BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE (URBAN)

31^ST MARCH 2011

       PRESENT:- SRI.B.S.REDDY                      PRESIDENT           

                         SMT. M. YASHODHAMMA     MEMBER

                         SRI.A.MUNIYAPPA                MEMBER

O R D E R

SMT. M. YASHODHAMMA, MEMBER

These are the complaints filed u/s. 12 of the Consumer Protection Act of 1986 by the respective complainants, seeking direction against the Opposite Party (herein after called as O.P) to refund membership amount paid; on the allegations of deficiency in service on the part of the OP.

          As the OP in both the complaints is common, the question involved, relief claimed being the same, in order to avoid repetition of facts and multiplicity of reasoning, these cases stand disposed of by this common order.

2.    The brief averments as could be seen from the contents of these complaints are as under:

Complainants being attracted by the offer made by OP thought of becoming members of OP Club under the name and style “Mr. Cool Vedic Spa”. OP accepted their membership and collected the amount towards membership fees. OP promised so many benefits including allotment of free sites; but thereafter some how OP failed to keep up its promise. For no faults of their complainants were made to suffer both mental agony and financial loss. Under such circumstances complainants felt deficiency in service on the part of the OP. For the convenience sake the card membership, Membership No. amount paid, Receipt No, date of receipt, are noted below in the chart. When the repeated requests and demands made by the complainants have gone in vain they are advised to file these complaints and sought for the reliefs accordingly.

3.      On appearance OP filed the version. The defence set out in both the complaints is almost identical and same. The brief averments made in the version are as under:

According to OP in the similar matter Hon’ble National Commission has stayed an order passed by the IInd Additional Consumer Forum, Bangalore which had directed OP here in to refund the membership fee, who had made part payment. Copy of the order of the Hon’ble National Commission in revision petition No.1191/2010 is produced. As per the terms and conditions of the members; if members fail to deposit full membership fees within 45 days from the date of allotment of membership, then OP can cancel the membership by forfeiting the membership fee paid by the complainants. Plots allotted under the Cool scheme are complimentary gift to the membership and the membership fee is collected for providing facilities. No consideration has been collected for allotment of complimentary plots. Complainants has to bear only registration and maintenance charges.  Complainants have not paid any consideration. Hence they are not consumers under CP Act. Total membership fee payable by the complainants is Rs.1,25,000/- but complainants have paid only Rs.1,10,000/- and Rs.65,000/- respectively in complaint No.1952/10 and 1953/10. Complainants are still due for a sum of Rs.15,000/- and Rs.60,000/- respectively. Complainants have clearly informed that as per the terms and conditions of the membership, complimentary plots would be allotted only on full payment of the membership fees. Copy of the application forms are produced. Since complainants have not deposited full membership fees question of issuing allotment letters in their favour does not arise at all. As soon as complainants deposit the full membership fees OP would register the complimentary plots. Copy of the conversion order and sanction plan and MOU are produced. The said project is at Penukonda within 30 to 40 km. from Chikkballapur with close proximity to National highway. Though it is submitted that plots are technically situated in Andra Pradesh the same is in the border of Karnataka and 70 km from Bangalore. OP is in the business of hospitality and plots would be done by its sister concerned M/s. Amrutha Estates who has purchased several parcels of lands in the favour of its nominees and such nominees will execute necessary gift deeds in favour of eligible members. The membership fee paid by members is non refundable. Complainants being a members has visited various clubs and resorts and have been enjoying facilities and amenities provided by OP. Any direction to provide the said complimentary plots could be ordered as per the terms and conditions of the members, any order for refund is contrary to C.P Act. Among these grounds OP prayed for dismissal of the complaints.

4.      In order to substantiate the complaint averments, each one of these complainants filed their affidavit evidence and produced receipts issued by OP, copy of letters, emails, correspondences made by OP. On behalf of OP Sri. C. Venkatesh Varma Assistant Administration Manager of OP filed affidavit evidence in support its defence version and OP has produced copy of the application forms, terms and conditions, correspondence made by OP, conversion order, sanction plan, copy of the revision petition No.1191/2010, email correspondences reminder dated 15.12.2010. Heard arguments from complainants side and taken as heard from OP side.

5.      In view of the above said facts, the points now that arises for our consideration in these complaints are as under:

       Point No.1:-  Whether the complainants have

   proved the deficiency in service

    on the part of the OP?

Point No.2:-   If so, whether the complainants are

                     entitled for the relief now claimed?

       Point No.3:-  To what Order?

6.      We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:

Point No.1:- In Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

7.      At the outset it is not in dispute that the complainants became the members of the OP’s scheme and paid the amount as noted in the chart. The OP’s accepted their membership fees and allotted certain numbers as shown in the chart to each of the complainants.  Now the main grievance of these complainants is that though OP collected the amount towards membership fees in the year 2007-08 but failed to provide the facilities offered, to allot and register the complimentary sites in their favour as promised.

8.      According to complainants OP on payment of full membership fees promised to allot them complimentary sites near Bangalore and offered 5 days 6 nights free stay in Royal Goa Beach Club resort at Goa, 2 nights 3 days stay in Kerala, Moksha health Spa membership for 5 years free of cost. Infact even before booking a plots the complainants personally faced much low quality services, fake vouchers, false promises, unsatisfied customers and rude behavior of the agents and staff of OP. Further complainants noticed many public complaints and comments in various websites. Whenever complainants called the executives of OP for refund they use to get evasive reply from them.  For the above said reasons complainants decided to get refund of the amount paid by them; and submitted their refund request forms.  Inspite of repeated requests OP failed to fulfill its promises and to extend the services offered. The documentary evidence produced by these complainants supports their cases.  There is nothing to discard their sworn testimony.

9.      As against this unimpeachable evidence of the complainants the defence of the OP that whatever club membership fees paid is non refundable has no basis. Further contention of OP is that even now OP is ready to register the documents with respect to complimentary sites at phase-VII, Penukonda in favour of the complainants, if the complainants makes full payment of membership fees. Since complainants not deposited full membership fees, the question of issuing allotment letter does not arise. But the letter dated 07.08.2007 issued by OP in C.No.1953/2010 shows allotment of complimentary plot at Coconut Grove banyan tree. In complaint No.1952/10 the letter dated 20.07.2007 issued by OP shows that complimentary plot at Coconut grove banyan tree will be allotted on payment of full membership fess.  But in para-7 of its version OP has offered to register plot at project-1 phase-VII Penukonda on payment of full membership fees.  The version of OP is not consistant with allotment letters.

10.    It is further contended by the OP that as per the terms and conditions if members fail to deposit full membership fees then Op can cancel the membership by forfeiting the membership fees paid by the complainants.  To invoke the forfeiture clause OP must establish that the sites offered as per their letter dated 07.08.2007 and 20.07.2007 are ready at the disposal of OP free from encumbrances as on that date. Op has failed to produce any documents to show that layout has been formed and statutory sanctions and approvals are obtained from statutory authorities. Further OP has contended that in similar matter the Hon’ble National Commission has stayed the order passed by the II Additional Consumer Forum, Bangalore which has directed the OP to refund the membership fees, which made part payment.  In our view the matters are still pending in revision petition No. 1191 & 1192/10. Only on the basis that similar order passed is stayed by the Hon’ble National Commission. It cannot be said that complainants are not entitled for refund of the amount.

11.    Though OP has received such a huge amount from these complainants for the period 2007 to 2009 but failed to allot and register the complimentary sites as promised and failed to provide information and proper response to its members.  There was no proper reply from the staff and executive of OP same was noticed by the complainants in various websites. We have perused the copies of the email produced by the complainants. Hence complainants lost faith in OP and sought for refund. OP has not disputed the payment of amount. If OP is aware of the fact that it cannot allot the sites and register the same, it could have fairly refunded the amount to the complainants. Retention of amount by OP for more than 3 years and failure to provide facilities as assured including allotment and registration of sites, amounts to deficiency in service on the part of the OP.  We are satisfied that complainants are able to prove deficiency in service on the part of the OP.  Under these circumstances we are of the considered view that complainants are entitled for refund of whatever amount paid by them towards membership fees along with litigation cost. Accordingly we proceed to pass the following:

O R D E R