Date of filing: 22.07.2017

                                                               Date of Disposal:16.12.2022

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 16^th DAY OF DECEMBER, 2022

CONSUMER COMPLAINT NO.2156/2017

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr.Avinash Aathreya N,

Aged about 35 years,

Flat No.307, East Wing,

C.V.Raman Nagar,

Bangalore-560 093.……COMPLAINANT

Country Club India Limited

(through the Managing Director),

55/1, Varthur Hobli,

Sarjapur Road,

Country Club India Limited (through the Managing Director),

6-3-1219/A, 2^nd Floor,

Rep by Sri.D.Narase Gowda, advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant in person has filed this complaint under Section-11 and 14 of Consumer Protection Act, seeking for a direction to the opposite parties to refund the amount of Rs.1,49,000/- and refund excess amount charged of Rs.13,760/- and compensation of Rs.4,00,000/- and Rs.50,000/- towards cost with interest at the rate of 12% p.a.    

2. It is not in dispute that the complainant has become the member in opposite parties country club India to avail holiday vacation and had entered into purchase agreement dt.31.07.2016 and had paid a sum of Rs.1,49,000/- towards the club membership charges.  Further as per the agreement, the complainant is entitled for holiday vacation for 6 nights and 7 days in year for a period of 1 year and holiday vacation for 3 nights 4 days for a period of 1 year, club membership of life time, subject to the terms and conditions mentioned in the purchase agreement.

3. It is the further case of the complainant that after receiving the membership fee, the opposite parties told that they did not say anything about EMI and asked to pay extra Rs.1,75,593/- for EMIs.  Hence, this was the start of the fraud by opposite parties.  Further, the membership was promised without any AMC for 10 years i.e., 5 international destinations, complimentary 3N/5D free domestic accommodation package, complimentary 6N/7D package to Bali including accommodation and economy air fare for 2 adults and 1 child.  But the opposite parties asked for Rs.5,000/- AMC after receiving membership money.  Further, when the complainant was asked for free complimentary holidays as promised, the opposite parties denied having said anything about holidays.  Further, when the complainant asked for free complimentary holidays as promised, the opposite parties denied having said anything about holidays.  Further, when the complainant asked for refund of money, the opposite parties denied to refund.  Hence, the conduct of opposite parties is an unfair trade practice as contemplated under Section-2(1)(r) of the Consumer Protection Act, as the opposite parties misleaded the complainant to believe that he will deliver in writing what was promised verbally, but he failed to do so.  Hence, the complainant got issued notice dt.26.01.2017 to the opposite parties seeking for full refund of the amount paid with interest at the rate of 18% p.a. and compensation.  Since, the act of the opposite parties amounts to deficiency of service, the complaint came to be filed. 

4. It is the further case of the opposite parties that the complainant intentionally has made false and frivolous allegation against the opposite parties and the opposite parties never promised or assured to give or nor forced to become the member.  Further, the opposite parties are always ready and willing to provide the holiday vacation to the complainant as and when his requirements arose subject to booking of 30 days in advance.  Further, the complainant did not book the holiday vacation.  Further in terms of the agreement Clause-12 there was no provision for refund of amount or cancellation of the club membership.  Further, the complainant is at liberty to sell or transfer or gift the club membership to any third party.  Further, even though the complainant was informed through email dated sat, August 2016, to pay annual maintenance of Rs.5,000/-, the complainant did not bother to pay the same.  Hence, there is no deficiency of service on the part of the opposite parties and sought to dismiss the complaint. 

5. To prove the case, the complainant has filed affidavit in the form of his evidence in chief and had produced documents. The Manager of opposite parties has filed affidavit in the form of his evidence in chief and got marked EX.R1 to R4 documents. 

  6. The points that would arise for consideration are as under:

 i) Whether the complainant proves the deficiency of service on the part of the opposite parties ?

    ii) Whether the complainant is entitled for the 

         compensation as sought ?

     iii) What order ? 

 7.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

8.POINT NO.1:- The complainant and the Manager of opposite parties have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  Apart from the oral and documentary evidence, the complainant has produced email correspondences.  In the email dt.11.08.2016 addressed by the complainant to opposite parties, it is stated that the complainant need the membership cancelled and the full money paid.  Further, the complainant has produced the copy of email dt.24.08.2016 sent by the complainant to the opposite parties and the copy to Adding Commissioner of Police, Bangalore.  In which it is stated that the complainant neither received the membership nor additional offers promised and the complainant is ready to cancel the transaction and sought for return of the money with regard to the payment made. The complainant has produced copies of email and internet bank transaction. 

9. It is the contention of the opposite parties that as per the purchase agreement Clause-12, there was no provision for refund of the amount for cancellation of club membership.  Ex.R1 is the purchase agreement.  No doubt, it is stated that the 2^nd party (complainant) has understood that the membership fee was not a refundable deposit and not an investment.

10. On perusal of the documents produced by both the parties, it appears that the complainant has paid the amount for membership on 28.09.2016 a sum of Rs.99,726/-.  In Ex.R3 it appears that in total the opposite parties had received Rs.1,49,000/- on different dates.  Further, EX.R2 indicates with regard to annual maintenance charges of Rs.5,850/-.  Further, EX.R1 is the purchase agreement dt.31.07.2016.  In the email dt.11.08.2016 itself the complainant claimed for cancellation of the membership on the ground that the opposite parties had collected the membership fee by giving false promises.  No option was given to the customer for cancellation of membership in EX.R1 purchase agreement.  I feel, there should have breathing time to the customer for cancellation of membership in case of fraud by the opposite parties.  The only option given in the agreement to the opposite parties was for cancellation of the membership in the event the customer does not make the payment within 30 days of the initial payment.  Hence, I feel the condition that the membership fee is not a refundable deposit is an unilateral one.  Hence, I feel the act of the opposite parties amounts to “deficiency of service” within the meaning of Section-2(1)(g) of Consumer Protection Act, 1986 and “unfair trade practice” as contemplated under Section-2(1)(r) of Consumer Protection Act, 1986.  Accordingly, I answer this point in affirmative.

11. POINT NO.2:- There is no dispute with regard to the receipt of Rs.1,49,000/- by the opposite parties.  According to the complainant, he has also paid excess amount of Rs.13,760/-.  In the email dt.13.08.2016 the opposite parties asked the complainant to pay AMC of Rs.5,000/- every year.  Further, in the email dt.24.08.2016 addressed to the opposite parties by the complainant, it is stated that the complainant has been paid Rs.1,75,593/-(Rs.26,000/- in excess).  In support of the same, the complainant has produced bank statements.  Further, even though the complainant has issued notice dt.26.01.2017 for refund of Rs.1,49,000/-, the opposite parties did not refund the same.  The complainant did not produce the documents with regard to the excess amount of Rs.13,760/- paid.  Hence, the complainant is entitled for refund of the full amount of Rs.1,49,000/-.  The complainant claimed interest at the rate of 12% p.a.  We feel the said interest is an exorbitant one and the interest at the rate of 9% p.a. would suffice.  Further, the complainant is entitled for a sum of Rs.20,000/- towards mental agony caused and a sum of Rs.10,000/- towards litigation cost.  Accordingly, I answer this point partly in affirmative. 

12.POINT NO.3:- In view of the discussion made above, I  proceed to pass the following;

The complaint is allowed in part.

The opposite party No.1 & 2 are directed to refund the full amount of Rs.1,49,000/- with interest at the rate of 9% p.a. from the date of purchase agreement i.e., 31.07.2016 till realization.

Further, the opposite party no.1 & 2 are directed to pay a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.

The opposite party No.1 and 2 shall comply the order within 30 days. In case, the opposite party No.1 and 2 fail to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 16^th day of December, 2022)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA K)    
•  

Witness examined for the complainants side:

Sri.Avinash Aathreya N, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Copy of E-mails dt.11.08.2016, 12.08.2016, 13.08.2016, 16.08.2016, 18.08.2016, 24.08.2016 and 25.08.2016 between complainant and opposite parties.
2. Copy of Purchase agreement for club membership dt.31.07.2016.
3. Copy of Bank statements. 
4. Copy of notice dt.26.01.2017 to the opposite parties.

Witness examined for the opposite party side: 

Sri.Mohammed Akmal Pasha, Manager of opposite party company has filed his affidavit.

Documents marked for the Opposite Party side:

1. Copy of the purchase agreement dt.31.07.2016.

2. Copy of the permanent membership cards.

3. Copy of the password.

4. Copy of the confirmation letter.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•