BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 18th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
SMT. SHARADAMMA H.G : HON’BLE MEMBER
ORDERS IN
C.C.No.113/2013
(Admitted on 20.04.2013)
1. Mr. Sebastain Norhona,
S/o Norhona
of age years
Robita Behind Jesus & Mary
Convent, New Monkeystand Road
MANGALORE.
2. Mrs. Prescilla Norhnoa,
W/o. Sebastain Norohanna
of age years
‘Robita’ Behind Jesus & Mary
Convent, New Monkeystand Road
MANGALORE.
….. COMPLAINANTS
(Advocate for the Complainants: Sri SD)
VERSUS
1. The Authorized Signatory,
Country vacation
Country Club India
Opp: Fisheries College
Yekkur Post, Mangalore.
2. Shobha Shetty
The Authorised Signatory
To 2B, 3rd Floor
Crystal ARC, Balmatta Road
Mangalore.
3. Umesh Reedy, Country Club
Regd. Office : 8.2.703
Amrutha Valley Road No.12
Bangara Hills, JHyderbad 500 034
….......OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1, No.2 & No.3: Sri IKS)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainants contend believing sugary asseverations and asseverated of opposite party the complainants took membership of Country Club Mangalore in 2008. In 2008 while securing membership opposite party No.2 asseverated and represented to complainants that their membership fee would be include a complimentary free site where the Vedic Country, Spa, Project Kool in Bangalore and it was required of complainants to pay Rs.15,000/ towards the site confirmation and administration charges including of registration Stamp paper fees, registration expenses with other maintenance charges for period of 30 months. Hence complainants paid Rs.1,25,000/ to opposite party No.2 by cheque on 4.6.2008. As per various communications and bills opposite party shall only bear life member ship cards in Mangalore from 2008 up to 2013 and have registered in a site in complainant’s favour. Contending that opposite party No.2 had dodged issue of site registration on one or other pretext due to severe financial crunch as such the complainant demanded the refund of their money of Rs.1,25,000 given to opposite party No.2 with interest. For failure to register it in complainants name alleging deficiency in service on failure with comply demand made through seeks remedies mentioned in the complaint.
II. Opposite parties in the written version it is contended that opposite party No.1 introduced the scheme with MLLM Membership wherein the members can avail club facilities and no complementary plot with what is given to the member and utilize the club facilities. Complainant No.1 applied to the Membership paid Rs.15,000/ as membership fee and obtained membership MLLM 987 itself. Under the MLLM complainant No.1 had liability to get one complimentary plot and opposite party allotted complimentary plot No. 1052. But complainant had not paid the balance amount of Rs.20,000/ towards the registration of complimentary site. Opposite party is ready to execute Gift deed in respect of one complainant site subject to payment of the balance amount. Complainant No.2 had applied the membership and paid the Rs.1,25,000/ towards membership fee with various cheques and was issued membership card by opposite party club. Even she is entitled for plot but has to pay Rs.20,000/ towards registration charges. The sites agreed to be provided by opposite party is only complimentary offer made by opposite party No.1 about which a paper publication was taken out in Deccan Herald and Prajavaani dated 28.05.2011 and the sites agreed to be given was as complimentary site to its member by way of gift. There is no right to get redressal under the Consumer Protection Act. Allotment of complimentary plot was an additional attraction to take a membership but not a contract. The offer of complimentary plot to the member under the Kool Club Scheme is totally separate and has nothing to do with the fee paid for membership. Hence the complainant being a consumer in relationship to the membership of the opposite party but not in relation to additional benefit of the complimentary plot. Allegation that opposite party is obliged to perform part of the undertaking subject to payment of the balance amount of Rs.20,000/ it is also alleged that their claim for compensation raised in the breach of contract is to be filed before Civil Court and not before the Forum.
2. As per clause 8 of the terms and conditions in case of amount fee is not reemitted within 45 days from the allotment of the membership, allotted if any would be cancelled or ignore membership without assigning any reasons. In case complainant pay registration charges and AMC charges of Rs.20,000/ for each plots opposite party are ready to get their register the complimentary plots at Vedic Spa, 7th Extension at Padiparthi Village, Hindupur Taluk, Ananthapur District. Hence seeks dismissal.
3. In support of the above complainants Mr. Sebastain Norhona filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C13 as detailed in the annexure. Mrs. Prescilia Norhnoa also filed affidavit evidence as CW2. On behalf of the opposite parties Mr. Venkatesh Varma (RW1) Assistant Administrative Manager, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R3 as detailed in the annexure here below.
In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsel for opposite party filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties and notes of argument of opposite parties. Our findings on the points are as under are as follows:
Point No. (i): Affirmative
Point No. (ii): Negative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): The complainants are members of opposite party club is not in dispute, that opposite party club agreed to provide a site each as a complimentary site to the members namely the complainants is also not disputed by opposite parties. It was argued by learned counsel for opposite parties that and it is a contention of the opposite parties that the site agreed to be given as a complimentary as an intrinsic and not part of the membership. Even though opposite party is took a contention of taking out paper publication calling for membership offering a free site as complimentary to the members in 2 daily newspapers Deccan Herald and Prajavaani copies of the publication are not produced by them. Hence what was the offer made is not before us.
2. In this case documents produced by the complainants are not marked hence marked now at Ex.C1 to C13. As seen from the documents produced by the complainants Ex.C7 the letter addressed to complainant No.2 dated 4.6.2008 in notes mentions allotment of complimentary plot at Coconut Grove Vedic Spa and about requirement to pay 15,000/ towards registration for 2.5 years maintenance charges and incidental charges. Ex.C9 is letter of allotment by opposite party No.1 to complainant No.1 dated 8.8.08 mentioning that they alloted a complimentary site at Country Spa project to him and mentioned that he is required to pay Rs.20,000/ towards site confirmation and administrative charges. Thus ongoing through these documents it is clear that the claim of opposite parties the allotment of site was only intrusive and not to a customer cannot be accepted. This is by considering that the complainants are required to pay the maintenance charges to opposite parties. That opposite parties have not registered the site promised to complainant and on that count when the complainant demanded the refund of the amounts paid opposite parties have refused to comply leading to a dispute between the complainants the consumers and the opposite parties the service providers as contemplated under section 2 (1)(e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS No.(ii): Even as per the evidence of complainants there was no agreement entered into between complainants on the one side and the opposite party No.1 on the other. In respect of the sites to be given to complainants by opposite party No.1 this is evidence from the reply to the interrogatories furnished by opposite party No.1. In fact it is not the case of opposite parties that there was an agreement between the parties in respect of these two sites given to complainants by opposite party No.1 the club.
2. In the case on hand the complainants have for failure of the opposite parties to execute registered deed. In respect to the sites sought refund of the amounts paid by them to opposite parties in respect of these site admitting the complainants paid Rs.1,25,000/ to opposite parties.
3. As seen from Ex.C2 Rs.15,000/ was paid by complainant No.2 to opposite parties club towards membership. Ex.C3 is also a receipt issued to complainant No.2 it is dated 4.6.2008 for a sum of Rs.1,25,000/ the amount was paid by cheque. Ex.C4 is receipt issued by opposite parties to complainants No.2 for rs. 1,10,000 it is dated 26.6.2006. Cheque number is mentioned at Ex.C4 and C3 are one and the same 240277. Hence it is a single payment.
4. As mentioned earlier even according to complainants No.1 version in the evidence there was not agreement in respect of the allotment of site and whether who should boot the registration expences in respect of the transfer of the deed is the immovable properties to the name of the complainants. Hence Ex.C7 and C9 the first one letter dated 4.6.2008 addressed to complainant No.2 and second one dated 8.8.2008 addressed to complainant No.1 by opposite parties mentioned about allotment of sites to them. At Ex.C7 addressed to complainant No.2 there is mention that the original writing of balance of Rs.1,25,000/ was cancelled by opposite party No.1 with seal and signature. Accepting mention requirement to pay annual administrative charges of Rs.3000/ there is no mention of requirement to pay registration charges. Ex.C7 dated 04.6.2008 of opposite parties to complainants to mention allotment of complimentary free site and required to pay Rs.15,000/ towards confirmation of administration charge inclusive it includes of stamp paper for registration and along with the maintenance charges 30 days it required the amount to be paid within 30 days. Similarly at Ex.C9 also identical wordings are used except in respect of Rs.15,000/ Rs.20,000/ is mentioned.
5. It is not the case of complainants that they paid this amount of Rs. 15,000/ and Rs.20,000/ in respect of the Ex.C7 and C9 at any time to opposite parties. It is none of the case of complainants that there was an agreement between the parties in respect of the site and how it should be administered or registered. In fact even the complainants did not produced the newspaper publication mentioned earlier even thought in the complainants itself they make mention about the same. As such the complainants cannot escape from liability to pay the registration charges of Rs.15,000/ and Rs.20,000/ respectively as mentioned at Ex.C7 and Ex.C9.
6. In the circumstance the claim of complainants for refund of the amounts advanced to opposite parties in our opinion it is not justified. Hence there is no deficiency of service on the part of opposite parties towards complainants. Hence the question of ordering the refund of the amount paid by complainants to opposite parties does not arise. Hence we answer point No.2 in the negative.
POINTS No. (iii): Wherefore the following order
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 10 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 18th January 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
MEMBER
(SMT. SHARADAMMA H.G)
D.K. District Consumer Forum
Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 Mr. Sebastain Norhona
CW2 Mrs. Prescilla Norhnoa
Documents marked on behalf of the Complainants:
Ex.C1: Membership Cards of complainant No.1 and No.2
Ex.C2: Receipt for payment
Ex.C3: Receipt for payment
Ex.C4: Receipt for payment
Ex.C5: Annual Maintenance charges bill reminder
Ex.C6: Letter of Allotment
Ex.C7: Communication letter
Ex.C8: Annual Maintenance charges bill reminder
Ex.C9: Letter of Allotment
Ex.C10: Communication letter
Ex.C11: Communication letter
Ex.C12: Communication letter
Ex.C13: Legal notice with acknowledgement and receipts
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Venkatesh Varma, Assistant Administrative Manager
Documents marked on behalf of the Opposite Parties:
Ex.R1: Copy of the application form
Ex.R2: Copy of the Allotment letters
Ex.R3: Copy of the reminders
Dated: 18.01.2017 PRESIDENT
