BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.480 of 2015

Date of Instt. 04.11.2015

Date of Decision: 07.01.2019

1. Abhishek Sood son of Sh. Anil Sood.

2. Richa Sood wife of Abhishek Sood son of Sh. Anil Sood. Both residents of B-22/65, Harnam Nagar, Kapurthala.

..........Complainants

Versus

1. The Manager, Country Vacations ( A Division of Country Club India Ltd.) Lower Ground Floor, Viva Club Mall, Village Paragpur, Opp. Lily Resorts, GT Road, Jalandhar-144001.

2. Regional Manager c/o The Manager, Country Vacations ( A Division of Country Club India Ltd.) Lower Ground Floor, Viva Club Mall, Village Paragpur, Opp. Lily Resorts, GT Road, Jalandhar-144001.

3. Corporate Manager c/o The Manager, Country Vacations ( A Division of Country Club India Ltd.) Lower Ground Floor, Viva Club Mall, Village Paragpur, Opp. Lily Resorts, GT Road, Jalandhar-144001.

4. Ms. Rajvir Kaur c/o The Manager, Country Vacations (A Division of Country Club India Ltd.) Lower Ground Floor, Viva Club Mall, Village Paragpur, Opp. Lily Resorts, GT Road, Jalandhar-144001.

5. HDFC Bank, Branch Kapurthala, Through its Branch Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna Thatai (Member)

Present: Sh. M. S. Sachdev, Adv Counsel for the Complainants.

Sh. V. K. Gupta, Adv Counsel for the OPs No.1 to 4.

None for the OP No.5.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainants, wherein alleged that the complainants are husband and wife and are residents of B-22/65, Harman Nagar, Kapurthala. The respondents entered into a purchase agreement with the complainants on 27.07.2012, vide Contract No.DTA 156/107, which was superseded by a purchase agreement dated 08.09.2012, vide Contract No.CVA 156. The terms of the contract were as under:-

a. That the amount of the purchase contract was Rs.1,50,000/-, which was non-refundable. b. That the term of the contract was 30 years.

c. The AMC of the contract amounts to Rs.6000/- annually. d. That the type of membership was Billionaire Gold (6 nights/7 days). White season for 30 years. e. That complimentary health club for 30 years.

f. That the local club at Delhi was included in the said contract.

2. That the payments to the respondents were made via Credit Card No.5243 6816 0000 1369 issued by HDFC Bank, Branch Kapurthala, issued in the name of Sh. Anil Sood, father of the complainant No.1. The complainants were issued membership No.CVJD1BGCLUB30LW119014. The complainants have till date never availed any of the vacations offered in the package. In the month of February, 2014, the complainants approached respondents, vide email dated 03.02.2014, wherein the complainants enquired about handing over the package of the complainants to some unknown persons without the authority of the complainants. That the complainants have been approaching respondents via phone calls from England and has also been sending respondents emails, which respondents have been avoiding. That the complainants came back to India in the month of January 2014 and approached the office of the respondents at Jalandhar, where respondent No.4 Ms. Rajvir attended the complainants. The said respondent No.4 Ms. Rajvir and the then Manager Mr. Ravi admitted to the factum that the holiday package of the complainants were given to someone else mistakenly and that the complainants would be compensated with some other package of equal amount.

3. That the complainants were apprehensive of the commitments made by the respondents and came returned empty handed. The complainants went back to England in the month of May 2014 and again kept contact with one Bushra Siddiqui placed at Hyderabad office, who again admitted to the factum of giving holidays the complainants to some else and directed the complainants to contact Ms. Gollu Aruna at telephone No.04040079860 regarding the vacations used by someone else. The respondents in connivance with each other have duped the complainants for a sum of Rs.1,50,000/- and have misappropriated the property (holiday package) of the complainants by giving the same to some unknown persons for undisclosed consideration. Thereafter, the complainants served a legal notice dated 15.06.2015, requiring the respondents to refund the sum of the contract i.e. Rs.1,50,000/- and the amount of AMC Rs.26,557/- along with interest to the complainants within 15 days from the receipt of the notice, but all in vain and as such, necessity arose to file the present complaint with the prayer that the compliant of the complainants may be accepted and OPs are directed to refund the sum of Rs.1,50,000/- and the amount of the AMC Rs.26,557/- and further OPs be directed to pay Rs.50,000/- as compensation for harassment and mental agony to the complainant and further OPs be directed to pay Rs.11,000/- as litigation expenses.

4. Notice of the complaint was given to the OPs and accordingly, OPs No.1 to 4 appeared through its counsel and filed joint reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable as no cause of action has arisen in favour of the complainant to file the present complaint as there is neither any deficiency in service nor any unfair trade practice on the part of the OPs. The main allegation of the complainant is that his grievance that his holidays were handed over by the OPs to somebody else was not addressed to. Whereas, the true facts are that when complainant raised grievance to respondent No.4, she immediately checked the online software and found that there was a system error wrongly showing the holidays as “used”. She immediately contacted back end team of the OP Company to rectify the error and explained the complainant that his membership holidays were never used by any third person and it was only a technical error in the system software of the company due to which it was showing the holidays as “used”. The same was not possible even as per the terms of the agreement because as per the membership, membership benefits and holidays can be enjoyed by family members including member his/her spouse and children only. It is further submitted that since his first year's vacations for 6 nights and 7 days was valid for the period 22.11.2012 to 22.11.2014 and second year vacations for 6 nights and 7 days was valid for the period 22.11.2013 to 22.11.2015, which he did not use for reasons best known to him, therefore the same stand expired as on date. It is further averred that the present complaint is barred by limitation and further submitted that the complainant has not come to the Forum with clean hands, therefore complainants are not entitled for the relief claimed and even the complaint of the complainants is false, frivolous and vexatious, besides being devoid of any merits and has been filed with a view to malign the credential and reputation of the OPs with dishonest intention to the detriment of the OPs and to the illegal advantage to the complainant. It is only a man-oeuvre with the intention to harass and extort money from them, in order to wriggle out of the contract and payment of annual maintenance charges and other dues. On merits, Para No.1 to 6 of the complaint are admitted as correct, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. OP No.5 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint is no maintainable qua the answering OP and further submitted that the present dispute, if any, has arisen out of a contractual relationship with OP No.1 to 4, which is a separate company, as such, the complaint is liable to be dismissed on this ground qua the OP and further submitted that the complainant has suppressed the material facts from the Forum and therefore, complainant is not entitled for the relief and further submitted that the OP No.5 HDFC Bank Limited has simply issued credit card to the father of the complainant and has nothing to do with the present complaint, as such, the present complaint is liable to be dismissed. On merits, all the averments as made in the complaint are controverted by the OP No.5 and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

6. In order to prove the case of the complainants, the counsel for the complainants tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-6 and closed the evidence.

7. Similarly, counsel for the OPs No.1 to 4 tendered into evidence affidavit Ex.OPA along with document Ex.OP-1 and further tendered into evidence affidavit Ex.OP/B along with some documents Ex.R-1 and Ex.R-2 and closed the evidence.

8. Similarly, counsel for the OP No.5 tendered into evidence affidavit of Raviena Bedi Ex.OP5/A along with document Mark OP5/1 and closed the evidence.

9. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

10. From the submission of both the counsel for the parties, it reveals that the complainant admittedly purchased an agreement from the OPs on 27.07.2012, vide Contract No.DTA 156/107, which was superseded by a purchase agreement dated 08.09.2012, vide Contract No.CVA 156. The terms and conditions, whatsoever agreed between the parties is also not in dispute in the present complaint and moreover, the said terms and conditions are very much incorporated in the copy of the agreement Ex.C-5 (containing 5 pages). It is admitted fact that the complainants have not availed any of the vacations offered in the aforesaid package purchased by the complainant by becoming a member of the said club and the period of the said membership is admittedly 30 years and further it is also not denied by the OP that in the allegation of the complainant that the package of the complainants were given to someone else mistakenly, though in regard to that the OP took a plea that inadvertently or due to defect in the system, wrongly showing the holiday as “used” and whenever these facts came to the notice of the OPs, they immediately rectified the error and explained the complainant that his membership holidays were never used by any third person and it was only a technical error in system software of the company, due to which it was showing the holidays as “used” and also informed that his membership benefits and number of his entitled vacations were intact and unused till date and further took a plea by the OP that since the first year's vacations for 6 nights and 7 days was valid for the period 22.11.2012 to 22.11.2014 and second year vacations for 6 night and 7 days was valid for the period 22.11.2013 to 22.11.2015, which he did not use for reasons best known to him, therefore, the same stands expired as on date.

11. We have considered the aforesaid version of both the parties and find that the complainant purchased the said package and entered into contract on 08.09.2012 and OPs alleged that the technical error in the software of the company was already rectified, but after rectifying the said technical error in the software, whether any information was given to the complainant or not, if given, then what mode was adopted by the OP for giving information to the complainant, but no such like evidence has been brought on the file by the OP, where from we can ascertain that virtually information was given to the complainant in regard to rectification in the technical error in the software, which was showing the vacations of the complainants as “used”.

12. So, from all angles, it is not established by the OP that they have ever rectified the said technical error rather we came to conclusion that due to that negligence on the part of the OP, the complainants could not able to avail the said facility for two or three years and further complainant gave numerous email messages, which are consolidatedly brought on the file by the complainant Ex.C-1 and if we go through these emails, which itself shows that the OPs are negligent and deficient in service, they never took pain to solve the grievances of the complainant till today. Even telephone conversation of the complainant with the official of the OP have been also brought on the file by the complainant, copy of the same is Ex.C-6, which also gave rise that there is a fault on the part of the OP for providing appropriate effective services to the complainant. So, from all the angles, we are of the considered opinion that the OPs are negligent and deficient in services and therefore, the complainant is entitled for the relief claimed against OP No.1 to 4, whereas OP No.5 is a Bank, who has no role to provide the services in question.

13. In view of the above detailed discussion, the complaint of the complainants qua OP No.1 to 4 is partly accepted and OPs are directed to refund the sum of Rs.1,50,000/- along with amount of AMC Rs.26,557/-, to the complainant and further OPs are directed to pay compensation to the complainant, to the tune of Rs.30,000/- for causing harassment to the complainant and also OP No.1 to 4 are directed to pay litigation expenses of Rs.7000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Jyotsna Thatai Karnail Singh

07.01.2019 Member President