ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in not providing the services agreed to the member of the OP and for refund of Rs.1,26,000/- along with interest at 18% per annum paid towards the membership fee, damages towards not issuing the membership card as assured with privileges and for Rs.2,00,000/- towards damages for causing mental agony and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant  was called by OP  over a telephone call to the office of OP at SS Chambers, near Bowring Hospital Road, Shivajinagar, Bangalore informing that complainant won has a gift in a lucky dip and requested him to come along with his wife to receive the gift. He was repeatedly called to attend the office on 14.05.2017. Complainant went to the office of the OP along with his wife and they were wait to some time and afterwards, OP represented by miss Kalpana and Mr Syed for engaged them and gave details of the facilities and privileges of becoming country club hospitality members.  They also informed the special concession of becoming the club members who can get the benefits for period 5 years, 15 years, and for 35 years, and insisted the complainant to become a member by paying a sum of Rs.1,26,000/- being the membership fee as lifetime member with platinum card for himself, his wife and two adult children. It was also assured that after becoming the member, they will get 7 days and 6 night trip to Andaman and Nicobar for five adults, to stay and get breakfast lunch and dinner at the resort, to and fro air fare, from Bangalore to Andaman and Nikobar with pickup and drop in all places free of cost, and further four days and 3 nights at Bandipur Forest Resort for four adults with stay and breakfast, lunch and dinner. 

3.     Though the complainant expressed his unwillingness to become the member, he was vehemently pursued and informed that he would miss the golden opportunity. Though he expressed to pay the said amount later OP enquired the complainant as to whether he has brought any debit or credit card and he was forced to pay Rs.30,000/- towards initial payment and balance to be paid by issuing cheque.  Due to the continuous compulsion by OP complainant paid Rs.30,000/- and further OP sent his person/representative in the night to house of the complainant to collect the cheque for the balance of the amount. After paying Rs.1,26,000/- he was allotted membership bearing No.CVBG2CLUB236940 which was received through SMS/Message. So far he did not get the official communication/mail and OP has no technology the receipt for having paid the amount, though OP claimed that the same has been communicated to the complainant over email.  Though complainant tried to contact Mr.Syed several times, but he had blocked the calls.  Complainant sent an email to that effect to OP.  Inspite of assurance by OP in providing the facilities for enjoying the social club, resort, hotels various events organized/celebrated by OP and fitness center, himself and his family members were not provided to enjoy the facility without providing the membership card.

4.     Even after three months of paying the amount and sending mails, after mails OP did not send the membership card and other details. Hence he had to issue a legal notice through his advocate on 09.09.2017.  The same was replied mentioning that the complainant himself has shown interest in becoming members of the club and he was given gift voucher worth Rs.25,000/-, one day privilege club card with a login password for accessing the OP’s website.  Only SMS informing the membership number was received.  OPs have cheated the complainant in not issuing the membership card as agreed.  In the reply to the notice, OP expressed that the complainant may approach OP at their new address and they will provide the membership card otherwise they would settle the matter amicably and do not want unnecessary litigation. However OP was never ready to refund the amount given by them.  OPs have taken advantage of the complainant’s innocence. Act of OP amounts to deficiency in service, negligence in service and unfair trade practice causing financial loss to the complainant. Hence prayed the commission to allow the complaint.

5.     Upon the service of notice, OP-1 remained absent placed exparte. Since complainant filed a memo stating that he do not want to proceed against OP-3, the complaint against OP-3 was dismissed on 01.09.2021. OP-2 appeared before the commission and filed version contending the complaint is not maintainable either in law or on facts, it a vague, very bald, and devoid of merits. Complainant only requested OP-2 to do all necessary documentation to enroll her as member to the club.  At that time, complainant was explained the different holiday packages offered by OP and also provided the purchase agreement, to read the contents of the agreement and afterwards only he came to the office on 14.05.2017 and expressed his interest to become the member and affixed her signature and paid a sum of Rs.1,26,000/- and according to the agreement, complainant is entitle for a holiday vacation for 6 nights and 7 days in a year for period of five years and gold club plus blue U 12 member for which he had to pay Rs.21,190/- extra as mandatory annual administrative charges, irrespective of usage of the facilities as a member which complainant accepted.  Apart from that complainant was also provided with online approach by giving ID and password and complementary spa coupons and one day privilege pass holiday gift voucher. 

6.     OP was always ready and willing to provide the facilities and package and only requirement is that complainant has to book for the package 30 days in advance. And further, in case the complainant do not want to continue the membership, he can transfer the membership to his family members.  Further as per clause No.12 of the agreement, the membership fee once paid is not refundable under any circumstances and further there is no provision in the agreement to cancel the membership. Only it can be transferred to his family members. 

7.     Inspite of it, for the reasons best known to the complainant, he has come up with false and frivolous complaint when there is no deficiency in service on its part and it an attempt to make wrongful gain and OP is ready and willing to perform its contracted obligations and it has good name in the hospitality field. Complainant is not entitle for any of the reliefs claimed in the complaint and further denying all the allegations made against it in each and every para of the complaint, prayed the commission to dismiss the complaint.

8.     In order to prove the case, complainant filed his 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?

9.     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:-

10.   On perusing the complaint, version, documents, evidence filed by both the parties, it becomes clear that, the complainant purchased the membership from the OP by paying Rs.1,26,000/- for which, OP gave the membership card and the ID for opening the mail of the OP and to do transaction and for booking the package, for which complainant has agreed by executing the membership purchase agreement.

11.   It is the case of the complainant that he was not at all given the package as agreed and his calls were blocked by OP-2. There are number of email correspondences that has taken between the parties and we have gone through the same. Even the exchange of legal notice and reply is also admitted.

12.   It is highly illegally to keep the entire amount received from the complainant by OP towards the membership by not offering any benefits.  If no benefits are provided to the complainant or the members than what is the purpose for which public to obtain membership of OP’s club. It is only with an intention to get benefits only, and to have fun and pleasure with family members, public used to get membership with such clubs. When the facilities were not offered are not provided, there is no purpose in getting the membership by paying such a huge amount.

13.   It is the right of the member to either continue the membership or to terminate the membership. In this case, since OP did not provide any service as agreed in the agreement of membership, complainant has every right to rescind the contract and seek the refund of the amount, which the complainant has done by issuing a legal notice. 

14.   It is the specific case of the OP that, once membership is received and agreement executed, a member cannot claim refund and there is no provision in the agreement to refund the amount but it can only be transferred as a gift to the membership of the complainant’s family.  This condition itself is much against to the principles of natural justice as when no service is provided OP is not entitle to receive/retain any money. Hence we are of the opinion that there is deficiency in service on the part of OP in not providing facilities which agreed to be provided to the complainant on becoming member of the OP and further retaining entire amount under the guise of the purchase agreement. It also amounts to unfair trade practice on the ground that OP has to charge for the service provided and not entitle to retain any amount by not providing any service. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

15.   The complainant has sought for refund of Rs.1,26,000/- along with 18% per annum on the said amount from the date of payment and also damages of Rs.2,00,000/- for undergoing mental agony and hardship and for other reliefs. At the same time OP has received Rs.1,26,000/- from the complainant and has provided him the membership card and has also entered into an agreement of membership and has to maintain his office and also incurred administrative expenses. Hence we are of opinion that if 60% out of the said amount if ordered to be paid by OP-1 and 2 to the complainant along with interest at 12% per annum from the date of legal notice i.e. 19.09.2017 expressing his intention to come out of the membership, if ordered would be just, proper and reasonable along with damages of Rs.25,000/- and Rs.10,000/- towards litigation expenses. Hence we answer POINT NO.2 PARTYLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. Complaint is allowed in part with cost.

2. OP-1 and 2 are jointly and severally hereby directed to pay a sum of Rs.75,600/- to the complainant i.e. (60% out of the amount paid by the complainant i.e Rs.1,26,000/-) along with interest at 12% per annum from the  date of issue of legal notice dated 09.09.2017 till payment of the entire amount.

3. Further OP-1 and 2 are directed to pay a sum of Rs.25,000/- damages and Rs.10,000/- towards cost of the litigation expenses.

4. OP-1 and 2 are further directed 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. Complaint against OP-3 is hereby dismissed.

6.  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 failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this 15^TH DAY OF JULY 2022)

MEMBER                 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: Regd. Membership purchase agreement.

Ex P2: Work sheet.

Ex. P3: Privilege card.

Ex P4: Amount paid receipt

Ex P5: Copy of the legal notice

Ex P6: Postal acknowledgment

Ex P7: Copy of the reply

Ex P8: Copy of the club card.

Ex P9 & P10: Two receipts for having received the amount.

Ex P11: Email correspondences.

Ex P12; CD

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

RW-1: - Nil –

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER                 MEMBER               PRESIDENT

RAK*