BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 21st 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.122/2013
(Admitted on 06.05.2013)
Mr. Hilary Lawrence D’ Souza,
Aged about 82 years,
S/o Late J.M. D’ Souza,
Residing at C.4, Duke Manor Apts,
Matadakani Road,
Near Urwa Market,
Mangalore 575 006.
….. COMPLAINANTS
(Advocate for the Complainant: Smt. MNA)
VERSUS
1. The Country Vacations India Ltd.,
(A Division of Country Club India Ltd.,
A Company registered under the Indian
Companies Act, 1956
Having its Registered Office at Country
Club India Limited,
6.3.1219, Begumpet,
Hyderabad 500016.
Represented by Authorised Signatory.
2. The Country Vacations India Ltd.,
Pumpwell Circle,
Kasargod Highway,
Opposite Fisheries College,
Yekkur, Kanakanady Post,
Mangalore 575 002,
Represented by Authorised Signatory.
….....OPPOSITE PARTIES
(Opposite Party No.1: Ex parte)
(Advocate for the Opposite Party No.2: 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 complainant claims she was persuaded by opposite party representative on membership of opposite party and deposited to obtain concession of opposite party’s company facility in case of tour travelling accommodation facilities in case of tour. After collecting cheque opposite parties promised to issue membership card to complainant and his wife. But no membership card till day opposite party ever issued membership card to avail the benefit of the scheme. Complainant being old is not in a position to travel anywhere decided to withdraw the deposited amount with letter sent by complainant which was drafted by the employees of opposite party promise was made to refund within 3 months but no reply was sent even though legal notice were also issued. Hence seeks refund of Rs.1,25,000/ with interest at 12.5% per annum and other reliefs.
II. Opposite party on entering appearance filed a written version claiming the complainant signed to agreement at the time of the discussion of the opposite parties just one way of going through draft copy of the agreed to execute the agreement with his wife and entering to purchase agreement dated 29.03.2011 the original of the agreement was handed over to complainant and the copy retained by opposite party. On several occasion complainant came to make choice but failed to do so. Under clause 14 of the terms and conditions (Annexure II) attached to the purchase agreement the disputes between the parties if any as refer to Arbitrator shall be final and binding on all parties herein and that the Courts in Hyderabad and Secunderabad alone shall have Jurisdiction this Forum in our state as per purchase agreement have no jurisdiction. Hence on that count only seeks dismissal.
2. Alleging there is no deficiency of service and that opposite party never restricted complainant in availing holiday facility seeks dismissal of the complaint.
3. In support of the above complainants Mr. Hilary Lawrance D’ Souza filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C3 as detailed in the annexure. On behalf of the opposite parties Mr. Anand K (RW1) Customer Care Manager, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 as detailed in the annexure here below.
III. 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 counsels for both sides filed arguments and heard. We have considered entire case file on record including evidence tendered by the parties and notes of argument of both 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): That complainant became member of opposite party by paying the amount of Rs.1,25,000/ agreeing to provide the services of hospitality at its units at various places in the country is not in dispute. The complainant claims opposite party made promise to issue membership card to complainant and his wife but in order to avail facility that card was not issued. However opposite party claims that the complainant never furnished the particulars to opposite party like photographs and details for issuing cards by visiting office of opposite party. It is not the case of complainant that all the particulars were furnished to opposite party. In any case the identity card, membership card was not issued by complainant and his wife by the opposite party is not in dispute. Opposite party contends service promised to a member the complaint was never refused for want of card. But complainant claims without card they cannot avail the facility. Hence there is dispute between the parties the complainant the consumer and the opposite party the service provider. Hence we answer Point No.1 in the affirmative.
POINTS No.(ii): Opposite party pointed out to Ex.R1 the copy of the agreement entered into between the complainant and opposite party in respect of membership. However the learned counsel for complainant argued Ex.R1 is not on required stamp paper. Hence the documents cannot be looked into. There is rival contention claimed as to the execution or otherwise of original of Ex.R1. Suffice to mention it was marked subject to objections. What was the nature of objection raised is not recorded in the order sheet. However in our view for the limited purpose as to the purpose which the money was paid the document can be looked into. Complainant did dispute signature at Ex.R1. However on looking into the signature of purchaser 1 i.e. complainant at Ex.R1 at 7 places and the signature of complainant in the affidavit evidence and in the complaint indicates these are also of admitted signatures and at Ex.R1 of the party No.1 i.e. of complainant. Hence complainant cannot be permitted to escape from the liability arising out of Ex.R1.
2. It is not the case of complainant for want of issue of ID card by Opposite party he was refused any of the service promised to complainant under the agreement of membership with opposite party the ground urged rather by complainant is strange. He claims because of his advanced age of 82 years as on date of filing the complaint is unable to avail facility of travel. This cannot be a justification for seeking refund of the amount delivered to opposite parties for membership of the club in as much as the complainant must have had knowledge of his age when he accepted the membership of opposite party club. Hence if complainant failed to make use of the facility offered by opposite party he has to blame himself and cannot seek to shift the burden on opposite party because of advanced age of complainant as rightly pointed out for defense. In the circumstance when complainant failed to establish deficiency in service on the part of opposite parties towards complainant namely refusal to provide facilities promised to him as member of the club in our considered view complainant is not entitled for any of the relief claimed for. 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 7 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 21st 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 Complainant:
CW1 Mr. Hilary Lawrance D’ Souza
Documents marked on behalf of the Complainant:
Ex.C1: Pass Book of the complainant
Ex.C2: Legal Notice
Ex.C3: Postal acknowledgement
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Mr. Anand K, Customer Care Manager,
Documents marked on behalf of the Opposite Parties:
Ex.R1: Office copy of the purchase Agreement dated 29.03.2011
Dated: 21.01.2017 PRESIDENT
