Complaint filed on: 01-02-2013 Disposed on: 07-01-2014 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.290/2013 DATED THIS THE 7th JANUARY 2014 PRESENT SRI.J.N.HAVANUR, PRESIDENT SRI.H.JANARDHANA, MEMBER Complainants: - 1. T.G.Udaya Shankar, Major, 2. Smt.G.Sujatha, Major, Both are residing at C/o. B.R.Shantaraju, D.No. old 315, New No.5, 7th A Cross, Triveni Road, Veerabhadreshwara Nilaya, K.N.Extension, Yeshawantapura, Bangalore V/s Opposite parties:- 1. Country Club (India) Ltd, A company registered under the Indian Companies Act, 1956, Having its registered office at country club (I) Ltd, 6-3-1, 219, Begumpet, Hyderabad-16 By its chairman 2. Country Vacations, A division of country club (India) Ltd, 102, 2nd floor, No.48, S&S corner, Next to Kamat Hotel, Shivajinagar, Bangalore - 01 ORDER SRI.J.N.HAVANUR, PRESIDENT This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OPs to pay a sum of Rs.1,40,000=00 alongwith 24% interest p.a. and to pay Rs.1,00,000=00 towards mental agony and cost of litigation. 2. The brief facts of the complaint can be stated as under. The 2nd OP being the division of the 1st OP have entered into a purchase agreement with the complainants on 16-5-2012 under the caption country vacations international holiday club membership as per the contract no.CVBG 2 CLUB 30 LB 112121 and offered club and vacation membership. As per the terms and conditions of the membership, the Ops should give special gift of micro oven and digital camera apart from membership card. As per the purchase agreement and membership conditions, the complainants were also entitled to holidays, six nights and seven days every year and accordingly the complainants have paid a sum of Rs.1,40,000=00 under the said purchase agreement. Despite the payment of the said amount and issuing welcome letter by the 1st OP under purchase agreement the Ops have neither given gift nor provided facilities to the complainants. As per the terms and conditions of the purchase agreement, the Ops have offered to the complainants’ membership cards of the country club and also to their children free of charge for 25 years of age, the Ops have failed to provide membership cards till date, despite the complainants made several requests. The complainants have approached the 2nd OP branch and the OP’s various authorized signatories, who have admitted in writing that there is utter failure on their part to perform the terms and conditions of the purchase agreement. Despite more than 25 to 30 visits to the 2nd OP nothing has been transpired and no positive answers have been received from the OP’s side. On 2-8-2012 and 14-8-2012 even though authorized signatories of the 2nd OP have issued letters in writing and also promised to give membership card but nothing has been transpired which resulted in issuing letter dated 26-10-2012 seeking for refund of the amount. Even though the said letter has been received by the 2nd OP till date the 2nd OP has neither refunded the amount with interest nor sent any communication. The act of the Ops amounts to deficiency of service and also cheating innocent customers by receiving huge amount of Rs.1,40,000=00 from the complainants. The said act on the part of the Ops also amounts to unfair trade practice. Therefore the complainants got issued a legal notice dated 26-11-2012 and it was served and sent untenable reply by the Ops. Therefore there is deficiency of service on the part of the OP in not comply the terms and conditions of the agreement. Hence, the complainants have come up with the present complaint. 3. After service of the notice, the Ops have appeared through their counsel and filed version, contending interalia as under: The complaint of complainant is not maintainable and it is liable to be dismissed in limine. The Ops have received a sum of Rs.1,40,000=00 from the complainants as against agreed amount of Rs.1,50,000=00 towards holiday vacations. Upon receipt of the amount OP has issued the Temporary membership card to the complainants. However, in view of the balance payment of Rs.10,000=00, the 2nd OP could not generate the laminated membership cards. Even after repeated reminders, the complainants have not paid the balance amount and also not provided their photographs and birth certificate. The Ops is always ready and willing to issue laminated membership cards to the complainants and their dependents. There is no any deficiency of service on the part of the Ops and there is no cause of action to file the complaint. The complainants have entered into the purchase agreement dated 16-05-2012 with the OPs. In terms of the agreement clause there is no provision for refund of amount or cancellation of the club membership. The complainants with a dishonest and malafide intention have filed the above complaint by making all false and baseless allegations for which there is no basis. The annual maintenance amount of Rs.6,000=00 is falling due to the complainants and in order to avoid annual maintenance charges the complainants have filed the false and frivolous complaint. The Ops are providing best services in their field without any blemish and even in the complaint there is no iota of evidence. The complainants are not entitled for any relief. The Ops have offered yearly one week accommodation in their property totally free of cost and it is more than two star facilities for a period of continuous 30 years and club membership is for life time and it is transferable to their family members apart from the health club for a period of 5 years. The complainants are not entitled for refund of amount and interest and there is no contract in regard to payment of interest, so he is not entitled for any compensation as prayed in the complaint. Hence, it is prayed to dismiss the complaint with cost. 4. So from the averments of the complaint of the complainants and objection of the OPs, the following points arise for our consideration. 1. Whether the complainants prove that, the OPs are negligent and there is deficiency of service on the part of the OPs, in not providing service as promised? 2. If point no.1 is answered in the affirmative, what relief, the complainants are entitled to? 3. What order? 5. Our findings on the above points are; Point no.1: In the Affirmative Point no.2: The complainants are entitled to Rs.1,40,000=00 from the Ops alongwith 8% interest p.a. on the said amount from the date of respective payments within 30 days from the date of this order, failing which, the OPs shall pay the said amount to the complainants alongwith 10% interest p.a. from the date of respective payments to till the date of realization along with cost of Rs.2,000=00. Point no.3: For the following order REASONS 6. So as to prove the case, the complainant no.1 has filed his affidavit by way of evidence and produced seven copies of documents. On the other hand, one V.N.Girish Kumar, Customer Care Manager working in the OPs Company has filed his affidavit on behalf of the OPs and produced no documents. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides meticulously. 7. One T.G.Udaya Shankar, who being the 1st complainant has stated in his affidavit that, the 2nd OP being division of 1st OP has entered into a purchase agreement with them on 16-5-2012 under the caption country vacations international holiday club membership as per the contract no.CVBG 2 CLUB 30 LB 112121 and offered club and vacation membership. As per the terms and conditions of the membership, the Ops should give special gift of micro oven and digital camera apart from membership card. As per the purchase agreement and membership conditions, they were also entitled to holidays, six nights and seven days every year and accordingly the complainants have paid a sum of Rs.1,40,000=00 under the said purchase agreement. Despite the payment of the said amount and issuing welcome letter by the 1st OP, and despite allotting membership number, no facilities are provided so also no special gifts were given to them. As per the terms and conditions of the agreement, the Ops have offered them membership cards of the country club and also to their children free of charge for 25 years of age, the Ops have failed to provide membership cards till date. They have approached the 2nd OP branch and the OP’s various authorized signatories, and they have admitted in writing that there is utter failure on their part to perform the terms and conditions of the purchase agreement. Despite more than 25 to 30 visits to the 2nd OP nothing has been transpired and no positive answers have been received from the OPs. On 2-8-2012 and 14-8-2012 authorized signatories of the 2nd OP have issued letter in writing and promised to give membership card but nothing has been transpired and they have issued letter dated 26-10-2012 seeking for refund of the amount paid. Even after the service of notice, the Ops have neither returned the amount nor given any reply. This act of the Ops amounts to deficiency of service and also cheating. So they got issued a legal notice to the OP on 26-11-2012 but the Ops have failed to refund the amount and they have sent untenable reply. They have issued a rejoinder. The act of the Ops also amounts to unfair trade practices as defined under section 2 (1) (r) of the CP Act, so the complainants have come up with the present complaint, so the complaint be allowed and pass an order as prayed for. 8. Document no.1 is the copy of purchase agreement dated 16-5-2012 between the complainant and OP and it is signed by both parties and purchase price is for Rs.1,50,000=00 and period is for 30 years and an amount of Rs.1,40,000=00 was paid to Ops by complainant. Document no.2 is the copy of letter of OP addressed to the complainant no.1 dated 2-8-2012 stating that the membership cards will be issued on or before 10-8-2012 and two gift vouchers will be given on 6-8-2012 and offering 6 nights and 7 days of stay in CCIL proprieties and if then fail to give above mentioned first two points, they are ready to refund the membership amount of Rs.1,40,000=00. Document no.3 is the copy of letter of OP addressed to the complainant no.1 dated 14-8-2012 stating that, they will revert the status of membership and refund the amount on 16-8-2012. Document no.4 is the copy of welcome letter of the OP addressed to the complainant dated 16-5-2012 expressing congratulation after becoming member of club, the complainants have been offered facilities of health club for 48 months from 16-5-2012 to 15-5-5014 and the complainant and his spouses are entitled for membership cards of the OP, and they are entitled for membership cards free of charge up to 25 years on the production of their birth certificates. Document no.5 is the copy of letter of OP stating that in case of difficulty please to contact customer care. Document no.6 is the copy of legal notice dated 26-11-2012 issued by the complainant to OP calling upon the OP to refund Rs.1,40,000=00 with 24% interest p.a. from 16-5-2012 along with compensation of Rs.1.00 lakh and cost of notice. Document no.7 is the copy of reply notice given by the OP to the complainant’s lawyer denying the contents of the notice of complainant. 9. The evidence of complainants that, after execution of purchase agreement and receiving the amount of Rs.1,40,000=00, the Ops have not rendered any service as per terms and conditions of the agreement stands corroborated by the copies of purchase agreement executed by complainants and Ops, letters of the Ops agreeing to give service as promised, failing which, they will refund Rs.1,40,000=00. 10. Let us have a cursory glance at the material evidence of the OP. One V.N.Girish, who being the Customer Care Manager working in the OP has stated in his affidavit that, the complainants entered into the purchase agreement dated 16-5-2012 by paying a sum of Rs.1,40,000=0-0 being paid amount as against agreed amount of Rs.1,50,000=00 towards the club membership charges and upon receipt of the above said amount temporary membership cards were issued to the complainants and their dependents. In view of the balance payment of Rs.10,000=00, the OP could not generate the laminated membership card. The OP is always ready and willing to issue the permanent membership card to the complainant upon receipt of the balance due amount and subject to receipt of photos of complainant and their minor children’s birth certificate. However, the OP has issued the temporary cards to the complainant. In spite of that the complainant has filed the false and frivolous complaint before the forum with an ulterior motive and for wrongful gain. The complainant is not an illiterate person and is enjoying the benefits and services of the club membership and he is at liberty to make use of the Gym facilities in all the units of the OP. There is no cause of action to file the present complaint and this forum has no jurisdiction to try the case. The complainants in order to avoid annual maintenance charge which is falling due have filed the false and frivolous complaint. The complainants are not entitled for any relief and there is no provision for cancellation of the club membership in the terms of purchase of agreement. The club membership is for life time and it is transferable to their family of the complainants. The complainants are at liberty to sell or transfer or gift the club membership to any third party. So it is prayed to dismiss the complaint with cost. 11. As could be seen from the material evidence on records that, the Ops have admitted in the evidence that, they have executed purchase agreement in favour of complainants by receiving an amount Rs.1,40,000=00 and inducted them as a members of OP club. Further the employee of OP has stated in his evidence that, the complainants are enjoying the benefits and service of the club member. But in order to show before the forum that, the complainants are enjoying the benefits and service of the club membership, no iota of documentary evidence is produced. The evidence of employee of OPs that, the complainants are enjoying the benefits and service of the club membership of OPs is not countenanced by the documentary evidence. 12. Taking the oral and documentary evidence of the complainants and compare the same with the evidence of OPs, it is made crystal clear that, after collecting the membership of the OPs by paying an amount of Rs.1,40,000=00, the OPs have not given any benefits or service to the complainants as per terms and conditions of the agreement. Since no service as such is rendered by the OPs as per terms and conditions of the agreement between the parties no question of retaining the amount of Rs.1,40,000=00 by OPs. The act of OPs in not giving services to the complainants as agreed after collecting an amount of Rs.1,40,000=00 from the complainants amounts to negligence and deficiency of service on the part of the OPs. So from the material evidence placed by the complainants, we are of the view that, the complainants who come to forum seeking relief have proved with the convincing material evidence that, the Ops are negligent and there is deficiency of service as prayed in the complaint, and accordingly we answer this point in a affirmative. 13. In view of our affirmative finding on the point no.1, the complainants are entitled to claim a sum of Rs.1,40,000=00 from the Ops alongwith 8% interest p.a. from the date of payment, so the OPs are directed to refund Rs.1,40,000=00 to the complainants alongwith 8% interest per annum on the said amount from the date of respective payments within 30 days from the date of this order, failing which, the OPs shall pay the said amount to the complainants alongwith 10% interest per annum from the date of respective payments to till the date of realization and the OPs are further directed to pay Rs.2,000=00 to the complainants towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order. ORDER The complaint of complainants is partly allowed. The OPs are directed to refund Rs.1,40,000=00 to the complainants alongwith 8% interest per annum on the said amount from the date of respective payments within 30 days from the date of this order, failing which, the OPs shall pay the said amount to the complainants alongwith 10% interest per annum from the date of respective payments to till the date of realization. The OPs are further directed to pay Rs.2,000=00 to the complainants towards cost of litigation. Supply free copy of this order to both parties. (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 7th day of January 2014). MEMBER PRESIDENT |
