Date of Filing:25/07/2016

Date of Order:31/08/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:  31^ST DAY OF AUGUST 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.1040/2016

V/s

ORDER

BY SRI.D.SURESH, MEMBER.

1.  This is the complaint filed by the complainant against the Opposite Party (hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986 praying this Forum to direct the O.P to pay a sum of Rs.1,83,387/-  along with interest at the rate of 12% per annum and such other reliefs as the Hon’ble Forum deems fit and under circumstances. 

2.     The brief facts of the complaint is that on invitation of the Op on 10.08.2014 the complainant attended  presentation from the OP and he had given so many offers to become member of OP.  The member of OP  can book resorts for his vacation and there will be free pickup and drop facility from Air port free of cost, at all location in India. Further assured that the complainant would be getting a two days and 3 night free holiday stay at any of their resorts for 5 years any wherein India and abroad in five star or seven star hotels yearly once with a maximum of 12 members and only taxes are to be paid.   The Op had also told that cancellation request can be made within a stipulated ‘cooling off period of ten days and also assured that a free flat will be given to the complainant near Nelamangala.  Op also offered a discount of Rs.20,000/- if the complainant become member on the spot.

3.     It is further contended that believing the attractive assurance and offers made by the Op, complainant became member and paid an amount of Rs.1,08,000/- as membership fee which is valid up to 2024. Later complainant came to know that the offers made by the Op are false. The Protocol lead by all India resort development association is also not followed. After lapse of few days, complainant came to know the real facts and he tried to cancel membership by E-mail and by contacting over phone and   decided to take back his membership from the Op club. However, Op did not give response. Later on 31.05.2016 Op gave reply denying to accept the surrender of the membership and also informed that the deposit is not refundable.   Hence OP by giving false assurance made the complainant to become its member by giving false assurance.  Such act of Op amounts to deficiency in service.  Hence the Op has to pay compensation to the complainant. Hence this complaint.

4.     Upon the service of notice, O.P. appeared through his counsel and filed version. It is contended that the complaint is not maintainable, it is vexatious. Frivolous,  incorrect, false and liable to be dismissed. The complainant himself shown interest to become member and to avail holiday vacation.  The complainant entered into purchase agreement dated 10.08.2014 and in terms of agreement, the complainant paid an amount of Rs.1,08,000/- and became a member.  In terms of the purchase agreement, the complainant is entitled for holiday vacation for 6 night 7 days in a year for a period of 10 years and club membership for life time, subject to the terms and conditions mentioned in the purchase agreement.  Op on receipt of the above said amount never promised or assured to give gift vouchers or even kitchen items at any point of time. Op is always ready to provide the package to the complainant but there should be 30 days  advance booking to be made to make necessary arrangements.  The complainant entered into the purchase agreement and there is no provision for cancellation of the club membership. However the complainant is at liberty to sell or transfer or gift the club membership to any third party. On all these grounds, Op prayed for dismissal of the complaint.

5.     In order to prove the respective case, the complainant and O.P. have filed affidavit evidence reiterating the contents of the complaint and their version respectively.  Perused the documents produced by complainant and O.P. Heard the arguments.

6.     On the basis of the above pleadings and evidence of the complainant and O.P. the following points arise for our consideration.

1. Whether the complainant has proved deficiency in service on the part of the Opposite party?

2. Whether the complainant is entitled to the relief prayed for kin the complaint?

7.     Our answers to the above points are:-

POINT 1:         In the affirmative  

POINT 2:         Partly in the affirmative

As per the finally order.

REASONS

ON POINT No.1:-

8.       On perusing the complaint, version oral and documentary evidence of the parties, it is clear that the complainant has purchased membership card for Rs.1,08,000/- from the Op and they entered into the agreement. On perusing the legal notice to the Op,it reveals that complainant was not satisfied with the service, demanded to refund the amount without availing service. Op did not acceded to the request of the complainant. As per the say of the OP, the complainant did not make any booking for availing holiday package at any point of time. This fact goes to show that complainant is interested in claiming the refund amount and not to avail service of the OP.  Further the agreement between the parties is unilateral one. Hence complainant is entitled to rescind the contract at any point of time if it is against to the principles of contract.   

9.     In the instant case, it is worth to note that when the complainant visited the premises of OP , by enticing t making promises induced the complainant to purchase the life time member ship  without giving opportunity to examine all the contents of the agreement which is nothing but a coercive. If the complainant is not satisfied with the service of OP, automatically complainant has right to rescind the contract/agreement of membership and duty is cast on the OP to return back to amount paid by the complainant. Further it is pertinent to note that there is no record placed before this forum to show that the complainant availed any service from the OP. Under the circumstance, the contention raised by the OP is not acceptable.  Further it is clearly goes to show that complainant has paid a sum of Rs.1,08,000/- as membership fee and  OP did not provide the facilities assured by him and caused deficiency in service and even refused to accept the surrendering of membership stating that the memberships is a permanent one and  the amount paid by the complainant is non refundable one and not a deposit. Such act of OP amounts to deficiency in service and also un-fair trade practice of the Op. Accordingly we answer Point No.1 in the affirmative.    

POINT NO.2:

10.   The very act of Op clearly goes to show that there is deficiency on his part.   Hence OP is liable to refund to the complainant a sum of Rs.1,08,000/-. Which O.P had received from the complainant along with interest at 12% per annum. O.P has put the complainant under physical and mental stress for which O.P has to compensate him for which we assess the damages at Rs.25,000/-. The act of the O.P made the complainant to file this complaint by engaging advocate by paying his professional fee and also spent money in attending the forums hearing on each and every day.  We are of the opinion that if a sum of Rs.10,000/- if awarded towards litigation expenses ends of justice will be met.  Hence we answer Point No: 2 partly in the affirmative and we proceed to pass the following:-

ORDER

1. The complaint is partly allowed with cost.

2. The OP is liable to pay the complainant a sum of Rs.1,08,000/- along with interest at the rate of  12% per annum from the date of filing of the complaint.

3. Further O.P is hereby directed to pay Rs.25,000/- towards damages and Rs.10,000/- towards cost of the litigation expenses to the complainant.

4.  The O.P is 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 forum within 15 days thereafter.

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

 (Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this  31st Day of AUGUST 2018)

MEMBER                        PRESIDENT

ANNEXURES

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

PW-1: Sri. Nagesh G -Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1:              Copy of the  Vacations Agreement

Doc.No.2:             Copy of the Country Vacations International   

                           Holiday Club membership Vacation Agreement

Doc.No.3:              Copy of the Axis Bank Challan

Doc.No.4:             Copy of the Payment receipt in 12 Numbers

Doc.No.5:              Copy of the Payment receipt

Doc.No.6:                      Copy of the Payment details given by Country

                           Vacations

Doc.No.7:              Copy of the Welcome letter by country Vacations

Doc.No.8:              Copy of the Tash Letter by Country Vacation

Doc.No.9:             Copy of the Legal notice by complainant

Doc.No.10:                    Replay notice by OP

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

RW-1: Sri. Garish Kumar -Complainant.

Copies of Documents produced on behalf of Opposite Party/s

Doc.No.1:            Copy of the purchase agreement dated

Doc.No.2:            Copy of the permanent Membership

                           Cards

Doc.No.3:            Copy of the Confirmation letter

Doc.No.4:            Copy of the Password

MEMBER                        PRESIDENTs