BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the7th October2016
PRESENT
SMT. C.V. SHOBHA: HON BLE PRESIDENT
SMT.LAVANYA M. RAI : HON BLE MEMBER
COMPLAINT NO.133/2015
(Admitted on 08.04.2015)
Mr. Ravi Kumar M.
S/o late E.P.Madhavan,
Aged 62 years,
Sooryodai House No.4.7A,
Near MalayalaKodi Temple,
……… Complainant
(Advocate for Complainant by Sri. KCN)
VERSUS
- The Manager,
Country Vacations,
A Division of Country Club,
(India) Ltd, Kasargod Highway,
Yekkur, Mangalore 022.
- The chairman,
Corporate office, #3.6.12/13,
4th Floor Ai Samad Building
Himayath Nagar,
Hyderabad 500029.
…. Opposite Parties
(Advocate for the Opposite Party:Sri.IKS)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite party claiming certain reliefs.
- The brief facts of the case are as under:
The complainants had become a member of the club of opposite party No.1 and in the month of July 2012, hence deposited an amount of Rs. 1,75,000/ (Rupees one lakh seventy five thousand only). The opposite party No.1 had represented that an amount of Rs. 20,000/ would go towards the membership fee and remaining amount of Rs. 1,55,000/ towards allotment of complimentary plot at coconut grove Tumkur which is substantiated by their allotment letter dated 07.07.2012. A complementary plot of 1,089 Sq.ft. in the name of the complainant and the time required to register the plot was 18 to 24 months. Hence complainant as deposited the amount as per receipts mentioned in the compliant. Thereafter the complainant approached opposite party No.1 on 07.11.2014 and enquired about the site allotment. The manager of opposite party No.1 informed the complainant that there was no vacant site for allotment. Hence complainant requested to the opposite party No.1 refund the amount, but which could not find any good result opposite party avoiding the complainant. One orother reason, hence complainant decided to seek refund of the above said amount of Rs. 1,75,000/ with interest at 18% p.a from the date of deposit till the date of payment.
Therefore issued legal notice to refund the amount with interest, opposite parties failed to refund the above amount which amount to deficiency. Hence the above complaint case to be filed U/S 12 and 13 of the C.P. Act 1986 (herein after referred to as the Act) seeking direction from this Forum to refund the sum of Rs. 1,75,000/ along with interest at 18% p.afrom the date of deposit till the date of payment and also claimed damages and compensation and other reliefs.
- Version Notice served to the opposite party by RPAD filed version stating that complainant is a primary member of the club and as per the purchase agreement 07.07.2012. Opposite party has issued membership card to the complainant. It is quite evident from the allotment letter dated 07.07.2012 that the complementary plot is subject to condition that “after making full payment, registration and development charges of Rs. 30,000/ should be paid at the time of registration”. That the complainant has utterly failed to comply with the condition mentioned above in spite of several reminders from the opposite parties to pay the registration and development charges and the complainant never approached the opposite parties to get register the complementary plot.
The opposite party further submitted that in fact all these years complainant has enjoyed the full benefits of the Club and now filed a vexatious complaint in order to make unlawful gain by making false allegations. Further submitted that this Forum has no jurisdiction to entertain to such complaint. It is submitted that a claim for compensation simpliciter arising out of an alleged breach of contract must be filed before a civil court and not before the District Forum in terms of Consumer protection Act. Hence prays for dismiss the complaint.
- In support of the complainant One Sri. Ravi Kumar M.(CW1)complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the documents same is marked as Ex C1 to C10. One Mr. Anand K. (RW1) customer carein charge of opposite party filed counter affidavit.
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 party has committed deficiency in service?
- If so, whether the complainant are entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No (i): As per Affirmative
Point No. (ii) And (iii): As per the final order.
REASONS
IV. POINTS No. (i) to (iii):
In the instant case the complainant had become a member of opposite party and deposited amount of Rs. 1,75,000/ further opposite party No.1 had represented that an amount of Rs. 20,000/ would go towards the membership fee and remaining amount of Rs. 1,55,000/ towards allotment of complimentary plot at coconut glow Tumakur. Which is substantiated by their allotment letter dated 07.07.2012 which is marked as Ex C2. Hence complainant deposited the amount as per Ex.C3, Ex.C4, Ex.C5, Ex.C6 and the complementary plot of 1,089 Sq.ft in the name of complainant and the time required to register the plot was 18 to 24 months. After laps of stipulated time the complainant enquired about site but no site allotted and the complainant requested opposite party No.1 to refund the amount. But no fruitful result hence the complainant issued legal notice to refund the amount. But opposite party No.1 refused to refund the amount which is reveals in Ex.C9. On the contrary opposite party raised a contention that the draft copy of the purchase agreement for membership to thoroughly read the purchase agreement before affixing the signature of the complainant. The purchase Agreement Clause 13 clearly stated that the Agreement is legally binding and final. Hence denied the deficiency. On perusal of the oral as well as documentary evidence available on record, we find that the opposite party is not at all denied the receipt of the amount of Rs. 1,75,000/ by the complainant and agreed that the complainant is the member of the opposite party club. The opposite party 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 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. Since the complainant is not satisfied with the opposite party 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 party 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 party company and opposite party company in turn cannot compel the consumer s inspite of their unwillingness to continue. Further the opposite party admitted that the complainant is the member of the club and opposite party not denied in the said aspect and also find Ex.C1 and Ex.C3 shows that the complainant had deposited amount for membership in their club. Further regarding jurisdiction the agreement/transaction between complainant and opposite party in the jurisdiction of this FORA. Hence claiming shelter regarding jurisdiction does not arise. Since the opposite party No.2 is the corporate office of opposite party No.1 hence opposite party No.2 also liable to pay the amount. In view of the above discussion, by considering the facts and circumstances, we are of the considered opinion in the interest of justice, we direct the opposite party to pay Rs. 1,75,000/ (Rupees One lakhs Seventy 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 receipt of this order.
In the present case, interest considered itself is compensation, therefore no separate amount for compensation is awarded.
POINTS No. (iv): In the result, accordingly we pass the following Order:
ORDER
The complaint is allowed. The opposite parties No.1 & 2 jointly severally directed to pay a sum of Rs. 1,75,000/ (Rupees One lakhs Seventy 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 receipt of this order.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(1 to 8 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 7th October 2016)
MEMBER PRESIDENT
(SMT. LAVANYA M.RAI) (SMT.C.V.SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1: Mr. Ravi Kumar M
Documents marked on behalf of the Complainant:
Ex. C1: Original of Purchase Agreement for Club and Vacation Membership dated 07.07.2012
Ex. C2: Original of Complementary plot allotment letter Dated 07.07.2012
Ex. C3 to C7: Original payment receipts for Rs.70, 000/, Rs.65, 000/ Rs.10, 000/, Rs. 10,000/, Rs.20, 000/
Ex. C8: Original Demand Notice Dated 07.11.2012
Ex. C9: Legal Notice dated 20.02.2015
Ex.C10: Postal Acknowledgement.
Witnesses examined on behalf of the Opposite Parties:
RW1:Mr. Anand, Customer Care Manager
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 07.10.2016. MEMBER
