ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Party (herein referred to as OP) under section 35 of the Consumer Protection Act 2019 for the deficiency in service by giving false assurance and guarantee regarding the benefits and facilities offered and not making arrangement for watching the movie at PVR Forum Mall though assured, not providing the enrolment kit and facilities at the fitness service centre and badly behaving with them, showing disrespect and not responding to the letters and unfair trade practice by deceptive practices modes luring the common man to sell their company membership, spoiling the family life and health and for refund of the amount received i.e. Rs.1,48,750/- along with interest and other reliefs and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; OP doing business in the country club hospitalities providing facilities at their resorts, clubs in India and foreign countries, called his wife for a discussion on the ground that his wife has won a gift through a lottery by random selection and asked them to visit their office to  collect the gift. They were very much pressurized and ultimately they went to the café coffee day at around 6.15 pm on 07.10.2020.  There were many couples sitting in the respective tables discussing with the company representative. One Harsha introduced himself as manager and Darshan as line manager welcomed them and made them to comfortably seat and started explaining their clubs activities, benefits and regarding membership,. They pressurised them by assuring the presentation over video, their luxury hotel resorts in India, and foreign countries and facilities available there. That there organization going to celebrate 25 year and offered members ship for Rs.1,48,750/- provided the amount is paid on that day. They also offered international travel for Dubai, Srilanka Singapore, Maldavias, Malaysia for about 6 nights and 7 days providing to and fro air tickets for the couples and two children and accommodating them in 4 star or 5 star luxury hotels, with free breakfast. They also offered 50% concession to them. They also offered tour within the countries for 6 nights and 7 days with 4 star or 5 star accommodation. They also offered 2 grams (24 carat) gold coins is enrolled as gift. 

3.     Both of them exchanged their mobile number. Since they did not carry the bank cheque book, Mr.Darshan came to their house at 9 pm and collected the balance amount through cheque and got their signature on the agreement. OP also offered and guaranteed the above facilities and further a tour tickets, for a movie in PVR and asked them to confirm two days prior to it. The next day his wife contacted Darshan for arrangement for movie and same was postponed for four days and they did not receive any information. They have given false assurance.  They stopped contacting them even after 10 days of the agreement.  Since they paid Rs.5,000/- to the OPs in cash, and they are entitle two free tickets for the movie at PVR Forum mall. 

4.     They enquired about non-mentioning of complementary offer of two grams of gold coin, to and fro air tickets for national and international tour, and also regarding the condition of the No.1 of the agreement.  He assured that they will provide all the benefit officially covered in the enrollment kit. The agreement was signed by one Darshan. Since OP kept on delaying the facilities to watch the movie on PVR mall for about 10 days, and as they did not provide the welcome kit. But were informed regarding the membership details.  The act of OP became suspicious and there has been negligent attitude and as if they are no way concern with them. When they contacted the customer care, not responded and reply to the emails, wherein they had sought for refund of the amount.  They came to know that the office was shifted from MG Road to Vasanth Nagar and when she spoke to lady manager one Miss Rebeka regarding not receiving the welcome kit, not arranging for viewing the movies, she did not take any responsibility but use to give false assurance.  

5.     On 12.11.2018 himself and his wife went to the office of OP. Miss Rebeka was available and requested to return the amount paid. The lady manager without any guilt or ethics, spoke rudely and did not cooperate with them.  She was very discourteous and disrespectful.  Even she informed that is they approach the consumer forum, or police it is a waste of time.  When they demanded for refund of the amount, OP submit for the request letter which when given the same was acknowledged by one Byra Reddy and also informed that as per condition No.27, they will process for refund.  Inspite of it, OP have not provided the benefits assured and hence the complaint.

6.     Upon service of notice, OPs appeared before the commission and filed their version denying all the allegations made against it. Further contended that there is no cause of action for the complaint and the reason assigned is vague and bald and the complaint is liable to be dismissed. 

7.     The complainant themselves requested OPs to do all the necessary documentation work required for admitting them as member of the country club hospitability and holiday limited. They explained to the complainant regarding different holiday packages and copy of the purchase of membership agreement was given to them and they after going through thoroughly, going the said agreement came to their office on 07.02.2018 and agreed to abide by the terms and conditions of the agreement and showed interest to become the members by paying Rs.1,48,000/- and purchased the membership and also in terms of the purchase agreement, complainants family are entitle for holiday vacation 6 nights 7 days in a years for about 5 years and agreed to pay mandatory annual administrative charges every year irrespective of usage of the membership facility. The complainant was provided with access to website through online by giving ID and password and laminated membership card.

8.     It is further contended that, Spa coupons and one day privileged gift vouchers was also given.  They never promised and assured to give a free tour either to Dubai, Srilanka, Singapore, Maladives Malaysia or fitness membership for the life time for the members of thousand children for about 25 years.  They also never promised air fares and free breakfasts. They have not received any emails said to have sent by the complainant.  The communication produced is created one.  There is no evidence and proof to prove and establish that the OP has engaged unfair trade practice and that there is deficiency in service, The letter dated 12.11.2020 is created for the purpose of filing this complaint. The electronic document cannot be looked unless it is duly authenticated by the competent authorities. Complainant is not a illiterate person.  Complainant executed the purchase agreement on 07.10.2018 after understanding the terms and conditions of the membership fee and the membership fee is not refundable under any circumstances and there is no provision to cancel the membership. Whereas, complainant is at liberty to sell or transfer or gift the membership to any third party. Inspite of it, the complainant has filed this false and frivolous complaint to enrich himself, by creating false stories, fabricating the documents. There is no deficiency in service or unfair trade practice on their part.  They are not liable to pay any compensation as the claim is with a dishonest and mala fide intention. The complainant has made allegation. The complainant have not paid annual maintenance charges of Rs.37,170/-. On all these grounds prayed this forum to dismiss the complaint.

9.     In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1 :   In the Affirmative.

POINT NO.2 :   Partly in the Affirmative.

                        For the following.

REASONS

POINT No.1:-

11.   On perusing the documents evidence filed it becomes cleared that the complainant became member of OP club by paying Rs.1,48,000/- and also obtained millionaire club premium package membership in execution of sale agreement. The terms and conditions have been mentioned for refund of the amount after cool off period.  It is not in dispute that OPs received the amount from the complainant at the time of executing the sale agreement by way of cheque and cash.  Copy of the statement is produced by the complainant.  Copy of the email also mentions regarding providing membership to the complainant on 12.11.2011. The complainant has requested OPs to cancel the membership and sought for the refund of Rs.1,48,000/-, on the ground of health problem. The same has been endorsed and mentioned that “As per your request we are processing for the same and we will do the needful after acceptance by one Mr.Ravi.” Emails correspondences have also been produced. He do not lie in the mouth of OP that they are not bound to refund the membership amount. When they have not given the any services, they are not liable to retain any of the amount from the complainant. According to membership agreement, they are bound to provide the facilities failing which they have to refund the amount.

12.   In the instant case, it is worth to note that when the complainant visited the premises of OPs, promised  and induced the complainant to purchase the life time membership without giving opportunity to examine the contents of the agreement which is nothing but a coercive and unilateral agreement. If the complainant is dissatisfied with the service of OPs, a duty is cast on the OPs to return back the amount received by the complainant. Further it is pertinent to note that there is no record placed before this commission to show that the complainant availed any service from the OPs. Under the circumstances the contention raised by the OPs are not feasible.  Further it clearly goes to show that complainant has paid a sum of Rs.1,48,000/- as membership fee but OPs did not provide the facilities as assured by them and caused deficiency in service and even the OPs refused to accept the surrender of membership stating that the memberships is a permanent membership and the amount paid by the complainant is non-refundable deposit, and cannot be refunded. Such act of OPs amounts to deficiency of service and also unfair trade practice of OPs. Accordingly we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT No.2:

13.   In the result OP are bound to refund the amount to the complainant.  The complainant has sought Rs.1,48,000/- as refund as the said amount was paid to OP by way of cheques, (Rs.1,43,000/- and Rs.5,000/- by way of cash)  After receiving the amount, the agreement has been entered into between the parties, the membership card and other details was also given to the complainant. OP has spent some amount towards stationary and office maintenance. In view this we are of the opinion if a sum of Rs.1,28,000/- if ordered to be refunded to the complainant out of the amount paid, along with interest at 12% from the date of payment till the entire amount is paid, would be just and proper. Further a sum of Rs.5,000/- towards damages for causing mental agony and Rs.5,000/- if awarded towards cost of the litigation, ends of justice will be met. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is partly allowed with cost.

2. OPs are jointly and severally hereby directed to pay a sum of Rs.1,28,000/- to the complainant along with interest at 12% per annum from the date of payment till the entire amount.

3. Further OPs are hereby directed to pay a sum of Rs.5,000/- towards damages and Rs.5,000/- towards cost of proceedings

4. OPs are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 12^th day of August 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Membership Agreement.

Ex P2: Copy of the Bank account statement.

Ex. P3: Copy of the Terms and conditions.

Ex P4: Copy of the Emails.

Ex P5: Copy of the representation.

Ex P6: Copy of the certificate under Section 65-B of the Indian Evidence Act.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Ananda, Legal Officer of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorisation letter.

Ex R2: Copy of the Sale Agreement dated: 07.10.2018.

Ex R3: Copy of the AMC due Rs.37,170/- and nearest fitness center.

Ex R4: Copy of the Membership cards.

Ex R5: Copy of the password.

MEMBER                                PRESIDENT

RAK*