.COMPLAINT FILED ON: 28.10.2009
DISPOSED ON: 26.07.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
26th JULY-2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.M.MUNIYAPPA MEMBER
COMPLAINT NO. 2516/2009COMPLAINANT | D. Peter S/o David, Aged major, No.64, 2nd Cross, Hennur Cross, Near Vijayalakshmi Industries, After Foot Park, Bangalore – 560 043. (Adv: G.H.Nagaraj) V/s. |
OPPOSITE PARTY | Country Club (India) Limited, No.675, Old Syndicate Bank Road, 1st Stage, Indiranagar, Bangalore – 560 038. Represented by its Managing Director. (Adv: G.A.GOPI) |
COMPLAINT NO. 2689/10 COMPLAINANT OPPOSITE PARTY | Mr. B.P.Munimari, No.247, Sonnappa Road, Byatarayanapura, B.B.Road, Bangalore- 92. (Adv: T.K.Shivanna) V/s. The Country Club (India) Limited, Country Point, No.675, 9th ‘A’ Main Road, Near KFC Restaurant, Indirnagar, Bangalore- 38. Rep by Chief Executive Officer. (Adv: G.A.GOPI) |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
These two complaints are filed u/s. 12 of the Consumer Protection Act of 1986 by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to refund the amount paid towards Membership fees along with interest compensation on the allegations of deficiency in service on the part of the OP.
OP is common in both the complaints, the questions involved and the relief claimed is similar. 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’s Club under the name and style “Mr.Kool Life Membership”. OP accepted their membership and collected the amount towards membership fees. OP promised so many benefits including allotment of free sites for its members in Coconut Groves, Free Holiday packages at various locations, health club facilities and sports clubs to children free of cost. OP failed to fulfil its obligations by providing sites as assured and also failed to keep up its promises. In Complaint No. 2516/09 OP failed to issue allotment letter. Hence on 10-7-2008. Complainant sought for cancellation of membership. Copy of the letter is produced. In Complaint No.2689/2010 first OP offered 2 free sites at Coconut grove vedic spa in Tumkur. OP failed to show the location. In November 2008 OP made new proposal to allot 2 sites at Bagepalli, Chikkaballapura District. OP failed to allot the same. In June 2010 OP promised to provide sites at Hindupur, Andrapradesh within 3 months. When OP failed to issue allotment letter complainant lost confidence and stopped making further payment. Hence Complainants felt deficiency in service, demanded for refund of membership fees with interest and compensation. For convenience sake card membership No. Amount paid, receipt No. and date, date of legal notice are noted below in the chart.
Sl. No. | Complaint No. | Card Mem ber ship | Mem -ber ship No. | Amount Paid | Receipt No. | Receipt Date | Date of Legal Notice |
01 | 2516/09 | Mr.Cool Card Member ship | KOOL 3105 | 5,000 29,000 34,000 | 20168 BAN 08.43 | 31.01.08 07.04.08 | 6.8.2009 |
02 | 2689/10 | Mr.Cool Card Member ship | KOOL 1547 | 18,000 30,000 22,000 15,000 85,000 | 78215 78216 78217 19055 | 31.12.07 31.12.07 31.12.07 31.12.07 | 30.10.10 |
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3. The defence version in both these complaints is that the complimentary plots were allotted without any consideration. The complainants were requested to bear only registration and maintenance charges. The complainants are not Consumers as they have not paid any consideration for the complimentary plots. In both the complaints complainants have failed to pay the entire membership fees. Complainants were informed that as per the terms and conditions of the membership, the complimentary plot would be allotted only on payment of full membership fees. Hence question of issuing allotment letters in their favour does not arise at all. As soon as complainants deposits the full membership fees, OP would register complimentary plot at project 1 phase-7 at vedic spa conversion and plans has been obtained by O.P. In similar matter Hon’ble National Commission has stayed the order passed by the II Addl Consumer Forum Bangalore. Which had directed the O.P. herein to refund the membership fees who had made part payment. Copy of order passed in Revn. Petn. No. 1191/2010 and 1192/10 is produced. It is admitted that complainants paid Rs.34,000/- and 85,000/- membership fees. There is no deficiency in service on the part of OP. Among other grounds OP prayed for dismissal of the complaints.
4. In order to substantiate the complaint averments, each complainant filed their respective affidavit evidence and produced the receipts issued by OP Brochure, correspondences, legal notice. On behalf of OP in Complaint No.2516/09 Vijaya D.P., Manager filed affidavit and in Complaint No.2689/2010 IA filed allowed with costs. Venkatesh Verma.C., Assistant Administration Manager filed affidavit in support of defence version, but costs not paid and produced application form, correspondences, copy of order in revision petition No.1191 and 1192/2010 of Hon’ble National Commission. Complainant filed written submissions. Heard arguments from both the sides in Complaint No. 2516/09 and heard from complainant side in complaint No. 2689/10 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 each complainants became the member of the OP’s scheme as noted in the chart. The OPs accepted their membership and allotted certain numbers to each of the complainants. Now the main grievances of these complainants are that though OP collected the membership fees, in the year 2007-2008, but failed to provide the facilities offered; to allot and register the complimentary sites in their favour as promised and also not provided the services as assured as such they are entitled for refund of membership fee paid along with compensation.
8. As against the case of the complainants the defence of OP is that complainants failed to pay entire membership fee, if as such they are not entitle for complimentary site. As soon as complainants pay the balance membership fee OP is ready to allot and register the complimentary plots. In the absence of any documentary evidence it is difficult to accept this contention of OP. Though OP has sworn to the fact that conversion order and sanction plan are produced as annexures, In fact in both the complaints OP has not produced the said documents. To invoke the forfeiture clause OP has to establish the fact that layout has been formed and sites are readily available at its disposal free from encumbrances as on today. Since OP has failed to produce any documents it cannot invoke the forfeiture clause.
9. As against the case of the complainants the defence of the OP that since complainants are defaulters in paying full membership fees within 45 days from the date of allotment of membership; OP can cancel the membership by forfeiting the membership fee. The hon’ble National Commission has stayed the order passed by 2nd Addl Consumer Forum which in similar cases has directing OP to refund the membership fees who have made part payment. OP has not produced the final order in Revision Petition No.1191/10 & 1192/2010. Merely because the similar order has been stayed by the National Commission, it cannot be said that complainants are not entitled for refund of amount paid towards membership fees.
10. In Complaint No.2689/2010 it is contented by the complainant that OP first offered the sites at coconut grove vedic spa in Tumkur on 8/1/2008. Complainant personally went to Tumkur for identification. OP failed to disclose exact location of the sites. In November 2008 OP again contacted the complainant with a new proposal saying OP is ready to allot 2 sites in Bagepalli, Chickkaballapura District. Complainant agreed with a condition to issue new allotment letter. OP failed to issue fresh allotment letters to the complainant. In June 2010 OP promised to provide sites at Hindupur, Andrapradesh within 3 months. Till today complainant not received any letter from OP. Hence complainant lost confidence in OP and stopped making further payment. Though OP has collected the amount in the year 2007-2008 has failed to issue allotment letter. In Complaint No.2516/2009 complainant sought for cancellation of membership on 10-7-2008 itself. Copy of the letter is produced. Till date OP has failed to cancel the membership and refund the amount. This act of OP amounts to deficiency in service on its part. The complainants are entitled for refund of the amount paid with interest at 12% p.a. as compensation and litigation cost of Rs.1000/-. Accordingly we proceed to pass the following
ORDER
The Complaints filed by the complainants are allowed in part.
1) In Complaint No.2516/2009 OP is directed to refund Rs.34,000/- with interest at 12% p.a. from the respective date of payments till the date of realisation and pay litigation cost of Rs.1000/- to the complainant.
2) In Complaint No.2689/2010 OP is directed to refund of Rs.85,000/- with interest at 12% p.a. from the respective date of payments till the date of realisation and pay litigation cost of Rs.1000/- to the complainant.
This order is to be complied within four weeks from the date communication of this order.
This original order shall be kept in the file of the complaint No.2516/2009 and a copy of it shall be placed in other respective files.
Send the copy of this order both the parties free of cost.
(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 26th day of July 2011.)
RK.
this unimpeachable evidence of the complainants; the defence of the OP that whatever club membership fees paid is non-refundable has no basis. Even now OP is ready to register the documents with respect to complimentary sites in favour of the complainants, if the complainants pay the required registration fee and stamp duty. There is no basis for this defence. In C.No.819/2010. OP has not produced any documents in support of its defence that layout has been formed, 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 the OP cannot be accepted. Further complainant is not entitled for refund of a sum of Rs.12,000/- incurred. While visiting Goa towards accommodation. O.P. denied it is liability in its additional version stating complainant himself arranged accommodation at another resort and voluntarily paid the amount. O.P. went to the extent of denying its own document at para 26 of its version. Further it is contended by O.P. that complainant is member under Cool VS Scheme he is entitled for only one complimentary site at vedic spa near Penugonda and not at coconut grove and additional plot under MGM would be allotted only if, Complainant introduced any new member. But as per the allotment letter dt:19-8-2007 at annexure – 3A, O.P. has allotted two complimentary free sites at Coconut grove, under MGM Scheme. As per document annexure-3 allotment letter dated:11-2-2008. O.P. allotted 3 sites bearing No.244, 245, 218, at Coconut Grove phase XVII. Hence version of O.P. that complainant is entitled for only one site cannot be accepted. In C.No.2265/2010 O.P. has produced un approved layout plan and the conversion order produced is not in the name of O.P. It is in no way concerned with O.P. Hence the defence of the O.P. that it is ready to register the sites cannot be accepted.
10. Though OP received such a huge amount from these complainants and issued allotment letters to the complainants failed to register the complimentary sites as promised and failed to supply the basic information regarding the location of the plots, details of the layout approved sanction plan etc. Inspite of repeated requests and correspondences OP failed to respond properly. Failure of the OP to form any layout duly approved and in not registering complimentary plots in favour of the complainants as promised is deficiency in service on its part.
11. Complainants have claimed compensation for of Rs.1 lakh for mental agony; pain and suffering. Awarding interest at the rate of 12 % p.a. on the amount paid can be taken as compensation. We are satisfied that complainants are able to prove the deficiency in service on the part of the OP. Under these circumstances complainants are 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 these complainants towards membership fees, administration charges along with interest and litigation cost. Accordingly we proceed to pass the following:
The complaints are allowed in part.
1. In complaint No.819/2010 OP is directed to refund Rs.1,25,000/- together with interest at the rate of 12% p.a. from the date of respective payments till realization along with litigation cost of Rs.1,000/- to the complainant.
2. In complaint No.2265/10 OP is directed to refund Rs.1,26,000/- together with interest at the rate of 12% p.a. from the date of respective payments till realization along with litigation cost of Rs.1,000/- to the complainant.
This order is to be complied within four weeks from the date communication of this order.
This original order shall be kept in the file of the complaint No.819/2010 and a copy of it shall be placed in other respective files.
Send the copy of this order both the parties free of cost.
(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 2nd day of July 2011.)
RK.
