Author: SHRI RABIDEB MUKHOPADHYAY, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
The Complainants stated that the OPs are engaged in Hospitality, Business Operating Club, Fitness Centre, Hotel Resorts, Marketing Club Membership and other product. The OP-1 is the branch office of OPs 2 and 3. It is stated that after having a telephone call/SMS from one Manas, a representative of OP, the Complainants attended the office of the OP at Salt Lake City Centre on 27.09.2017 to collect gift from the office. During collectionof gift, the Complainants were persuaded by the Members of the OP namely DebasishMajumdar and Amit Kumar Chowdhury to take the Membership from the OP by using various strategies to convince the Complainants. The Complainant stated the servicesof the OP at para 7 in a chart including free two gram gold coin, accidentally insurance coverage of Rs. 5 lac per person, pickup/drop sightseeing with fuel charges only, 6 night, 7 days holidays package in domestic and international, no extra charges on international tour, freeSPA, 50 percent discount on flight tickets and two free tickets, suite room in 5 star hotels during stays, food coupon in 5 star hotel in range of Rs. 450/- to Rs. 750/- inclusive of lunch, dinner,breakfast and snacks and lastly free of cost yoga and fitness.
The Complainant stated that having no prior experience, they were befooled depending on their verbal discussions held on 27.09.2017 which are not in consonance with the Agreement paper. Under the compelling circumstances the Complainants paid Rs. 91,000/- to OP-1 throughDebit and Credit Card and Agreement for Country Vacation Holiday Vacation and Vacation Agreement was executed on 27.09.2017. The Agreement papers were presented to the Complainants after payment of Rs. 91,000/-, as stated by the Complainants at para 11. It is alleged at para 12 that the Complainant were not properlyexplained the terms and conditions of the Agreement by the representative of OPs during the meeting. After the returning of the home in the evening on 27.09.2017, the Complainants stated that they had gone through the Agreement papers and they were embarrassed to find discrepancy between the verbal discussion and conditions let down the Agreement. In the very evening on 27.09.2017, the Complainants requested Manas and Debasish, Members of the OP to cancel the Membership. On advice of Debasish, the Complainants visited the OP’s office at Salt Lake City Centre on 28.09.2017 and requested to cancel the Membership as clause No. 25 of the Agreement but Amit Chowdhury, Member of OP told that they did not have capacity to cancel the Membership and suggested the Complainants to mail as per the Agreement.
The Complainants stated at para 13 that they sent email on 28.09.2017 to the OP-3 stating the entire facts and requested to cancel the Membership and refund the amount after deducting Rs. 3,800/- towards administration charges. The Complainants stated at para 14 that after repeated mails OP-3 intimated the Complainants through email dated 11.01.2018 that ‘as per signed Agreement and company policy nominal charge of Rs. 3,800/- will be deducted and the remaining amount will be refunded within 120 working days from the date of invoking cook of period’. The Complainants sent email on 07.02.2018 after completion of 120 days to the OP-3 and wanted to know the date when the said money could be paid to them. The OP sent mail dated 21.04.2018 intimating the Complainants that their case of cancellation were being treated as a priority case but ultimately the OPs did not redress the grievance of the Complainants who were duped and deceived by the OPs. The Complainants stated that they did not avail any service from the OPs and they suffered monetary loss mental agony and harassment and the OPs are negligent and deficient in service and the entireattitude of the OP tentamounts to unfair trade practice.
The Complainants prayed for direction on the OPs to refund Rs. 91,000/- with 8.5 percent interest from 28.09.2017 till payment, Rs. 50,000/- as compensation for mental agony and harassment and litigation cost of Rs. 5,000/-
No Written Version have been filed by the OPs.
Points for Discussion
1) Whether the Complainants are a Consumer under the OPs;
2) Whether the OPs are deficient in rendering service to the Complainant;
3) Whether the Complainants deserve relief.
Decision with Reasons
1) At the outset, it is to be mentioned that the OPs did not defend the allegations of the Complainants as they did not file W.V. and attend the Forum in spite of thefact that the delivery of notice of this Forum was made on 19.11.2018, 17.11.2018 and 20.11.2018 against the OPs 1, 2 and 3 respectively. The affidavit in chief filed by the Complainants on 15.01.2019 remained uncontroverted/unchallenged.
It is the settled principle of law that when a party does not take the opportunity to defend its case after receiving the notice from the Court , that party lies on the default side and the leverage of such absence goes to the other party (here the Complainants). So, it is presumed that all the allegations of the Complainants are true which could not be challenged by the OPs.
2) It remains the fact that as per clause 25 of the Country Vacations Holiday Vacation MembershipPurchase Agreement dated 27.09.2017, the Membership Holders enjoy the right and opportunity to discontinue Membership within the stipulated cool offperiod of 10 days. In the instant case, the Complainants attended the office of OP-1 on the very day ofAgreement for cancellation and sent email on the next day, 28.09.2017 for cancelling the Agreement. So, there is no suspicion that the Complainants should be returned the deposited money minus administration charges as per terms and conditions of the Agreement. The OPs did not refund in spite of receiving emails from the Complainants. This is deficiency in service on the part of the OPs.
3) The OPs did not refund the money as per Agreement in spite of receiving letters till mid2018 and the last caution letter of the Complainant-2 was sent on 4th June, 2018 alleging that the Country Club cheated them with fake promises. From this letter (para 6), we see that the Complainants approached the National Consumer Forum (may be mistaken for National Consumer Grievance Redressal Cell) with Complaint Docket No. 606560 and called to the executive of the customer care on 12 February, 2018 after which the OP sent mail only on 21 April, 2018 that the cancellation request had been forwarded to the concerned department and they were following up with the head office everyday treating the issue as a priority case and the OP’s mail also included that once the OP received the cheques in their hands, they would intimate the Complainants. Before that, the Complainants sent mails to OP on 07.02.2018 (twice), 31.01. 2018, 12 .01.2018, and 28.09.2017.
When the OPs admitted that they would send the cheques for the refund, they should have complied with their promise, but they failed to do so. This is also a deficiency in service on the part of the OPs.
4) The Agreement itself appears contradictory, as clause 25 of the terms and conditions provides for cool off period allowing the Membership Holders to discontinue the Membership within 10 days but at the following clause 26, it is written that the ‘VACATION CHARGES IS NOT A REFUNDABLE DEPOSIT AND NOT AN INVESTMENT. THE VACATION FEE IS NOT REFUNDABLE UNDER ANY CIRCUMSTANCES.’
5) It is also to be made clear that the offered free gifts are actually not free; and value of such free gifts have already been included in the Club Membership price. Had such free gifts not been offered to allure Complainants (and other potential Members), the Membership Fee amounts could be much less.A Company like the OP, registered under the Companies Act, 1956 has launched business not for loss but for high profits. So, they cannot allow such free gifts from their assets without profit because the OP is a profit earning company.
Such offer of free gifts (prices of which has already been inbuilt with the composition of Club Membership Fee) are called Restrictive Trade Practice for which the Members are compelled to accept the free offer, and they have to pay prices of free gifts beforehand. By way of adopting Restrictive Trade Practice, the OPs manipulated the price of the Club Membership Fee. This is a case of condition precedent. Restrictive Trade Practice is dealt with under Section 2 (1) (nnn) of the CP Act, 1986.
6) It is also seriously unfair to impress the Complainants through vocal tonic withholding back the writtenAgreementformat and receive the Membership Fee and after such receiving of the money, to get the Agreement signed by the Complainants. This confused and misguided the Complainants as the verbal promises were not written in the Agreement; but the Complainants had nothing to do then, as they paid on verbal promises, but to cancel the Agreement. This is adoption of Unfair Trade Practice by the OPs.
7) On the face of records, it is clear that the Complainants paid the Membership Fee in anticipation of getting promised service stipulated in the Agreement. So, the Complainants are Consumers under the OPs in terms of Section 2 (1) (d) (ii) of the CP Act, 1986. The OPs in spite of receiving the amount from the Complainants failed to deliver service as per Agreement and adopted Unfair Trade Practice and Restrictive Trade Practice, and is seriously deficient in service in terms of Section 2 (1) (g) read with Section 2 (1) (o) of the Act. OPs are also charged with adopting Unfair Trade Practice in terms of Section 2 (1) (r) and Restrictive Trade Practice in terms of Section 2 (1) (nnn) of the Act.
Therefore, the Complainants deserve some relief.
In view of above analytical discussions, we are constrained to pass
ORDER
That the Complaint be and the same is allowed exparte against the OPs 1 to 3 in terms of Section 13 (2) (b) (ii) of the C.P. Act, 1986;
That the OPs 1 to 3 are directed to jointly and severally return Rs. 87,200/- (Rs. 91,000/- minus administration charges of Rs. 3,800/-) with 8 percent interest from 27.09.2017 (date of payment) till the date of actual payment, to make up the monetary loss, to the Complainants within 30 days from the date of this Order.
That the OPs 1 to 3 are directed to jointly and severally pay Rs. 20,000/- as compensation under Section 14 (1) (d) for physical harassmentand mental agony of Complainants, Rs. 20,000/- for adopting Unfair Trade Practice and Restrictive Trade Practice (50 percent of which shall be deposited with the account of this Forum) under Section 14 (1) (hb) and Rs. 3,000/- as litigation cost, to the Complainants within 30 days from the date of this Order’
That non-compliance of any part of above Orders by the OPs within stipulated time shall entitle the Complainants to put the Orders into Execution in terms of Section 27 of the Act ibid.
Let copy of the Judgment be handed over to the Parties when applied for.
