(Delivered on 24/08/2017)

Per Smt. Jayshree Yengal, Hon’ble Member.

1.      The original complainants  Shri R. Gopi Krishnan S/o  N. Rajarethanam and  Smt.  S.  Jaya D/o. C.  Rajagopalan have  preferred this appeal feeling  aggrieved by  the  order  dated 29/11/2013 passed by the District Consumer Forum, Nagpur dismissing  the consumer complaint  bearing No. 79/2012.

          Both the parties  in this appeal  are  referred to  in their  original  status as  complainants and  opposite parties, for the sake of convenience.

2.      Facts  in brief as set out by the complainants  in the consumer complaint are  as follows:

a.      Complainant No. 1 - Shri. R. Gopi Krishnan and complainant No. 2 -Smt. S. Jaya are residents of Nagpur  and  opposite party Nos. 1 to 3(for short O.P.) are engaged in  operating  vacations  under the name and style as “ Country Vacations  International Holiday Club”.  The  said club owns resorts  at various  holiday destinations. It is the contention of the complainants that the representative of the O.Ps. approached the complainants and persuaded  them  to  purchase membership of  Country Vacations  International Holiday Club for Rs. 1,50,000/-. The O.Ps. offered  tour package  with  facilities of travel and free accommodation  at the  vacation destination for  the complainants and two children for period of one week, two weeks, 10 to 45 days  etc.  for a period of 10 consecutive  years from the date of membership. 

b.      It is the contention of the complainants that they paid Rs. 50,000/- on 19/02/2011 by credit card and  Rs. 1,00,000/- on  22/02/2011 by cheque. The O.Ps.  issued receipt  for Rs. 50,000/- and executed  a  purchase agreement  on 22/02/2011 with  the complainants.  The O.Ps. received the amount of Rs. 1,50,000/-  towards  the  charges  of membership. But it failed  to issue the membership card to the complainants.

c.       It is further contended by the complainants that the O.Ps.  had canvassed  for  the  club membership by promising  free travelling  expenses and accommodation  for the vacation/holiday.  The complainants believing on the said promise planned  a holiday vacation with the children.  The O.Ps. informed the  complainants that they would not bear  the  travelling expenses  and  offered  only  free accommodation.

d.      It is further  contended by the complainants that the O.Ps. did not issue the membership card for 8 months even after  accepting the fee towards the  membership.  The O.Ps.  instigated  the  complainants to  purchase the membership  of their club by  giving  false  promise  and representation. The O.Ps. offered  free  vacations  and  submitted that  the members would be required to  bear  only  the expense towards food  etc. However, they demanded Rs. 6,000/- annually towards administration charges and Rs. 4,000/- for booking accommodation. Thus, the O.Ps.  adopted unfair trade practice and  demanded  money  on  one pretext or  the other.  The complainants being  taken aback  by  such  unfair trade practice adopted by the O.Ps, opted for  refund of  the  membership fees  of Rs. 1,50,000/-. Therefore, the complainants issued legal notice on 14/10/2011 and called upon the O.Ps. to refund the membership fees of Rs. 1,50,000/- with interest at the rate of 24% p.a.  and amount of equal value as compensation for physical, mental  and emotional harassment.  The O.Ps. though  received the legal notice refused the claim of the complainants by  reply dated 20/10/2011

e.      The complainants alleging unfair trade practice filed a consumer complaint and sought for refund of the membership fee of Rs. 1,50,000/- with  interest  of 24% p.a.  from  the date of  payment i.e. 19/02/2011 till realization  and Rs.1,50,000/- as compensation  for mental, physical and financial loss and Rs.20,000/- towards cost of proceedings.

3.      The O.Ps.  resisted the complaint by filing their written version  and  denied  all the adverse allegations  of the complaint.  The O.Ps. although  have  not disputed  the  amount of Rs. 150000/- accepted by it towards membership fees. The O.Ps. specifically submitted that they had  sent the membership card bearing No. 38924324 by courier service to the complainant  on 24/10/2011.  The O.Ps. have further specifically submitted  that the amount received towards  membership fees is not  refundable. The said condition is specifically mentioned in the Purchase Agreement for Country Vacations International Holiday Club Membership executed between both the parties.  As both the parties have signed the said agreement, they are bound by the terms and conditions of the said agreement and therefore, the O.Ps. are not liable  to refund  the membership fees as  it being  not  a deposit  but is purely  a fee  towards membership. The O.Ps.  therefore denied to have adopted  any unfair trade practice  and  sought for dismissal of the complaint  as frivolous .

4.      The Forum after hearing both the sides and considering  evidence adduced by both the parties dismissed the complaint as aforesaid.

          The Forum has specifically held that the original  O.Ps./respondents herein have not adopted any unfair trade practice  and accepted their contentions that  the  membership fee  being non-refundable, the respondents are not liable to refund the same  and  holding accordingly dismissed the complaint.

5.      Feeling aggrieved by the dismissal of the complaint, the original complainants have preferred this appeal.

6.      The appellants/original complainants have challenged the impugned order mainly on the ground that the  respondents  have  not provided the membership card even after  lapse of eight months  since the acceptance of the membership fee and that has deprived the  appellants from availing  holiday trips  and thus the respondents have adopted unfair trade practice.

7.      We heard counsel for the appellants. None for the respondents remained  present. We perused the written notes of argument filed by both the parties. We also perused copies  of the complaint, written version and documents filed on record by both the parties.

8.      The  only issue that survives for our consideration  is whether the respondents  rendered deficient  service  to the appellant by not  providing  membership  card or its number  for 8 months  & if  yes whether  complainant  is entitled  to refund  of Rs. 1,50,000/-.

9.      The copy of the Purchase Agreement For Country Vacations International Holiday Club Membership was executed on 20/02/2011 between both the parties.  The said purchase agreement  mentions that the membership is non-refundable.  On plain reading of this agreement it can  be inferred  that the membership fee  is not refundable and both the parties are bound by   the said condition. The respondents in the written version filed before the Forum has specifically submitted that the membership card is immediately  given to the  members and even  if  it is not  immediately  supplied  then also  the member is not  put to  any  inconvenience or  discomfort because  the complainant  is given  the membership number  which  they  can  utilize to avail the benefits under the Club Membership.  The copies  of  the  holiday  gift voucher, purchase agreement executed between both the parties , the receipt  issued by the respondent to the appellant  towards acceptance of membership fee are  on record. None of these documents reflect any membership number on it, much less the number mentioned by the respondents in the written version filed  by them before the Forum.  Therefore,  aforesaid  contention of the respondents  cannot be accepted  as  they have  not  proved that  the appellants were already  supplied with  the membership number which  they could  have used to avail  any  vacation.

10.    It is also not disputed that  the respondents  have supplied the membership card only on 24/10/2011 i.e.  after lapse of eight months from  acceptance of the membership fee. The  inference that can be drawn  from  such set  of undisputed  facts is that  the complainants were   deprived  from  enjoying  two vacations  i.e.  of  summer and  Diwali for want of  membership  card or its number. Under such circumstances the respondents  failing in their  duty  to  provide the membership card  disentitles   them  to  retain the membership fee under the pretext that  it is  non refundable and  it constitutes  deficiency  in service on the part of  respondents.  

11.    It is also  not the case of the respondents that  the complainants have  ever enjoyed  the  benefits  under the  membership which  they had  purchased.

12.    For the forgoing reason we are of  the reasoned view that  the complainants are entitled to  the refund of the membership fee. However, we restrain ourselves  from  allowing interest over the said  refund  as   admittedly the complainants have received  a laptop from the respondents  at the time of taking the  membership.  The appeal  therefore deserves to be partly allowed.

          In the result we pass the following order.

ORDER

i.        The appeal is partly allowed.

ii.       The respondents jointly and severally to pay the original complainants/appellants Rs. 1,50,000/- accepted by them towards membership fee.

iii.      The respondents to pay the complainants Rs. 5,000/- as compensation for mental and physical harassment and Rs.5,000/- towards litigation cost.

iv.      Copy of order be furnished to both the parties, free of cost.