Date of Filing:15.04.2008<br /> Date of Order:31.10.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 31ST DAY OF OCTOBER 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 949 OF 2008<br /> <br /> Masuma Oomatia,<br /> Rep by brother & GPA<br /> holder Mehboobhusen Damani,<br /> at Social Service Institute,<br /> 69/5, I Floor, M.K. Street Cross,<br /> Shivajinagar,<br /> Bangalore-560 051.<br /> <br /> <br /> COMPLAINT NO: 950 OF 2008<br /> <br /> Dhamani. M.N,<br /> at Social Service Institute,<br /> 69/5, I Floor, M.K. Street Cross,<br /> Shivajinagar,<br /> Bangalore-560 051.<br /> <br /> <br /> COMPLAINT NO: 951 OF 2008<br /> Gulshan H. Damani,<br /> Rep by brother-in-law & GPA<br /> holder Mehboobhusen Damani,<br /> at Social Service Institute,<br /> 69/5, I Floor, M.K. Street Cross,<br /> Shivajinagar,<br /> Bangalore-560 051.<br /> <br /> COMPLAINT NO: 952 OF 2008<br /> Hussainali Damani,<br /> Rep by brother & GPA<br /> holder Raj Damani,<br /> at Social Service Institute,<br /> 69/5, I Floor, M.K. Street Cross,<br /> Shivajinagar,<br /> Bangalore-560 051.<br /> <br /> COMPLAINT NO: 953 OF 2008<br /> Gulshan H. Damani,<br /> Rep by brother-in-law & GPA<br /> holder Mehboobhusen Damani,<br /> at Social Service Institute,<br /> 69/5, I Floor, M.K. Street Cross,<br /> Shivajinagar,<br /> Bangalore-560 051. Complainants<br /> <br /> v/s<br /> <br /> Highland Holiday Homes Pvt Ltd.,<br /> No.S-523, 5th Mezzanine Floor,<br /> No.47, Dickenson Road, <br /> Manipal Center, Rear Wing, <br /> Bangalore-560 047,<br /> Rep. by Directors. Opposite Parties<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> These five complaints are clubbed together for passing common order since the opposite party is one and the same and the facts and law points involved in these five complaints are also one and the same. <br /> The respective complainants have filed complaints seeking direction to the opposite party to pay return on investments of Rs.12,500/- with interest from 15/4/2006 and to direct the opposite party to pay return on the investment on the years in which the complainant do not use mire than 14 days of free holidays as per the terms of membership. <br /> The brief facts of the case are that the respective complainants have paid Rs.45,000/- to the opposite party for club membership. The complainants were to receive benefits and facilities from the company in lieu of the club membership fee on Rs.45,000/- during 50 years of their membership. The benefits are free stay for 14 days every month in company’s club at Kodaikanal or other resorts. If the complainants avail only 14 days of free holidays in a year in stead of every month. Company is to give a return on investment (ROI) for 10 days of rental charges of the cottage every year. Rental charges were to be taken at Rs.1,250/- per day. This return was to be sent by the company within two weeks after the year ended in March of that year. It is the case of the complainants that they have not availed free holidays for the year April-2005 to March-2006. Hence, they were entitled to return on investment of Rs.12,500/-, which the company has not paid. Complainants submitted that for the same subject matter between the same parties for non receipt of ROI of Rs.12,500/- for the year ending in March-2001, in complaint No.431-435/2003 Hon’ble 4th Additional District Consumer Disputes Redressal Forum allowed the complaints and directed the opposite party to pay the ROI as per the agreement to the complainants along with interest. Hon’ble State Commission up held the judgment of 4th Additional District Consumer Disputes Redressal Forum in Appeal No. 1105-1109/2003 and the Division Bench of Hon’ble High Court of Karnataka up held the order of State Commission. The subsequent complaints for non receipt of ROI for other years were also allowed by the District Forum and up held by the State Commission. The opposite party company was to pay ROI within two weeks of the year end on 31/3/2006 and the cause of action arose on 15/4/2006 and as on 14/4/2008 was Bank Holiday. Therefore, complaint filed is in time.<br /> 2. Notice was issued to opposite party through RPAD. Notice was served. In spite of service of notice nobody appeared on behalf of the opposite party. Even the opposite party has not sent defense version by post. The opposite party was placed exparte.<br /> 3. Affidavit evidence of complainants filed. Arguments are heard.<br /> 4. The point for consideration is:<br /> “Whether there was any deficiency in service on the part of the opposite parties?” <br /> <br /> REASONS<br /> 5. I have gone through the various documents produced by the complainants, affidavit and the complaints. The respective complainants have filed similar complaints before 4th Additional District Consumer Disputes Redressal Forum, Bangalore. Complaint No.431/2003 to 435/2003 filed for payment of return on investment of Rs.12,500/- with interest. Those complaints were for the year ending in March-2001. All the four complaints were allowed by the District Forum by order dated 5th September-2003. The copy of the order is produced. Being aggrieved by the order by the District Forum the opposite party had preferred an appeal before the Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore in Appeal No.1105/2003 to 1109/2003. All the appeals were disposed by the Hon’ble State Commission by confirming the orders passed by the District Forum. The opposite party herein had filed Writ Petition before the Hon’ble High Court of Karnataka challenging the order of Hon’ble State Commission. The Hon’ble High Court of Karnataka dismissed Writ Petitions by order dated 10/12/2004. The copy of the order of State Commission and High Court of Karnataka are produced. The opposite party Highland Holiday Homes Pvt. Ltd., had preferred Revision Petition before the Hon’ble National Commission, New Delhi in Revision Petition No.941/2006 and connected revisions. The Hon’ble National Commission directed the Highland Holiday Homes Pvt. Ltd., to refund the amount of Rs. 45,000/- deposited by the complainants with interest at 12% p.a, from the date of deposit till payment. The operative portion is as under:- <br /> “It is also made clear that after refund of the amount, on the basis of the alleged deposit of Rs.45,000/- for Membership of the petitioner, complainants shall not file any fresh complaint before Consumer Fora. <br /> These Revisions Petitions stand disposed of accordingly. The petitioner shall pay RS.5,000/- to each of the complainants as costs”. <br /> 6. This order of the Hon’ble National Commission was passed on 13/09/2007. The complainants appeared before the National Commission and submitted arguments stating that the petitioner Highland Holiday Homes Pvt. Ltd., has committed fraud and suppressed the fact that the order passed by the Hon’ble State Commission had become final. The National Commission stayed the order passed on 13/09/2007. This stay order is granted on 25/03/2008 by the National Commission. The complainants have produced another order of the National Commission dated 15/09/2008 passed in Revision Petition No.941/2006 connected with other revision petitions. The operative portion of the order of National Commission is as follows:-<br /> “Considering the aforesaid submissions and the complications that have arisen due to various orders passed by this Commission in Revision Applications as well as Revision Petitions, the order passed on 13/09/2007 in Revision Petitions No.940/2006 and others and in Revision Petitions No.2372-2376/2007 is set aside.” <br /> <br /> 7. So, in view of the latest order passed by the National Commission which is dated 15/09/2008 there is no bar to proceed with the present complaints. The order dated 13/09/2007 of the National Commission having been set aside, the bar imposed to the complainants not to file fresh complaints does not remain in force that means the complainants will be free to file complaints for getting justice. In the similar set of facts and circumstances the 4th Additional District Consumer Forum had already allowed the complaints and directed the opposite party to pay Rs.12,500/- to the respective complainants along with interest at 15% p.a, and that order of District Forum had also been confirmed by the Hon’ble State commission. So, under these circumstances, there is absolutely no bar of any kind to allow the present complaints also and direct the opposite party to pay return on investment of Rs.12,500/- to the respective complainants as agreed by the opposite party company. The present complaints are pertaining to the year ending on 31/3/2006. The complainants have brought to our notice that the letter of the opposite party dated 07/05/2002 and submitted that by this letter of the opposite party it is very clear that they have not given holiday facilities to the complainants as per the agreement. The opposite party in the letter dated 07/05/2002 which reads as under:-<br /> “We regret to inform you that since there is a legal case going on between you and our company. We will not be able to give you holidays until you withdraw the case. That you have filed against the company”. <br /> <br /> 8. Therefore, the company has to return on investment for 10 days of rental charges of cottage every year. The rental charges were to be taken at Rs.1,250/- per day. The case made out by the complainant had gone unchallenged. The opposite party has not appeared and contested the matter. There is nothing to disbelieve the facts stated by the complainants. Therefore, all the complaints are liable to be allowed. The complainants prayed for grant of interest at 24% p.a for delayed payment. The 4th Additional District Consumer Forum in the earlier matters has granted interest at 15% p.a. Therefore, I feel in these cases also it would be just, fair and reasonable to grant interest at 15% p.a. Consumer Protection Act is a social and benevolent legislation enacted to safeguard the better interest of the consumers. The opposite party company having not maintained its commitments and obligation is bound to give return on investment for 10 days of rental charges for cottage every year to the complainants. Therefore, the complaints are liable to be allowed. The similar complaints have been allowed by the 4th Additional District Consumer Disputes Redressal Forum and the said orders have been confirmed by the Hon’ble State Commission. Therefore, there is no scope for the present Forum to differ with the orders already passed and confirmed by the higher authority. In the result, I proceed to pass the following:- <br /> ORDER<br /> <br /> 9. All the five complaints are allowed. The opposite party company is directed to pay return on investment of RS.12,500/- to the respective complainants. The opposite party company is also directed to pay interest at 15% p.a from 15/04/2006 till payment/realisation.<br /> <br /> 10. The opposite party company is directed to send the intimation to the complainant about any change of address of the company by RPAD. So that the complainant does not take hardship in tracing the address of the company. The opposite party shall go on paying return on investment for the years in which the complainants do not use more than 14 days of the free holiday as per the terms of the membership. <br /> <br /> 11. The opposite party is directed to pay Rs.2,000/- towards cost of the present proceedings to each of the complainants.<br /> <br /> 12. Keep the copy of the order in connected complaints. <br /> <br /> 13. Send the copy of this Order to the parties free of costs as a statutory requirement. <br /> <br /> 14. Pronounced in the Open Forum on this 31ST DAY OF OCTOBER-2008. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> Rhr<br />