Order-25.
Date-29/03/2018.
Smt. Sangita Paul, Member.
Complainants, by filing this case state that on 17th November, 2016, evening , complainants met with the officers, Mr. Amit Chowdhury at the Kolkata office of the OP in response to their telephonic invitation for granting complainants on some prize winning matters. The discussion allured complainants to enter into an agreement for being members against a consolidated amount of payment of Rupees Two Lakh fifty thousand only. Accordingly, complainants paid Rs.2,50,000/-(Rupees Two Lakh fifty thousand only as per the following mode of payment.
A postdated chequeNo.000009 of amount Rs.2,00,000/- (Rupees Two lakhs only) dated 17.11.2016 from the savings account lying with Bandhan Bank, Beliaghata Branch (IFSCBDBL 0001505) through Debit cards of total amount Rs.37,000/- (Rupees thirty seven thousand) only debited from the pension account of complainant No. 1 lying with the Bank of India Beliaghata Branch through POS country club Hospital on 17.112016, Rs. 7000/- from the joint Saving A/C No of complainants lying with Karnataka Bank Ltd, Beliaghata Branch though POS-Country Club Hospital on 17.11.2016, Rs.18,000/- from joint savings Account of complainants lying with Karnataka Bank Ltd, Beliaghata Branch through Pos-Country club Hospital, by cash amounting to Rs.13000/- only. All these payments were collected by some Munai, a staff member of Calcutta office of OP, Country Vacations from the residence of complainants at P-93 C.I.T Road, scheme IV M. P.O and P.S-Beliaghata, Kolkata-700010 on 17th November, 2016. At the time of receiving the amount, complainants were not given any recite document except only copy of agreement where the contact number was placed by Munai, as CVA 57#0110.
Immediately after Munai left residence of complainants, complainant No1 fell ill. He is a chronic heart patient. The sudden trauma forced complainants to rethink about the proposal and on such immediately they contacted Munai informing her about paying back the hard cash so that they may enter into proper medical treatment but she showed very indifferent attitude to complainants and showed no intention to give compliance to the request.Realizing the adverse attitude of the collector, complainants told her immediately that the situation forced them to stop enjoying any programme on any such luxury class tour rather to be confined to complete medical treatment realizing that, Munai is not in a position to help complainants, complainants tried to contract the manager Mr. Amit Chowdhury at his mobile No. It was found that the said telephone was not working and complainant sent a mail, conveying the same request. That with all these efforts, complainants could not be able to convey their distressed conditions to the OP and finally they went to the Calcutta office of the OP to meet the concerned officers on the very next afternoon. The staff of the OP is totally indifferent and tried to impose the terms and conditions of their proposal. Such medical treatment put complainants into great disastrous situation. The health-condition of complainant No.1 has been getting endangered which demands immediate proper Medical support. Complainants directed their bankers to stop payment of Rs.2,00,000/- remaining Rs. 50,000/- is yet to be received by complainants. Complainants applied for withdrawal of membership. Complainants were deceived by the Op. Hence, complainants pray for an amount of Rs. 50,000/- paid though Debit card and hard cash for directing the op to pay compensation of Rs.50,000/- and litigation cost of Rs. 5,000/-
The Opposite Party in his written version states that the case of complainant is not maintainable either in law or in fact. The instant complaint petition is vindictive, motivated, harassing and misconceived one.The complaint petition does not disclose any deficiency in service on the part of the Op. The complainant is not a customer in terms of the consumer Protection Act 1986. The definition of deficiency, in section 2g of the said act does not cover the claim arising under present dispute. The present complaint is frivolous and vexations and liable to be dismissed u/s 26 of the said Act. The Op states that complainants had never entered into any contract/agreement with the Op. Complainants never made any payment to the Op till date. Thus, Op is not under any obligation to provide any service to complainants. OP is neither any private individual not any juristic entity. Op has no relation with the dispute as alleged by complainants. OP is not even a witness or even a beneficiary of the relevant transaction. Op states that there is no privityof contract between complainants and the Op denies each allegation levelled against them. OP states that they have no idea of any agreement having entered into by and between him and complainants. OP denies that he received any paisa from complainants. Op states that there is nothing but a cooked story. OP states that there is no deficiency in service on the part of the OP. The prayer made by complainants is absolutely notentitled to any relief and recover anything from the OP.
Decision with Reasons
We have perused the complaint petition, written version of the OP, Letter of request for cancellation of membership, photocopy of country vacations Holiday Club Membership purchase agreement dated 17.11.2016, photocopies, e-mails on different dates between the parties and other documents on record. The personnel of country vacations informed complainants about prize winning gifts. Being attracted complainants entered into an agreement for being members against payment of Rs. 2,50,000/- only. The payments were collected by some Munai, a staff member of the Calcutta office of the OP. The Op did not give any money receipt except one copy of agreement. No membership card was issued against the payment. But this time, complainant felt ill and felt urgent need of money to meet the medical expenditure. Complainants contacted the Op, but in vain. There is none at the other end to receive phone calls of complainant. Finding no other way, complainant appealed to bank to stop payment, and the bank did the needful, but remaining Rs.50,000/- which was paid in cash is still lying with the Ops. Op is not in a position to disburse the amount. In reply of complainants’ E-mail, the Op wrote. ‘Thereby we are requesting you to remove/delete all your misconception and /or misrepresentation from any outside influence instead of that we ore requesting both of you to clear your balance payment and enjoy your said purchasedmembership benefit from us’. In e-mail the OP is still requesting complainants to avail of the membership, which was not possible for them due to ill condition of health. In the e-mail dated 29th November, 2016, complainant informed them of cancellation of membership and refund, the balance amount of Rs. 50000/.- from complainants‘activities it is crystal clear that they no longer are interested to take the membership. Still Op is forcing them for payment of balance amount.
It is argued by the Ld. Lawyer of the Op that complainants signed the agreement on his own volition and they are bound by terms and conditions of agreement. In the purchase agreement, there is no certificate or endorsement appearing in the document that the terms and conditions therein were read over and explained to complainant and complainant being satisfied with the norms, rules, terms and conditions of the company, signed the document. The terms and conditions are printed in small font. So it is difficult to go through all the rules within short time so it cannot be said that complainants are bound by terms and/or conditions of agreement. Op has collected the money from complainant and forced them immediately to sign. Complainants did not get any time to read over the documents. Op is not willing to disburse the amount of Rs.50,000/- because they have utilized the amount for their own gain. Op forced complainants to invest the amount for purchasing the club membership. Thus, OP has adopted unfair trade practice. The Op, in our opinion is deficient in rendering service to complainant on 04.05.2017 OP stated that there was no privity of contract between Op and complainants. Op has been made a party on representative capacity OP has not entered into any sort of contract with complainants. There is no deficiency in service on the part of the Op. Op fails to render service, by not answering the complainants‘ letters. One SubhenduMaity signed in the agreement on behalf of the Op put a rubber stamp of the authorized signatory. If the Ops have no liability then the agreement has no value, but Op is demanding money in the agreement. So, it is proved that the Op is deficient.
In the result, the case succeeds.
Hence,
Ordered
That the complaint be and the same is allowed on contest against the Op with cost of Rs.5,000/-.
Op is directed to refund the balance of Rs.50,000/- with 9 percent interest p.a. within one month from the date of this order.
Op is further directed to pay Rs.50,000/- towards compensation for causing harassment, mental pain and agony within the stipulated period.
Op is directed to pay Rs.5,000/- for unfair trade practice. The amount is to be deposited to the Forum.
Failure to comply with the order will entitle complainant to put the order into execution.
