Date of Filing:09/01/2015

    Date of Order:18/05/2016

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 18^TH DAY OF MAY 2016

PRESENT

SRI.SYED ANSER KHALEEM, B.SC., B.Ed.,LL.B.,PRESIDENT

SRI.H.JANARDHAN,B.A.L, LL.B., MEMBER

SMT.BHARATI.B.VIBHUTE, B.E(I.P.) LL.B., MEMBER

COMPLAINT NO.41/2015

PALANIVEL RAJAN.N,

S2, 2^nd Floor, No.33,

JS Homes, 8^th Main, 2^nd Cross,

Hoysala Nagar,

Ramamurthy Nagar (Post),

Bangalore,

Karnataka-560 016.                         …. Complainant

V/s

1. The Manager,

Country Vacations (India) Limited,

# 4, 3^rd Floor, S.V. Towers, Krishna

Nagar Industrial Layout, Drc Post,

Hosure Road, Between Christ College,

Forum, Koramangala,

Bangalore-29.

2. The Chairman & Managing Director,

Country Club India,

Country Club Kool,

#6-3-1219/A-2^nd Floor,

Gegumpet,

Hyderabad-500 016.             …. Opposite Parties

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     This is the complaint filed U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.Ps) alleging deficiency in service on the part of the O.Ps and prays for direction to the O.Ps to apologize for all the inconvenience caused to the complainant and further directed the O.ps to cancel the membership and refund the amount of Rs.55,000/- and also pay a sum of Rs.40,000/- towards mental agony suffered by the complainant. Further O.Ps are directed to pay a sum of Rs.1,500/- towards cost of the proceedings.

2.   The brief facts of the complaint is that, the complainant went to MG road, Ledo Shopping Mall where the executive of the O.Ps approached the complainant  to fill up a lucky coupon form. After a few days the complainant got a phone call from the O.Ps informing him that he has won the lucky draw and entitled to three prizes of kitchen appliances, free vacation for a week for couple and free entry in a resort in India and abroad. Further the complainant bought the lifetime membership of the O.Ps for a sum of Rs.55,000/- on 24.9.2014 and the membership No. DT41#2481.  Further complainant has to pay Rs.4,000/- as nominal administration fees and taxes extra for a 7 day stay at a hotel in Kerala, Goa or Manali worth Rs.25,000/-.  The complainant did not receive any gift as the O.Ps promised. The O.Ps kept assuring the complainant would receive the promised gifts soon but the complainant shocked to see the gift of the O.Ps only six small glass bowls. The complainant also found out that many other people were cheated by the O.Ps in the same way.  The complainant immediately called up the bank to stop the payment but they told the complainant to call the merchant and ask them for refund.  Further complainant wrote an email to the O.Ps complaining about the unfair trade practice and deficiency in service on 25.9.2014. The complainant tried cancelling his membership as it was still in the cooling period but the O.Ps kept giving the complainant false assurances. Hence this complaint.

3.      Upon issuance of notice, O.P No.1 and 2 appeared through their counsel and filed its version. In the version O.P.No.1 and 2 contended that, the complainant is not maintainable either in law  or on facts and it is liable to be dismissed in limine.  The O.Ps further contended that the entire averments made in the complaint are totally denied as false and incorrect, except which are not specifically admitted by this O.Ps and the complainant has shown interest to become the member and to avail holiday vacation. The complainant entered into purchase agreement dated 23.09.2014 and in terms of agreement the complainant has paid amount of Rs.55,000/-. In terms of the purchase agreement, the complainant is entitled for holiday vacation for two night three days in a year for a period of five years and club membership of life time, subject to the terms and conditions mentioned in the purchase agreement. O.Ps on receipt of the above said amount they never promised or assured to give or nor forced to become the members and also never promised the complainant the gift vouchers or even kitchen items at any point of time.   O.Ps is always ready to provide the package to the complainant but there should be 30 days in advance booking to be made to make necessary arrangements.  The complainant entered into the purchase agreement and there is no provision for cancellation of the club membership. However the complainant is at liberty to sell or transfer or gift the club membership to any third party.  On other grounds O.Ps prays for dismissal of the complaint.

4.     To substantiate the above case, both the parties have filed the affidavit evidence along with documents.  We have heard the arguments.

5.     On the basis of pleadings of the parties, the following points will arise for our considerations are:-

                                (A)    Whether the complainant has proved

                     deficiency in service on the part of the O.Ps?

(B)    Whether the complainant is entitled to the

         relief prayed for in the complaint?

(C)    What order?

6.     Our answers to the above points are:-

POINT (A) and (B) :  In the affirmative.

POINT (C):  As per the final order

for the following:

REASONS

POINT  No (A) and (B):-

7.     On perusal of the pleadings of the parties it is not in dispute that the complainant entered into purchase agreement dated 23.09.2014 and in terms of agreement the complainant has paid amount of Rs.55,000/-.

8.     The allegations of the complainant is that when they visited the shopping mall and after that received the phone call to attend the function as the complainant won the lucky dip  coupon and entitled for three prizes for kitchen appliances, free vacation for a week for couple and free entry in a resort in India and abroad.  The complainant believing the words with a fond of hope went to the function premises and there the complainant purchased the agreement.  But he has not got any above said gifts as promised by the O.Ps.  It is worth to note that, when the customers like complainant visiting the shopping mall and by their enticing promises induced the complainant to purchase the lifetime membership agreement.  It doesn’t mean that the complainant thoroughly went through the all the contents of the agreement and it is nothing but a kind of coercive unilateral agreement.  When the complainant dissatisfied the services of O.Ps, it is the duty of the O.Ps to return back the amount paid by the complainant.  If the contention of the O.Ps is allowed the several innocent customers will entangled in the web of the O.Ps and they will suffer not only mental agony and also there is no value for their hard earned money.  Any business or any services provided by receiving the consideration there should be value for the money.  Also there is no record to show that the complainant availed any services from the O.Ps. The law will not allow to enrich at the cost of others. The contentions raised by the O.Ps in the version is not feasible and lame of strength. The unilateral agreement and its terms and conditions do not bind the complainant to sought for refund of the amount.  In the light of above discussions, we reached to conclusion that, the complainant proved not only deficiency in service and also unfair trade practice of the O.Ps.  Hence  we direct the O.Ps are jointly and severally liable to pay a sum of Rs.55,000/- to the complainant along with interest at the rate of 9% per annum from the date of payment till realization  along with Rs.2,000/- towards the cost of proceedings. Accordingly we answered these points in the affirmative.

POINT (C):

9.     On the basis of the findings given above on the point No.(A) and (B) and in the result, we proceed to pass the following:-

ORDER

1. The complaint is allowed-in-part with cost.

2. The O.Ps are jointly and severally liable to pay a sum of Rs.55,000/- to the complainant along with interest at the rate of 9% per annum from the date of payment till realization.

3. The O.Ps are directed to pay Rs.2,000/- towards cost of the proceedings.
4. The O.Ps are hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this Forum within 45 days from the date of receipt of this order.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 18^th Day of May 2016)

MEMBER                 MEMBER                PRESIDENT

*Rak