D.O.F. 28.05.2009
D.O.O.20.01.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K. Gopalan : President
Smt. K.P. Preethakumari : Member
Smt. M.D. Jessy : Member
Dated this the 20th day of January 2012.
C.C.No.141/2009
C.P.Muhammed Ansari,
Darul Aman, Near Dinesh Bhavan,
Chirakkal.P.O. : Complainant
(Rep. by Adv. M. Kishore Kumar)
1. U.K.Nambiar,
Managing Director,
Cannanore County Club & Resorts Pvt.Ltd.,
Kairali Heritage,
P.O.Narath, Kattambally. : Opposite Parties
2. Shobana, Director,
Cannanore County Club & Resorts Pvt.Ltd.,
Kairali Heritage,
P.O. Narath, Kattambally
3. Ummerkutty, Director,
Cannanore County Club & Resorts Pvt.Ltd.,
Kairali Heritage,
P.O. Narath, Kattambally
4. Ananthakrishna, Director,
Cannanore County Club & Resorts Pvt.Ltd.,
Kairali Heritage,
P.O. Narath, Kattambally
(Rep. for OPs 1 to 4 by M.K. Associates)
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing opposite parties to return the total amount of ` 10,09,000 extracted by the opposite party and also to pay `5,00,000 towards compensation.
The complainant Mr.C.P.Muhammed Ansari, he is the member of Cannanore County Club & Resorts Pvt.Ltd., The complainant enrolled in a special package by paying a package fee of `1,03,000. He became member on the basis of representation made by the opposite parties regarding its own facility and regarding the facility available with RCI India Ltd. As a member of Cannanore County Club & Resorts Pvt.Ltd., complainant was also elevated to the membership for RCI India Pvt.Ltd. As represented by the opposite party the member of the club is entitled to all the facilities provided by RCI India Private Ltd. meant for the Holiday Packages. Complainant is entitled to use facilities like Swimming pool, health club and whirl pool etc. in the premises of Kairali Heritage. As per the terms being a member of RCI the complainant is entitled for holiday package stay in 16 alternate years and is also entitled for stay in the resort for a week. Complainant approached opposite party on 21.10.08 and requested for the bonus week facility on 24.10.08 onwards. But it was denied by the opposite party saying that the complainant has not paid the management fee of `3000 on 9.3.05 itself. Though he had showed the receipts of payment of management fee and the RCI renewal premium of `3000 per year. Even after showing the receipts opposite parties denied the facilities without any reason. He was not permitted to use the swimming pool and health club as a member of the club. Moreover the opposite party did not introduce the whirlpool in the premises of Kairali Heritage to fulfill their offer. The denial of opposite party caused him mental agony and financial loss. Thus he issued lawyer notice to opposite parties on 3.11.08. He sent reply with false allegations. Since it is clear that they will not settle the matter, complainant initiated to file this complaint.
Pursuant to the notice opposite parties entered appearance and filed version. The brief of the contention raised by opposite parties are as follows:- The complainant is not a consumer and the complaint is not maintainable. There is no service offered to complainant. Complainant is entitled to enjoy certain benefits by reason of admitting him into the membership of the Holiday Package Scheme. The consideration collected from such Resort member is in the nature of membership fee and not a price as ordinarily meant in common parlance. The dispute concerning the grant or declining to grant of such membership privileges cannot be treated as dispute with in the meaning of section 2(e) of Act 1986. The complainant became the member on the strength of bilateral agreement to avail the benefit of Holiday Package and other tour benefit. Such benefits are intended for stay in Kairali Heritage Resort for a week each year for 16 alternate years without paying any accommodation charge. This holiday package is in consideration of paying a lump sum of `1,03,000. In consideration of payment RCI India Ltd. allows members like the complainant the time sharing scheme offered by them as per the rules and regulations. The complainant get the facility of staying without paying room tariff for 7 nights and 8 days in any of the Resorts affiliated to RCI and the concerned resorts as per the RCI terms of membership. For availing the above mentioned facility the members have to pay a Management fee of `3000 per year on or before 1st of April. In the case of complainant this was waived for first two years. He has not paid this fee from April 2005. In the event of not paying this management fee to the Resort, membership shall be forfeited. The complainant has not paid the management fee after 9.3.2005. The non payment of management fee after 1.4.05 will not confer any right or privilege to the complainant. He can only agitate any dispute or difference in relation to those matters which falls or occurred before the period 2005.Complaint filed after a long lapse of years which is beyond the period of limitation. As regard the denial of Bonus week facility on 24.10.08, this facility is granted by RCI India Pvt.Ltd, and the complainant had not brought any advice from RCI India Pvt. Ltd. to this effect. In spite of non-payment of management fee complainant was allowed to use the swimming pool, the management was even tolerated when the complainant did not adhere to the swimming pool code of conduct. There is no truth in the allegation that the General Manger used the abusive words to complainant. The complaint is really an abuse of process of law. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration:-
1. Whether the complainant is a consumer and the complaint is
barred by limitation?
2. Whether there is any deficiency in service on the part of
opposite parties?
3. Whether the complainant is entitled for the relief as prayed in
the complaint?
4. Relief and cost.
The evidence consists of oral testimony of PW1, PW2, DW1 and documentary evidence Exts.A1 to A3 on the side of complainant and Exts. B1 on the side of opposite parties.
Issues 1 to 4:
Admittedly complainant became the member of Holiday package scheme. He is entitled to avail benefits such as stay in Kairali Heritage Resort for a week each year for 16 alternative years without paying any accommodation charges. This is in consideration of paying a lump sum of `1,03,000.
The case of the complaint is that the complainant became member of the club on the basis of the opposite party’s representation regarding its own facility as well as the facility available with RCI India Ltd. As a member of the Cannanore County Club & Resort Pvt. Ltd. the complainant was also elevated to the membership of RCI India Pvt. Ltd. meant for the Holiday package. Opposite parties also told him that he cane use facilities like swimming pool, health club and whirl pool etc. in the premises of Kairali Heritage. Complainant is entitled for Holiday package stay and is also entitled for stay in the resort for a week. He is further entitled for two bonus weeks in a years time. On 20.10.08 when complainant requested opposite parties for the bonus week facility it was denied by saying that he has not paid the management fee of `3000. Complainant has paid `3000 as management fee on 9.3.05. He showed receipt of payment of management fee and RCI renewal premium of `3000 his membership valid up to 6.2013. But complainant was denied the facility. Complainant was also not allowed to use the swimming pool and Health Club as a member of the club. He sent lawyer notice on 3.11.08. They sent false reply but not settled this issue.
Opposite parties on the other hand contended that complainant is not a consumer since he is only a Resort Member. The consideration “Management Fee” collected is not a price and the dispute regarding membership privileges cannot be treated as consumer dispute. Any such dispute if existed it shall be resolved through arbitration. Opposite parties admits that complainant is a member but allegation that the complainant became member of the club only on the basis of representation of opposite parties regarding the availability of facilities with RCI is absolutely false. RCI India Ltd. allows members like this complaint the time sharing scheme offered by them as per their Rules and Regulations. Complainant would get the facility of staying without paying room tariff for 7 nights and 8 days in any of the Resort affiliated to RCI as per RCI terms of Membership. Opposite party further contended that for availing of above said facilities the members have to pay Management fee of `3000 per year on or before 1st April. In the case of complainant it was waived for two years but he has not paid this Management fee after 9.3.2005. So he has no privilege after 1.4.05 on the ground of non payment of management fee. The complaint filed after a long lapse of years is beyond the period of limitation and is liable to be dismissed since barred by limitation.
Opposite parties also contended that Bonus weekly facilities on 24.10.08 are granted by RCI India Pvt. Ltd. and the complainant had not brought any advice slip from RCI India Pvt.Ltd. to this effect. Opposite parties also contended that member’s like complainant cannot use the facilities like swimming pool in the Resort when they are not resident guests but are casual visits to the resort.
First of all it has to be looked into the fact whether the complainant is a consumer or not. It has been admitted that complainant is a member of the Resort club on the strength of an agreement. It is also admitted that consideration in the form of “Management fee” has been collected from the complainant. Opposite party has offered certain facilities for consideration. Complainant availed the facilities by making payment. If the payment is not made complainant will not be allowed to avail those facilities. The main contention of the opposite parties is that since the complainant has not paid the management fees he will not have any right or privilege to avail the facilities. Hence the payment of consideration, whatever it may call is a determining fact regarding the very existence right or privileges as a member. Under section 2(1)(d)(ii) of the Consumer projection Act “Consumer” means any person who hiers or avails of any service for a consideration which has been paid or promised or partly paid and partly promised. It can be seen that the complainant availed the services offered by the resort not by free of cost by payment of consideration and thus there is no doubt the complainant is a consumer.
The cause of action arose on 20.10.08 when the complainant approached the opposite parties for bonus week facility and up on its denial. The complaint has been filed on 28.5.09. The complaint being filed within the statutory period of 2 years under section 24 ‘A’ there arose no question of limitation. Thus it can very well be decided that complainant is a consumer and he has filed the complaint within time whereby complaint is perfectly maintainable.
The second question that arose for consideration is whether the complainant has violated the terms of the agreement. Opposite parties contended that for availing the facilities of a member the Management fee of `3000 per year has to be paid on or before 1st April. In the case of the complainant it was waived for two years but he has not paid this Management fee after 9.3.2005. So he has no privilege after 1.4.05 on the ground of non payment of management fee. So also in the case of Bonus weekly facility opposite parties contended that it is granted by RCI India Pvt. Ltd. and the complainant had not brought any advice slip from RCI. The other main point covered to be answered is with respect to the facilities like swimming pool in the resort. Answer to these points will make clear whether there is deficiency in service on the part of opposite parties.
Complainant pleaded that he had in fact paid the Management fee of `3000 on 9.3.2005 itself. It is also alleged that he had brought the fact of payment before the opposite parties by showing the receipts of Management fee and the RCI renewal premium. Complainant produced three documents on his side to prove his case. Ext.A1 is the agreement, which has categorically stipulated that “the Management Fee payment stipulated in this agreement shall be payable by the Applicant(s) as holder of the Membership certificate in advance on yearly basis and is due on 1st of April each year for the following years in which the Applicant(s) shall be entitled to occupy the apartment as a Resort Member”. Ext.A2 is the lawyer notice. Complainant has alleged in his notice that receipt of payment of management fees of `3000 and payment of RCI renewal premium of `3000 were shown to opposite parties but the facility was denied to him. Ext.A3 is the reply to Ext.A2 wherein opposite party replied that the allegation that the Management fee of `3000 was paid on 9.3.05 itself and also showed the receipt etc. are absolutely false. Ext.A3 also contains the following reasons for denial of the bonus week facility.
1. He did not bring the bonus entitlement voucher duly
approved from RCI India Pvt. Ltd.
2. He had also not paid the Management fee of `3000
payable on 1.4.06, 1.4.07 and 1.4.08 as per the agreement.
It is also answered in Ext.A3 that Swimming pool and health facilities were not denied to complainant. It is further stated that the resort has no whirlpool at all. In the light of the above reply of denial the burden lies upon the shoulders of complainant to prove his allegations substantiating convincing evidence. The above said receipts were not produced before the Forum in order to prove the payment of Management fees. PW2 in his cross examination has deposed that if the Management fees have not been given the company is not liable to give the facilities ordered. Complainant has not produced any receipt to prove that he has paid the management fee. So also complainant has not produced bonus entitlement voucher approved from RCI. Complainant has not given a proper explanation to that point. There was also no denial on his side with respect to the same. It can also be seen that complainant could not bring anything favourable to him though DW1 was elaborately cross examined. Hence the close scrutiny of available evidence reveals that complainant failed to place cogent and convincing evidence to substantiate his case. Therefore we are unable to find any deficiency in service on the side of the opposite parties. These issues 1 to 4 are found against complainant.
It is therefore the complaint stands dismissed. No order as to cost.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1.Agreement executed by complainant and OP.
A2.Copy of the Lawyer notice sent to OP.
A3.Reply notice
Exhibits for the opposite parties
B1.Copy of the order in IA2190/07 of OS.340/07 of Kannur Munsiff court
Witness examined for the complainant
PW1. Complainant
PW2.P.N.Sasikumar
Witness examined for opposite parties
DW1.R.Ananthakrishnan
/forwarded by order/
SENIOR SUPERINTENDENT
