Date of filing: 23.02.2017

                                                               Date of Disposal:31.12.2022

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 31^st DAY OF DECEMBER, 2022

CONSUMER COMPLAINT NO.291/2017

PRESENT:

                     SMT.REKHA SAYANNAVAR,:MEMBER

Mr.Shainesh Sharma,

S/o Shri.Rohitash Sharma,

Aged about 35 years,

R/at 202, Pioneer Pride Apartment,

Bilekahalli, Opp.IIM Bangalore,

Rep by Sri.V.Mahesh, Advocate

Country Vacations/Country Club Kool,

No.6-3-1219, 4^th Floor,

Hyderabad.

Branch office:

Country Vacations

(A division of country Club Hospitality & Holidays Limited),

No.102, 2^nd Floor, S & S Corner,

Next to Kamath Hotel,

Bowring Hospital Road,

Bangalore-560 001.……     OPPOSITE PARTY

Rep by Sri.D.Narase Gowda, advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-12 of Consumer Protection Act, 1986 seeking for a direction to the opposite party to refund the amount of Rs.72,000/- paid towards the membership fee together with interest at the rate of 18% p.a. and a sum of Rs.50,000/- as compensation and such other reliefs as this commission deems fit in the circumstances of the case.

2. It is not in dispute that the opposite party is in the business of selling the club membership to the common people to avail the club facilities and holiday vacations.  Further, it is not in dispute that the complainant has become the member of opposite party-club by paying a sum of Rs.72,000/- and had entered into a purchase agreement dt.29.05.2015.  Further, it is not in dispute that after receipt of the money the opposite party had issued permanent membership card to the complainant as well as to his wife.  Further, it is not in dispute that the complainant got issued legal notice on 01.07.2016 and for which the opposite party had replied vide reply notice dt.10.07.2016.

3. It is the further case of the complainant that the opposite party had cheated the complainant by hiding the true facts, not explained anything about the terms and conditions of the agreement and given false assurances and made the complainant to purchase the membership.  Further, the copy of the agreement was given to the complainant for signature only after receipt of the payment.  Hence, the complainant did not get a chance to read the terms and conditions of the agreement.  Further, from the day one of getting membership, the complainant followed up regularly with the opposite party and demanded his money back but it was declined with a reason that membership fee is non-refundable.  Hence, the complaint came to be filed. 

4. It is the further case of the opposite party that the complainant is not an illiterate and has entered into purchase agreement and subsequently had filed the complaint in order to avoid the annual maintenance due amount of Rs.11,318/-.  Further, the complainant is at liberty sell or transfer or gift the club membership to any third party.  Further, the opposite party is always ready to provide the package to the complainant but there should be 30 days in advance booking to be made to make necessary arrangements.  Further, the complainant did not make any booking for availing of holiday package, at any point of time.  Further, the complainant never demanded refund of amount at any point of time nor issued any demand notice in this regard.  Hence, it is sought to dismiss the complaint.   

5. To prove the case, the complainant has filed affidavit in the form of his evidence in chief and had produced documents. The Manager of opposite party has filed affidavit in the form of his evidence in chief and had produced documents.

6. Counsel for the opposite party had filed citations with memo.

         7. The points that would arise for consideration are as under:

i) Whether the complainant proves that the act of opposite party is an unfair trade practice ?

    ii) Whether the complainant is entitled for the 

    compensation as sought ?

     iii) What order ?

   8.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

9.POINT NO.1:- The complainant and Manager of opposite party have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  It is the contention taken in the version filed that in the matter of cheating breach of trust, forgery etc. to be adjudicated by the competent court of law and the complainant has to approach the competent court of law for redressal of his grievance and not before this commission. 

10. In support of the contention, counsel relies the judgment reported in III (2008) CPJ 363 (NC) in between Budh Prakash V/s State Bank of Patiala and others.  The facts in the said case is that some 3^rd parties have forged signatures of the complainant and had opened account in the bank and got transferred the FD stands in the name of the complainant to the said account and had withdrawn the same.  In the said circumstances, Hon’ble NCDRC had held that the 3^rd party has committed breach in his personal capacity, thereby no deficiency can be levelled against the bank and upheld the order of dismissal of complaint passed by Hon’ble State Commission.  In the case on hand, even though the complainant had used the word in the complaint that the opposite party had cheated the complainant and made him to become the member without explaining the terms and conditions, the opposite party has no right to keep the money of the complainant without any reason and it amounts to having unlawful gain.  Further, there is no dispute with regard to the amount paid by the complainant and membership card been issued in favour of the complainant.  Hence, the fact of the case in the cited judgment is entirely different from the facts of the case on hand and the same is not applicable.

11. It is the further contention taken in the version that there is no provision for refund of membership fee and customer can sell or transfer or gift the club membership to any third party.  The complainant has produced vacations agreement and purchase agreement for country vacations international holiday club classic. With regard to the payment made, the complainant had produced the receipts issued by opposite party. 

12. According to PW1, he had received a phone call from opposite party stating that the complainant had “won the prize in a lucky dip, asked to come and collect a gift” and when the complainant visited, he was shocked to see that number of persons were there as like him and he was taken to a cabin by one Mr.Syed Armaan and even though the complainant was not interested, the opposite party officials made the complainant to wait and sit and tried that the offer was valid only for the said day.  Hence, the opposite party had cheated the complainant by hiding the true facts.  Further, it is contended that the opposite party officials offered one more package worth Rs.12,000/- for 6 nights and 7 days for 3 more years, in addition to the membership fee of Rs.60,000/-, no document was given to the complainant except the consolidated invoice for Rs.72,000/-.  Hence, the complainant learnt that the benefits offered and terms mentioned in the agreement did not match exactly as explained by the opposite party’s officials.    On perusal of Club Membership Purchase Agreement, it appears that the complainant had unconditionally given a consent that the membership fee is non-refundable under any circumstances and it is not a refundable deposit.  Further, it appears in the said document that column No.6 has not been filled up and left blank and there is no provision in favour of the complainant in the said agreement.  Further, the date of agreement is also left blank.  Hence, it appears that the complainant did not understand the terms and conditions of vacations agreement and purchase agreement of club membership and he has signed the blank form.  Therefore, it is one sided and unilateral one.  Therefore, the clause that membership fee is non-refundable one does not bind the complainant.

13. It is the further contention taken in the version that the complainant did not claim for refund of the amount at any point of time.  In the version it is stated that the opposite party had replied to the notice sent by the complainant.  On perusal of the notice dt.01.07.2016 sent by the complainant to the opposite party, it appears that the complainant has sought for refund of the entire amount of Rs.72,000/- with other compensation.  In the reply given on 10.07.2016 it is stated that the amount paid towards membership is a non-refundable.  Hence, the say of the opposite party that the complainant not demanded for refund of the amount is not correct.   Hence, the act of the opposite party is an unfair trade practice as contemplated under Section-2(1)(r) of Consumer Protection Act, 1986.  Accordingly, I answer this point in affirmative.

14.POINT No.2:- The complainant claimed a sum of Rs.72,000/-.  It is not in dispute that the opposite party had received the said amount.  In view of the findings on point No.1, the opposite party has to return the same amount with interest at the rate of 9% p.a.  I feel the rate of interest claimed at 18% p.a. is an exorbitant one. The complainant is entitled for interest from the date of payment i.e., 30.05.2015 till realization.  Further, the complainant is entitled for a sum of Rs.20,000/- towards compensation for fraudulent business tactics done by the opposite party and thereby the loss sustained by the complainant.  Further, the complainant is entitled for a sum of Rs.10,000/- towards litigation cost. Accordingly, I answer this point partly in affirmative.

15.POINT NO.3:- In view of the discussion made above, I  proceed to pass the following;

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.72,000/- with interest at the rate of 9% p.a. from the date of payment i.e., from 30.05.2015 till realization and a sum of Rs.20,000/- towards compensation/damages and a sum of Rs.10,000/- towards litigation cost.  

The opposite party shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 31^st day of December, 2022)                                            

• REKHA SAYANNAVAR)                            (SHIVARAMA. K)    
•  
•  

Witness examined for the complainants side:

Sri.Shainesh Sharma, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Country vacations agreement.
2. Purchase agreement for country vacations International Holiday Club Classic dt.29.05.2015.
3. Receipts for fee collected.
4. Confirmation letter from country vacations with regard to receipt of fee collected.
5. Credit card monthly statements.
6. Notice issued to country vacations dt.01.07.2016.
7. Postal receipt.
8. Reply notice dt.10.07.2016. 

Witness examined for the opposite party side: 

Sri.Mohammed Akmal Pasha, Manager of opposite party has filed his affidavit.

Documents marked for the Opposite Party side:

1. Copy of the purchase agreement dt.29.05.2015.

2. Copy of the permanent membership cards.

3. Copy of the pass word member login.

4. Copy of the AMC de amount of Rs.11,318/-.

• REKHA SAYANNAVAR)                         (SHIVARAMA. K)    
•