BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                

1. Manmohan Sharma S/o Sh. Palak Sharma, R/o H.No. 689, B-2, Dharampur Colony, Near Govt. School, Pinjore, Distt. Panchkula.
2. Veena Sharma W/o Sh. Manmohan Sharma, R/o No.689, B-2, Dharampur Colony, Near Govt. School, Pinjore, Distt. Panchkula.

….Complainants

Versus

1. Country Club India through its Chairman and Managing Director, 6-3-1219/A, country Club Kool, Begumpet, Hyderabad 500016. (www.countrclubindia.net).
2. The Regional Manager, Country Club, Paras Down Town Mall, Second Floor, Zirakpur through its Manager Supinder Singh Mander (M) 9641470001.
3. Sandeep Kapoor, Staff member at Country Club, Paras Down Town Mall, Second Floor, Zirakpur through its Manager Supinder Singh Mander (M) 9501778877.
4. Sahil Kapoor, Staff member at Country Club, Paras Down Town Mall, Second Floor, Zirakpur through its Manager Supinder Singh Mander (M) 9915428321.
5. ICICI Bank, Credit Card Department, SCO No.6, Sector-11, Panchkula through its Manager.

                                                              ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT,   1986.

Before:      Mr. Dharam Pal, President.

                Mrs.Anita Kapoor, Member.

Present:     Complainants in person.

                Mr. Pardeep Sharma, Advocate for the OP NO.1.

                OPs No.2 to 4 already ex-parte vide order dated 25.7.2017.

                OP No.5 already given up vide order dated 28.9.2017.

ORDER

(Anita Kapoor, Member)  

1.        The brief facts are that the complainants received a telephonic call and message from the officials of OPs from the number i.e. 7009826515, who stated that complainants have won a free holiday voucher and further stated that in order to collect the said free holiday voucher, the complainants would have to visit the office of OP NO.2. Accordingly, the complainants went to the office of OP No.2. However, instead of giving the free holiday voucher, the OPs started explaining the benefits of obtaining its membership. The OPs also stated that there are three types of schemes i.e. “Blue Season”, “White Season” and “Red Season”   under which one can obtain the membership. Consequently, after being entrapped in the exaggerated promises of the OPs and its tall claims about its services, the complainants decided to get its membership. The OPs stated the complainants would get the benefit of “Red Season” membership at the cost of Rs. 1,75,000/- if you buy this membership today otherwise you will have to pay extra money to get the same benefits. However, after bargain, the said amount was reduced to Rs. 1,25,000/- and the complainant agreed to pay the same. But the complainants had not this much money at that time. The OPs asked the complainants to pay money as you had in bank account and rest amount of money could pay after some time. The complainant   No.1 paid the amount of Rs. 25,000/- through Credit Card of ICICI Bank and complainant No.2 paid the amount of Rs. 50,000/- through Debit Card of HDFC Bank. Total amount of Rs. 75,000/- had been paid the OPs. After this the complainants started to go out of the office of the OP No.2 and the OPs insisted the complainants to attend the welcome call from the company and they asked to complainants to attend the welcome call and to tell a lie that you have bought the membership in amount of Rs. 1,32,000/-, but the complainants had bought the membership in Rs. 1,25,000/-. Then the complainants doubted the OPs at that time, but the OPs said the complainants that they would pay the difference amount of Rs. 7,000/- on their behalf. An agreement between the complainants and the OPs was executed wherein the terms and conditions were mentioned and complainants requested to provided the copy of agreement, but OPs refused to provide the same and pressurized the complainants to sign the same then and there only and assured the complainants that membership card kit would reach the complainants within seven days, but complainants never received any membership card kit till the filing of complainant.  The OPs did not give any free voucher to the complainants. Complainants asked the OPs about this, but they linger on the matter on one pretext to other and till date no booking on free voucher has been made by the OPs. Thereafter, complainants verified the authentication of the Country Club Company online on their site and were shocked to read the negative reviews of the people about this company. Thereafter,  complainants requested OPs to refund their money, but they did not pay any heed.  Thereafter, complainant contacted OPs NO.3 and 4 to resolve the matter peacefully, but all was in vain. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.

2.           Notice were issued to the OPs No.2 to 4 through registered post but none has appeared on behalf of OPs No.2 to 4. It is deemed to be served and the OPs No.2 to 4 were proceeded ex-parte vide order dated 25.7.2017. Vide order dated 28.9.2017, on the statement of complainants, OP No.5 given up being unnecessary. Upon notice, OP No. 1 has appeared to contest the complaint by filing the written statement that the complainants have not approached this Forum with clean hands; the complainants have no cause of action to file the present complaint. It is stated by the OP NO.1 that the complainants came to the office of the OPs on 28.5.2017, wherein brief presentation was given to them regarding different membership plans offered by the OPs along with the procedure of booking, prices and all the terms and conditions. The complainants opted for “Blue Season” which includes Vacations membership, which includes vacations benefits valid for 10 years. The produce price/vacation charges was Rs. 1,67,000/-, which was given to the complainants at cash out price of Rs. 1,32,000/- which was towards one time non refundable vacation charges under the vacation agreement. The complainants paid an amount of Rs. 75,000/- on the date of visit i.e. 28.5.2017 and requested to make the balance payment after some time. The initial payment of Rs. 75,000/- was paid towards one time non refundable vacation charges under the Vacations Agreement. The complainants failed to pay the full amount under the agreement and paid only partial payment of Rs. 75,000/- out of Rs. 1,32,000/-. It is submitted that sales representative of OPs explained the various membership plans, benefits and terms and conditions and as per their wish, requirement and pocked opted the current membership i.e. “Blue Season vacations membership”. It is denied that the complainants  were told that they would get the benefit of “red season” membership at a cost of Rs. 1,75,000/- if they buy the said membership the same day otherwise they would have to pay extra. On 29.5.2017, the complainants were issued a gift voucher. It is denied that complainants were told to tell a lie to the welcome call that they have bought the membership for Rs. 1,32,000/- and not Rs. 1,25,000/- it is also denied that the OPs told that they would pay the difference amount of Rs. 7,000/- on the behalf of complainants. The membership card kit was sent to the complainants on 15.6.2017 through blue dart courier. Thus, there is no deficiency in service on the part of OP No.1 and prayed for dismissal of complaint. 

3.       The complainants have tendered into the evidence by way of affidavits Annexure C-A to C-C alongwith documents Annexure C-1 to C-11 and closed the evidence.  On the other hand, OP NO.1 has tendered into evidence by way of affidavit Annexure R1/A along with documents Annexure R1/1 to R1/4 and closed the evidence.

4.           We have heard the complainants as well as counsel for the OP NO.1 and considered the written arguments filed by the OP No.1 and have also perused the record.

5.         It was argued on behalf of the complainants that the OPs No.2 to 4 having been proceeded ex-parte, the grievance of the complainant may be upheld as uncontroverted. Regarding OP No.1, it was argued that the averments made in the course of the written statement not having been cemented by an affidavit of the concerned employee who dealt with the matter/interacted with the complainants, the grievance of the complainants may be upheld being unchallenged.   

6.         The learned Counsel, appearing on behalf of OP No.1, argued that the present is not a case which can be categorised as a matter pertaining to deficiency of service because it is the complainants who only had not paid up the due amount and it is on account of default on their part in the relevant behalf that the impugned cancellation of membership had come about. On those very averments, the learned Counsel made a plea for estoppel.  

7.         Having given our consideration to the pleas argued, we are of the view that the complainants must succeed and we proceed to record the reasoning in support thereof hereunder.

8.         During the course of the complaint, the complainants have named an employee of OP No.1 with whom they interacted in the context of their grievance in toto. The contesting OP has not opted to file an affidavit of that named employee in rebuttal of the affidavit-supported averments made by the complainants in the complaint. It is to state the obvious that it is only an individual in the know of the facts and circumstances who can file an affidavit in respect thereof. If the entire occurrence is documented and record-based, the parties could canvass their pleas with the support of their respective affidavits. By the very nature of things, the averments and the rebuttal thereof is based upon verbal interaction in a such like case. Further, the rival parties have to necessarily file affidavits only in support of their respective pleas. Insofaras the complainants are concerned, they have filed an affidavit in support of the averments made in the course of the complaint. As against it, the affidavit filed on behalf of the contesting OP is not supported by the affidavit of the rightful employee with whom the complainants interacted verbally. It is that employee only who could have legitimately offered a denial of the averments made by the complainants. It is also not the plea on behalf of the contesting OP that the concerned employee (Supinder Singh Mander) is incapable of filing an affidavit, due to non-availability or having ceased to be in the employment of the contesting OP. The rebuttal of complainants evidence by way of affidavit of its legal officer cannot enable the contesting OP to validly deny the averments made by the complainant. 

9.         The contesting OP (and OPs No.2 to 4) had sold the averred membership to the complainants and had held out a promise to provide certain services to the latter. However, the OPs did not honour their commitment under the policy of membership. The OPs endeavoured to get the complainants non-suited by raising a plea which has been found to be specious and false. There can thus, be no escape from the proven inference that the OPs had defaulted in rendering the promised services to the complainants. The complaint is, thus, held to be maintainable and the complainants cannot be held to be estopped from filing the complaint.

It is a matter of common observation that individuals get taken in by an offer which is apparently attractive. However, if that individual wants to withdraw from the transaction, there is no reason why that opportunity should be denied to that individual, particularly when the retraction came about without any inordinate delay. This is what exactly is proved to have happened to the complainants who did initially opt for the averred membership but intimated retraction the moment doubts were raised in their mind about the genuineness or credibility of the scheme.

10.        It is further a matter of common observation that instrumentalities identical to the contesting OPs invite gullible people to opt for apparently attractive schemes and the documentation brought into being in the context provides a clause about the non-refundability of the amount paid by an individual who initially makes a payment towards that scheme and then, decides to withdraw when the information obtained creates reservations about the credibility of the offer made by the instrumentality aforementioned. Though the parties to a contract are inferred to be bound by the terms and conditions provided thereunder, the ‘clog’ of non-refundable character of the amount paid cannot be held to be valid. It might well be that in an identical eventuality, the concerned party might retain certain amount for purposes of reimbursement for the services rendered till the time the ‘beneficiary’, thereunder opts to move out of the scheme.                  

11.        In the light of foregoing discussion, we are of the view that the complainants were entitled to withdraw from the membership which they had acquired and the OPs could not have denied the plea made by the complainants to wriggle out of the contractual transaction.

12.        While, thus, allowing the complaint, we would order that:

(a)    The OPs (No.1 to 4 – OP No.5 having been given up as a party respondent) shall refund to the complainants whatever amount had been paid by the latter to the former towards the acquisition of membership of the Country Club. Out of the amount payable, OP No.1 may retain an amount of Rs.5000/-. The balance amount shall be payable by the OPs to the complainants;

(b)    The OPs (No.1 to 4 – OP No.5 having been given up as a party respondent) shall pay to the complainants an amount of Rs.25,000/- as the compensation for the mental harassment and agony caused to them in the matter;

c)     The OPs (No.1 to 4 – OP No.5 having been given up as a party respondent) shall pay an amount of Rs.11,000/- as the cost of litigation.

13.        The OPs shall comply with this order within a period of one month from the date its communication to them comes about.

14.        A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced

9.1.2018                    ANITA KAPOOR                               DHARAM PAL

                                         MEMBER                                PRESIDENT

Note: Each and every page of this order has been duly signed by me.

                                        ANITA KAPOOR

                                              MEMBER