FINAL ORDER/JUDGEMENT

SHRI REYAZUDDIN KHAN,MEMBER

This is an application U/S..35 of the C.P. Act, 2019.

The case of the complainant, in brief that the complainant and her husband attended the office of OP1 Country Vacation Kasba Bose Pukur,,Kolkata 7000107 on 31.01.2019.After long discussion the complainant took the membership of the Country vacation’s on the same day for 5 years .The complainant also stated that a sale agreement was

also executed on that day ie.on 31.01.2019.The complainant paid Rs. 1,05,000/- (Rupees One Lac five thousand) through Credit card of ICICI Bank No.4375512917928007 only the membership charges via money receipt no.0219 & reference no.0219-CVKK37377 dated 02.02.2019. While going through the agreement the complainant found that the promise made by one representative Mr Nadim regarding the major benefits of the membership during the conversation on 31.01.2019 before signing the agreement was completely missing. Immediately after that on 03.02.2019  the complainant sent one email requested the OPs that he was not interested to keep the membership and as such to cancel the agreement and refund the amount of Rs,1,05,000/- The OP 1 responded the e-mail on 12.02.2019 and  informed that he forwarded the refund request to the concerned department and note down the  cancellation request of membership after deducting the nominal charges of Rs.3800/-and  the remaining amount to be paid within 120 working days from the date of invoking cool off period.After that the complainant have sent several reminders for refund of the amount but no positive response received.

Finally, the complainant filed the case before the commission and  prayed for refund amount of 1,05,000/ and  compensation of Rs.80,000/- for the mental agony and harassment.

  In support of his case the complainant has tendered evidence supported by affidavit and also relied upon documents annexed with the complainant petition. Complainant has also filed written argument. We have heard argument on merit and have also perused the record.

OPs contested the case by filing the WV.It is contented in WV that the complaint petition is not maintainable and that  totally false and fabricated and there is no any kind of unfair trade practice on the part of the OPs.OP1 confirmed the cancelation of agreement and  refund of the membership amount as per “cool off clause” in the agreement.The OPs stated that the complaint filed against the OPs is only with the intention to harass as no cause of action has ever arisen and hence the complaint is  liable to be dismissed.

The WV as filed by the OPs on 02.03.2021 that has no basis and hence there is no leg to stand in the instant case.As the OPs have failed to refund the  amount of the  complainant and the complainant is in regular in touch with the OPs to get his amount back,hence this is a continue cause of action until the OP refund the amount to the complainant. It is our considered view that the complaint  is very much maintainable  in the instant case under consumer Protection Act 2019.

Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1) Whether the OPs are deficient in rendering proper service to the complainant?
            2)   Whether the OPs have indulged in unfair trade practice?

3)   Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3:-

All the points are taken up together for sake of convenience and brevity in discussion.Upon perusal of the consumer complaint coupled with evidence of the complainant including photocopies of the money receipts amount Rs 1,05,000/ dated 02.02.2019,along with the “Millionaire Club Premium Package Sale Agreement” dated 31.01.2019  we find that the complainant had deposited 105,000 ( Rupees One Lac five thousand ) only and took the membership of the mentioned club.But after few days when the complainant came to know that the commitment made verbally by the representative of the “Country vacation” was completely missing in the agreement, he decided to cancel the membership and requested to refund the advance amount of Rs,1,05,000/ for that On 03.02.2019 the complainant sent an e-mail to OP1 and asked to withdraw the membership agreement and refund of the deposited membership charges of Rs 105,000/ during the “Cooling Off Period” as mentioned in the package sale agreement clause 27. In response of the e-mail dated 12.02.2019 the OP1 confirmed the receipt of the mail and request of cancellation of  membership and agrees to refund the money after deducting the nominal charges of Rs,3800/ within 120 working days from the date of invoking cool off period.Inspite of the development  the OPs failed to discharge their contractual obligations regarding payment of the said amount and making unnecessary delay on the part of the complainant.

The OPs are fully aware that they are liable to pay the deposited amount including interest thereon to the complainant. Complainant deposited  his hard earned money with the OPs. The OPs deliberately make their illegal gains and to deprive the complainant from his lawful right withheld the deposited amount. Thus, the OPs have adopted unfair trade practice, and in fact, withhold the deposited amount of Rs. 105,000/( Rupees One Lac five thousand) only  along with accrued interest. Complainant have filed his affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs.1,05,000/ ( Rupees One Lac five thousand) - the OPs have failed to refund the said amount. In absence of any explanation for failure to comply with the stipulation of refund of deposited amount, we have no hesitation in concluding that the OPs have committed deficiency in service and also has indulged in unfair trade practice

The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent  legislation cannot be overlooked and its object is not to be frustrated. The complainant has deposited Rs1,05,000/ ( Rupees One Lac five  thousand) to the OPs for membership of the tour package but due to violation of breach of Trust as verbally made by one of the representative he was compelled to cancel the same and requested for refund of the amount.. The OPs failed and neglected to pay deposited amount Rs 1,05,000/ to the complainant and the act and conduct of the OPs are  clear case of deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not deposited his money with the OP,  he would have deposited the same elsewhere. The complainant cannot be wait indefinitely to get the said amount. The complainant has suffered mental agony, pain and harassment. It is settled principle of law that the compensation should be commensurate with loss of suffered and it should be just, fair and reasonable and not arbitrary. To get relief, the complainant has to wage a long drawn and tedious legal battle. In these circumstances, the complainant is entitled to refund of deposited amount along with  compensation.

In the result, the case succeeds .

Hence,

Ordered

That the complaint case be and the same is allowed contested against the OPs.

OPs are directed to refund the deposited amount Rs,1,05,000/ ( Rupees One Lac five thousand) only

OPs are further directed to pay Rs. 15,000/- (Rupees Fifteen thousand) only as compensation for causing mental agony, pain and harassment to the complainant within the stipulated period.

Complainant put the order in execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.