate of the amount deposited and at the same time, the company grabbed money without giving any scope to realize fate of deposit. The company as a service provider cannot grab any money entirely, if the purchaser has not enjoyed any part of that hotel, holiday etc.
In this context, we are of the opinion that the gesture of the OPs by failing to provide services which they had committed to the complainant 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.
In result, the case merit succeeds.
Hence,
ORDERED
That the case be and the same is allowed on ex parte against the OPs with cost of Rs.10,000/.
OPs arejointly and severally directed to refund Rs.46,000/- to the complainant along with litigation cost within 30 days from the date of this order.
OPs are alsojointly and severally directed to pay Rs.25,000/- to the complainants as compensation for causing harassment, mental pain and agony within stipulated period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
