BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th November 2015
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 346/2012
(Admitted on 24.11.2012)
Mr. M. Mohammed Iqbal,
S/o Mir Ismail,
Aged about 47 years,
Residing at 1st Floor,
Febal Cote, 3rd Main Road,
Subash Nagar,
Mangalore. ….. COMPLAINANT
(Advocate for Complainant: Smt. Manjula N. A.)
VERSUS
- M/s Country club (India) Ltd.,
# 675, “A” Main,
Indiranagar, 1st Stage,
Bangalore-560 038
Represented by Authorized Signatory.
2. M/s Country Club (India) Ltd.,
1st Floor, Hotel Gold Finch Complex,
Behind Part of Gold Finch Hotel,
Bunts Hostel Road,
Kodialbail, Mangalore-575 003.
Represented by Authorized Signatory. ……. OPPOSITE parties.
(Advocate for opposite party No. 1 & 2 Sri Ibrahim.K.S.)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M.RAI:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant is the member of Opposite Parties club by remitting the membership for sum of Rs. 35,000/-. The opposite parties assured that if the complainant become a member of its cool vedic spa by paying a member ship of Rs. 1,25,000/- complainant will be offered better facilities and amenities like, family package for member and his family member, Direct membership of all the 50 clubs in India and access to 220 clubs and 125 Franchise clubs, all sports facilities are free of cost like swimming Pool, indoor and out door games, complementary Spa membership free for 5 years, free passes for shows conducted in country clubs, members can conducted own parties like a birthday parties, get together, conference and company parties etc., complementary one way Air tickets to country club defendant Goa with stay free for a couples, free plot (1500 sq. ft) will be allotted at Hogannekal Project, Dharmpuri Dist., Hosur (T.N), one week holiday packages for 30 years across country club properties in India and many more. Among the above facility the opposite parties was promised to provide the complainant free plot of 1500 sq. feets at Tumkur/Vedic Spa Pengonada and other facilities mentioned and this is absolutely no consideration for the said complimentary plot believing in words of the opposite parties the complainant has paid as sum of Rs. 1,45,000/- towards purchase price. The Opposite Party have confirmed the said facilities by issuing letter dated 27.08.2010 and agreed to allot free plot mentioned above and after that from the date of purchase agreement the complainant has been requested the opposite parties to show the above said site but the opposite parties avoiding the same on one or other reason, hence complainant decided to seek refund of the said payment of Rs. 1,45,000/- with interest of 18% per annum from the date of receipt till the date of payment. Hence issued a legal notice dated 11.09.2012 to refund the amount with interest opposite parties failed to refund the above amount which amounts to deficiency and the above complaint came to be filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to refund the sum of Rs.1,45,000/- along with interest at 18% per annum from the date of purchase agreement and also claimed Rs. 1,00,000/- as damages and Rs. 750/- as coast of the proceedings.
II. 1. Version notice served to the Opposite Party by RPAD filed version stating that the Opposite Party introduced a scheme viz,. Mr. Cool VS Card Members. A member of the club under the said scheme would get the facilities mentioned above.
It is submitted that initially complainant became a member under MILP 899 scheme by paying a membership fee, and was allotted membership bearing No. MILB 899. Thereafter the complainant having learnt about the facilities and benefits provided under the Kool H Membership and upgrade his membership to Kool H.
It is further submitted that the complainant is once again up grade his membership to COOl VS Scheme on total payment of Rs. 1,45,000/- through various cheques, for the said payment the Opposite Party had issued receipts, complainant was inducted as a member of the Opposite Party club. Thereafter, the Opposite Party issued a membership card bearing No. COOLVS 3291. The Opposite Party has issued allotment letter in favour of the complainant. It is submitted that in the membership application form, welcome letter and also in the allotment letter, the Opposite Party had specifically informed the complainant that the complementary plot allotted would be registered only on payment of the full membership fee and registration and maintenance charges. Further, pursuant to the allotment of the said complementary plot, the Opposite Party had informed the complainant to deposit a sum of Rs. 25,000/- towards the registration charges in respect each complimentary plot, along with other charges for maintenance, and ect., through demand draft/cheque in favour of country condos limited/Amrutha Estates, since entire process for procuring and allotment of complementary plot was being done by M/s country Condos Limited/Amrutha Estates, are sister concern of the Appellant. It is submitted that the Appellant had purchased several lands in their favour and subsequently they would execute necessary gift deeds concerning the free complementary plot in favour of eligible members.
It is submitted that Clause 6 of the terms and conditions states that in case the In case full amount of membership fee is not remitted within 90 days of allotment of membership, then money remitted till then would be forfeited by the club and membership allotted if any would be cancelled.
If the complaint is paid the registration charges of Rs. 25,000/- in respect of complimentary site, the opposite party is ready to execute a Gift Deed in favour of the complainant in Vedic Spa.
Such being the case the complainant not entitled for allotment of complementary site and contended that there is no deficiency and prayed for dismissal of the complaint.
III. In support of the complaint, one Mr. M. Mohammed Iqbal, RAzak (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the Ex C-1 to C-8. One Mr Venkatesh Varma. (RW-1) Country Club (India) Ltd., Assistant Administrative Manager of Opposite Party filed counter affidavit and answered the interrogatories served on him and got marked Ex R1 to R3 for the Opposite Party.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) TO (iii):
In the instant case, if Complainant is become a member of its international Holiday club by paying a sum of Rs. 1,45,000/- the complainant is get better facilities and amenities mentioned above further the opposite parties was promised to provide the complainant free plot of 1500 sq. feets at Tumkur/Vedic Spa Pengonada and other facilities mentioned by no consideration for the said complimentary plot, hence the complainant paid the above said amount from the date of purchase agreement, the complainant requested the opposite party to show the said site. But opposite party postponing the same, hence the complainant issued legal notice to refund the amount. But opposite parties not refunded the amount hence this complaint.
On the contrary the Opposite Parties raised a contention that the complainant is not entitled any refund of amount. Opposite Parties submitted that after becoming member of the club the opposite parties allotting a complimentary plot at Vedic Spa in favour of the complainant. Further, pursuant to the allotment of the said complimentary plots, the opposite parties had informed the complainant to deposit towards the registration charges along with other charges for maintenance, but complainant not complied the same. Hence denied the deficiency. Further the opposite Party contested that, the complainants have availed of the hospitality services provided by the Opposite Party and the site agreed to be provided was only a complementary offer, hence there is no deficiency in service. The complimentary plot was not registered in favour of the complainant because he has failed to pay the remaining membership fees, registration and miscellaneous charges inspite of several reminders. So they pleaded no deficiency in service.
On perusal of the oral as well as documentary evidence available on record, we find that the Opposite Party is not at all denied receipt of the amount of Rs.1,45,000/- by the complainant, and agreed that the complainant is the member of the Opposite Party club.
The Opposite Parties counsel raised the contention that the amount paid by the complainant is non-refundable. No doubt in order to smooth functioning of the opposite party company the terms and conditions are required to be entered into for the convenience of both i.e. Consumer and the company. But the said terms and conditions the clause inserted in the printed format shall not be a one sided then its amounts to void agreement. Even though the complainant not paid the registration charges it is the bounden duty of the Opposite Party to issue reminder and the Opposite Party only restrict the fact to that the complainant not paid the registration charges. We find that the complainant paid Rs. 1,45,000/- towards membership the site which is the complimentary plot. Hence paying registration fee does not arise and the Opposite Party not at all put the conditions of that effect. Further mon in this case the Opposite Party not demanded the registration fee from the Opposite Party and not reply the legal notice and not produced any original documents also.
Since the complainant is not satisfied with the Opposite Parties company of course he has got every right to cancel the membership and entitled for the refund of amount, the amount is with the Opposite Parties company by way of cash or kind the complainant is at liberty to claim refund of the amount because he is not satisfied with service of the Opposite Parties Company and Opposite parties company in turn cannot compel the consumers inspite of their unwillingness to continue. Further the Opposite Parties admitted that the complainant is the member of the club and Opposite parties not denied in the said aspect and also admitted that the complainant had deposited Rs.1,45,000/- for membership in their club. The documents produced by the opposite party i.e. Ex R-1 which its self-shows that the complainant paid the entire amount for purchase agreement.
In view of the above discussion, by considering the facts and circumstances, we are of the considered opinion that the interest of justice, we direct the Opposite Parties to pay Rs.1,45,000/- (Rupees One lakh Fourty five thousand only) to the complainant along with interest at 12% per annum from the date of payment till the date of realization and also pay Rs.5,000/- (Rupees Five thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the present case, interest considered itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite parties jointly and severally are hereby directed to pay a sum of Rs.1,45,000/- (Rupees One lakh Fourty five thousand only) to the complainant along with interest at 12% per annum from the date of payment till the date of realization and also pay Rs.5,000/- (Rupees Five thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of November 2015).
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr. Mohammed Iqbal – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 27.8.2010: Letter issued by opposite party.
Ex C2 - 11.09.2012: Lawyer’s notice.
Ex C3 – Postal receipts (2 in Nos)
Witnesses examined on behalf of the Opposite Party:
RW-1: Mr.Venkatesh Varma, Assistant Administrative Manager of
Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1: Notarized copy of Application.
Ex R2: Copy of the reminder notice. (4 in Nos)
Ex R3: Copy of the request letter by complainant to O.P.
Dated: 30-11-2015. MEMBER
(SMT. LAVANYA M.RAI)
D.K. District Consumer Forum,
Mangalore.
ORDER
The complaint is allowed. The Opposite parties jointly and severally are hereby directed to pay a sum of Rs.1,45,000/- (Rupees One lakh Fourty five thousand only) to the complainant along with interest at 12% per annum from the date of payment till the date of realization and also pay Rs.5,000/- (Rupees Five thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of November 2015).
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
