FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainants have filed the petition of complaint U/s 35 of CP Act, 2019.
The fact of the case in brief is that on date 21 July, 2019, the complainants went to Acropolis Mall at Kasba, Kolkata at about 4 PM for shopping then a sells girl came to them and handed over a lucky coupon to draw. The complainants very reluctant to accept the same then sells girl told them that it was only for advertisement of their company then the complainant No. 1 accept the lucky coupon and give the telephone number.
It is further stated that on 31.08.2019, the complainants got telephone call from a lady named as Munai along with one Mr. Amit Choudhary Managare of OP-1 and the informed that the complainants owned a lucky prize in lucky draw in order to collect the price the complainants need to visit country club office at Kolkata accordingly, the complainant attended the office of country club. Then the OPs invited the complainants to seat on a table and started offering various lucrative offer and options. Being hypnotized by the OPs, the complainants paid an amount of Rs. 61,200/- through credit card and issued receipt no. 8985332607 dated 31.08.2019 and Rs. 10,200/- by credit card and issued receipt no. 8985462261 dated 31.08.2019 in total a sum of Rs. 71,400/- towards the membership fees. Copy of the agreement and money receipt have been attached with the petition of complaint. Thereafter, the complainants had gone through the terms and condition of agreement in question and he revised that the agreement would not prove benefit to the complainants as promised by the representative of the OPs. Under such circumstances, the complainants decided to cancel the agreement and on 03.09.2019, they requested the OP-2 with a copy to OP-1 to cancel the agreement through email dated 03.09.2019 copy of which is also enclosed with the petition of complaint. On 17.09.2019, vide email the complainant confirmed the cancellation charge of Rs. 3,800/- and prayed for refunded balance amount with 120 working days as mentioned above. Subsequently, the complainants sent several reminders lastly on 29.01.2020 for refunding the amounts to the OPs but in vain. Hence, the petition of complaint is filed by the complainant with a prayer to give direction the OPs to refund a sum of Rs. 71,400/- only as receipt from the complainants as membership fee and also give direction to the OPs to pay compensation of Rs. 50,000/- for harassment and mental agony along with litigation cost of Rs. 10,000/-.
The OPs have contested the petition of complaint by filing a WV denying all the material allegation levelled against them.
It is the OP’s case that complainant are not consumer within the meaning of 2 (g) of the CP act, 2019. It is further alleged by the OPs that the complainant have suppressed the material facts. They have various schemes for exclusive benefits of its members. When any one desired to become the member they are entitled to get those benefits subject to strictly adhere certain condition and the amount as paid by the complainants for the membership is not refundable under any circumstances as the same is categorically mentioned in the membership agreement.
The OPs further stated that some of those benefits are holidays package etc. Which are available to the particular membership subject to adherence of the conditions therein.
They further stated that the complainants have signed on membership agreement with full knowledge and understanding.
The OPs further stated that the present complainants have prayed for refund of membership fees under the “cool off period” clause of the agreement and they asked the OPs for refunding of amount of Rs 67,600/- deducting the administration charge of Rs. 3,800/- which is not refundable and the alleged that the complainants have filed the case with malafide intention on the basis of false and fabricated dispute and ulterior motive for wrongful gains. Moreover, the complainants have no cause of action to file the case. Thus, the same is liable to be dismissed with cost.
In view of above fact and circumstances, the points of the consideration would be:-
- Is the case maintainable in eye of law?
- Are the complainants consumer within the ambit of 2 (g) of CP Act 2019?
- Is there any deficiency in service on the part of the OPs?
- Are the complainants entitled to get relief as prayed for?
Decision with Reasons.
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On a close scrutiny and position of law and materials on record, it is held by the Commission that the case is well maintainable within ambit of law.
It is the case of the complainant that being induced by the sales girl of the OPs, they are entered into an agreement with the OPs and country club and paid Rs 61,200/- through credit card against receipt no. 8985332607 dated 31.08.2019 and also Rs.10,200/- by credit card against receipt no. 8985462261 dated 31.08.2019. The total amount of Rs.71,400/- towards the membership fees was paid by the complainants as it is found from the documents filed by the complainants along with petition of complaint i.e. Copy of the agreement and money receipts.
From the WV filed by the OPs and also from the evidence and WO filed by the OPs and complainant it appears that admittedly, the OPs received Rs. 71,400/- as membership fees from the complainant on 31.08.2019. It is also admitted fact that during “cooling off period” the complainant have cancelled the agreement by paying the cancellation charge of Rs. 3,800/- with a request to refund the membership fees of Rs. 71,400/-. From the evidence of the complainant and also from the facts and circumstances as availed on record, it is crystal clear that the OPs did not explain the benefits of the scheme to the complainants at the time of putting signature in the agreement. Rather they induced the complainants with intention that the complainants will get the benefit of scheme at the best. On a close scrutiny of material on record, the commission is of view that the OP i.e. Country club used to induce their customers by any means and thereafter, they did not give the benefit to them. Practically their customers became fool after entering into the agreement. The present complainants are also the victim of such circumstances. After realisation of the situation, they have cancelled the agreement within the ‘cooling off’ period and rightly claimed refund of Rs.71,400/- as paid by themselves. The OPs denied that the complainants did not get the amount as demanded because the membership fees as paid by them is not refundable but the OPs have practiced fraud upon the complainants and they mislead them and compelled them to enter into such agreement of membership under such circumstances, the OPs are bound to refund the amount as demanded by the complainant but even on repeated request made by the complainants. The OPs did not refund the amount of Rs. 71,400/- as paid by the complainants till date which amounts to deficiency in service. As and when the complainants have entered into agreement on payment of Rs 71,400/- till then they are consumer and the OPs are the service providers who made deficiency in service on their part.
On the basis of discussion made above, this commission is of view that the complainants could be able to prove their case beyond all reasonable doubts and is entitled to get relief as prayed for.
All the issues are thus decided favourably.
The case is properly stamped.
Hence,
Ordered
That the case is decreed on contest against the OPs with cost of Rs. 500/- (Rupees Five hundred) only.
The complainants do get the decree as prayed for.
The OPs are directed to refund the amount of Rs.71,400/- (Rupees seventy one thousand four hundred) only along with interest @ 9 % p.a. from the date of filing of this case till realisation to the complainants either jointly or severally within 45 days from the date of this order.
The OPs are further directed to pay compensation of Rs. 10,000/- (Rupees ten thousand) only to the complainant either jointly or severally for harassment and mental agony along with litigation cost of Rs. 5,000/- (Rupees five thousand) only within 45 days from the date of this order.
If the OPs failed to comply the decree within the stipulated period the complainants will be at liberty to execute the decree as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the Commission for perusal of the party.
