BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.188-2015

DATED ON THIS THE 15^th July 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed for a direction to the opposite party to pay a sum of Rs.22,500/-.
2.     The brief facts alleged in the complaint, during March 2013, the Manager of opposite party and its staff called the complainant by phone and lured him for a package.  Then the complainant and his family went to the office of the opposite party and opposite party has shown so many photos and lured the complainant to become a member of the club.  Thereby, on 14.03.2013 a cheque for Rs.10,000/- issued to the opposite party and the complainant become the member of the opposite party. Even the opposite party has given one gift coupon that has not been made use of by the complainant.  After some days, when he has visited the club of the opposite party on Mysuru-Bangalore Road near Mysutu City, there were no playing articles for snooker and billiards, there were no guide to maintain the swimming pool, there were no cleanliness in the swimming pool, even the food stuff are not properly supplied which were of high costs.  There was no provision for lodging.  Thereby, complainant came to know that the opposite party has not provided anything as per the promise made at the time of meeting the opposite party.  Thereby, there is deficiency in service on the part of opposite party.  The complainant has sought for refund of Rs.10,000/- paid by him, compensation of Rs.10,000/- and litigation expenses of Rs.2,500/-.
3.     The opposite party appeared through the advocate and filed the following version.  This country vacation is an international holiday club with portfolio of resorts in India and Abroad.  It is not correct to say that the complainant was repeatedly called by phone insisted him to purchase membership.  The payment of Rs.10,000/- is admitted.  The complainant and opposite party entered into an agreement which is known as purchase agreement with respect to purchase of membership by the complainant.  The agreement is in writing and is duly signed by both parties, membership fee is not refundable as it is not a deposit.  Complainant defaulted in payment of balance amount in spite of several remainders only to cover up his default specifically complainant has made false allegations relating to facilities at the club.  The membership terms and conditions which are within the knowledge of the complainant, this opposite party has right to cancel the agreement and forfeit 90% of the amount paid so far since the complainant has defaulted in payment.  Thereby, he is not entitled for refund and the opposite party sought for dismissal of the complaint.  
4.     On the above contentions, this case is posed for evidence.  During evidence, complainant has filed his affidavit evidence and produced the documents so far as transaction with opposite party.  On behalf of opposite party one Albert Dsouza has filed his affidavit evidence reiterating the allegations made in the written version and sought for dismissal of the complaint.   After hearing arguments, this  matter is set down for orders.
5.      The points arose for our consideration are:-

1. Whether the complainant establishes that there is deficiency in service on the part of opposite party in not providing facilities in the club even though the complainant become the member, thereby there is deficiency in service and the complainant is entitled for the reliefs claimed?
2.  What order?

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

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

7.    Point No.1:- The transaction between the parties is admitted.  Since the complainant has paid a sum of Rs.10,000/- on 14.03.2013 and he has agreed to pay the remaining balance in 5 instalments.  The opposite party has given a tour gift coupon to the complainant, but on visiting the club, which is situated near Colombia Asia Hospital, the facilities provided by the opposite party are of not up to the standard since some of the sports articles are not in good condition for use of the players.  Likewise, the swimming pool is not properly maintained, there are no guides in the swimming pool, the food supplied has not been properly closed and the opposite party has made more charges.  There is no lodging facilities as such, the complainant has sought for refund of the amount paid by him with costs and other reliefs.  Whereas, it is the contention of the opposite party, as per the terms of the agreement, the complainant has not paid the remaining amount towards membership fee.  Thereby, opposite party is entitled to forfeit 90% of the amount paid so far as per the terms of the agreement.  There are terms to that effect in the agreement, but, when the opposite party has not provided the required facilities in the club, it is up to the complainant either to continue of the membership or to cancel the same.  But, in this case the opposite party has neither provided service nor repaid the amount deposited by the complainant.  Thereby, there is deficiency in service on the part of opposite party for which the complainant is to be suitably compensated.  Hence, point No.1 for consideration in the partly in the affirmative.
8.  Point No.2:- In view of the findings recorded on point No.1, complainants are entitled to the recovery of sum of Rs.10,000/- with interest 18% from the respective dates of payments with compensation of  `10,000/- and litigation expenses of `2,000/-. Hence, the following

:: O R D E R ::

1. The complaint is partly allowed.
2. The opposite party is hereby directed to pay a sum of Rs.10,000/- to the complainant with interest at 18% p.a. from 14.03.2016 within 60 days from the date of this order.  Fail to comply with the same, the opposite party has to pay penalty of Rs.50/- per day to the complainant till compliance is made.
3. The opposite party is hereby directed to pay a compensation of `10,000/- towards compensation and `2,000/- towards litigation expenses, within 60 days from the date of this order.
4.  In default to comply, the opposite party shall pay interest at 12% p.a. on the said total sum of `12,000/- from the date of this order until compliance is made.
5. In case of default to comply this order, the opposite party shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
6. Give the copies of this order to the parties, as per Rules.