BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29th of October 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.103/2010
(Admitted on 20.3.2010)
Balasubramanya,
Of age 42 years,
Rat Flat No.101,
Keerthan Apartments,
V.T.Road,
Mangalore. …….. COMPLAINANT
(Advocate for Complainant: Sri Deenanath Shetty)
VERSUS
1. K.Sugumaar,Amritha Lewis,
The Manager,Authorised Signatory,
The Country Club India Ltd.,
Administrative Office,
No.273, Ist Main Defence Colony,
HAL, 2nd Stage,
Bangalore 3.
2. Authorised Signatory & DM Executive,
Country Club India Ltd.,
2B, 3rd Floor, Crystal Arc,
Balmatta Road,
Mangalore. ……. OPPOSITE PARTIES
(Advocate for Opposite Parties: Sri.Vevek Nanbiar)
:ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant and his wife Sandhya Rani had obtained the Membership of the Opposite Parties by paying a sum of Rs.10,000/- to Opposite Party No.2 as per receipt bearing No.34830/- dated 3.5.2003 in order to become the members of Country Club in Mangalore. It is stated that, the Opposite Parties promised that, they would start up Country Club with all amenities and facilities to the members within a few months from 21.6.2003 in Mangalore. But the Opposite Parties failed to start up the Country Club in Mangalore even after lapse of seven years from the issue of membership card to the Complainant dated 22.6.2003. It is further stated that, the Complainant by believing the promise made by the Opposite Parties, that the Country Club would be opened within a few months from the date of issue of the membership card. When the Opposite Parties failed to open the Country Club in Mangalore, the Complainant personally met the Opposite Party’s agent, who apprised the Complainant that the Country Club required a two years period to startup the club in Mangalore as the Country Club is in financial doldrums. The club was not opened even after two years and once again the Complainant met the concerned office of the Opposite Party No.2 in Mangalore and again they have apprised that the club will be opened within a period of two years, but till this date club was not opened and it is contended that, the Opposite Parties despite of taking the membership fee failed to open the Country Club in Mangalore. Hence, the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to refund the amount of Rs.10,000/- with interest at 12% per annum from 22.6.2003 till the final date of payment or in other words to pay up to the Complainant in all a sum of Rs.18,400/- and further pay compensation and costs of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version stated that, the Complainant has approached this Forum after lapse of more than seven years. Hence, the Complaint is barred by limitation.
It is further submitted that, the Country Club at Mangalore could be started by the Opposite Parties only after securing all the permissions and sanctions from the various local authorities and also other reasons which were beyond the control of the Opposite Parties. The Complainant having waited for the Mangalore Club cannot seek for the refund of membership fee. It is stated that, when the membership of the Complainant is Rs.10,000/- and the cost of the said membership is of Rs.36,000/- for the basic membership. It is further stated that, the Complainant not suffered any loss, he has been utilizing the club facilities in other clubs located in other places. And contended that there is no deficiency and prayed for dismissal of the Complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complaint is barred by limitation?
- Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri Balasubramanaya, (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C11 were produced for the Complainant as listed in the annexure. One Sri.Vijay D.P., Senior Manager (Customer Care) of the (RW1) Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. Complainant produced written notes of arguments.
We have heard and perused the oral/written arguments, pleadings, documents and evidence placed on record by both parties and answer the points are as follows:
Point No.(i) & (ii) : Affirmative.
Point No.(iii) & (iv): As per the final order.
REASONS
5. POINTS NO. (i) to (v):
From the out set of the oral as well as documentary evidence available on the file of this Forum, it is admitted that, Sandhya Rani i.e. wife of the Complainant had become a member of the Opposite Parties by paying Rs.10,000/- on 3.5.2003 as per Ex.C1. It is also admitted that, the Complainant was given with a Membership card on 22.6.2003 i.e. CCI Master Card as per Ex.C2.
Now the grievances of the Complainant is that, the Opposite Parties apprised the Complainant that they are going to setup a Country Club in Mangalore and they would start up the Country Club with all the amenities and facilities to the members within a few months from 21.6.2003 but till this date the Opposite Parties not opened their Country Club at Mangalore. Hence, it is contended that, the Opposite Parties despite of promise made by them not provided the Country Club at Mangalore amounts to deficiency and came up with this Complaint.
On the contrary, the Opposite Parties raised a contention that, the Complaint is barred by limitation, because of securing all the permissions and sanctions from the various local authorities and also other reasons which were beyond the control of the Opposite Parties, they could not start up Country Club at Mangalore and contended that there is no deficiency.
The Complainant sworn affidavit by way of chief-examination and produced Ex.C1 to C11, wherein, we find that, the Complainant paid Rs.10,000/- the year back 3.5.2003 and Opposite Parties issued a Membership card to the Complainant and Complainant’s wife Sandhya Rani. There is no denial on the part of Opposite Parties that the Country Club at Mangalore is not opened. In other words, the Country club at Mangalore not started yet. No doubt, the Complainant stated in his affidavit that after paying the membership fee her husband i.e. the Complainant met the Opposite Parties twice and the Opposite Parties officials apprised the Complainant that it would be opened in Mangalore within a period of two years. It is quite natural that, after paying the Membership fee no member will keep quite till this date. The Complainant approached the Opposite Parties in two occasions after paying the Membership fee as stated in his affidavit is acceptable one. On the other hand, the Opposite Parties admitted that, they have not started the country club in Mangalore. Under that circumstances, the question of limitation does not arise in this case.
However, we have noticed that, the Opposite Parties though raised a reason stating that they could not set up the Country Club at Mangalore because they could not secure all the permissions and sanctions from the various local authorities and further stated that because of the other reasons which were beyond the control of the Opposite Parties they could not start up the club. But nothing has been placed on record to show that, what is the difficulty in securing the permissions/sanctions from the various local authorities and other reasons which were beyond the control of the Opposite Parties. There is no cogent/material evidence available on record to show that, there is a valid and legal reasons that Opposite Parties could not start up the Country Club at Mangalore. In the absence of any proof or any material/cogent evidence, we declined to accept the defence taken by the Opposite Parties in this case.
It is pertinent to note that, when the Opposite Parties failed to start up the Country Club at Mangalore as promised by them even after seven years from the date of membership, the member has got every right to seek refund of the membership fee paid by her/him. Since, the Opposite Parties failed to provide the Country Club at Mangalore, even after lapse of seven years till this date amounts to deficiency of service.
In view of the above discussions, we hold that, the Opposite Parties are hereby directed to refund the amount of Rs.10,000/- to the Complainant along with the interest at 12% per annum from 22.6.2003 i.e. the date of receipt of the amount till the date of payment.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Parties are hereby directed to refund the amount of Rs.10,000/- (Rupees Ten thousand only) along with the interest at 12% per annum from 22.6.2003 i.e. the date of receipt of the amount till the date of payment to the Complainant and also pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 29th day of October 2010.)
PRESIDENT
MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri Balasubramanaya – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 –: 3.5.2003: Receipt bearing No.34830.
Ex C2 – 22.6.2003: Membership card issued to the Complainant.
Ex C3 – 22.6.2003: Membership card issued to Sandhya Rani.
Ex C4 – 16.5.2003: CCI master Card issued to the Complainant.
Ex C5 – 12.6.2009: Bill.
Ex C6 – 2.6.2008: Bill.
Ex C7 – 16.6.2005: Bill.
Ex C8 – 21.6.2003: Laminated Membership card issued to the spouse.
Ex C9 – 23.2.2010: Legal Notice.
Ex C10 – Postal Receipt.
Ex C11– Postal Acknowledgements.
Witnesses examined on behalf of the Opposite Parties:
Rw-1: Sri.Vijay D.P., Senior Manager (Customer Care) of the Opposite Party No.1.
Documents produced on behalf of the Opposite Parties:
-NIL-
Dated: 29.10.2010 PRESIDENT
