BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL <br /> FORUM AT BANGALORE (URBAN)<br /> <br /> 19TH NOVEMBER 2010<br /> <br /> PRESENT:- SRI.B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER<br /> <br /> COMPLAINT NOs.2681, 2682/2009, <br /> 298, 299 & 300/2010 <br /> <br /> COMPLAINT NO.2681/2009<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.2682/2009<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Mr. C.N.Narayanaswamy,<br /> S/o. Narayanappa,<br /> Aged 45 years,<br /> Residing at “Venkatadari Nilaya”<br /> Opp. JMFC Court,<br /> Rojipura 4th Ward,<br /> Doddaballapur,<br /> Bangalore Rural District.<br /> <br /> Advocate : B.N.Suresh Babu<br /> <br /> Mr. Dinesh. R. Bhawani,<br /> S/o Ramji,<br /> Aged 35 years,<br /> Sri. Mahalaxmi Saw Mill,<br /> D-Cross Main Road,<br /> Near Ayyappa Temple,<br /> Doddaballapur.<br /> Bangalore Rural District-561203<br /> <br /> Advocate : B.N. Suresh Babu<br /> <br /> COMPLAINT NO.298/2010<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.299/2010<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.300/2010<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> OPPOSITE PARTY<br /> <br /> <br /> <br /> <br /> Mr. Adil Pasha<br /> S/o Abdul Jaleel<br /> Aged about 35 years<br /> R/at No.19/1, 1st Main,<br /> 2nd Cross, Nanjappa Colonly,<br /> Bangalore 560045.<br /> <br /> Advocate : Naveed Ahmed<br /> <br /> Mr. Mohammed Mumtaz,<br /> S/o Abdul Sattar<br /> Aged about 48 years,<br /> R/at No.48/1, 3rd Main,<br /> Palace Guttahalli Road,<br /> Bangalore.<br /> <br /> Advocate : Naveed Ahmed<br /> <br /> Mr.Mohammed Asif Iqbal<br /> S/o Abdul Khaliq<br /> Aged about 35 years<br /> R/at No.3659 New Ghovsia Mohalla, Near Railway Station<br /> Ramnagar 571511<br /> <br /> Advocate : Naveed Ahmed<br /> <br /> <br /> V/s.<br /> <br /> Country Club (India) Limited,<br /> No.675, 9th ‘A’ Main,<br /> Indiranagar 1ST stage,<br /> Bangalore-560 038.<br /> <br /> Advocate : G.A. Gopi<br /> <br /> O R D E R<br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> <br /> These are the complaints 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 at 21% p.a. compensation, litigation cost of Rs.50,000/- on the allegations of deficiency in service on the part of the OP.<br /> As the OP in all 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.<br /> In complaint No.2681/09 and 2682/09 original complaints with order sheet misplaced in the office, the same were not traced. Records were reconstructed by obtaining copy of complaints from complainants. <br /> 2. The brief averments as could be seen from the contents of these complaints are as under:<br /> Complainants being attracted by the offer made by OP thought of becoming members of OP’s Club under the name and style “Mr.Kool, Mr. Kool Life, Millionaire premium Membership”. 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 fault 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. and date 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. <br /> <br /> SL<br /> No Complaint No. Card Membership Member ship No. Amount paid Receipt No. Date of Receipt<br /> 1. 2681/09 Mr.KOOL Kool -4181 15,000<br /> <br /> 1,30,000<br /> 1,45,000<br /> BAN08-7392<br /> <br /> BAN08-7393 22.07.08<br /> <br /> 22.07.08<br /> 2. 2682/09 Mr.KOOL Kool-4226 15,000<br /> <br /> 1,30,000<br /> 1,45,000 BAN08-7252 <br /> <br /> BAN08-7253 19.07.08<br /> <br /> 19.07.08<br /> 3. 298/10 Mr.KOOL<br /> Kool-4661<br /> <br /> <br /> <br /> Regn.charges 60,000<br /> 50,000<br /> 30,000<br /> 5,000<br /> 31,250<br /> 1,76,250<br /> BAN08-7004 BAN11469 BAN08-11800 BAN08-15708 002969 15.07.08 30.09.08 11.10.08 30.12.08 12.09.09<br /> 4. 299/10 Millionaire premium<br /> <br /> <br /> Mr.KOOL<br /> <br /> Mr.kool life <br /> <br /> MKPB 1510<br /> <br /> MKPB 1510<br /> <br /> KOOL 4717 <br /> <br /> Regn.charges 40,000<br /> <br /> 20,000<br /> <br /> 20,000<br /> <br /> 60,000<br /> <br /> 31,250<br /> 1,71,250<br /> BAN08-7005 <br /> <br /> BAN08-11803<br /> <br /> BAN08-11804<br /> <br /> BAN08-15745<br /> <br /> 002970 15.07.08<br /> <br /> 11.10.08<br /> <br /> 11.10.08<br /> <br /> 30.12.08<br /> <br /> 12.09.09<br /> 5. 300/10 Millionaire premium<br /> MLPB 1164<br /> <br /> <br /> Regn.charges 30,000<br /> 10,000<br /> 20,000<br /> 31,250<br /> 91,250<br /> BAN08 3184 BAN08 3185 BAN08 5591 002971 24.05.08 24.05.08 26.05.08 10.09.09<br /> <br /> <br /> 3. On appearance OP filed the version. The defence set out in all the complaints is almost identical and same. The brief averments made in the version are as under:<br /> <br /> In complaint No.2681/09 and 2682/09 it is stated that complimentary plots are already allotted in favour complainants at Vedic Spa OP is ready registered the plots. According to OP the membership allotted to the complainants in complaint No.298, 299 and 300/10 is under the MILPB Scheme, under which no complimentary sites were offered to the members. Complainants were offered with complimentary plot at the request of another member. Hence complainants cannot maintain present complaints; Non registration of the complimentary plots allotted at the request of another member is due to the fault of the complainants themselves. Complainants has to pay a sum of Rs.40,000/- towards registration charges out of which complainants have paid only a sum of Rs.31,250/- in complaint Nos.298/10, 299/10, 300/10. Inspite of several request complainants not turned up for registration. Under these circumstances this forum can only direct the OP to register the complimentary plots on receipt of full registration fees. In this scheme complainants cannot seek refund of amount on the alleged ground of none providing of complimentary plots as the same is not part of the facilities assured; complainants having utilized all the service is now trying to seek for refund of membership fee paid. This is not permissible under law; the place of allotment of complimentary sites has been informed by OP to all the members and the contention that the complainants have been offered a site at different location is false; OP never assured to allot the complimentary sites at Bangalore and that they had clearly informed them that the complimentary sites would be allotted at the Coconut Groove and Vedic Spa/Banyan Tree which was formed by the sister Concern of the OP; All the members knew the place of allotment of complimentary sites. Only the site numbers and the phase in which the said sites are located being mentioned in the allotment letter and there is no malafide in not mentioning the details of the place of allotment. The said letter of allotment to the members was issued by the customer care department and not by the legal department, then contents of the said allotment letter could have been different with details of the boundary etc; Membership fee paid by the member is non refundable, since the same would be utilized for development, maintenance and development of the clubs and resorts across the country. Any order for refund would cause irreparable harm and loss to the OP; Complainants are enjoying the facilities provided by OP in their clubs; Complainants are not consumers and does not satisfy the said definition under the Consumer Protection Act 1986. OP is a company incorporated under Companies Act, 1956 and carrying on the hospitality business and having several clubs and resorts across the country and has been providing good services to its members. OP admits the payments of membership fee in all the complaints; Prayer seeking direction to pay interest at the rate of 21% is commercial in nature and cannot be granted; Prayer seeking compensation of Rs.1 lakh i.e. expenses cost cannot be granted for the reason stated here in above complainants are not entitled for allotment of any complimentary plots; When the non registration is due to default of the complainants who are not turned up for registration and not paid full registration charges. Among these grounds OP prayed for dismissal of the complaints. <br /> <br /> 4. In order to substantiate the complaint averments, each one of these complainants have filed their affidavit evidence and produced receipts issued by OP, membership applications, receipts for having paid the registration fees and correspondences made by OP. On behalf of OP Sri Vijay D.P., Senior Manager (Customer Care) filed his affidavit evidence and not produced any documents. Heard arguments from complainants side and taken as heard from OP side.<br /> <br /> 5. In view of the above said facts, the points now that arises for our consideration in these complaints are as under:<br /> <br /> <br /> Point No.1:- Whether the complainants have <br /> proved the deficiency in service <br /> on the part of the OP?<br /> <br /> Point No.2:- If so, whether the complainants are <br /> entitled for the relief now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 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:<br /> Point No.1:- In Affirmative. <br /> Point No.2:- Affirmative in part. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the outset it is not in dispute that the complainants became the members of the OP’s scheme as noted in the chart. The OPs accepted their membership fees and allotted certain numbers as shown in the chart to each of the complainants. Now the main grievances of these complainants is that though OP collected the membership fees failed to provide the facilities offered to allot and register the complimentary sites in their favour as promised. <br /> <br /> 8. According to complainants OP promised them to allot complimentary sites only on payment of full membership fees. Complainants with a sole intention of getting the complimentary sites became the members of the OP Club and paid full membership fees. The receipts issued by the OPs are produced. Inspite of repeated requests OP failed to fulfill its promises and to extend the services offered. Both affidavit and documentary evidence produced by these complainants support their cases. There is nothing to discard their sworn testimony. <br /> <br /> <br /> <br /> <br /> <br /> 9. As against this unimpeachable evidence of the complainants; the defence of the OP that whatever club membership fees paid is non-refundable and complainants are not consumers within the C.P. Act, has no basis. We are unable to accept contention of the OP that even now OP is ready to execute the registered documents with respect to complimentary sites in favour of the complainants, if the complainants pay the required registration fee and stamp duty. OP has not produced any document to show that complimentary plots are allotted in favour of the complainants. Further there is no material on record to support the contention of the OP that a layout has been formed at Vedic Spa and the same has been approved by statutory authorities and the sites are available for registration in favour of the complainants. Therefore the version of the OP cannot be accepted.<br /> <br /> 10. Though OP received such a huge amount from these complainants failed to allot and 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., Though OP has stated in its version and affidavit that it has already issued allotment letter infavour of the complainants and copy of the said letter is produced; but in fact OP has not produced any letter along with version and affidavit as stated. Inspite of repeated requests and service of legal notice OP failed to respond. Failure of the OP to form any layout duly approved and in not allotting complimentary plots in favour of the complainants is deficiency in service on its part. 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, registration charges along with interest and litigation cost. Accordingly we proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaints are allowed in part.<br /> <br /> 1. In complaint No.2681/09 OP is directed to refund Rs.1,45,000/- together with interest at the rate of 9% p.a. from 22.07.2008 till realization along with litigation cost of Rs.1,000/- to the complainant.<br /> <br /> <br /> <br /> 2. In complaint No.2682/09 OP is directed to refund Rs.1.45,000/- together with interest at the rate of 9% p.a. from 19.07.2008 till realization along with litigation cost of Rs.1,000/- to the complainant.<br /> <br /> 3. In complaint No.298/10 OP is directed to refund Rs.1,76,250/- together with interest at the rate of 9% p.a. from 30.12..2008 till realization along with litigation cost of Rs.1,000/- to the complainant.<br /> <br /> 4. In complaint No.299/10 OP is directed to refund Rs.1,71,250/- together with interest at the rate of 9% p.a. from 30.12.2008 till realization along with litigation cost of Rs.1,000/- to the complainant.<br /> <br /> 5. In complaint No.300/10 OP is directed to refund Rs.91,250/- together with interest at the rate of 9% p.a. from 26.05.2008 till realization along with litigation cost of Rs.1,000/- to the complainant.<br /> <br /> This order is to be complied within four weeks from the date of this order.<br /> <br /> This original order shall be kept in the file of the complaint No.2681/2009 and a copy of it shall be placed in other respective files. <br /> Send the copy of this order both the parties free of cost. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 19th day of November 2010.) <br /> <br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> <br /> MEMBER MEMBER <br /> <br /> gm. <br /> <br /> <br /> <br /> <br />