Order dictated by:

Ms.Rachna Arora, Member 

 1.      Mrs. Sneh Puri has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986  on the allegations that  complainant has hired the Vacation Membership of opposite parties for a sum of Rs. 1,18,750/- for 30 years vide agreement dated 3.2.2015 and further paid an AMC charges amounting to Rs. 91,572/- towards AMC for the period upto 2045. In the month of February 2015 the representative of the opposite parties approached the complainant and allured the complainant that opposite party No.1 company is engaging in hospitality business operating clubs, fitness centres, hotels and resorts . On these allurements, complainant purchased the Vacation Membership and paid Rs. 1,18,750/- for said service. Thereafter the opposite parties again approached the complainant that she has won a Holiday Gift voucher and this is an accommodation gift, with the market value of over Rs. 25000/- which the complainant may enjoy by paying Rs. 4000/- for 6 nights in the Resorts of opposite parties at Goa. As such the complainant paid Rs. 4000/- to the opposite parties for the said vacations. Thereafter the complainant alongwith her husband Sh.Satish Chander Puri went to  Goa for the said vacations. On 2.2.2016 at around 22.30 hrs, complainant alongwith her husband namely  Satish Chander Puri went to Anjuna, Goa  and she checked in Country Club, Anjuna , Goa in Room No. 401. Further on the next day i.e. on 3.2.2016  they changed the room and checked in the same hotel in room No. 207 as the air conditioner of the said room No. 401 was not working. Thereafter on 4.2.2016 at 21.30 hrs complainant alongwith her husband went to have their dinner in the same hotel and after completing their dinner at 22.00 hrs, they went to their room. At around 23.00 hrs her husband has removed his outer short pant which was containing money worth Rs. 1,20,000/- in its both pockets and same kept on the chairs and gone to bed to have a sleep, whereas the complainant went to sleep at 1.00 hrs. At 5.00 hrs both wake up in the morning, had bath and there was some nuisance outside , so the husband of the complainant went out and saw the police , staff of the hotel and guest who were in the hotel were gathered at the reception as from them came to know that theft occurred in room No. 211 which was also occupied by the customer of opposite parties. Husband of the complainant went in his room and checked and he came to know that his cash of Rs. 1,20,000/- which was in his short pant was missing from the pant pockets. The complainant also saw that window of the room are sliding and not lockable. The culprits might have entered the room from the said windows or through a door which opens into a gallery adjoining the room. As such a theft of Rs. 1,20,000/- belonging to complainant was made. In this respect FIR No.16/2015 dated 5.2.2016 was lodged with P.S. Anjuna, North Goa by the complainant.  It is pertinent to mention over here that the restaurant bill in respect of goods consumed by the complainant and her husband in the said resort was waived off by the said resort  with an assurance of the opposite parties that since the said theft was made in their resorts, as such, they will make their best efforts to recover the said stolen amount or will pay the said stolen amount to the complainant.  Thereafter the complainant number of times approached the opposite parties and sent various e-mails to them to fulfill her loss which was occurred just due to lack of proper security in their resorts , but the opposite parties did not pay any heed to the genuine requests of the complainant.  Vide instant complaint complainant has sought for the following reliefs:-

(a)     Opposite parties be directed to refund  the membership fee of Rs. 1,18,750/- and AMC charges of Rs. 91,572/- upto period 2045 alongwith interest to the complainant ;

(b)     Opposite parties be also directed to make payment of the said theft amount of Rs. 1,20,000/- to the complainant ;

(c )     Compensation to the tune of Rs. 50,000/- alongwith litigation expenses to the tune of Rs. 10000/- may also be awarded to the complainant.

Hence, this complaint.

2.       Upon notice, opposite parties No.1 & 2 appeared and filed written version taking certain preliminary objections therein interalia that the oral allegation of theft in her room for Rs. 1,20,000/- was not supported by any evidentiary proof. Hence the police after enquiry upon the complaint of the complainant did not lodge any FIR and consequently no investigation upon the said false and frivolous complaint of the complainant was conducted by the police. Infact there was one FIR No. 16/2015 dated 5.2.23016 u/s 457, 380 IPC by another customer of the opposite parties i.e. Mr.Ashutosh Gupta against unknown person and complainant is cleverly trying to make mileage out of the said FIR by alleging that theft occurred in his room also whereas his alleged complaint has nothing to do with the present FIR; that many complex questions of facts are involved in the present case in which detailed evidences are required and the case cannot be adjudicated in summary manner, as many witnesses are needed to be examined including police officials, Investigation officer, statement of staff members of opposite party, any other guests  who have perceived by their incident . A mere oral bald  allegation of theft in the room of complainant is not sustainable in the eyes of law when there is not even any FIR and police challan in this respect ; that present complaint is not maintainable as the present complaint is not supported by evidentiary proof ; that the present complaint is not maintainable as complainant has availed the said vacation under holiday gift voucher by paying administration charges of Rs. 4000/- and not under the Membership Agreement, whereas there is no breach of any terms of the Agreement  and hence asking for refund of membership fee under the agreement is not maintainable. On merits it was submitted that complainant was never allured in any way or in any manner whatsoever. The complainant is not an illiterate but a well educated person, who entered into a formal agreement with her eyes open after going through and understanding the contents thereof  and signed the same with his/her free consent. The amount of Rs. 1,18,750/- paid by the complainant is a negotiated price for the purchase of membership of opposite parties.  The holiday gift voucher was issued as a goodwill gesture to the complainant, which is independent of taking membership of opposite parties. The purpose of Holiday Gift voucher is to give an experience to the customers, of the resorts/properties of opposite parties, upon payment of a nominal administration charges of upto Rs. 4000/- (which was otherwise market value of over Rs. 25000/-) for upto 6 nights and 7 days. Thus the complainant might not have taken the membership of opposite parties but could enjoy and experience the vacation one time on the gift voucher. It was denied that said Holiday voucher was for destination Goa only. The said gift voucher included any of the properties of opposite parties including International properties  also as mentioned in the gift voucher itself. It was admitted that complainant alongwith her husband went to Goa and on 2.2.2016 checked into Country Club, Anjuna Goa in room No. 401. It was denied that Air conditioner of the said room was not working . It was submitted that the same was working but the complainant complained that it was not giving strong cooling and upon her request, the room of the complainant was changed to room No. 207 the very next day. It was admitted that theft had occurred in other room No. 211 . It is pertinent to mention here that a bare perusal of the FIR No. 16/2015  dated 5.2.2016 shows the complainant name as Mr. Ashutosh Gupta S/o Sh.R.K.Gupta, R/o A 7/25, Shakti Nagar Extension, Delhi and the said FIR has been lodged against unknown person.  It was submitted that criminal proceedings  were accordingly carried out and no officer or staff member of opposite parties has been found involved in any way or in any manner  directly or indirectly whatsoever in the said crime. It was submitted that the said FIR is in respect to theft in Room No. 211 occupied by other customer of the opposite parties i.e. Mr.Ashutosh Gupta and not in respect of complainant having room No. 401. It is pertinent to mention here that the investigating officer of the police raised suspicion equally against the complainant and her husband also, who changed their room that night and falsely alleged that their money Rs. 1,20,000/- were also stolen, whereas other complainant in FIR Mr.Ashutosh alleged that his Rs. 1,10,000/- had been stolen. When the police asked the complainant and her husband to prove that they were having Rs. 1,20,000/- in cash , they were unable to justify  and accordingly, no FIR was lodged on their false allegation , which they did not protest. The allegation of the complainant is itself based on conjectures and surmises as it has been alleged that the culprits might have entered her room from the window or door. While denying and controverting other allegations, prayer for dismissal of complaint was made.

3.       In his bid to prove the case Sh. R.K.Mahajan,Adv.counsel for the complainant tendered into evidence  duly sworn affidavit of the complainant Ex.C-1, copy of purchase agreement Ex.C-2, copy of terms and conditions Ex.C-3, copy of invoice Ex.C-4, copy of invoice dated 5.1.2016 Ex.C-5, copy of invoice dated 18.2.2016 Ex.C-6, copy of holiday gift voucher Ex.C-7, copy of certificate regarding stay Ex.C-8, copy of bill Ex.C-9, copy of bill Ex.C-10, copy of FIR Ex.C-11, copy of statement Ex.C-12, copy of application Ex.C-13, copy of e-mails Ex.C-14 to Ex.C-17 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.Ashok Kalia,Adv.counsel for the opposite parties tendered into evidence affidavit of Sh.Bharat Reddy, Legal Officer Ex.OP1,2/1 and closed the evidence on behalf of opposite parties No.1 & 2.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis submitted on behalf of the opposite parties.

6.       Ld.counsel for the complainant has reiterated the facts as narrated in the complaint and has vehemently contended that on the allurements of the opposite parties, complainant purchased the Vacation Membership and paid Rs. 1,18,750/- for said service and also enjoyed Gift voucher by paying Rs. 4000/- for 6 nights in the Resorts of opposite parties at Goa. Thereafter on 2.2.2016 ,the complainant alongwith her husband Sh.Satish Chander Puri went to  Goa and checked in Country Club, Anjuna , Goa in Room No. 401. Further on the next day i.e. on 3.2.2016  they changed the room and checked in the same hotel in room No. 207 as the air conditioner of the said room No. 401 was not working. It has been contended on behalf of the complainant that on 4.2.2016 theft took place in the resorts in room No. 211 which was also occupied by the customer of opposite parties and husband of the complainant came to know that his cash of Rs. 1,20,000/- which was in his short pant was missing from the pant pockets. In this respect FIR No.16/2015 dated 5.2.2016 was lodged with P.S. Anjuna, North Goa by the complainant.  It is pertinent to mention over here that the restaurant bill in respect of goods consumed by the complainant and her husband in the said resort was waived off by the said resort  with an assurance of the opposite parties that since the said theft was made in their resorts, as such, they will make their best efforts to recover the said stolen amount or will pay the said stolen amount to the complainant.  Thereafter the complainant number of times approached the opposite parties and sent various e-mails to them to fulfill her loss which was occurred just due to lack of proper security in their resorts , but to no avail. Ld.counsel for the complainant submitted that all this amounts to deficiency in service on the part of the opposite parties.

7.       On the other hand ld.counsel for the opposite parties repelled the aforesaid contention of the ld. Counsel for the complainant on the ground that complainant was never allured in any way or in any manner whatsoever. Rather the complainant has  entered into a formal agreement after going through and understanding the contents thereof  and signed the same with her free consent. The amount of Rs. 1,18,750/- paid by the complainant is a negotiated price for the purchase of membership of opposite parties.  The holiday gift voucher was issued as a goodwill gesture to the complainant, which is independent of taking membership of opposite parties. The purpose of Holiday Gift voucher is to give an experience to the customers, of the resorts/properties of opposite parties, upon payment of a nominal administration charges of upto Rs. 4000/- for upto 6 nights and 7 days. It was admitted that complainant alongwith her husband went to Goa and on 2.2.2016 checked into Country Club, Anjuna Goa in room No. 401 and then she changed to room No. 207 the very next day. It was admitted that theft had occurred in other room No. 211 and FIR No. 16/2015  dated 5.2.2016 shows the complainant name as Mr. Ashutosh Gupta S/o Sh.R.K.Gupta, R/o A 7/25, Shakti Nagar Extension, Delhi and the said FIR has been lodged against unknown person.  It was submitted that the said FIR is in respect to theft in Room No. 211 occupied by other customer of the opposite parties i.e. Mr.Ashutosh Gupta and not in respect of complainant having room No. 401. It is pertinent to mention here that the investigating officer of the police raised suspicion equally against the complainant and her husband also, who changed their room that night and falsely alleged that their money Rs. 1,20,000/- were also stolen, whereas other complainant in FIR Mr.Ashutosh alleged that his Rs. 1,10,000/- had been stolen.  It was submitted that when the police asked the complainant and her husband to prove that they were having Rs. 1,20,000/- in cash , they were unable to justify  and accordingly, no FIR was lodged on their false allegation , which they did not protest. It has further been submitted that the complainant has never declared any information to the resort staff that he/she was carrying any valuables or articles during the stay at Goa. Ld.counsel for the opposite parties submitted that the opposite parties are acting as per terms of the legally binding contract, there being no unfair trade practice or deficiency in service, the present complaint deserves dismissal.

8.       But, however, from the appreciation of the facts and circumstances of the case, it was the admitted case of the opposite party that complainant entered into an agreement with the opposite parties on 3.2.2015 after signing the purchase agreement   and paid Rs. 1,18,750/-, copy of agreement accounts for Ex.C-2 on record. It was also admitted case of the opposite parties that complainant has paid an AMC charges amounting to Rs. 91,572/- towards AMC for the period upto 2045, copies of payment receipts are Ex.C-4 , Ex.C-5 and Ex.C-6. The complainant also obtained holiday gift voucher on payment of Rs. 4000/- to the opposite party  for 6 nights in the resorts of opposite parties at Goa. It was not the case of the complainant that opposite parties have not provided any service after obtaining a hefty amount of Rs. 1,18,750/-, Rs. 91,572/- as well as gift voucher of Rs. 4000/-. The only case of the complainant is that she alongwith her husband went to Goa  and checked in Country Club, Anjuna, Goa  on  2.2.2016 where on 4.2.2016 a theft took place in the resorts of the opposite parties in which cash amount to the tune of Rs. 1,20,000/- was missing and in this regard FIR No. 16/2015 dated 5.12.2016 was lodged with P.S. Anjuna, North Goa.  A bare perusal of the FIR No. 16/2015 shows that the same has been lodged  by one Ashutosh Gupta occupier of Room No. 211 and not by the complainant. Oral submission of the complainant that in the said theft which took place in the resorts of the opposite parties, a cash to the tune of Rs. 1,20,000/- was missing has no value in the eyes of law. Reliance in this connection has been placed upon Sanjib Kumar Dev Vs. Chabbi Dev 2015(4) CPR 584 wherein it has been held that “ it is difficult to fathom without written proof how reliance can be placed on the oral submission of complainant. The documentary evidence will always get preponderance over the oral evidence because it is well known axiom of law that men may tell lies but the documents cannot” . Moreover the theft, if any has taken place in Goa and no cause of action has accrued to the complainant at Amritsar, so the jurisdiction lies at Goa and not at Amritsar. Question of jurisdiction has been settled by Hon'ble Supreme Court in Sonic Surgical Vs. National Insurance Company Ltd. IV(2009) CPJ 40 (SC) wherein it was held that Consumer Protection Act, 1986-Section 17-Jurisdiction-Territorial-Fire broke out in godown at Ambala-Insurance policy taken at Ambala-Compensation claim made at Ambala-Contention regarding applicability of Amendment Act,2003 not acceptable-'branch office' in amended section means, branch office where cause of action arose-No part of cause of action arose in Chandigarh-Consumer Commission, Chandigarh had no jurisdiction to adjudicate.”

9.       So in view of the above discussion, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 15.9.2017