BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 07^th DAY OF JULY 2017

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct OP to refund him a sum of Rs.85,000/- together with interest @ 24% p.a and damages of Rs.1,50,000/- together with litigation cost, alleging deficiency of service.

2. The brief averments made in the complaint are as under:

That the complainant became member of OP club by paying a sum of Rs.85,000/-.  That the complainant paid said amount on 17.05.2012 and on 01.06.2012 and after receiving the said amount OP has executed a purchase agreement for club and vacation membership on 16.05.2012 and acknowledged the receipt of the said amount and issued holiday gift voucher and promised to provide an insurance policy for accident and laminated membership card for using the same to avail the club facilities.  That OP till today has not issued said insurance policy and also laminated club membership card.  As a result the complainant is not able to use club facilities at any place.  Despite receiving the entire amount in the month of May 2012 OP has failed to keep up their promise in providing required facilities thereby committed deficiency of service.  Therefore the complainant is no more interested in continuing his membership.  That due to deficiency of service on the part of OP, the image of complainant has come down in the eyes of his friends and relatives.

That OP promised the gift vouchers for use in Country Spa, provide free service, however when complainant visited the club to avail the facilities he was asked to pay a sum of Rs.350/- per gift voucher.  Thus, it is clear that OP has indulged in unfair trade practice and extracting money from innocent persons by making false promises.  That complainant got issued legal notice to OP on 20.09.2013 demanding OP to refund the amount received by them together with interest @ 24% p.a and compensation of Rs.1,50,000/-.  Despite receipt of said notice, OP has not replied and also failed to comply the demand made in the notice.  Therefore, complainant having no other choice has approached the Forum for redressal.

In response to the notice issued OP appeared through their advocate and filed version contending in brief are as under:

That complainant has paid a total sum of Rs.65,000/- under various instalments towards club membership as against the agreed amount of Rs.85,000/-.  That complainant has entered into a purchase agreement on 16.05.2012.  That OP has already issued laminated membership cards to the complainant.  That complainant has acknowledged the receipt of laminated membership cards from OP.  That OP never offered or assured the complainant to issue insurance policy in his favour as alleged in the complaint.  That the complainant has not paid the entire membership amount and annual maintenance charges.  That complainant without paying the entire membership amount as well as maintenance charges has filed this complaint by making false and frivolous allegations.  That OP has agreed to provide holiday vacations in terms of agreement and OP is always ready and willing to provide holiday vacations to complainant as and when requested for.  That complainant on false and frivolous grounds has filed this complaint to make wrongful gain for himself.  That there is no provision for refund of the membership amount as well as cancellation of the club membership.  That the complainant is at liberty to sell or transfer or gift the club membership to any third party.  That complainant has not paid the annual maintenance amount of Rs.6,742/- till date.  That there is no any deficiency of service on the part of OP.  That the complainant has entered into purchase agreement only after reading and understanding the terms and conditions of the agreement.  That OP had their units at Yelahanka, Magadi Road, Mysore Road, Bannerghatta Road and also at Sarjapura and the complainant is at liberty to make use of all the facilities including gym facilities available in the said units.  That the complainant is not at all entitled to any of the reliefs as prayed for.

For the above amongst other grounds OP prays for dismissal of the complaint with exemplary cost.

4. The points that arise for our determination in this case are as under:

        5. The complainant as well as OP tendered their evidence by way of affidavit reiterating their respective contentions.  Both the parties have produced certain documents in support of their case.  Written arguments have been filed by both sides.  We have also heard oral arguments.

6. Our answer to the above issues are as under:

REASONS

7. Complainant claims that he became member of OP by paying a total sum of Rs.85,000/- on two different dates i.e., on 17.05.2012 and on 01.06.2012.  He further claims that OP executed a purchase agreement for the club and vacation membership on 16.05.2012, acknowledging the receipt of the entire amount and he was also issued holiday gift vouchers on 16.05.2012 and also promised to provide an insurance policy for accident.  Complainant further claims that OP promised laminated membership cards for using the same for availing the club and other facilities of OP.  OP admits that complainant became their member and executed a purchase agreement for club and vacation membership on 16.05.2012.  However OP claims that out of agreed amount of Rs.85,000/- towards the said purchase agreement the complainant has paid only a sum of Rs.65,000/- and is yet to pay remaining amount of Rs.20,000/- towards the said purchase agreement.  The complainant in his affidavit evidence reiterated that he has paid the entire agreed amount of Rs.85,000/- to OP.  The learned advocate for complainant brought to our notice the contents of para-2 of the reply dated 28.09.2013 issued by OP and the said notice is produced by complainant along with the complaint.  In para-2 of the said reply notice dated 28.09.2013, OP stated that the complainant became member of OP and consequently he entered into purchase agreement dated 16.05.2012 and in terms of agreement he had paid a total sum of Rs.85,000/- towards the membership of country vacations.  That in view of the admission on the part of OP in their reply notice regarding receipt of Rs.85,000/- in the reply notice the assertions of OP now taken up in their version and in their affidavit evidence that the complainant has paid only sum of Rs.65,000/- cannot be accepted or believed at all.  In view of the admission on the part of OP in their reply notice, it has to be construed that OP has received the entire agreed amount of Rs.85,000/- from complainant.

8. Complainant alleges that even after receipt of entire amount of Rs.85,000/- OP has failed to provide them the laminated membership cards so as to enable him and members of his family to make use of the club facilities available at club as well as other facilities provided under purchase agreement.  OP in their version as well as in their affidavit contended that immediately after receipt of the amount the complainant was provided with laminated membership card and the same has been delivered to him and he has also acknowledged receipt of the same.  However OP did not produce any material or acknowledgement receipt/card for having delivered laminated membership card to complainant and the members of his family.  Complainant categorically denies the receipt of any laminated membership cards from OP till the date of filing the complaint.  In the face of categorically denial by complainant it is incumbent on the part of OP to produce necessary documents in proof of delivery of the laminated cards to the complainant.  However, OP did not bother to produce any documents in this regard.  Therefore, we are unable to accept the contention of OP that they have delivered laminated membership card to the complainant.

9. Admittedly in absence of membership card the complainant or any member of his family cannot make use of the club facilities or any other facilities provided under the said purchase agreement.  No plausible explanation is coming forth from OP for their failure to provide membership cards to the complainant.  Since after becoming member and since after execution of purchase agreement the complainant has been deprived of any facilities available under the purchase agreement.  This conduct of OP in failing to issue membership cards to complainant, certainly amounts to grave deficiency of service.

10. Complainant alleges that though he was given with gift vouchers to make use of the spa available in the OP club, but when he went to club to avail the said facilities the concerned in the club demanded Rs.350/- against each gift voucher.  OP either in their version or affidavit evidence did not specifically deny this allegation made by complainant.  When OP has issued gift vouchers the services as mentioned in the gift voucher has to be provided free of cost and not by charging any fees.  The conduct of OP in demanding Rs.350/- against each gift voucher certainly amounts to deficiency of service and unfair trade practice.

11. Though the complainant has become member of OP club in the month of May 2012 but he could not avail any of the club facilities and other facilities mentioned in the agreement till filing of the complaint.  The conduct of OP in not providing the club facilities to complainant even after two years from the date of receiving the entire sum of Rs.85,000/- amounts to deficiency of service as well as unfair trade practice.  Therefore, OP who has failed to render any services to complainant is liable to refund the entire amount of Rs.85,000/- to complainant.  When OP himself has not adhered to the terms and conditions of the purchase agreement he cannot demand the complainant to adhere to the terms and conditions of the purchase agreement.  Therefore, OP has to be directed to refund the entire amount of Rs.85,000/- together with interest.

12. The conduct of OP in not providing membership card thereby depriving complainant from making use of club facilities as well as other facilities provided under purchase agreement must have put the complainant and the members of his family to great inconvenience and mental agony.  Therefore the OP has to be directed to pay adequate compensation to complainant in this regard.

13. In view of the facts and circumstances of the case, we feel it appropriate to direct OP to refund entire amount of Rs.85,000/- together with interest @ 12% p.a from the date of actual receipt till the date of realization.  Further OP shall pay compensation of Rs.20,000/- to complainant for having caused great inconvenience and mental agony together with litigation cost of Rs.10,000/-.  Accordingly point numbers 1 & 2 have been answered.

14. The order could not be passed within the stipulated time due to heavy pendency.  

15. In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OP is directed to refund Rs.85,000/- (Eighty Five Thousand only) to the complainant together with interest @ 12% p.a from the date of actual receipt till the date of realization.  Further OP shall pay compensation of Rs.20,000/- to complainant for having caused great inconvenience and mental agony together with litigation cost of Rs.10,000/-.

OP shall comply the said order within four weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 07^th day of July 2017)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 29.05.2014.

1. Sri.H.S Rajesh.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 12.02.2015.

1. Sri.Mohammed Akmal Pasha.  

Document produced by the Opposite party:

MEMBER                            MEMBER                    PRESIDENT

Vln*