Date of Filing: 23-05-2016 Date of Final Order: 17-04-2017
Sri Gurupada Mondal, President.
This is an application under Section 12 of CP Act, 1986 filed by Anupam Mitra and Smt. Amita Mitra against the Branch Manager, Pan Card Club Ltd. Cooch Behar and the Manager, Pan Card Club Ltd. praying for refund of maturity amounts of Rs.2,26,174/- and Rs. 3,01,165/-alongwith interest from the date of maturity, compensation of Rs.25,000/-, Rs.20,000/- for un-fair trade practice and Rs.10,000/-for litigation cost.
The case of the Complainants in short is that they purchased two nos. of certificates being Folio No.1004-01-42518 for Rs.1,51,300/- on 13.02.12 and Folio No. 1004-01-42519 on the same date for Rs. 2,01,700/-. The maturity amounts were Rs.2,11,680/- and Rs.2,82,240/- and the date of maturity was on 13.05.15. The said certificates were purchased for a period of 39 months. After the maturity, the Complainant No.1 and 2 went to the Office of the OP No.1 several times for lucrative return of the maturity amounts but they did not get any response from the OP No.1. The matter was informed to the Head Office and the Head Office promised to pay the maturity amounts within very short period and to that effect, the Complainant No.1 was given a cheque being No.879291 dated 05.03.16 amounting to Rs.2,26,174/- and the Complainant No.2 was given another cheque being No.879290 dated 05.03.16 amounting to Rs.3,01,565 payable at SBI, Commercial Branch, Dadar, Mumbai. Thereafter, the Complainants deposited the said cheques at SBI, Cooch Behar Branch for encashment but both the cheques were returned unpaid with an endorsement “Cheque out of range”.
Further case of the Complainants is that the matter was verbally informed to the OP No.2 who promised to pay the aforesaid amounts of the dis-honoured cheques within a period of 7 days and requested them not to take any legal steps. After expiry of 7 days, Complainant No.2 further contacted with the OP No.2 to get the maturity amounts but did not get any positive result. Accordingly, a legal notice was sent to the OPs through their Advocates on 17.03.16 with a request to pay the maturity amount but all efforts went in vain.
It is further alleged that the OPs had an ill- motive to pay the maturity amounts to the Complainants and in this way, the OPs were dragging the matter causing irreparable loss and injury to the Complainants. It is further alleged that the OPs caused mental pain and agony and unnecessary harassment to the Complainants by taking un-fair trade practice and deficiency in service in the event of non-payment of the said maturity amounts to the Complainants. Accordingly, the Complainants have filed the instant case for proper relief.
The OPs, in order to contest the case, have filed w/v denying all material allegations contending inter- alia that the instant complaint is false and frivolous one.
Specific case of the OPs is that Pan Card Club Ltd. is a Company incorporated under the provisions of the Companies Act, 1956 and having its Registered Offices and the OPs are engaged in the business of hospitality industry and selling of room nights in advance under its various schemes for stay at its various hotels, Clubs and Resorts throughout India. The Complainants expressed their desire to purchase/utilize the said room night in the hotels of the Company under the Holiday option of Pan Card Club-Relax Holiday Membership for 39 months and paid Rs.1,51,000/- and Rs.2,01,700/- to the OPs. The OPs accepted the Membership for Holiday option of Pan Card Club-Relax Holiday for utilizing 168 room nights during the tenure of 39 months commencing from 13.02.12 and expiring on 13.05.15 and to that effect, the OPs issued certificates in their favour which were covered under Group Insurance Policy.
Further case of the OPs is that the Complainants never utilized the room nights of the OPs purchased by them and did not avail the services offered by the OPs. There was no question of deficiency of service on the part of the OPs. As per clause 10(5) the OPs reserve the right to reject the applications for surrender of room nights or change the terms and conditions. Further case of the OPs is that this Forum has no territorial jurisdiction to entertain and try the present case filed by the Complainants. The Complainants entered into a contract on 13.02.12 and agreed that in the event of any dispute between the parties, the parties could file suit exclusively at the jurisdiction of Mumbai Courts only. On the basis of the aforesaid facts, the OPs prayed for dismissal of the case with cost.
Considering the application filed by the Complainants and w/v, the following points are necessary to discuss in order to arrive at a conclusion.
POINTS FOR CONSIDERATION
- Are the Complainants Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainants are entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Perused the entire documents in the record and also heard the argument as advanced by the parties at length.
Point No.1.
It reveals from the case record that the Complainants purchased Pan Card Club-Relax Holiday Membership for 39 months on 13.02.12 on payment of Rs.1,51,200 and 2,01,700/-. The maturity dates were on 13.05.15.
Consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or need any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or need any system of deferred payment without such use is made with the approval of such person, but does not include a person who obtains such goods for resell or any commercial purpose. Therefore, from the documents, we find that the Complainants purchased Relax holiday certificates by paying of Rs.1,51,200/- and Rs.2,01,700/-. The relation in between the Complainants and the OPs are buyer and seller. On the basis of the said certificates, the OPs promised to pay the maturity amounts of Rs.2,11,680/- and Rs.2,82,240/-. Therefore, Complainants are consumers as per CP Act, 1986. Accordingly, this point is decided in favour of the Complainants.
Point No. 2.
It reveals from the case record that the Complainants purchased Relax holiday certificates by paying Rs.1,51,200/- and Rs.2,01,700/- to the OPs. The said transaction took place at Cooch Behar. The Branch Office of the OP No.2 is situated at Cooch Behar. Therefore, the cause of action took place at Cooch Behar. It is evident from the terms and conditions for Relax Holiday that “This Agreement shall be governed by Indian Laws and subject to the jurisdiction of Mumbai Court only”. We have gone through the terms and conditions of the agreement entered into in between the Complainants and the OPs. The cause of action arose at Cooch Behar and the Branch Office of the OP No.2 is situated at Cooch Behar. The territorial jurisdiction is conferred either at a place where the cause of action arises and where the Office of the OPs is situated. As per Section 28 of Indian Contract Act, an Agreement purporting to oust the jurisdiction of the courts is illegal and void on the ground of public policy. Therefore, this Forum has sufficient territorial jurisdiction to entertain this case. This point is also decided in favour of the Complainants.
Point No. 3 & 4.
Both the points are taken up together for convenience of discussions as well as points are related with each other. The Complainants have filed some documentary evidence and also adduced evidence on affidavit. On perusal of the documents, it reveals to us that the Complainant No.1 purchased Relax holiday Certificate for Rs.1,51,200 on 13.02.12 from the OPs and the maturity amount was Rs.2,11,680/- as on 13.05.15. It further reveals from the Relax holiday certificate being Folio No.1004-01-42519 that the Complainant No.2 also purchased Relax Holiday Certificate of Rs.2,01,600/- on 13.02.12 for a period of 3 years 3 months and the maturity amount was Rs.2,82,240/- as on 13.05.15.
It is evident from the evidence of the Complainants that after the maturity, they went to the Branch Office of the OP No.1 at Cooch Behar through their Marketing Agent to get the return of the deposited amounts alongwith interest but the OPs did not pay the maturity amounts and accordingly, the Complainants informed the said matter at the Head Office and the Head Office promised to pay the maturity amounts within a very short period. It is further evident from the evidence of the Complainants that in the month of August, 2015, Complainant No.1 and 2 received two Account Payee Cheques being No.879291 dated 05.03.16 amounting to Rs.2,26,174/- and Cheque No.879290 dated 05.03.16 amounting to Rs.3,01,565/- payable at SBI, Commercial Branch, Dadar, Mumbai. It is also evident from the evidence of the Complainant No.1 and 2 that OP No.2 issued the said cheques.
It is established from the documentary as well as oral evidence of the complainants that they deposited the said cheques for encashment and both the cheques were returned unpaid with endorsement “Cheque Out of Range”. We find from the evidence of the Complainants that the Complainants contacted with the OP No.1 and informed orally about dis-honour of the said cheques and OP No.1 verbally told them to pay the amounts within 7 days from the date of dis-honour of the said cheques and requested not to undertake any legal proceeding. After 7 days, the Complainant No.1 and 2 contacted with the OPs for obtaining the maturity amount but did not get any positive result and for that reason, Complainants sent legal notice but they did not pay anything.
The OPs have jointly filed w/v as well as evidence on affidavit. It is evident from the evidence of the OPs that the OPs acknowledged that the Complainants purchased Relax Holiday Membership for 39 months by paying Rs.1,51,200/- and 2,01,600/-. Therefore, it is established that the Complainants purchased Relax Membership from the OPs for a period of 39 months and to that effect, two certificates were issued in their favour. The maturity value was Rs.2,11,680/- and Rs.2,82,240/-respectively. After the maturity, the OP No.2 issued two Account Payee Cheques being No.879291 dated 05.03.16 of Rs.2,26,174 and Cheque No.879290 dated 05.03.16 of Rs.3,01,565/-. Both the cheques were deposited at SBI, Cooch Behar Branch for encashment but both the cheques were returned with an endorsement “ Cheque out of range”. Ultimately, the OPs did not pay the maturity amount alongwith interest to the Complainants. As such, the Complainants are entitled to get maturity amounts as mentioned in the Relax Holiday Certificates issued by the OPs in favour of the Complainants. In this way, the OPs caused mental pain, agony and unnecessary harassment to the Complainants. The OPs had taken unfair trade practice which amounts to deficiency of service for non-payment of maturity amounts.
Ld. Advocate for the OPs cited a case decision reported in III (2016) CPJ 44 (NC) wherein National Consumer Disputes Redressal Commission held that “Complainants who have separate Agreements with Opposite Party cannot maintain a joint complaint, filed on the plea that they fall within definition of Complainant as envisaged under Section 2(1)(a)(iv).” The National Consumer Disputes Redressal Commission further held that the Complainants have neither moved an application under Section 12(1)(c) nor they have pleaded that they are pursuing complaint on their own behalf as well as on behalf of numerous other consumers so interested in complaint. Therefore, in our considered view, the Complainants have separate agreements with the opposite party cannot maintain a joint complaint filed on the plea that they fall within the definition of “complainant” as mentioned under Section 2(1)(b)(iv). We have gone through the cited case decision by the OPs.
It reveals from the case record that one Anupam Mitra and his mother Smt. Amita Mitra have filed the instant case jointly in order to get back their maturity amount against their policy. This case and the cited case by the OPs are totally different. In the cited case, there were two separate agreements in between the Complainants and the OPs but in this case, we do not find any agreement entered into between the Complainants and the OPs. Relief claimed by the Complainants are the same. “Complainant” means – (i) a consumer or (ii) any voluntary consumer association registered under the Companies Act, 1956 or under any other appropriate law; or (iii) the Central Government or any State Government; who or which makes a complaint or (iv) one or more consumers where there are numerous consumers having the same interest. In this case, we find there are two consumers but they have same interest. Accordingly, we hold that joint complaint by the Complainants is maintainable. The case decision cited by the OPs is not applicable here.
Having considered the above made discussions, we hold that the Complainants have been able to prove their case and entitled to get an order as prayed for. Both the issues are disposed off accordingly.
Hence,
Ordered,
That the present Case No. CC/54/2016 be and the same is allowed on contest with cost of Rs.10,000/-.
The OPs are hereby directed to pay the maturity amounts of Rs.2,26,174/- to the Complainant No.1 and Rs.3,01,565/- to the Complainant No.2 alongwith interest @10% per annum from the date of maturity of the certificates i.e. from 13.05.15 till payment is made.
The OPs are further directed to pay a compensation of Rs.25,000/- for causing mental pain, agony and unnecessary harassment to the Complainants. The OPs are further directed to pay Rs.20,000/- to the Complainants for their unfair trade practice and deficiency of service.
The aforesaid amounts shall be paid to the Complainants by the OPs jointly and/ or severally within 30 days from the date of passing the order, and in case of making default, the OPs shall pay Rs.100/- for each day’s delay and the amount so accumulated be deposited in the Consumer Legal Aid Account.
Let plain copy of the final order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action as per Rules.
Dictated and corrected by me.
