State Consumer Disputes Redressal Commission
A.R.Holidays Manager vs Bhagwatiben Upendrakumar Thaker on 22 May, 2023
Details DD MM YY
Date of Judgment 22 05 2023
Date of filing 20 03 2023
Duration 02 02 -
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 1
First Appeal No.343/2023
A.R.HOLIDAYS
Through its manager,
808, 809, Shivalik Shilp-2,
I.T.I, Near Narmada,
Opposite Keshavbaag Party Plot,
Vastrapur, Ahmedabad ...Appellant
Vs
BHAGWATIBEN UPENDRAKUMAR THAKKER,
Plot No. 616/1, Sector 4/C,
Gandhinagar,
Mobile : 9723235991. ...Respondent
Coram : Hon'ble Mr.R.N.Mehta, Presiding Member
Hon'ble Ms. P.R. Shah, Member Appearance : Mr. M.I. Hava for the appellant Order by Hon'ble Mr. R.N.Mehta, Presiding Member
1. This appeal has been filed by the original respondent being aggrieved by the order and judgment dated 28 February 2023 of the District Commission Gandhinagar in Consumer Complaint No. 325 of 2022. The District Commission has directed the opponent to refund the amount of Rs,60,000/- together with 9 % interest and also awarded Rs.5,000/- of the compensation for mental harassment and Rs.5,000/- for the cost of this complaint. Being aggrieved by the said order this appeal has been presented to submit that the Ld. District Commission has not appreciated the documents on record and miserably failed to appreciate clause 6 (a) with regard to refund policy of the appellant.
2. It is the case of the complainant before the District Commission that she received the telephonic communication from the appellant.
D.I.DABHI A-343-2023 Page 1 of 6Wherein the complainant was invited with family to attend a function on 11/07/2022. When the complainant reached there the employees of the appellant informed her about various Schemes of the appellant for membership of timeshare and travelling and room management. When the complainant resisted on the ground that she is not able to afford the overseas expenses, she was offered domestic tour package. Wherein she had to pay Rs.60,000/- for 3 years membership which appellant recovered through SBI card. The complainant was asked to sign the application form for joining the Scheme of the appellant. When the complainant had signed and submitted the document, she waited for about 2 months but was not able to get any message or conformation of contract from the appellant. On 22 August 2022 she received E-Mail, wherein it was informed that they have received membership proposal for the Hotel and Breakfast booking. The complainant felt that she has been cheated and not in accordance with the promises that was given. She immediately tried to contact the Manager, but there was no response. Being dissatisfied with the responses she received, she requested for cancellation of this membership and asked for refund of the amount which she had paid. The complainant was not paid the refund of the amount and therefore the complaint was filed before the District Commission.
3. When the matter was heard by the District Commission, it was admitted and notice was served upon to the opponent. It seems the opponent neither remained present nor filed any reply before District Commission. The District Commission proceeded with the complaint in accordance with the provision of the Consumer Protection Act 2019. The District Commission, after appreciating the evidence on record, came to the conclusion that the complainant has proved her case of deficiency in service coupled with negligence and therefore awarded the aforesaid amount. It is in these circumstances, the appellant has come before this Commission and challenged the order.
4. We have perused the order, we have also considered the paper book of the record and proceedings before the District Commission. The submission of Mr. Hava for the appellant is that there is a specific D.I.DABHI A-343-2023 Page 2 of 6 provision in the contract, where the membership fee is non-refundable. A copy of the terms and conditions (single page) is placed on record. Wherein Mr. Hava refers the clause 6 which reads as under:
"a. Withdrawal Application and Terms of Refund.
The Vacation user/member understand that the Vacation CHARGES of Membership fees or gateway fees is/are non-refundable under any circumstances and the Vacationer FEES/membership fees/gateway charges is/are not a refundable deposit even irrespective of the services utilization."
5. On basis of this document, Mr. Hava submits that the complainant had entered into the contract with open eyes and therefore she is not entitled to any refund even if she withdraws the membership. The most surprising thing is the complainant states that she had received offer on 9 July 2022. Whereas this document shows that the complainant had signed it on 22 May 2022. We are unable to understand how the complainant can enter into a contract without there being an offer received from the opponent. Presuming for the sake of argument, that the complainant had entered into a contract of 22 May 2022, there is nothing on record to show that when the contract was concluded. In so called one pager agreement, there is no signature on the part of appellant. So unless and until, the offer made by the appellant opponent is agreed upon through after proposal made by the complainant is accepted by the appellant, the contract comes into existence. It is no where mentioned in this terms and condition that within how much time the complainant will get the contract document. In the complaint, the complainant has specifically alleged that after payment of Rs.60,000/- she was awaiting for the conformation but she could not get the conformation from the opposite party. The only document which complainant has admitted is E-mail dated 22 August 2022. According to the complainant, in the said E- Mail, it was merely mentioned that the booking would be accepted for Hotel and Breakfast. The complainant has produced on record hand written documents by the employees of the opposite party, which gives promises for different Schemes and it includes that if complainant accepts a membership, she will be given air ticket for 2 persons during journey. This particular promise is not mentioned anywhere in the so- called document. So it can be presumed that the document which is D.I.DABHI A-343-2023 Page 3 of 6 produced by the appellant is not complete document. The District Commission has appreciated the evidence that was produced before it by the complainant. Since appellant did not remain present and not file reply the District Commission can pass order only from those documents. In none of these documents it has been mentioned that complainant was given the actual contract that was entered into between the parties. In such circumstance, The District Commission has rightly observed in its judgment that the opposite party has not provided the service and indulged in unfair trade practice.
6. Mr. Hava has referred the judgment of National Commission in the matter between Sri Dinkar Rao Vs Green Field Pvt. Ltd. dated 22 February 2011, wherein the National Commission has appreciated the non-refundable clause of the agreement that was agreed upon between the parties. We are not convinced with this submission made by Mr.Hava, because the facts in the said case were different. In that particular case, the agreement was signed in 1996, the person has availed the services for 5 years, thereafter he raised demand for refund of membership fees. When he was informed that it is not refundable, even thereafter, he had asked for the rendering of services. He then availed the services and subsequently he raised grievance with regard to quality of service. The National Commission has considered in this particular case, that so far the dissatisfactory services, the complainant has been awarded and since he has enjoyed benefits of membership for quite long period he is not entitled for refund of membership fees. Whereas in the case before this commission, the person has not availed any services, rather the contract was not concluded and therefore the ratio laid down in that particular case is not applicable to facts of this particular case.
7. Mr. Hava submits that the signing of the terms and conditions, itself binds the complainant to follow the terms and conditions. We are not convinced to the submissions advanced by Mr.Hava. It would be beneficial to refer the judgment of Hon'ble Supreme Court in the matter between Life Insurance Corporation of India vs. Raja Vasireddy Komallavalli & others in 1984 AIR 1014, wherein the D.I.DABHI A-343-2023 Page 4 of 6 Supreme Court had considered that the mere issuance of receipts and retention of premium does not amount the conclusion of contract. The Supreme Court has observed which reads as under:
"The mere receipt and retention of premiums until after the death of applicant does not give rise to a contract, although the circumstances may be such that approval could be inferred from retention of the premium. The mere execution of the policy is not an acceptance; an acceptance, to be complete, must be communicated to the offeror, either directly, or by some definite act, such as placing the contract in the mail. The test is not intention alone. When the application so requires, the acceptance must be evidenced by the signature of one of the company's executive officers.
Though in certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal silence does not denote consent and no binding contract arises until the person to whom an offer is made says or does something to signify his acceptance. Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offeror. The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Whether the final acceptance is that of the assured or insurers, however, depends simply on the way in which negotiations for an insurance have progressed."
8. Although, this is not case for the contract on insurance between the parties, but the facts remain that the complainant has been asked to signed the document that is prepared by the opposite party, in a sense it is standardized format of the contract and the complainant had no say for making any change in terms and contract. Therefore, the ratio laid down by the Supreme Court will squarely apply in this case. In this particular case, it is rather admitted position that the complainant has not been supplied the copy of contract between the parties. When the contract concludes, it is duty and obligation on the apart of acceptor, to provide copy of the contract to the other party, which is not completed in this particular case. When the copy of contract is not provided, it is established position of law that the contract becomes concluded only when the final acceptance is that of the acceptor is communicated to the proposer. This is not happened in this particular case and therefore it is the "unconcluded" contract and in such a case the complainant cannot be deprived of her right to cancel the agreement and to get the refund of the amount. Since the outcome of complaint is in line with established position of law we are not inclined D.I.DABHI A-343-2023 Page 5 of 6 to interfere with order passed by District Commission and hence pass following order.
ORDER A. The Appeal No.343 of 2023 is hereby dismissed at the admission stage.
B. The order dated 28.02.2023 passed by the Consumer Dispute Redressal Forum, Gandhinagar in Consumer Complaint No. 325/2022 is hereby confirmed.
C. There shall be no order as to cost.
D. Registry is directed to verify the amount deposited by the applicant in appeal no. 343/2023 and if found deposited, refund the same with interest, if any, accrued on the deposit to the appellant by RTGS after following due procedure and verification. For this purpose the appellant has to file an application with details to the account branch of this commission.
E. Registry is directed to send certified copy of this judgment to the parties. Registry is also directed to send copy of this judgment to the District Commission Gandhinagar through E-mail in PDF format for taking necessary action.
Pronounce in open court today on 22/05/2023.
[Ms. P.R. Shah] [Mr. R.N. Mehta]
Member Presiding Member
D.I.DABHI A-343-2023 Page 6 of 6