BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 25th DAY OF AUGUST, 2023
APPEAL No.2684/2016
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, MEMBER
Narendra Jagadishan
Aged about 47 years,
R/atNo.4034, 24th Main, ... Appellant/s
Sobha Daffodil Apartments,
Sector- II, HSR layout,
Bangalore-560 102
(By Sri.Vidya Jahagirdar, Advocate)
-V/s-
The Manager,
Country Vacations,
A Division of Country Club, … Respondent/s
India Ltd, No.38/39,
Emerald Plaza, Overseas bank,
Dispensary Road,
Shivaji Nagar, Bengaluru-560 001
(By Sri.D.Narasegowda, Advocate)
O R D E R
BY SMT. SUNITA C.BAGEWADI, MEMBER
This appeal is filed by the appellant/complainant being aggrieved by the order dated 2.8.2016 passed by the 3rd Addl. District Consumer Commission, Bengaluru in CC.No.2004/2014 and prays to set-aside the order and grant such other relief as deemed fit.
2. The brief facts of the complaint is that, the complainant believing the promises made by the Opposite Party, he became the member of the Opposite Party by paying an amount of Rs.1,35,100/- and his membership No.CVBG1 BPCLB10LW157786. While receiving the membership amount the Opposite Party officials informed that the membership card will be issued within 30 days from the date of membership. But he did not receive the membership card within 30 days. The Opposite Party did not send the same, one day he visited the office of the Opposite Party and he saw one cover is laying near enquiry counter by putting his address; he collected the same and realized that the Opposite Party not bothered to post the same to his residential address.
The complainant further submits that after receiving the membership card he asked the Opposite Party to took the vacation trip to Malaysia and Bangkok for his family members. After collecting the amount of Rs.5,000/- only saying that for extra tax they arranged the trip to Malaysia and Bangkok for his wife and two daughter. On 24-7-2014 he travelled from Chennai to Bangkok on the respondent arranged accommodation to their associated company called DAELIVE at Bangkok and Malaysia. The hotel quality in Malaysia was pathetic and rooms were extremely small to accommodate family of four. By seeing the room he complained to the hotel authorities. The hotel authorities replied that the respondent is giving false promises to its members.
The complainant further submitted that by seeing the hotel condition the appellant send e-mail to Madhu Hari because the hotel people were asking extra amount to accommodate for four of his family. Hence the complainant sends the e-mail and for this e-mail he received reply also. The Opposite Party replied that after returning to India they will reimburse the same.
The complainant further submitted that throughout the vacation trip the appellant suffered a lot along with his family of bad service given by the respondent affiliated hotels. While receiving the member’s amount the Opposite Party promised so many things that in the vacation trip pick up and drop is there, but it was not so and for the family of four the appellant paid extra amount for the bed of his daughter. Location which the respondent was accommodated was also very bad. The family of four the rooms were very small and the bathrooms were pathetic and unhygienic. The Opposite Party did not keep up its promise is amounts to deficiency of service. The complainant produced the copy email reply given by the Opposite Party officials, to his email saying that after returning to India they are reimburse the same. The complainant asked the same but they did not respond for the reimbursement of the amount. After that after the argument of complainant the Opposite Party filled the recalling application it was allowed with condition for payment of cost of Rs.500/-, but the Opposite Party did not paid the cost of Rs.500/- and did not contest the same. Hence, the complaint.
3. In response to the notice, the Opposite Party put their appearance through their counsel and filed version. Upon the receipt of the payment the Opposite Party has issued laminated club membership card to the complainant. The complainant has duly acknowledged the membership card issued by the Opposite Party. The Opposite Party is always ready and willing to provide the laminated card at no point of time delayed. Even otherwise the complainants were allowed to use the membership card for usage of club facility as and when the requirement of the complainant. In terms of the purchase agreement, the complainant is entitle for holiday vacation for 6 nights 7 days in a year for a period of 10 years and club membership of life time, subject to terms and conditions mentioned in the purchase agreement.
The Opposite Party further contended that the Opposite Party is always willing to provide the holiday vacation to the complainant as and when his requirements subject to booking of 30 days in advance. 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. The complainant has availed the services and offers all these days and availed the holiday vacation at Monaco Bangkok from 27-4-2014 to 2-5-2014 and on fee mere occasions at county club. After availing the benefits and utilizing the services regularly at this stage seeking refund or membership amount does not arise. There is no deficiency of service on the part of the Opposite Party. Hence, prays to dismiss the complaint.
4. After trial, District Consumer Commission has dismissed the complaint.
5. Being aggrieved by the said order, the appellant/complainant has preferred this appeal on various grounds.
6. Heard from appellant. Respondent not submitted his argument in spite of granting sufficient time.
7. Perused the appeal memo, order passed by the District Consumer Commission and materials on record, we noticed that, it is not in dispute that the appellant has became a member of the respondent and has entered into an agreement on 18-9-2013 by paying a sum of Rs.1,35,100/- and his membership card number is CVBG1BPCLB10LW 157786. The allegation of the appellant is that at the time of membership, the respondent informed him that the membership card will be issued within 30 days from the date of signing the documents i.e. 18-9-2013. However he has not received the membership card, hence he wrote several letters to the respondent and after six months he received the membership card. Moreover as per the respondent promise, he had not received any welcome package. Moreover, when he has planned for tour along with his family Bangkok and Malaysia, the respondent has not arranged the tour. When he contacted to higher officers they also not helped the appellant. The appellant called 300 times within a week for confirmation of the tour, then after several requests the complainant has arranged the accommodation in hotels at Bangkok and Malaysia. However the hotel quality is not good in Malaysia, rooms are very small so accommodate the family, bathroom are very dirty regarding that the appellant has complied through emails to the respondent several times. However, the respondent has not responded the same. Hence, the respondent has failed to provide the proper service to the appellant.
8. Per-contra, the respondent has denied all the allegations of appellant and contended that they are provided all proper service to the appellant as per the agreement. Perused the order passed by the District Commission and material on records, we noticed that it is evident that the country vacation card is in the name of appellant bearing membership card No.CVBG1 BPCLB10LW157786. It is also an evident that gift vouchers are in the name of appellant and the said voucher is not valid after 19-9-2014 which is only valid upto 18-9-2014. It is also evident that the voucher receipt which reveals that it is in the name of appellant as guest details, reservation status confirmed and confirmation of hotel.
9. Perused the order passed by the District Commission, the District Commission after perusing the documents and evidence affidavit of Opposite Party hold that all above documents produced by the respondent clearly shows that the respondent has provided proper service to the appellant. Moreover the appellant has not produced copies of letter dated 20-10-2013, 27-11-2013 and 25-1-2014 also there is no evidence that the appellant received the membership card after more than 30 days and also not produced copies of email letter which is sent to the respondent for requesting the respondent for accommodation or booking of hotels at Malaysia and Bangkok. Hence, even though the respondent has provided proper service to the appellant, the appellant making false allegations on respondent and dismissed the complaint which is not proper in our opinion because the appellant has not denied that he has not received the membership card or the respondent has not given the service. The allegation of appellant is that the membership card was provided by the respondent after several requests and after lapse of six months. More over the respondent has arranged the tour for the appellant after several requests and also the respondent has not provided proper service between the tour period as promised. The appellant has not provided details of the letter, phone calls list however there are email communication between the tour period reveals that the respondent has not provided proper service to the appellant and one email dated 28th April, in which the respondent stated that “Kindly submits your pick and drops bills, once you come back to India, the same amount will be reimbursed by the branch”. Also one more email is there sent by the respondent to the appellant dated 2nd May, in which the respondent stated that “we spoke to the desk of the hotel with Ms.Stella, we requested her to change your room in to double occupancy they are not taking payment now they are asking to pay in online, requesting you to proceed for that the payment we will credit you back”. Means there some inconvenience was caused to the appellant in course of the tour and hence the appellant is ready to reimburse the same. It is true that as per the confirmation membership and club membership purchase agreement, the membership fee is not refundable under any circumstances. However if the respondent is failed to provide the proper service as per the agreement to the appellant such type of condition are also not applicable on the members also. Anyhow the appellant is not interested to continue the membership with the respondent, then the respondent cannot withhold the membership amount with him. Moreover the appellant is sought to reimburse the amount of Rs.2,27,100/- as the expenses of accommodation and travelling to Bangkok and Malaysia. But the appellant has not produced the relevant documents to prove that all the services provided by the respondent to the appellant between the tour period are defective also the appellant has not produced any receipts which he had paid the extra amount between the tour period. Hence, in our opinion it is right to directed the respondent to cancel the membership of the appellant and refund the membership amount of Rs.1,35,100/- with interest. But the appellant is not entitled for the amount of Rs.2,27,100/- which was spent by the appellant for the accommodation and travelling to Bangkok and Malaysia tour, because the appellant has availed the services of respondent. However the appellant is entitled for compensation for the deficiency in service from the respondent. Hence, the order passed by the District Commission lacks legality, hence, interference is required. Accordingly, the appeal is allowed and consequently the complaint is allowed. Hence, we proceed to pass the following:-
O R D E R
The appeal is allowed. Consequently the complaint is allowed.
The Opposite Party is directed to pay Rs.1,35,100/- the membership amount to the appellant along with interest @ 6% per annum from 18-9-2013 till realization and cancel the membership of the complainant.
The Opposite Party is further directed to pay compensation of Rs.50,000-/- for deficiency of service and Rs.25,000/- towards litigation expenses to the complainant.
Further the Opposite Party is directed to comply the above order within 30 days from the date of receipt of this order. Failing which, the Opposite Party shall pay interest @ 8% per annum on the above said amount from the date of default, till realization.
Send a copy of this order to both parties as well as concerned District Commission.
Lady Member Judicial Member
Jrk
