Chandigarh

StateCommission

A/34/2015

Harsharn Singh Bajwa - Complainant(s)

Versus

Country Club India Ltd. - Opp.Party(s)

Shubhjot Singh Chadha,Adv

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

                                                       

First Appeal No.      :    34 of 2015 

Date of Institution    :    11.02.2015

Date of Decision       :    01.04.2015

 

Harsharn Singh Bajwa son of Iqbal Singh Bajwa, Age 43 years, resident of H.No.402, Sector 37-A, Chandigarh.

……Appellant/Complainant.

 

Versus

 

1.       Country Club India Ltd., Aqua Marine, Hotel Aroma, Sector 22-C, Chandigarh 160022 through its Branch Manager/General Manager.

Second Address:

SCO 44-45, 2nd Floor, above Punjab National Bank, Madhya Marg, Sector 9-D, Chandigarh -160009.

2.       Country Club India Ltd., 4th and 5th Floor, # 6-3-1219/A, Begumpet, Hyderabad - 500016, Andhra Pradesh, India through its Managing Director.

               ....Respondents/Opposite Parties.

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

                               

Argued by:Sh. Shubhjot Singh Chadha, Advocate for the appellant.

                 Sh. Pradeep Sharma, Advocate for the respondents.

 

PER DEV RAJ, MEMBER.

                This appeal is directed against the order dated 05.01.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it allowed the complaint of the complainant (now appellant) and directed the Opposite Parties (now respondents) as under:-

10.         This complaint is thus allowed with a direction to the Opposite Parties to accommodate the complainant on priority basis in the immediate coming summer season against the gift voucher issued to him as per his entitlement as per the dates suitable to him. However, the request from the complainant for his preferred location and dates must reach the Opposite Parties before 28th February, 2015.

11.         We further hold that as the complainant has not had the facility to enjoy the holiday package deal for two out of 10 years due to the circumstances, we direct the Opposite Parties to give him the benefit of package of 10 years for an additional two years i.e. from January, 2014 onwards. The complainant must opt for his preference for accommodation in his preferred destination timely to the Opposite Parties as per the requirements of the Opposite Parties in their brochure for each holiday to be availed by him annually. 

12.         As the complainant has to approach this Forum for redressal of his grievance, we direct the Opposite Parties to pay a sum of Rs.10,000/- as costs of litigation.”

 

2.             The facts, in brief, are that the complainant was approached by the officials of Opposite Party No.1 telephonically to take the membership of Country Club India Ltd. It was stated that, accordingly, the complainant visited the local office of Opposite Party No.1 at Aqua Marine, Hotel Aroma, Sector 22-C, Chandigarh on 11.02.2012.  It was further stated that the complainant became a member of Opposite Party No.1 by depositing a sum of Rs.80,000/-, to avail of the facility of gift voucher, as well as discounted package price, on the membership. It was further stated that the complainant was informed that the discount was available for that day only i.e. 13.02.2012. It was further stated that as per the offer of membership, the complainant was entitled to holiday in India, as well as abroad, for 6 nights 7 days in a year, for the two adults, and two children below the age of 18 years, for next 10 years. It was further stated that the gift voucher was valid for one year, with the promise of an additional vacation at Country Club properties and other tie up properties in India and three International destinations in Asia, over and above the entitled annual holidays (Annexure C-2).  It was further stated that as the vacation card issued by the Opposite Parties, did not carry his correct name, the complainant requested them (Opposite Parties) for correction in the membership card, which they (Opposite Parties) made after much delay vide letter dated 11.01.2014 (Annexure C-6).

3.             It was further stated that after becoming a member of the Opposite Parties, the complainant tried for reservation at the registered website of Country Club but Opposite Party No.2, failed to give any positive response, for accommodation at Manali (H.P.) to avail of the gift voucher.  It was further stated that each time, the complainant contacted the Customer Care Service numbers of Opposite Party No.2, but his request was not entertained. It was further stated that the complainant requested for accommodation in June or July, 2012, but the Opposite Parties categorically stated that the accommodation was not possible, on the required dates. It was further stated that resultantly, the complainant could not enjoy his vacations.  It was further stated that, in the meantime, the annual maintenance charges of Rs.8,278/- were demanded by the Opposite Parties, against the earlier agreed charges of Rs.6,500/- annually (Annexure C-8).  It was further stated that as the complainant was dissatisfied with the services of the Opposite Parties, he approached Opposite Party No.1, on numerous occasions, seeking refund of membership fee, as the very purpose of purchasing the membership had failed but his request was not acceded to. It was further stated that, ultimately, the complainant got served a legal notice dated 28.01.2014 (Annexure C-11) upon the Opposite Parties as his grievance was not redressed, but to no avail.

4.             It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only),  directing the Opposite Parties, to refund the amount of Rs.80,000/- alongwith interest @12% per annum, from the date of receipt till realization; pay Rs.80,000/- as compensation for physical harassment & mental agony; and  Rs.20,000/- as cost of litigation, was filed.

5.             The Opposite Parties, in their written statement, took up a preliminary objection to the effect that the complaint was time barred, as the contract was entered into between the parties on 13.02.2012, while the complaint was filed on 16.05.2014 (in-fact 19.05.2014). On merits, it was stated that the Membership Purchase Agreement was signed by both the parties, with free consent, and the rights and liabilities of the parties were governed by the terms and conditions of the same (Annexure R-2). It was further stated that as per the express clause of the Agreement, the membership fee was not refundable, as it was not a deposit.  It was admitted that the complainant was eligible for availing of 6 nights and 7 days vacations, every year, for 10 years, in white season against the membership fee of Rs.80,000/-. It was further stated that, however, the basis for claiming the cancellation of membership and refund of fee, was that he (complainant) was not provided holiday accommodation at Manali, as promised in his gift voucher, and spelling error in the Membership Card. It was further stated that the alleged errors in  the  membership  card  had  already  been  set  right and the accommodation at Manali could not be provided, as it was full.

6.             It was further stated that as per guideline No.7 of the gift voucher, the accommodation was subject to availability and the management reserved the right to offer alternative accommodation, from the one stipulated in the confirmation letter. It was further stated that as per the Membership Purchase Agreement, Annexure R-2, the holiday booking process was online on first come first served basis and  was open for booking as specified in Clause 3, which stipulated that “Holiday booking is to be done online (Visit www.countryclubindia.com). Click on member login and select your location from drop down menu. Login with the username and password, which will be sent alongwith the welcome letter and the procedure for booking online, to book your holidays.”

7.             It was further stated that the dates on which the complainant requested for booking were fully booked at that time. It was further stated that checking of online availability status was very transparent and could be checked by every member online. It was further stated that, hence, the complainant could not be provided accommodation at Manali (H.P.) as per his request against the gift voucher.  It was further stated that the complainant was not willing to adjust and accept any other date, while the dates requested by him, were not vacant. It was further stated that, subsequently, the complainant sought refund of non-refundable money by making false and baseless accusations. It was further stated that neither there was any deficiency, in rendering service on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, contained in the complaint, were denied being wrong.

8.             The parties led evidence, in support of their case.

9.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order. 

 

 

10.           Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

11.           The respondents/Opposite Parties, on notice of the appeal, were served and put in appearance on 18.03.2015.

12.           We have heard the Counsel for the parties and have gone through the evidence and record of the case.

13.           Counsel for the appellant/complainant submitted that the appellant/complainant became member of Country Club India Ltd. and paid a sum of Rs.80,000/-. He further submitted that the District Forum did not grant the relief claimed. He further submitted that as per Holiday Gift Voucher (Annexure C-2), the appellant/complainant was offered accommodation gift for off peak (February-September) at a nominal administration fee of Rs.4,000/-. He further submitted that the appellant/complainant opted for Manali but the respondents/Opposite Parties never responded to his communications and, ultimately, when the appellant/complainant sent a strong worded email (Annexure C-7), he got response from the respondents/Opposite Parties, stating that they (respondents/Opposite Parties) did not have own property at destination Manali and during  the month of June, they were running full at Manali and requested the appellant/complainant to provide any other dates to confirm the stay. He further submitted that, accordingly, the appellant/complainant wrote to the respondents/Opposite Parties, for booking against gift voucher at Manali (H.P.) for 6 Nights 7 Days for two adults and 2 kids below 8 years in the month of July, 2012. He further submitted that acts of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practices.

14.           The Counsel for the respondents/Opposite Parties submitted that as per Holiday Gift Voucher (Annexure C-2), the appellant/complainant did not pay Rs.4,000/-, being the nominal administration fee. He further submitted that, as per Clause 7 of the said Holiday Gift Voucher, the accommodation could be provided subject to availability. He further submitted that there was no deficiency, on the part of the respondents/Opposite Parties and the District Forum was right in granting the limited relief.

15.           It is evident that the Opposite Parties offered Holiday Gift Voucher dated 13.02.2012 (Annexure C-2) to the complainant. The relevant clauses of the same are extracted hereunder:-

“This is an accommodation Gift, with the market value of over Rs.25,000/- which you may enjoy by paying a nominal administration fee of Rs.4,000/-.

In order to avail this offer, we ask you to follow the guidelines set below:

Club does not permit bachelors. This booking is for a couple and young kids to experience Country Vacations.

1. The accommodation is in respect of a studio unit, which accommodates two adults and two kids below 9 years (same bed) occupancy cannot be exceeded. Food and travel expenses to be borne by the recipient. It will expire on 13^th of February 2013.

2. The voucher allows you to experience The Country Club, Country Vacation properties and other tie up properties. This offer is for off peak (Feb-Sept.) accommodation which is defined by each resort.

3 to 6 xxxxx

7. All accommodations are subject to availability. This Voucher is to be produced to confirm the accommodation and guests are expected to produce the confirmation voucher and a photo identification issued by Govt./State while checking into the resorts. The Management reserves the right to offer alternative accommodation from the one stipulated on the confirmation letter.”

16.           Welcome letter dated 10.03.2012 (Annexure C-3), acknowledging therein receipt of Rs.80,000/-, from the complainant, and intimating therein that the membership for ten years vacation (white) at annual administrative charges of Rs.6,500/- per year irrespective of usage, was accepted on the terms and conditions in the contract Agreement. Clauses 1 and 3 of Membership Benefits (Annexure I) of Annexure R-2, are extracted hereunder:-

“1. The membership entitles holiday package [room only] of (A) 2 Nights 3 Days or (B) 6 nights 7 Days (or two spells of two nights and three days each) per year at CCIL properties in India and Sri Lanka. Vacation entitlement also covers CCIL’S leased property in Bangkok till December 2012. Holiday booking process is online on first come first served basis and is open for booking as specified in item 3 below. Online booking will be confirmed subject to availability.

2. xxxxx

3. Holiday booking is to be done online (Visit www.CountryClubIndia.com, click on Member login and select your location from the drop down menu. Login with the username and password, which will be sent alongwith the welcome letter and the procedure for booking online, to book your holidays).”

17.           No doubt, the membership was governed by the terms and conditions of the Membership Purchase Agreement vis-à-vis membership benefits as indicated in Annexue – I. As is evident from Annexure R-2, Agreement of Membership Purchase was made on 27.02.2012. It, therefore, emerges that before entering into the Agreement for Membership Purchase, the Opposite Parties offered Holiday Gift Voucher (Annexure C-2) to the complainant. Holiday Gift Voucher was to expire in February 2013, but as is evident from Para 2, offer was for off peak (February – September), which meant that effectively, offer could be availed of during the period of eight months. Undoubtedly, this Holiday Gift Voucher (Annexure C-2) was prior to execution of the Agreement and the promises made in the Holiday Gift Voucher were in addition to the terms and conditions of the Purchase Agreement. When the complainant in continuation of his earlier two emails, vide email dated 23.5.2012, sought details of available dates in the month of June for availing of Holiday Gift Voucher at Manali for 6 Nights 7 Days for 2 Adults and 2 Kids, below the age of 8 years, he was informed “Not possible to provide the accommodation through voucher at Manali.  You can avail the voucher of any of the country club own property, Kindly check n provide the membership details to confirm the stay.” Thereafter vide email dated 1.6.2012, the Opposite Parties informed the complainant that in the month of June, they were running full at Manali and requested to provide any other date to confirm the stay. The complainant again vide email dated 1.6.2012 requested for accommodation for 6 Nights 7 Days for 2 Adults and 2 Kids below 8 years in the month of July, 2012. The Opposite Parties failed to fulfill their commitment, and did not honor the Holiday Gift Voucher (Annexure C-2) as they failed to provide the accommodation. It is also evident that the Opposite Parties had waived the amount of Rs.13,780/- for the year 2012-13 (Annexure C-8), therefore, the benefit could not be denied due to non-payment of AMC. In the emails exchanged between the complainant and the Opposite Parties, the benefit was not denied, on account of non-payment of fee of Rs.4,000/- and, therefore, the plea that the complainant did not pay Rs.4,000/- is an afterthought. Had the Opposite Parties provided the benefit as promised and the complainant had not paid Rs.4,000/-, the position would have been different. Offering of Holiday Gift Voucher (Annexure C-2) prior to entering into the Purchase Agreement was apparently an inducement and when the complainant believing that the same would be honored, chose to purchase the membership, by not fulfilling the promises, as made in the Holiday Gift Voucher (Annexure C-2), the Opposite Parties were deficient, in rendering service, and indulged into unfair trade practices.

18.           The District Forum did err in not appreciating the facts of the case correctly and granted relief to the complainant, which he did not pray for. The complainant, in our considered opinion, is entitled to the refund of Rs.80,000/-, which he paid to the Opposite Parties, alongwith interest @9% per annum, which would cater for compensation on account of harassment and mental agony, suffered by him because of deficiency, in rendering service, on the part of the Opposite Parties. Thus, the order of the District Forum needs modification, to the extent indicated above.

19.           No other point was urged by the Counsel for the parties.

20.           In view of the aforesaid discussion, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified and the respondents/Opposite Parties are jointly and severally held liable and directed as under :-

1. To refund an amount of Rs.80,000/- to the appellant/complainant, alongwith interest @9% per annum, from the date of filing the complaint, within a period of 30 days, from the receipt of a certified copy of the order.
2. To pay Rs.10,000/- to the appellant/complainant as awarded by the District Forum towards costs of litigation.
3. If the order is not complied with, within the stipulated period, from the date of receipt of a certified copy thereof, the amount mentioned in Clause (i) above, shall be payable by the respondents/Opposite Parties alongwith interest @10% per annum, from the date of default, till actual payment, besides payment of cost of litigation.
4. All other directions given, and reliefs granted by the District Forum, in the impugned order, subject to the modification, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.

21.           Certified copies of this order, be sent to the parties, free of charge.

22.           The file be consigned to the Record Room, after due completion.

Pronounced.

1^st April, 2015.

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

      MEMBER

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