This complaint coming up before us for hearing on                      21-11-11 in the presence of Sri S.A. Khadar, advocate for complainant and of Sri P. Vijaya Bhaskar, advocate for opposite parties 1 and 2, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

PER SMT.T.SUNEETHA, LADY MEMBER: 

        The complainant filed this complaint under section 12 of Consumer Protection Act seeking directions on the opposite party to refund an amount of Rs.2,10,000/- paid by the complainant along with interest of Rs.75,000/- from 22-03-08 to 24-04-11 and compensation of Rs.10,000/- for mental agony and costs of Rs.5,000/-.

2.   In brief the averments of the complaint are these:

        The complainant joined as a member with opposite party on                  22-03-08 under membership No.YJVLM1386 with contract No.CVG-G-23/0053.

On 01-04-08 the complainant received a letter from the opposite party that the complainant got a plot of 300 sq. yards at venture ACE-II 1329 at Golf village and to get the plot register after completing the formalities on payment of development charges of Rs.25,000/- at the time of registration. 

The complainant paid Rs.1,85,000/- towards the development charges, RS.25,000/- on 03-04-10 by cash for which a voucher was issued by the opposite party.  The plot was supposed to be registered in the complainant’s favour within two months from the date of fulfilling all the formalities but till today nothing has been heard from the opposite party and the said plot is not registered to the complainant.

The complainant came to know that Guntur branch office was closed and tried to contact the customer service but not response.   The complainant visited the Corporate office situated in Hymayath Nagar and met Mr. Siva Kumar in the month of December, 2010 who after somany visits and enquiries stated that the plot was allotted to some other person and told to sign a format of request letter so that some other plot may be allotted instead of the one promised to the complainant.

        The complainant was shocked and questioned him about the happening of it but no proper response.   The complainant represented the matter over phone to customer care office at Vizag and in writing through letter dated 04-10-10 but there is no reply.

        The complainant came to know that one of the employees of opposite party misused the amount paid by the complainant.   The complainant cannot be punished for the act done by the employee.  Hence the complaint.

3.   The opposite party filed its version and the contents in brief are hereunder:

        The opposite party states that the membership fees is not refundable subscription for the purpose of enrollment of an individual as the member of the country club for availing the stay facility at the ventures to be acquired and improved by the opposite party over a period of time. It is stated that the allotment of the plot or identification of the place for availing the accommodation and other facilities arises after the commencement of the venture by the opposite parties, acquisition of sites/locations at various place and their improvement over a period.   Therefore, the provision of any facility for availing by the subscriber arises after the accomplishment of the project undertaking by the opposite parties over a period of time and the claim of the complainant complaining deficiency in service is non-east at this stage of the case, which the complainant is very much informed and aware of and therefore, present complaint is a premature exercise even if it is assumed that the provisions of the Consumer Protection Act, 1986 are applicable to the facts and circumstances of the case.

        For the above reasons the opposite parties prays the Hon’ble Forum may be pleased to dismiss the complaint with costs in the interest of justice and equity.

4.   Both parties have filed their respective affidavits.  The 2^nd opposite party filed adoption memo in respect of version, affidavit and written arguments filed by 1^st opposite party.  Exs.A-1 to A-14 were marked on behalf of the complainant.   No documents were marked on behalf of opposite party.

5.   Now the points that arose for consideration in this complaint are:

1. Whether the complainant is a consumer?
2. Whether the opposite parties committed deficiency of service?
3. To what relief the complainant is entitled to?

6.   POINT No.1:-    Section 2 (d) defines Consumer and it reads as follows:

        “Consumers” means any person who-

            i) buys any goods for a consideration which has been paid or          promised or partly paid and partly promised, or under any        system of deferred payment and includes any user of such     goods other than the person who buys such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods does not include a person who obtains such goods for release or for any commercial purpose: or   

            ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose.)”      

        The complainant joined as a member in the opposite parties club by paying consideration i.e., membership fee of Rs.1,90,000/- for hiring its services regarding accommodation in their hotels and resorts.   Ex.A-2 is extracted below for better understanding:

        “Dear Mr & Mrs. S. Vahidulla congratulations on becoming a member of country vacations/country club.   As a complimentary you would get a plot of 300 sq. yards at our venture Ace-II-1329 at Golf village.   There is absolutely no consideration amount received by us from you for the said complimentary plot. 

        We would register the plot in your name after completing all governmental formalities which are involved while acquiring land such as conversions, survey, layout plans etc.   The plot is expected to be registered in your name by the end of 01-04-09.    At the time of registration you are expected to pay the registration and development charges of Rs.25,000/- (as applicable)  in favour of our sister concern Amrutha Estates.   The venture, phase, dimensions, plot No’s and layout plans are subject to change from the original mentioned in the brochure”.

        Therefore, we hold that the complainant is a consumer of opposite parties.

7.   POINTS 2 & 3:-    It is not the case of the complainant that he was lured with allotment of plot being a life member.   Further it is not the case of the complainant that he was denied of accommodation in the hotels and resorts maintained by opposite parties.

        The complainant’s payment of Rs.25,000/- towards registration charges of complimentary plot was evidenced by Ex.A-8 and e-mail correspondence marked as Ex.A-12 and A-14.    In Ex.A-12 the opposite parties contended that the amount of Rs.25,000/- paid by the complainant was embezzled by the staff of opposite parties at Guntur.   Due contention of the opposite parties that complainant has not paid registration charge cannot be accepted.   The opposite parties not registering the plot even after receipt of registration charges amounts to deficiency of service.   The allotment of plot is complementary and there was no consideration for it as seen from Ex.A-8.

8.     The opposite parties relied on the decision reported in                    1993 (2) CPJ 155 (NC) wherein it was held

“6.   We are of the opinion that there is force in the contention put up by the revision petitioner that the complainant Shri S.S. Srivastava was not a ‘consumer’ as defined the Consumer Protection Act, 1986.   He had paid for a Padmini Premier Car which he had duly received and there is no complaint that it has any defect.   So the revision petitioner herein was not liable as far as that contract was concerned.   Receiving two air tickets to the sale, but which depended upon a lottery draw.   It was not an intrinsic part of the contract deal for which payment was made.   Thus as far as the lottery winning is concerned, it cannot be said that the complainant was a ‘consumer’ who had hired any service for consideration and hence he has no right to get redressal under the Consumer Protection Act, 1986.

7.    The respondent/complainant did argue that this would fall under Unfair Trade Practice as in Sec. 36(A) (4) of the M.R.T.P.Act.   But we are unable to accept this argument.

          8.    Nevertheless we deem it fit to mention here that such sale gimmicks lure consumers and then when the promises are not honoured the Consumers feel duped.  Of course, in this particular case, when the draw was held and the complainant was found to be the winner, he was informed about it.   At that particular time the complainant was not ready to travel and so instead of accepting the two Air Tickets, he asked for the equivalent amount in rupees, which was not as per the conditions of the lottery scheme.   Later when he did get his passports ready, and was willing to travel, the financial year of the Revision petitioner’s company had ended, and the lottery scheme of the previous year could not be accommodated in the next year.   Thus the complainant lost his chance to get the benefit of winning the lottery.   This is unfortunate.   But we are unable to intervene and cannot grant him any relief”.

9.     The complainant did not cite any other decision contra.   In this case also there is no consideration for allotment of plot. Having received Rs.25,000/- towards registration the opposite parties ought to have registered a plot which they failed to do so.  To that extent the opposite parties committed deficiency of service and they are entitled to return the amount together with interest.  We therefore answer this point accordingly.

        The attitude of opposite parties in not registering the plot even after receipt of registration charges put to the complainant to embarrassment, mental agony, on that aspect awarding Rs.5,000/- will meet the ends of justice.

10.   In the result the complainant is partly allowed as indicated below:

1. The opposite parties are directed to return Rs.25,000/- (Rupees twenty five thousand only) having received towards registration charges along with interest @18% p.a., to the complainant from 03-04-10 till payment.
2. The opposite parties are further directed to compensate the complainant by paying Rs.5,000/- (Rupees five thousand only) towards mental agony and embarrassment.
3. The opposite parties are directed to pay Rs.1,000/- (Rupees one thousand only) towards costs.
4. The amounted ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order failing which the amounts ordered in item No.2 shall carry interest @9% p.a., from the date of order till payment.

        Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 29^th day of November, 2011.

          MEMBER                                                                 PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:    NIL

PRESIDENT