ORDER
No.10.
Date-15/06/2018.
SHRI RABIDEB MUKHOPADHYAY, Member
The Complainants Sri Sushanta Dutta and Smt. Dipti Dutta took a decision for taking membership of such an organization who are able to give their accommodation in their destination with moderate rate and conveyance. Complainants accordingly contacted the Manager Country Vacations, at 86B/2, 4th floor, Gajraj Chamber, Park Circus Connector, Topsia Road, Kolkata – 700 046. Complainants were persuaded with the terms and conditions to be a member of the Country Vacations and executed the forms of membership on 07.07.2017 and paid Rs.31, 000/- only through SBI Credit Card and were subsequently enrolled as a member vide membership No.CVKK37V54B239211.
As per agreement dated 07.07.2017 clause 25 there is a cool off period of 10 days from the date of signing of the membership agreement wherein member can discontinue the membership by paying a nominal administration charges Rs.3, 800/- only to the Company. After deducting the aforesaid amount (Rs.3, 800/-) remaining amount would be refunded to the member.
The Complainant based on the aforesaid clause, Complainant through e-mail dated 08.07.2017 sent a letter to the head of the Department, Country Club, Central Customer Care, 4th floor, Asian Building, Begumpet, Hyderabad- 500 0016 stating the reason for not to continue his membership further and also refund the membership amount Rs.31,000/- deducting the administrative charges of Rs.3,800/- only. As per provision of clause 25 of the agreement preferred the applicant to the concerned authority on 08.07.2017 which is also within the cool off period, the OP did not give any response to the said request of the Complainant even after acknowledging the same on 12.07.2017. Complainant also talked over telephone almost every day after 17.07.2017 but the OP remained mum.
In response to letter acknowledged on 12.07.2017, OP sent a letter dated16.07.2017 OP did not mention anything regarding refund money of membership rather requested the Complainant to pay balance amount of membership, as early as possible. It is also stated in the said letter that Complainants are not entitled to get the membership amount of Rs.31, 000/- since it is clearly mentioned in the clause 25 of the agreement of purchase of the membership provided the application for discontinue the membership within cool off period of 10 days from the date of signing of this agreement of purchase of membership.
Complainant complied all terms and conditions of the agreement and also preferred application for refund of the money as per provision of the said agreement but in spite of having knowledge about the application of the Complainants, the OP sat over the application, harassing the Complainants and created mental pressure upon the Complainants by sending the letter dated 16.07.2017, stating to pay the balance amount, for which Complainants suffered mental agony. Complainants being harassed by the OP day by day sent an Advocate notice to the OP on 28.11.2017 and the same has been duly acknowledged by the OP but with no response. Complainantsalso incurred huge monetary loss.
In view of the above unlawful acts of the OP, the Complainants prays before this Forum to direct the OPs to refund an amount of Rs.31, 000/ along with interest, compensation of Rs.15, 0000/- and other reliefs.
Points for Decision
- Whether the complainant is a consumer under the OP,
- Whether the OP is deficient in rendering proper service to the complainant,
- Whether the complainant deserves relief.
Decision with Reasons
We have perused the documents filed by the complainants including copy of Membership Purchase Agreement dated 07/07/2018, letter dated 08/07/2018 sent to OP through mail for refund, OPs return mail dated 16/07/2017 to complainant etc.
It appears from records that the summons were delivered on 13/02/2018 and 16/02/2018 upon the OPs but the OPs failed to respond to the complaint by way of filing WV and by not assisting the Forum to find the truth.
By settled principle of law, if any party (here OPs) inspite of having the opportunity to file written version, does not do so, that party happens to be the defaulting party and the favourable consequence goes to the other party (here the complainants).Evidence of the complainants also remained unchallenged.
So, the OPs are deficient from the very absence.
The case is very simple. The complainants (Membership no. CVKK37V54B239211) agreed to purchase Membership for Rs.80000/- and advanced Rs.31000/- on 07/07/2017.They had a second thought about the capability of paying the balance money and sent mail on 08/07/2017 for refund of the advanced amount in terms of clause 25 of the Terms & Conditions stipulating the cool off period of 10 days from the date of signs the agreement after deductions of administration charges of Rs.3800/-
So, what the complainants did is very much within the agreed terms. But the OPs did not obey their own clause. Hence they are deficient in rendering their promised service.
OP in their letter dated 16/07/2017 to complainant no. 1 admitted receiving of Rs.31000/- .There was no mention of the material point of
Clause 25 of the Vacation Agreement, thereby passing their duties to the complainants.Rather, they asked the complainants to deposit the balance money.
OPs failed to respond to the letter dated 28/11/2017 sent by ArindamPeyada, Advocate on behalf of the complainant for refund of the advanced money of Rs.31000/- within 15 days failing which legal action would be taken. This is also deficiency on the part of OPs.
The complainants paid money (consideration) in anticipation of promised services from the OPs. So, the complainants are consumers in terms of section 2 (1) (d) (ii) of the C.P Act, 1986.
OPs failed to keep their promises in terms of Clause 25 of the Vacation Agreement dated 07/07/2017.So, they are deficient in rendering service to the complainants in terms of Section 2(1) (g) read with section 2(1) (o) of the Act.
As the complainants suffered physical harassment, mental agony and financial loss for the conduct of OPs, complainants deserve some relief.
In the circumstances of above discussions, we are constrained to pass
ORDER
That the complaint be and the same is allowed exparte against the OPs in terms of section 13 (2) (b) (ii) of the C.P Act, 1986;
That the OPs are jointly and severally directed to refund Rs.27200/- (Deposited Rs.31000/- minus administration charges Rs.3800/-) with 8 percent interest from 08/07/2017 till actual payment, Rs.5000/- as compensation for physical harassment and mental agony and Rs.5000/- as litigation cost to the complainants, within 30 days from the date of this order;
That on non-compliance of above orders by the OPs within stipulated time, the complainants shall have the liberty to put the orders into execution in terms of section 27 of the Act ibid.
Let copy of the order be handed over to the parties when asked for.
