COMPLAINT FILED ON: 27.10.2009

DISPOSED ON: 17.03.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

17^TH MARCH 2011

       PRESENT :- SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER  

      O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite party (herein after called as O.P) to refund Rs.1,25,000/- on the allegations of deficiency in service on part of the OP.  

2.      The brief averments made in the complaint are as follows:

Lured away with the offer made by the executive of OP complainant became the life member of OP club and obtained Mr. Kool Card life membership on payment of Rs.1,25,000/-. OP has promised that on becoming the member of the esteem club complainant will get many offers such as insurance coverage, visit to wildlife, free air ticket for a couple to Goa, 7 days stay at Royal Goa Beach.  On 08.11.2008 complainant paid Rs.79,000/- by way of cash and Rs.46,000/- by way of credit card. OP issued membership card bearing No. Cool VS-1225 on 15.01.2009. After visiting many times OP issued the receipts standing in the name of some other person namely Mr. Bhargava B.V.N. When asked by the complainant OP told that executive was left the job and OP demanded complainant to pay Rs.20,000/- for Mr. Kool Membership.  Further OP promised the offer of complimentary passes for all Mega events conducted by the country club but till date complainant has not received any one of them. The executive of OP also offered the Fitness Health Club Card “Moksh” to get free access to the GYM for 60 months but complainant got only for 6 months. When complainant questioned OP demanded payment of Rs.20,000/-  extra for the same.  OP offered one way free air ticket to Goa for the couple for two nights and three days stay and complainant asked for the same OP demanded the complainant to pay the ticket charges by himself and for complimentary stay of 6 nights and 7 days at RGBC in Goa club, OP asked the complainant to pay Rs.12,500/- when complainant booked complimentary package 3 months before for 2 nights and 3 days in wild life resort at Bushbettta OP told him to book before 45 days when complainant called OP before 45 days OP informed that there was no free room. The executive of OP took the complainant to the spot and showed the plot and promised to register the same within 6 months in writing if plot is not registered within six months OP will refund Rs.1,25,000/- OP promised to give 2 plots of 1089 Sq.ft. (i.e. 2178 Sq.ft) of land in Coconut Grove Near Sira, Tumkur. On 31.07.2009 complainant approached OP with a letter of allotment he came to know that those letters are fake. OP told the complainant to take plot near Madhugiri after 6 months or write a request form for refund.  OP promised to return the amount on 20.08.2009.  Now OP informed that they will not refund the amount. On 15.01.2009 complainant got his membership card but not get the amount receipt. After visiting so many times OP gave amount receipt of some other person i.e. Mr. Bhargava B.V.N. when asked by the complainant OP informed that the membership of Mr. Bhargava B.V.N. is transferred to the complainant.  Complainant gave a complaint in writing to the Manager of Marketing team and customer care.  OP has not given acknowledgement for that and not taken any action. Inspite of repeated requests OP failed to refund the amount or register the plot in the name of the complainant. Hence complainant felt deficiency in service against OP. Under the circumstances he is advised to file this complaint for the necessary relief’s.

3.      On appearance OP filed the version admitting that complainant upgraded his membership from existing to Mr. Cool membership. Complainant suppressing the said facts making false claim.  OP has collected a sum of Rs.1,25,000/-. OP submits that permanent member would get country club life membership, Complementary plot of 1089 sq.ft., at Coconut Grove Near Sira, Tumkur., One way air ticket to Goa for couples, 2 nights 3 days, Holiday package of two nights three days stay in Bandipur, Bushbettta, Holiday package to RGBC Goa, for 6 nights 7 days, 7 months complementary free Moksh Health Card worth Rs.1,25,000/- Access to all the clubs in India. Value of which is more than the membership fee is paid by the member. OP is ready for registration as soon complainant deposit the registration charges; Inspite of several requests complainant not turned up for registration. Under these circumstances this forum can only direct the OP to register the complementary plot on receipt of full registration fees. In this scheme complainant cannot seek refund of amount on the alleged ground of none providing of complimentary plots as the same is not part of the facilities assured. Complainant having utilized all the services is now trying to seek for refund of membership fee paid. This is not permissible under law; the place of allotment of complimentary sites has been informed by OP to all the members and the contention that the complainants have been offered a site at different location is false; Complainant by suppressing said facts is making false statement. OP has collected only a sum of Rs.1,25,000/- towards membership amount. Complainant by suppressing the said fact is making false claims that OP had offered two complementary sites measuring 1089Sq.ft at Coconut groove. Complainant is yet to pay a balance of Rs.15,000/- documents produced by the complainant dated 08.12.2008 and 12.12.2008 are fabricated and concocted documents for the purpose of filing the present complaint. OP admits the membership of the complainant is a transferred membership from Mr. Bhargava B.V.N. and complainant at the time of taking the transfer was completely aware of the type of membership he was availing.  OP denied that complainant was offered free access to Mokesh Health Club for a period of 60 months and that if he was asked to pay Rs.20,000/-  extra for the same.  OP denied that complainant was asked to pay for the ticket charges to trip for Goa. Complainant has to pay the service tax for the same. OP denied that complainant has to pay a sum of Rs.1,25,000/- for stay at RGBC, Goa.  Complainant need not pay any extra amount apart from the tax applicable for the same.  OP denied that complainant taken to the plot by its executive and after seeing the same he has paid the membership fee and said executive had promised to refund the membership fee. OP denied that complainant was offered complimentary plot in Coconut Grove, near Sira, Tumkur the alleged allotment letters produced by the complainant is a forged one and same is not issued by OP. Complainant is entitled for only one site towards which OP has issued a allotment letter allotting site bearing No.345 at penukonda in favour of complainant. Complainant is well aware of the same. In the said letter OP requested the complainant to pay a sum of Rs.15,000/- towards maintainance and registration charges. Till date same was not paid by the complainant.  Hence complainant cannot blame the OP for his faults.  OP is ready to register the plot in the name of the complainant as soon as complainant deposit the registration charges.  OP denies that complainant was given the receipt for some other person since the membership of the complainant is transferred membership from Mr. Bhargava B.V.N. all the receipt towards membership No. Cool VS 1225 stands in the name Mr. Bhargava only. The complainant has not given any complaint to the OP.  OP admits payment of Rs.1,25,000/- made by the complainant. Complainant having utilized the service of OP cannot seek for refund of the membership amount as such the membership fee cannot refunded. There is no deficiency in service on the part of the OP. Among other grounds OP prayed for dismissal of the complaint.

4.      In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of letter dated 08.11.2008, Bank receipt, receipts issued by OP, allotment letters, intimation letter, copy of the request refund form, copy of the police complaint, 04 original membership card. On behalf of OP Sri. Vijaya D.P. Senior Manager Customer care of OP filed his affidavit evidence in support of its defence. OP has not produced any documents. Complainant submitted written arguments. Heard oral arguments from the complainant. Taken as heard from OP side.

5.      In view of the above said facts the points now that arises for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved

                     the deficiency in service on the part of

                       the OP?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

6.      We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs our findings on the above points are:

Point No.1:- In Affirmative

Point No.2:- Affirmative in part

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not in dispute that complainant became the member of Mr. Cool Card membership of OP by transfer and paid Rs.1,25,000/- to OP.  The complainant claims that OP promised to allot two complimentary sites at Coconut Grove, Near Sira at Tumkur as per the letters dated 08.12.2008 and 12.12.2008. Inspite of repeated requests OP failed to register the site. Hence complainant approached this Forum.

8.      As against the case of the complainant the defence of the OP is that complainant failed to pay Rs.15,000/- towards the site  confirmation and administrative charges within 30 days from issuance of the letter. For the said reason OP could not register the allotted site. As soon as complainant makes payment OP is ready to register the site in favour of the complainant. There is no basis for this defence.  OP has not produced any documents to show that layout has been formed; sanctioned plan has been obtained from statutory authorities and the sites are readily available at its disposal free from encumbrances as on today. Hence the version of the OP cannot be accepted.

09.    In the version and affidavit evidence OP has denied that complainant was offered two complimentary plots in Coconut Grove, near sira, Tumkur and further went to the extent of contending its own letter as forged and fabricated documents.  Further OP states that complainant is entitled for only one site towards which OP has issued an allotment letter allotting site bearing No.345 in phase-A, Penukonda but in support its contention OP has not produced any documents to show that complainant was allotted site No.345. But the allotment letters dated 08.12.2008 and 12.12.2008 produced by the complainant shows that free complimentary site No.743 & 744 measuring 1089 Sq.ft. situated at Phase XVI Coconut grove have been allotted to the complainant. In a document dated 12.12.2009 shows that registration is subject to government approval and clearances.  The defence of the OP has no basis. Hence same cannot be accepted.  OP denies the fact that complainant was given receipt of some other person.  But all the receipts produced by the complainant stands in the name of Mr. Bhargav only. The contention of the OP that complainant is not a consumer and cannot seek for refund of the membership fee has no basis.  However OP admits payment of Rs.1,25,000/- made by the complainant and admits that membership of the complainant is a transferred membership and all the receipts towards membership No. CooL VS-1225 stands in the name of Mr. Bhargav BVN.

10.    Though OP has received such a huge amount from the complainant in the year 2008 but failed to allot and register the complimentary sites as promised.  There was no response to the complaint made to customer care department and to the Police complaint. This act of OP amounts to deficiency in service. OP having retain the amount for more than two years failed to register the allotted site or refund the amount. The relief sought by the complainant is only for refund of membership fee of Rs.1,25,000/- along with interest and compensation. OP admits payment of Rs.1,25,000/- and also admits membership of the complainant as membership by transfer. Under these circumstances we are of the considered view that OP has failed to provide the assured services to the complainant same amounts to deficiency in service on the part of the OP.  We are satisfied that complainant is able to prove deficiency in service against OP. Under these circumstances complainant is entitled for refund of admitted amount of Rs.1,25,000/- along with  interest at the rate of 12% p.a. and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:   

ORDER

          The complaint is allowed in part.  OP is directed to refund Rs.1,25,000/- along with interest at 12% p.a from the respective  date of payments till realization and pay litigation cost of Rs.2,000/- to the complainant.

This order is to be complied within four weeks from the date of its communication.

(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 17^th day of March 2011.)     

                                                  PRESIDENT

MEMBER                                          MEMBER              

gm.