CC No.650.2015

Filed on 07.04.2015

Disposed on 01.08.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE1^stDAY OF AUGUST-2016

CONSUMER COMPLAINT NO.650/2015

PRESENT:

     Sri.H.S.RAMAKRISHNA

                                PRESIDENT

               Smt.L.Mamatha, B.A., (Law), LL.B.

                                 MEMBER

                                             V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 07.04.2015U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to return the amount of Rs.1,95,000/- along with interest of 18%, to pay cost and compensation of Rs.50,000/- for suffering mental agony and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that while he was working at Gurgaon, Delhi, he and his wife received a call from the office of the Opposite Party and informed that they have won lucky draw in one shopping mall, and to collect the same the Opposite Party invited the couple to attend the seminar in their office.   The Opposite Party over telephone gave the office address and the Complainant visited the office of Opposite Party along with his wife on 17.09.2012 at Gurgaon.  The office people started introducing about their club.  If this Complainant become the member of Opposite Party-company will give best service for the members there are nearly 6 to 7 office people are there and one by one started giving introduction about the Opposite Party.  After they explained that after becoming the member within 45 days they will provide the membership card.  After signing the formal contract papers they will provide mentioning proper T & C within 45 days of taking the membership.  The Opposite Party will be provided a travelers card within 45 days.  Singapore Holiday trip will be arranged for 2 people for this trip the complainant will get 2 domestic return ticket then he will get yearly event schedule, he will get a dinner set.  These are all facilities the Opposite Party will provide for the members of their club.  And the membership period is for 30 years.   At the time of explaining about the Opposite Party club one of the official explained that if the member paid the amount of Rs.1,95,000/- they are going to provide free Singapore Trip for two people in case if they don’t want to go for Singapore trip the same membership fee is Rs.1,45,000/-.   The complainant with an intention to go to Singapore trip along with his wife he preferred to became a member by paying the amount of Rs.1,95,000/- believing the words of Opposite Party paid the amount of Rs.1,95,000/- through Citi Bank Credit Card of Rs.10,000/-+paid Rs.90,000/- complainant paid Rs.95,000/- from his wife account through ICICI Bank.   After receiving he amount of Rs.1,95,000/- the Opposite Party and Complainant signed the purchase agreement on 17.09.2012.   The Opposite Party on after receiving the amount of Rs.1,95,000/- along with work sheet issued the Holiday Gift Voucher, in that Holiday Gift Voucher there are so many offerings are there for the members but the Opposite Party till today not provided the offerings to this Complainant.   Though the Opposite Party received the amount of Rs.1,95,000/- promised to provide so many services but did not do so.   They did not send the membership card within 45 days from the date ofmembership card for this Complainant made so many calls to office of the Opposite Party and send the e-mails and he visited personally to get themembership card but the Opposite Party did not response and one or the other way they are escaping without giving proper answer.   The Complainant suffered mentally because he paid his hard earned money of Rs.1,95,000/- believing to this Opposite Party.   After the payment, the Complainant did not receive any free gifts and membership card then he enquired through telephone and contacted personally, but he did not get any positive answer from the Opposite Party.   Then he has sent an e-mail dt.29.01.2013 enquiring about the membership card and for this e-mail the Opposite Party did not reply.   After the follow up the Opposite Party send the membership card in the month of February 2013 and his Membership Card No.is CVGGIBGCLUB 30LB123598. After receiving the membership card, the Complainant started asking for service as per their promise.  But they never provide service nor they never gave any answer for his questions.   The Complainant asked to arrange for Singapore trip for this also the Opposite Party did not gave any reply nor arranged for Singapore trip.  The Complainant waited long time for the reply of the Opposite Party for all his e-mails and asked to arrange Singapore trip for couple hence they promised and collected the money but the Opposite Party never bothered of his Telephone calls and e-mails and never replied and never arranged for family trip to Singapore finally they refused to arrange Singapore Trip saying they don’t any accommodation at Singapore.  The Complainant through his counsel send a Leal Notice on 02.12.2014 asking for return the amount of Rs.1,95,000/- along with interest of 18% from the date of payment till the date of realization.   The Opposite Party received the Legal Notice on 03.12.2014, but not replied for the same.   Hence this complaint.  

3. In response to the notice, the Opposite Partyput their appearance through their counsel and filed their version.  In the version pleaded that the complaint is not maintainable either in law and facts.  The Complainant in order to avoid annual maintenance charges after lapse of nearly three years has filed this complaint.  The Complainant is barred by law of limitation.  The Complaint is not maintainable and liable to be dismissed.   Since there is no cause of action, the complaint is vague, bald and devoid of merits.  The Complainant has shown interest to become the Member and to avail Holiday Vacation.  The Complainant entered into Purchase Agreement dt.17.09.2012 and has paid a sum of Rs.1,95,000/- towards the Club Membership charges.  In terms of the Purchase Agreement, the Complainant is entitle for Holiday Vacation for 6 Night 7 days for a period of 30 years and Club Membership of life time, subject to the terms and conditions mentioned in the Purchase Agreement.   The Opposite Party upon receipt of the above said amount has issued the permanent Laminated Club Membership Cards to the Complainant and also online Id and Password given Spa coupons one day privilege pass holiday gift voucher Membership cards.  The Complainant knowing the said facts has made false and frivolous allegation against this Opposite Party.   The Opposite Party never promised or assured to give or nor travelers card within 45 days, and domestic return ticket and dinner set free gift, and free Singapore trip for two people in case if they don’t want to go for Singapore trip the same membership fee is Rs.1,45,000/-.  The allegation made in the complaint is baseless.  The Opposite Party not received the alleged E-mail sent by the Complainant and the said communications are created for the purpose of filing the above complaint and nothing else.   The Complainant is not an illiterate person and after enjoying the benefits and services of the Club Membership is trying to get the reimbursement for the expenses incurred by him by filing the above complaint.   The Opposite Party is always ready and willing to provide the Holiday Vacation to the Complainant as and when his requirements subject to booking of 30 days in advance.   The Complainant has not booked the holiday vacation so as to facilitate to the Complainant.   In spite of that the Complainant on imaginary and hypothesis has created the story and has made all sorts of baseless allegation.  The Complainant by creating story as per her whims and fancies has filed the false and frivolous complaint.  The Complainant with a dishonest and malafide intention has filed the above complaint by making all false and baseless allegation. Even the annual Maintenance amount Rs.16,854/- is due to the Opposite Party, the Complainant has not bothered to pay the said amount and in order to escape from the said due amount has filed the frivolous complaint.   In terms of the offer, the Complainant is entitle for 6 Nights and 7 days Holiday Vacations in a year for a period of 30 years and Club membership for the life time, subject to the terms and conditions.  The Opposite Party providing best services in their field without any blemish and even in the complaint there is no iota of evidence.  The Complainant suppressing the true facts has filed the above false and frivolous complaint against the Opposite Party.   As per the terms of the agreement Clauses 3,5, 9, 11 and 13 there is no provision for refund of amount or cancellation of the Club Membership.   However, the Complainant is at liberty to sell or transfer or gift the Club Membership to any third party.  In spite of that the Complainant for the reasons best known to him has filed the above false and frivolous complaint for cancellation. Hence prays to dismissal of the complaint.

4.      The Complainant, Vivek Kumarhasfiled his affidavit by way of evidence and closed his side.On behalf of the Opposite Party, the affidavit of one Mr.Girish Kumar V.N has been filed.  Heard the arguments of both parties.  

5.      The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Party?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):-Affirmative

                POINT (2):- As per the final Order

REASONS

7.POINT NOs.1& 2:    On perusal of the complaint and also version filed by the Opposite Party, it is not in dispute that the complainant entered into Purchase Agreement dt.17.09.2012 and has paid a sum of Rs.1,95,000/-.  Further to substantiate this fact, the Complainant has filed his affidavit in his sworn testimony, reiterated the same and also produced the Purchase Agreement for Club and Vacation Membership.   By looking into this document, it is stated that on 17.09.2012 executed by the complainant and Opposite Party and also produced the Worksheet of the Opposite Party.  As looking into this document, it is clear that the Complainant has paid a sum of Rs.1,95,000/- on 17.09.2012 through Citi Bank and Rs.95,000/- on 29.09.2012 and also the Complainant paid entire amount of Rs.1,95,000/-.  Further the Complainant also produced the payment through credit card, by looking into this document, it clearly shows that the Complainant has paid a sum of Rs.90,000/- in HDFC Bank on credit card payment.  This evidence of the Complainant remains unchallenged.  To discard this evidence of the Complainant, there is no rebuttal evidence, therefore, it is proper to accept the contention of the Complainant that on 17.09.2012 the Complainant entered into Purchase Agreement of Club and Vacation Membership of Opposite Party by paying a sum of Rs.1,95,000/-.

8. It is further case of the Complainant that the Opposite Party executive at the time of becoming the member of the Opposite Party, the Opposite Party  explained that after becoming the member within 45 days, they will provide the membership card mentioning the terms and conditions within 45 days.  The Opposite Party will be provided a travelers card within 45 days Singapore Holiday Trip will be arranged for 2 people the Complainant will get two domestic return ticket then he will get yearly event schedule, he will get a dinner set.  These are all facilities the Opposite Party will provide for the members of their club.  The Opposite Party official explained that if the member paid the amount of Rs.1,95,000/-they are going to provide free Singapore trip for two people in case if they don’t want to go for Singapore trip the same membership fee is Rs.1,45,000/-.  The Complainant with an intention to go to Singapore trip along with his wife he preferred to became a member by paying an amount of Rs.1,95,000/-.  Believing the words of the Opposite Party, the Opposite Party received the amount for Rs.1,95,000/- and promised to provide so many services but did not do so.   They did not send the membership card within 45 days from the date of membership for this the Complainant made so many calls to office of the Opposite Party and send the e-mails and he visited personally to get the membership card but he Opposite Party did not respond.   The Complainant after the payment did not receive any free gifts and membership card.   The Complainant asked to arrange for Singapor trip for this also the Opposite Party did not gave any reply nor arranged for Singapore trip.  The Opposite Party denied this fact, so it is on the burden of the Complainant to establish the same.  In order to establish the same, the Complainant in his affidavit reiterated the same and also produced the Gift Voucher.  As looking into this document, the Opposite Party had promised to provide Holiday Vacation in India is for 6 nights by paying Rs.4,000/-.   Subject to availability of the accommodation and also booking feefor International destination throughout of Rs.7,000/-.  But as assured by the Opposite Party, they have failed to provide any service and free gift as mentioned in the Holiday Gift Voucher.  This evidence of the Complainant also not challenged by the Opposite Party, thereby, it is proper to accept the contention of the Complainant.   Further in the evidence of the Complainant, he has clearly reiterated that even after payment made by the Complainant as promised by the Opposite Party that they have provide the membership card within 45 days but fails to send the membership card within 45 days.  In support of his evidence, the Complainant also produced the e-mail dt.29.01.2013, it is clearly mentioned that even though he has paid the membership fee if he has not received the membership document and membership card and requested to send the same.  Even though, the complainant demanded for the membership card frequently by sending mails, the Opposite Party fails to fulfill their promise by sending 45 days.  In support of this, the Complainant also produced another mail dt.29.08.2013 and stating that still he has not received the membership card,even though he has paid the amount of Rs.1,95,000/- on 17.09.2012.  This evidence of the Complainant also not been challenged by the Opposite Party.To discard his version, thereby, it is very clear, the Opposite Party after receiving the full amount of Rs.1,95,000/- from the Complainant as promised by them to provide the membership card within 45 days fails to issuethe membership card even after period of one year. 

9. Further the Complainant in the complaint clearly contending that the Complainant asked to arrange the Singapore trip, but the Opposite Party did not gave reply nor arranged for Singapore trip.  To establish the same, the Complainant in hisaffidavit reiterated the same and in support of this he has produced the e-mails dt.08.10.2014 and 21.10.2014. As looking into this e-mail, the complainant by sending mail requested the Opposite Party to booking Singapore Vacation Trip for two people on 29.08.2013.  In spite of that, the Opposite Party had not arranged for Singapore Trip for the Complainant also sending another mail dt.21.10.2014 demanding the Opposite Party for confirming the booking of Singapore Vacation Trip for two people on 24^thJanuary 2015 to 31^st January 2015.  In spite of this, the Complainant had not arranged for Singapore Trip for the Complainant and his wife as promised by them at the time when the Complainant becoming the member of the Opposite Party.  For that receive the Complainant issued the Legal Notice dt.02.12.2014 the said Legal Notice served on the Opposite Party, but not reply nor comply with the Legal Notice.  In the Legal Notice, the Complainant demanding to refund a sum of Rs.1,95,000/- along with interest.  This evidence is also remains unchallenged.  To disbelieve the version of the Complainant, there is no contra evidence.  In the version, the Opposite Party defence that the Opposite Party-company given a complimentary coupons the Complainant knowingly the said true and material facts made a false allegation and Opposite Party never promised or assured to provide travelers card Singapore Holiday Package Domestic return Air ticket.  In order to substantiate this evidence, V.N. Girish Kumar, Manager of the Opposite Party filed his affidavit and reiterated the same.   To except the interested version of the V.N.Girish Kumar have not placed any evidence in support of their defence.  On the other hand, the complainant produced the Gift Voucher.  As looking into this document,it falsifiesthe defence taken by the Opposite Party in this also Gift Voucher it clearly mentioned that booking fee for International Destination through our partner (within Asia:Thailand, Indoneshia, Srilanka) Rs.7,000/- so from this it is very clear that the Opposite Party had promised for arranging the trip to the Singapore by payment of Rs.7,000/- but when the Complainant requested to book for the Singapore Trip they fails to arrange the same thereby, the Opposite Party failed to provide any service as promised by them. 

10. The learned Counsel for the Opposite Party argued before us, he purchased the agreement entered into between the Ruchita Bathla, Vivek Kumar but the above complaint filed alone by the Vivek Kumar on this ground, the complaint is liable to be dismissed on the ground that non joinder of necessary parties.  But this argument of learned Counsel does not hold any water.  Since as looking into Seciton-2(1)(b) the Complainant means ‘Consumer’ any voluntary Consumer one or more consumers, where there are numerous consum­ers having the same interest so also in the present case even though purchase agreement entered into between Ruchita Bathla and Vivek Kumar.  The Vivek Kumar alone can file this complaint thereby this complaint is not bad for non joinder of necessary parties as argued by the learned Counsel for the Opposite Party. 

11. The learned Counsel for the Opposite Party further argued before us, the complaint is barred by Limitation.  Since, the Purchase Agreement dt.17.09.2012 whereas this complaint is filed in 2015, so the complainant ought to have filed this complaint within 2 years.  On the other hand, this complaint is filed behind two years, thereby, it is barred by time.  Nodought has argued by the learned counsel for the Opposite Party, the Complainant entered into Purchase Agreement on 17.09.2012 but the membership card is dispatched to the Complainant on 29.08.2013 and thereafter the Complainant had requested for arrangement of Singapore Trip as promised by them by sending mail dt.08.04.2014 and 21.10.2014 and finally the Complainant issued the Legal Notice dt.02.12.2014 so the cause of action is continuing one.  Thereby within 2 years from the date of issuing the legal notice i.e., 02.12.2014 the Complainant can file this complaint.  On the other hand, within 2 years filed this complaint,thereby, it is not barred by time as argued by the learned Counsel for the Opposite Party.  Since there is the continuous cause of action.  

          12. As looking into the averments of the complaint and also evidence placed by the Complainant, the Complainant clearly establish that has argued by the Opposite Party, the Opposite Party had not rendering any service to the Complainant even though they received a sum of Rs.1,95,000/-.  Thereby, it is amounts to deficiency of service as defined under Section 2(1)(g) of the Act.  Hence, this point is held in the Affirmative.

13. POINT NO.2:-In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaintis allowed holding that there is deficiency of service on the part of the Opposite Party.  The Opposite Party is directed to refund a sum of Rs.1,95,000/- with interest at 18% p.a. from 17.09.2012, till the date of realization and also to pay a sum of Rs.10,000/- as compensation along with a sum of Rs.5,000/- as cost of this litigation.  The Opposite Party is directed to pay the aforesaid amount within 30 days from the date of thisorder. 

Supply free copy of this order to both the party. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 1^stday of August 2016)

  MEMBER         PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. Sri.Vivk Kumar, who being Complainant has filed her affidavit.

List of documents filed by the Complainant:

1. Purchase Agreement for Club and Vacation Membership

2. Country VacationsWork Sheet
3. Holiday Gift Voucher
4. HDFC Bank Credit Card Payment receipts,
5. Welcome to Country Club Member receipts
6. E-mails 29.01.2013, 29.08.2013, 08.10.2014, 21.10.2014
7. Postal Acknowledgement and Legal Notice dt.02.12.2014

Witness examined on behalf of the Opposite Party:

1. Sri.Girish Kumar,on behalf of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

NIL

MEMBER                                   PRESIDENT