COMPLAINT FILED: 20.08.2010
DISPOSED ON: 03.05.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
03RD MAY 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO. 1951/2010
Complainant | Mr.M.Lakshmipathi 53/9, 40th Cross, Jayanagar 8th Block, Bangalore-560 082. Inperson V/s. |
OPPOSITE PARTY | Country club India Ltd., 675, 9th ‘A’ Main, Indiranagar,1st Stage, Bangalore-560 038. Rep. by its Managing Director Advocate : G.A.Gopi |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to refund Rs.85,000/- along with interest and cost on the allegations of deficiency in service on the part of the OP.
2. The brief averments made in the complaint are as follows:
Lured away with the scheme offered by the executives of OP the complainant paid Rs.40,000/- as a initial deposit to OP on 16.07.2007 and became the Cool Card holder of the OP club. OP issued membership No. Cool VS-1511 to the complainant. So far complainant has paid Rs.85,000/- to OP on different dates from 16.07.2007 to 01.12.2008. The OP has issued the receipts acknowledging the same. The executives of the OP promised the complainant that on payment of full membership fees of Rs.1,25,000/- plus registration charges of Rs.20,000/- among other offer, complainant will be allotted a free site and same will be registered in favour of the complainant. Afterwords lot of people changed in the office of OP. The executives of OP started calling the complainant for balance payment and used to give very rude and arrogant answer and refuse to give the contact number of their higher officials. Finally replied that whatever may happens they will not return the amount. At last complainant sent an email dated 24.05.2010 through his friend Saraswathi to OP’s Bangalore as well as head office, customer care department informing withdrawal of membership and refund of amount before 28.05.2010 failing which to approach court of law for the necessary reliefs. But there was no reply from OP even after waiting for a month. Hence complainant felt deficiency in service. Under these circumstances he is advised to file this complaint for the necessary reliefs.
3. On appearance OP filed the version mainly contending that the Hon’ble NCDRC has stayed the order passed by II Additional District Consumer Forum, Bangalore which had directed OP herein to refund the membership fees who had made part payment and produced the copy of the order. Further it is contended by the OP that as per the terms and conditions, if the member fails 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 fees paid by the complainant. Further it is contended by the OP that the plot allotted under the Kool scheme is a complimentary gift to the membership and the member fee is collected for providing facilities and complainant has to bear registration and maintenance charges. When complainant not paid any consideration he is not a consumer under the C.P. Act. Complainant has paid only Rs.75,000/- out of total membership fees of Rs.1,25,000/-. Complainant is still due of Rs.50,000/- which has not been deposited inspite of several reminders. Since complainant has not paid full membership fees, the question of issuing allotment letter in his favour does not arise; As soon as complainant deposits the full membership fees, the OP would register a complimentary plot at project I, Phase 7 Extn, situated at Vedic Spa Pandiparthi Village, Survey No.355/2 Hindupur, Penugonda. OP has obtained plans and conversion order. There is no cause of action for the present complaint. Among other grounds OP prayed for dismissal of the complaint.
4. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced the receipts issued by OP, copy of the email correspondence, copy of the bills issued by OP demanding annual maintenance charges, copy of the application form, terms and conditions letter dated 07.08.2007, conversion order, layout Map and copy of the order of National Commission, in Revision Petition No.1191/10 and 1192/10. Complainant filed written arguments. Heard arguments from the complainant. Taken as heard from OP side.
5 In view of the above said facts, the points now that arises for our consideration in this complaint is as under:
Point No.1:- Whether the complainant has
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainant is
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 being attracted by the offer made by the executives of OP the complainant became the member of the OP’s scheme and complainant was given Cool Card membership bearing No.Cool VS-1511 by the OP. Complainant paid Rs.85,000/- on different dates from 18.07.2007 to 08.10.2008. The receipts issued by OP are produced. Now the main grievance of the complainant is there is no proper response from the office of the OP. The executives, staff and officials of the OP are not giving proper information and answering very rudely and refused to allot and register the complimentary sites as promised. Complainant noticed many public comments and complaints in various websites. Complainant lost faith in OP and requested OP to refund the amount paid. Inspite of repeated requests by way of emails to refund the amount paid there was no response from OP. Hence complainant felt deficiency in service on the part of the OP and approached this forum for appropriate reliefs.
8. As against the case of the complainant the defence of the OP that as per the terms and conditions of the membership the complainant has failed to pay the entire membership fees within 45 days from the date of allotment of membership. OP can forfeit the membership fees paid by the complainant and can cancel the membership. In support of its defence OP has produced the copy of the order of the Hon’ble National Commission, Delhi in Revision No.1191 and 1192/10. Wherein the Hon’ble NCDRC has stayed the order passed by the 2nd Additional District Consumer Forum, Bangalore which had directed OP to refund the membership fees which made part payment. In our view the matters are still pending in Revision Petition No.1191 and 1192/10. Only on the basis that similar order passed is stayed by the Hon’ble National Commission it cannot be said that complainant is not entitled for refund of the amount.
9. Further it is contended by the OP that even now OP is ready to allot and register the complimentary site in favour of the complainant as soon as complainant deposits full membership fees at phase-7 Vedic Spa pandiparthi, Survey No.355/2, Penugonda. There is no basis for this defence. The copy of the conversion order and approved layout plan produced by OP in respect of survey No.355/2 stands in the name of Mr. Praveen S Rao and Country Condos Ltd. not in the name of OP. Therefore the said documents is not helpful in support of the defence version of OP. OP has not issued any allotment letter till date mentioning the site No. OP has not produced any documents in support of its defence to show that particular site is being allotted to the complainant and the said layout has been formed and sanctioned plan has been obtained from statutory authorities and the sites are readily available at its disposal free from all encumbrances as on today. Hence the version of OP cannot be accepted.
10. Further OP contended that complainant has paid only Rs.75,000/- and not Rs.85,000/- as claimed. But complainant has produced the receipts issued by OP for a sum of Rs.85,000/-. There is no force in the say of the OP. Hence same cannot be accepted. Further complainant is not a consumer and membership fees paid is non refundable has no basis.
11. Though OP has received such a huge amount from the complainant in the year 2007-08 but failed to provide basic information regarding the location of the plots, details of the layout, approved sanction plan etc. There is no reply to the correspondence and emails since 3 years. When there was no proper response; complainant sought for refund of the amount paid. We are satisfied that complainant is able to prove deficiency in service on the part of the OP. Under the circumstances we are of the considered view that the complainant is entitled for certain reliefs. In our view ends of justice would be met by directing the OP to refund whatever the amount it has received from the complainant towards membership fees along with interest and litigation cost of Rs.1,000/-. Accordingly we proceed to pass the following:
ORDER
The complaint filed by the complainant is allowed in part. OP is directed to refund Rs.85,000/- along with interest at 12% p.a. from the respective date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.
This order is to be complied within four weeks from the date of its communication.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 03RD day of May 2011.)
PRESIDENT
MEMBER MEMBER
gm.
