State Consumer Disputes Redressal Commission
Country Club (India) Ltd. vs Mr.Farokh Santoke on 10 October, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE
CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No.
A/13/57
(Arisen out of Order
Dated 25/02/2013 in Case No. CC/10/317
of District Mumbai Suburban)
Country Club ( India)
Ltd.
Row House no.7, Kiya Park
Opp.Country Club,
Prathamesh Complex
Veera Desai Road (Extension)
Andheri(West), Mumbai
400 053
And also at
Country Club ( India)
Ltd.
723/A, Prathamesh
Complex
Veera Desai Road (Extension)
Andheri(West), Mumbai
400 053
...........Appellant(s)
Versus
Mr.Farokh Santoke
Meher Villa, 29 Bezant Road
Santacruz(West)
Mumbai 400 054 and
Also at G-37, Punjab CHS
Tagore Road, Santacruz(W)
Mumbai 400 054
...........Respondent(s)
BEFORE:
HON'BLE
MR. Dhanraj Khamatkar, Presiding Member
HON'BLE
MR. Narendra Kawde Member
For
the Appellant:
Mr.Prasad Apte Advocate i/b. Advocate G.K.Tripathi
For
the Respondent:
Respondent in person
ORDER
Per Honble Mr.Dhanraj Khamatkar, Presiding Member This appeal takes an exception to an order dated 25/02/2013 passed by the District Consumer Disputes Redressal Forum, Mumbai Suburban in consumer complaint no.317/2010.
Facts leading to this appeal can be summarized as under:-
The complainant had deposited an amount of Rs.1,60,000/- on 30/09/2009 for becoming a member of the opponent Country Club ( India) Ltd. Accordingly, the opponent has issued a slip for the payment and issued a letter confirming the kool life membership. Accordingly, the agreement is entered into between the parties on 04/10/2009. In clause no.7 of the agreement there is a provision which reads as under:-
7. As a special time bound limited offer, a LCD is free with this membership. The member is hereby understood that the display picture is only an indicative item the member unconditionally accepts that the brand or/and the free gift can be replaced at any time without any notice.
In confirmation for kool life membership, the opponent has promised the entitlement of the complainant for his membership. It is the contention of the complainant that as promised, the opponents have not provided him the LCD TV, even after the complainants sending an E-mail. Further the complainant contends that as per the agreement, the complainant has asked for a holiday in Cochin w.e.f. 22/10/2009 to 26/10/2009.
However, there was no response from the opponent. Again the complainant has sent an E-mail requesting to visit Trivendrum (Kovalam) from 12/11/2009 to 19/11/2009.
However, he has been replied by the opponent that I am sorry for the inconvenience but paid trip is only for Kovalam, Kerala, Bush-beta, Goa Anjuna, to which the complainant replied and asked the opponent just to jog your memory Cochin is in Kerala. However, there was no response from the opponent and violated the agreement by not making the arrangement. Looking into the conduct of the opponent, the complainant decided to cancel the agreement and, accordingly, the complainant has sent communication dated 03/12/2009 to the opponent that he wants to cancel the agreement and requested to return the deposited amount. As there was no response again, the complainant has sent e-mail dated 07/04/2010 informing the opponent that he will proceed against the opponent legally. However, there was no response. Alleging this, as deficiency in service, the complainant has filed consumer complaint stating that as promised, the opponent has not made the arrangement and, thereby, engaged in deficiency in service and, hence, be directed to pay an amount of Rs.1,60,000/-, compensation of Rs.30,000/- and costs of Rs.10,000/-.
The opponent has contested the complaint by filing written version denying the allegations made by the complainant in the complaint. The opponent further stated that the complainant has asked for reservation in a specific tourist place. However, the reservation is given as per the availability and the complainant has no right to demand a reservation for a specific tourist point on priority. Opponent further stated that the deposit which the complainant paid is non-refundable and, hence, the complainant cannot demand back the deposit.
As regards free LCD TV, the opponent has stated that the complainant was informed to take the delivery of LCD TV, however, he has not taken the delivery. The opponent further raised the point that as per the agreement, in case of dispute regarding the agreement, there is a provision for arbitration and, hence, the consumer forum has no jurisdiction.
The opponent further contended that there is no deficiency in service on their part and the complaint may please be dismissed.
District Forum after going through the complaint, written version filed by the opponent, evidence filed by both the parties on affidavits and pleadings of the advocates came to the conclusion that there is a deficiency in service on the part of the opponent and partly allowed the complaint directing the opponent to pay an amount of Rs.1,60,000/- taken from the complainant as a membership fee and Rs.30,000/- towards compensation and costs within a period of eight weeks, failing which, the amount of Rs.1,60,000/- will carry interest of 9% p.a. till its realization. Aggrieved by the said order, the opponent has filed the present appeal.
We heard Learned counsel for the appellant and respondent in person.
Admittedly, the respondent became a member of the opponents by paying an amount of Rs.1,60,000/- on 30/09/2009. Accordingly, the opponent has issued a letter confirming the membership of the complainant, which is at Exhibit 2 of the appeal compilation. As per the membership conditions, the complainant was promised 29 inches LCD TV, one paid trip for couple for one way air fare, food, if he stayed for three days two nights at Country Club property in India and one fully paid trip for 3 days two nights at Country Club to Dubai for a couple. Admittedly, this has been confirmed by the opponent in the membership agreement executed on 04/10/2009. It is the contention of the complainant that in spite of follow up, the opponent has not provided the facilities promised. It is the contention of the learned counsel for the appellant that by letter dated 10/10/2009, the appellant has informed the complainant to collect the gift from the office of the appellant informing them in advance.
As against this, the respondent contends that he has sent an E-mail for collecting the free gift i.e. LCD TV.
In support of his contentions, he relies to E-mails addressed to the opponent which are at page nos.46 & 47 of the appeal compilation. From perusal of the said papers, it reveals that as promised by the appellant, the respondent had tried to get a free gift but there was no response from the respondent. At page no.48, 49 & 50 there is an E-mail addressed by the respondent to the appellant asking to book holiday at Cochin from 22/10/2009 to 26/10/2009 and Trivendrum (Kovalam) from 12/11/2009 to 19/11/2009. In respect of first request, there is no communication from the appellant and in respect of second request, the appellant informed, I am sorry for inconvenience but paid trip is only for Kovalam, Kerala, Bush-beta, Goa Anjuna. In response to the same, respondent had sarcastically written just to jog your memory Cochin is in Kerala. However, there is no proper response from the opponent and, hence, the complainant decided to cancel his membership and asked for refund paid by the opponent.
Learned counsel for the appellant has tried to draw our attention to the agreement executed between the parties and submitted that LCD is a free gift and appellant has informed to the complainant by letter dated 10/10/2009 to collect the gift from their office informing in advance. As against this, from the communication addressed by the respondent, which is at page nos.46 & 47, the complainant has tried to get his free gift by sending an E-mail to the opponent. However, there is no response from the opponent. As regards booking, learned counsel has stated that as per the condition no.6 of the agreement, the booking is to be made well in advance i.e. 45 to 60 days in advance and the respondent has not informed well in advance. At page 48 of the appeal compilation, there is an email addressed by the respondent to the appellant requesting to visit at Cochin from 22/10/2009 to 26/10/2009. Said email is replied by the appellant on 15/10/2009 in negative. Again the complainant requested for booking at Trivendram (Kovalam). However, he was informed that sorry for the inconvenience but paid trip is only for Kovalam, Kerala, Bush-beta, Goa Anjuna and, hence, the respondent/ complainant has taken a decision to cancel the membership. However, in spite of communication from the respondent, there is no response from the appellant.
Learned counsel for the appellant has challenged the order on the point of jurisdiction contending that there is a provision for arbitration and, hence, the District Forum has no jurisdiction. Section 3 of the Consumer Protect Act 1986 provides that the provisions of this Act shall be in addition to and not in derogation to the provisions of any other law for the time being in force. Since the provisions of the Consumer Protect Act 1986 are in addition, the District Forum has jurisdiction to adjudicate the grievance of the complainant.
Learned counsel for appellant has challenged the order on the ground that the respondent has not booked his trip in advance as per the time limit given in the agreement. Though the respondent has not booked his trip well in advance, at both the times he was not informed that there is no vacancy. He was informed that paid trip is only for Kovalam, Kerala, Bush-beta, Goa Anjuna when the trip applied was for the cities in Kerala. Learned counsel has vehemently raised the point that the deposit paid by the complainant is non refundable. However, as per section 73 of the Indian Contract Act, when a contract is broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him. In the present case, since there was a breach of contract on the part of the opponents, the complainant is entitled to claim compensation as well as money paid for the contract. As the respondent is deprived by the opponent from enjoying the benefits of the membership, a legal injury is caused to the respondent since the appellant invaded leally protested interest of the respondent. The amount paid to the appellant by the respondent is not paid gratuitously and the appellant is enjoying the benefits thereof.
As such as per section 70 of the Indian Contract Act appellant is under statutory obligation to pay compensation as well as the membership fee which is paid for entering into a contract. Since there is material breach of contract on the part of the appellant, respondent is compelled to nullify the contract.
Appellant claims that they are a pioneer in the concept of family clubbing in the country and have established 205 properties, of which 50 are owned and 150 are franchised and presently have approximately 172 affiliations. In addition to the above, they have a global gateway via Country Vacations and RCI affiliation of 4000 resorts for its esteemed members. They are the countrys largest chain of Family Clubs, recognized by the Limca Book of World Records and counts amongst its clientele, prominent citizens from all walks of life. In addition to individual members, appellants have approximately 600 corporate members, including renowned companies such as Microsoft, Satyam Computers, Brooke Bond Lipton ( India) Ltd., CMC Ltd. etc. When the appellant claims that they are a pioneer in the concept of family clubbing in the country, such type of treatment to the members as reflected in the present case, is not expected from the renowned corporate. District Forum after going through the facts of the case and evidence on record, arrived at a proper conclusion and we do not find any illegality in the order. We hold accordingly and pass the following order:-
ORDER Appeal stands dismissed.
Parties to bear their own costs.
Pronounced on 10th October, 2014.
[HON'BLE MR. Dhanraj Khamatkar] PRESIDING MEMBER [HON'BLE MR. Narendra Kawde] Member Ms.