Andhra Pradesh

Chittoor-II at triputi

CC/26/2013

Dr. N.Sreeramulu S/o. N.Siddaiah - Complainant(s)

Versus

Country Vacations International Holiday Club (A Division of Country Club (l) LTD) - Opp.Party(s)

G.Jyotsna

13 Jan 2015

ORDER

Filing Date:15.03.2013

Order Date: 13.01.2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

TUESDAY THE THIRTEENTH DAY OF JANUARY, TWO THOUSAND AND FIFTEEN

 

C.C.No.26/2013

 

Between

 

1.         Dr.N.Sreeramulu,

            S/o. late. N.Siddaiah,

            Hindu, aged 45 years,

 

2.         P.Suneetha Gowd,

            W/o. Dr.N.Sreeramulu,

            Hindu, aged 40 years,

 

            Both are resident of

            D.No.2-47, Peruru village and post,

            Tirupati rural mandal,

            Chittoor District.                                                                  … Complainant

 

 

 

And

 

 

Country Vacations International Holiday Club

(A division of country club (I) Ltd.),

Rep. by its Manager,

Plot No.4, 50-81-1, Rajendra Nagar,

Adjacent to B.V.K.College,

Visakhapatnam – 530 016.                                                             …  Opposite party.

 

 

            This complaint coming before us for final hearing on 29.12.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing G.Jyotsna, B.K.Ramesh, counsel for the complainants, and D.Damodar Reddy, counsel for the opposite party, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This complaint is filed under Section-12 of C.P.Act 1986, by the complainant praying the Forum to direct the opposite party to repay Rs.1,58,000/- to the complainants along with interest at 24% p.a. and to pay costs of the complaint.

            2.  The averments of the complaint in brief are:- that the 2^nd complainant is the wife of 1^st complainant. They are the life members of the opposite party under Membership No.YZVLM1282. They have paid the membership fee of Rs.95,000/- to the opposite party through cheque bearing No.859824 dt:13.02.2008 and also paid another amount of Rs.63,000/- by way of cash. Their contract number is DT51/0012. Membership of the complainants was accepted by branch office of opposite party at Tirupati, which was later closed and shifted to the present address given above. As per the agreement entered by both the parties, their membership is for 19 years and the accommodation would be provided in 5 star hotel every year and to and fro flight charges would be provided for one holiday. As per the stipulations of the agreement the right of accommodation with the Country Vacations International Holiday Club Resorts would exist for 30 years. On 05.12.2009 the complainant received a communication from the office of opposite party at Tirupati that the complainants were exempted from paying maintenance charges as a complimentary to the member and the member need not to pay any maintenance charges in future.

            3.  That the complainants sought holiday at Goa in the country club of opposite party from 27.05.2010 to 30.05.2010 and also sought flight tickets for the said programme, for which the opposite party replied on 29.05.2010 that their request could not be confirmed due to non availability of accommodation and also requested to book holiday at the convenience of complainants with minimum prior notice with a note that the opposite party will arrange all the said things committed to the complainants. Several times thereafter complainants sought vacation in the country club to utilize their membership but the opposite party stating that they cannot provide accommodation in 5 star hotel and flight charges without paying maintenance charges and repeatedly they are postponing arrangement of free holiday to the complainants, till date the opposite party never provided annual holiday facility to the complainants. Thus the opposite party hopelessly failed to provide holiday facility as promised and agreed in the agreement. Therefore, the complainants got issued notice to opposite party on 01.10.2012 calling upon them to repay the membership amount of Rs.1,58,000/- paid by the complainants with interest at 24% p.a. but the opposite party failed either to give reply or to repay the amount or arranged accommodation. Hence the complaint.

            4.  The opposite party filed written version admitting the life membership of the complainants under Membership No.YZVLM1282 and Contract No.DT51/0012 and also admitted the payment of membership charges of Rs.1,58,000/-. The opposite party also admitted the welcome letter dt:14.04.2008. The remaining complaint allegations are totally denied.

            5.  The opposite party further contended that as per the agreement, the complainants are given membership for 5 years under the category of studio group and subject to payment of annual maintenance charges on 1^st November every year. As per the agreement and welcome letter dt:14.04.2008, the opposite party does not offer any free service to the members and they are entitled to discount of 20% on food alone at Amrutha Castle, Hyderabad, and discount on room tariff at various hotels in India and abroad run by Country Club India Ltd. Nowhere in the agreement dt:12.02.2008 the opposite party has promised the complainants that they will provide free accommodation, to and fro air tickets to the complainants and also free accommodation in 5 star hotels. Infact all the members will be provided accommodation in Country Vacation International Holiday Club subject to availability when it comes to allotting accommodation. That the complainants never asked for any accommodation as alleged by them and the said allegations are baseless. The complainants were not exempted from payment of maintenance charges. In addition to the above facility, the opposite party has allotted two plots under two registered gift deeds dt:14.07.2010 and dt:06.07.2010 under registered document No.4699/2010 and 4570/2010. Except the notice dt:01.10.2012, no oral or written requests were made by the complainants at any point of time. There is no deficiency in service on the part of the opposite party. The opposite party always ready to serve the members including the complainants by giving holiday accommodation on receipt of user charges that may be applicable from time to time depending on the availability in the event of any prior intimation given by the complainants in writing or through E-mail or Fax etc. This Forum has no jurisdiction and prays the Forum to dismiss the complaint with costs.

            6.  Chief affidavits of P.W.1 and 2 (Complainants 1 and 2) were filed and they were cross examined by opposite parties. Exs.A1 to A8 were marked for the complainants. Chief affidavit of R.W.1 (P.Durga Prasad), Senior Manager, Central Customer Care, Country Vacations Club was filed. Exs.B1 to B3 were marked for the opposite party. Written arguments of complainants not filed. Written arguments of opposite party filed. Heard the counsel for opposite party. Since the complainants remained absent and no representation for the complainants, arguments on behalf of the complainants were taken as heard.

            7.  Now the points for consideration are:-

            (i)  Whether there is any deficiency in service on the part of the opposite party?

            (ii)  Whether the complainants are entitled the return-off Rs.1,58,000/- along

                   with interest as prayed for?               

            (iii)  To what relief?

            8.  Point No.(i):- As could be seen from the complaint averments and the averments set-out in the written version filed by the opposite party and also the contents of Ex.A8 (Copy of Agreement) entered into by both the parties and Ex.B1 the agreement filed on behalf of the opposite party, it is found that admittedly the complainants 1 and 2 are the life members of the opposite party under contract No.DT51/0012. The second sheet of Ex.A8 (Agreement) clearly shows that “Membership Period -  as 30 years”, “Apartment Type – Studio”, “Season Type – Blue”, “Occupancy – 2 + 2”, “Total Points Rights – 100”. In Ex.A8, at page.2, terms and conditions were stipulated. The second condition relating to points rights specifies the rights exists for thirty consecutive years commencing in the first year of use stated overleaf. Under Condition No.3 under the head of Allotment of Accommodation it is mentioned that allotment of accommodation from Country Vacations International Holiday Club is subject to availability when it comes to allotting accommodation in a season and accommodation which is superior to the one owned by the purchaser. However, the purchaser can’t request for accommodation in the purple (super peak) season unless they own purple season membership. The purple season of the resorts / clubs are specified overleaf in point No.12. At condition No.6 under the head of Management Charges, it is mentioned in the last line as non-payment of the Management charges may result in the cancellation of the defaulting member(s) points rights. Under Condition No.7 Choice of Resorts were given in respect of the list of the clubs of opposite party. Under Condition No.8 it is mentioned as members have access to all the resorts that are associated with the marketer through the Country Vacations Alliance Scheme. The Country Vacations International Holiday Club Points may be used to reserve accommodation at any of these resorts for a nominal administration fee. Condition No.9 is the Default Clause, if the purchaser / member failing to make any payment installment on the due date, then the Country Vacations shall have the right to cancel the agreement and forfeit 80% of the amount paid so far. Under Condition No.12, Purple season weeks of Country Vacations International Holiday Club Locations wise mentioned, but it was not specified whether the digits mentioned against each location were the days or weeks etc. whether they were in a month or year. It carries an ambiguity to the members of the club. Ex.B1 is also a copy of agreement, in which terms and conditions defers from that of terms and conditions of Ex.A8. Under Condition No.2 of Ex.B1, Points Rights, it is mentioned that rights exists for Five consecutive years as against 30 consecutive years in Ex.A8. In both the documents Ex.B1 and Ex.A8 allotment of accommodation will be subject to availability. Then so far as Purchasers Acknowledgement of Representations is concern in Ex.A8 point No.5 shows that the points rights are valid for thirty consecutive years where as in Ex.B1 it is mentioned as points rights are valid for five consecutive years. At page No.7 of Ex.A8 supplied to the complainants in column No.3, it is mentioned as Free utility of TAASHA for Three years at Country Club, where as in Ex.B1 page.7 at Column No.3 it is mentioned as Free utility of TAASHA for One year at Country Club. Thus particulars furnished under Ex.A8 supplied to the complainants are totally different from that of the particulars furnished under Ex.B1, which is with the opposite party. It clearly shows that the opposite party is maintaining unfair trade practice by showing something to the customers / consumers and detaining some other particulars with the opposite parties in respect of the same transaction and implementing nothing in favour of the customers / consumers.

            9.  When the opposite party having accepted the membership of the complainants only for the purpose of availing Country Vacations International Holiday Club being maintained by opposite party, enabling the members to use the holidays in opposite party’s club, they are not supposed to put a condition that the accommodation will be subjected to availability, if that be the case, for what purpose the opposite party has collected huge amounts like Rs.1,58,000/- from the members like the complainants herein. Important point is that the complainants made a request to the opposite party to accommodate them to avail vacations from 27.05.2010 to 30.05.2010 at Goa in the Country Club of opposite party and also asked the opposite party to provide accommodation as well as flight tickets for to and fro, for which the opposite party gave a communication on 29.05.2010 stating that the request of the complainants for stay at Goa from 27.05.2010 to 30.05.2010 including flight charges could not be confirmed due to non-availability and also requested to book holiday as per the convenience of the complainants with minimum prior notice with a note:- that the opposite party will arrange all the said things committed to the complainants as mentioned in Ex.A5. The complainants further making allegations that they have made several requests on several occasions to provide accommodation in opposite party’s clubs but simply the opposite party went on postponing the arrangements.

            10.  In the written version filed by the opposite party, they have contended that except notice dt:01.10.2012 under Ex.A6, the complainants never made any requests to the opposite party to avail the facilities provided by the opposite party in their clubs / resorts. That apart the opposite party alleged that the complainants committed default in paying management / maintenance charges, as such the complainants are not entitled to avail the facilities. For this, having given a letter under Ex.A4 dt:05.12.2009 under the letterhead of opposite party that the complainants are exempted from paying the maintenance charges as a complimentary to the member (opposite party is denying the same and stating that the complainants are defaulters in payment of maintenance charges). Hence the member will not pay any maintenance charges in future, it was issued by Jeetender Kumar, Divisional Branch Manager of opposite party, Tirupati. Though filed their affidavits as P.W.1 and 2 both the complainants were cross examined by the learned counsel for the opposite party. During the cross examination, the opposite party denied the document under Ex.A4. Under the letterhead of opposite party welcome letter was issued by the opposite party on 14.04.2008 accepting the membership of the complainants, the letterheads there under were issued by one Rakesh Kumar Singh, Group Manager – Customer Relations. Under Ex.A2 two letterheads are there, which are same as the document under Ex.A4. It shows that the opposite party having collected the huge amount of Rs.1,58,000/- from the complainants under Ex.A3 and having admitted the said facts they are taking false pleas and avoiding to provide facilities as agreed in the terms and conditions of the agreement. Presuming something to the complainants / customers who are life members of the opposite party avoid to provide such facilities on some pretext or the other, certainly amounts to deficiency in service. The opposite party has given a letter under Ex.A4 exempting the complainants from paying maintenance charges and again they raised a query that the complainants have committed default in payment of maintenance charges is another blatant lie on the part of the opposite party. When the complainants addressed a letter under Ex.A6 calling upon the opposite party to return the amounts paid by them, the opposite party neither gave reply nor provided any accommodation whenever the complainants requested to do so, for availing the facilities in the Country Club / Resorts of the opposite party and also failed to pay back the amount of Rs.1,58,000/- collected from the complainants, thus the opposite party committed deficiency in service. Not only committed deficiency in service by furnishing different details in the agreement supplied to the complainants and making some other details in Ex.B1 agreement retained with the opposite party committed unfair trade practice. That also they have committed another aspect of misleading advertisements. By doing all these mischief, the opposite party has successfully collected Rs.1,58,000/- from the complainants and failed to provide accommodation as promised to them (but not the flight tickets as it was not there in the agreement). They ought to have provide accommodation to the complainants as requested by them, instead of doing so, they retained the amount of Rs.1,58,000/- of complainants with them. Under the above circumstances, we are of the opinion that there is deficiency in service on the part of the opposite party. Accordingly this point is answered.   

            11.  Point No.(ii):-  To answer this point, it is pertinent to state that the opposite party having lured the complainants to purchase the points mentioned in the agreement, collected a sum of Rs.1,58,000/- from the complainants as shown in Ex.A3, but failed to provide facilities intended to be availed by the complainants, for which the opposite party was promised by the time of entering into agreement Ex.A8, which equivalent to Ex.B1. The opposite party communicated through Ex.A4 that the complainants were exempted from paying maintenance charges as a complimentary and need not pay maintenance charges in future but while cross examining P.Ws.1 and 2, Ex.A4 was denied by the opposite party. The opposite party also denied the existence of their branch office at Tirupati, but Ex.A2 welcome letter discloses that the branch office of opposite party was existed in Tirupati. Similarly, Ex.A4 also discloses that the branch office of opposite party was existed in Tirupati. Inspite of Ex.A2 and Ex.A4, they are stating that they have no branch office at Tirupati, which clearly implies that the opposite party is contesting the matter with blatant lie. The attitude of opposite party shows that they are misleading their customers / members and getting monies from them in huge amounts by making false promises that they will provide holiday facilities in their Clubs spread over in India and abroad as well. It is apparent on record that the opposite party failed to provide the facilities to the complainants.

            12.  Exs.B2 and B3 gift deeds executed in favour of the complainants 1 and 2 are nothing to do with the agreement under Ex.A8 (Ex.B1) as it was mentioned in Exs.B2 and B3 that M/s. Country Club India Ltd, a public limited company represented by its Directors, which evolved a scheme to give a plot on free of cost as an incentive / complimentary to the public, who intends to become members of the club. Inturn the club will nominate such of its members and based on the said nomination the donors have agreed to execute the gift deeds in favour of such nominee who became a member of the Club, for that purpose the scheme evolved by the Country Club India Ltd. The opposite party evolved the said scheme for allotting a plot to its members; accordingly Exs.B2 and B3 were came into existence. Therefore, the opposite party irrespective of the said scheme, have to provide facilities as intended by the members of the club, to avail  vacation in the club or resorts of the opposite party that were existing in various places in India and abroad as well, if the members intends to avail so. But in the guise of the word “subject to availability” the opposite party denied to extend their services to the complainants as promised. Therefore, it is clearly violation of consumer rights and it amounts to deficiency in service, misleading advertisements and also unfair trade practice. Under the above circumstances and in view of our discussion on point No.1, we are of the opinion that the complainants are entitled for the refund of the amount of Rs.1,58,000/- paid by them under Ex.A3 and the opposite party is liable to refund the said amount to the complainants with interest. Accordingly, this point is answered.

            13.  Point No.(iii):-  In view of our holding on points 1 and 2, we are of the opinion that the complainants 1 and 2 are entitled for refund of the membership amount paid by them in a sum of Rs.1,58,000/- along with interest and the opposite party is bound to repay the said amount of Rs.1,58,000/- along with interest and also to pay costs of the complaint. Accordingly, complaint is to be allowed.

            In the result, the complaint is allowed directing the opposite party to pay back the amount of Rs.1,58,000/- (Rupees one lakh fifty eight thousand only) to the complainants along with interest at 9% p.a. from the date of payment under Ex.A3 receipt bearing No.5966 dt:13.02.2008 and another receipt bearing No.5965 dt:13.02.2008, till realization. The opposite party further directed to pay Rs.3,000/- (Rupees three thousand only) towards costs of the complaint. The opposite party is directed to comply with the order within six (6) weeks from the date of receipt of copy of this order. 

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 13^th day of January, 2015.   

 

       Sd/-                                                                                                                      Sd/-                                               

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

 

PW-1: Dr. N.Sreeramulu

PW-2: P.Suneetha Gowd

 

RW-1: T.Durga Prasad S/o. T.N.Naidu (Chief Affidavit filed).

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Description of Documents
Ex.A1.	Membership certificate  of the complainants
2.	Copy of Confirmation of letter of complainants issued by the opposite party. Dt: 14.04.2008.
3.	Original Receipts (2 in number) Dt: 13.02.2008
4.	Copy of Communication made by the Tirupati branch office of the opposite party to the complainants. Dt: 05.12.2009.
5.	Copy of Letter of refusal Dt: 29.05.2010.
6.	Office copy of legal notice issued by complainants to the opposite party along with postal receipt. Dt: 01.10.2012.
7.	Postal acknowledgement. Dt: 06.10.2012.
8.	A Original copy of Country vacations International Holiday club membership purchase agreement between complainants and opposite party.  Dt: 12.02.2008.

 

 

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Description of Documents
Ex.B1.	Original Purchase Agreement. Dt: 12.02.2008.
2.	Photo copy of Deed of Gift Agreement. Dt: 06.07.2010.
3.	Photo copy of Deed of Gift Agreement. Dt: 14.07.2010.

 

 

                                                                                                                                                                   Sd/-    

                                                                                                                President

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

              Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:-     1. The complainants.

                        2. The opposite party.