BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.198-2013

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 parties to pay a sum of Rs.99,000/- with interest at 18% p.a. from the respective dates of payments and to award compensation of Rs.50,000/- with costs of this proceedings.
2.     The brief facts alleged in the complaint are that the complainant Nos.1 and 2 are the husband and wife and they have opted for club membership and in this context, the complainant No.1 has deposited a sum of Rs.99,000/- on different dates as narrated in para 5 of the pleadings.  The opposite parties did not issue any membership card or certificate to the complainants and they have not provided the holiday package as assured by them at the time of collecting membership fee.  Further opposite parties assured to provide site ownership of coconut groove near Tumkur 16^th Phase.  It has been confirmed in the letter of opposite party and allotted 1089 Sq.Ft. coconut groove to the complainants.
3.    So far, complainants have not received any sale deed in respect of the site or any registered document of ownership and the opposite parties have not provided any holiday package in spite of several demands and written requests made on 01.02.2013 which has resulted in declining the right of consumer.  The cause of actions arose on 01.02.2013 and subsequently within the jurisdiction of this Forum.
4.     Opposite parties appeared through their advocate and they have filed the following version.  It is admitted that the complainants and opposite parties entered into an agreement which is known as purchase agreement with respect to purchase of membership by the complainants.  The complainants shall purchase the number of points, entitling the purchaser right of occupation at the country vacations international holiday club resorts.  The amount paid by the complainant is duly admitted.  It is false to allege that the opposite parties have not issued membership card or not provided them holiday package.  It is false to allege that the opposite parties agreed to allot a site in country vacations. This opposite party specifically states that the site allotted to the complainant is a complimentary one provided by this opposite party by virtue of complainants being the members of the club.  The complainants are not consumers as far as complimentary gift is concerned.  Since, no consideration is passed.  On this ground, the complaint is liable to be dismissed.  The opposite party has right to cancel the agreement and forfeit 80% of the amount paid since the complainants are defaulted in payment and they are not entitled for any reliefs.  Accordingly, opposite parties have sought for dismissal of this complaint.
5.   On the above pleadings, this case is posed for evidence.  During evidence, complainant No.1 has filed his affidavit evidence and produced the documents.  On behalf of opposite parties, one authorised signatory by name Zaafer Sharif has given evidence and further evidence closed.   After hearing arguments, this  matter is set down for orders.
6.      The points arose for our consideration are:-

1. Whether the complainants establishes that the opposite parties committed deficiency of service in not providing the membership card or allotting site as agreed, thereby, complainants are entitled for the reliefs claimed?
2.  What order?

7.    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 ::

8.    Point No.1:- To establish that there is transaction between two parties, the complainant filed purchase agreement between complainants and the opposite parties.  There are no much conditions in this agreement except agrees to sell points raise in the Royal country vacations international holiday club in accordance with the particulars that follow.  Further, complainants also produced the receipts for having paid a sum of Rs.99,000/- to the opposite parties.  There is a letter by the opposite parties showing additional benefits to the members of the country vacations club.  Further, there is allotment letter issued by the opposite party to complainant No.1 stating congratulations on being allotted 1089 Sq.Ft. at the country club coconut groove near Tumkur at 16^th phase.  Thereafter, no communication from opposite party, as such complainant No.1 wrote letters on 01.02.2013 and also issued legal notice.
9.    The contention of the other side is to the effect that since the payment was not, the opposite party is at liberty to forfeit 80% of the amount paid by the complainants.  But, any amount of defence taken by the opposite party relating to non-providing of membership card and allotment of site is definitely amounts to deficiency in service.  The opposite parties dodged the matter from 2006 upto 2013.  Thereby, definitely the act of opposite party amounts to deficiency in service.  Hence, the complainants are to be suitably compensated particularly by refunding the amount deposited towards membership and also compensation with litigation expenses. Hence, point No.1 for consideration in the partly in the affirmative.
10.  Point No.2:- In view of the findings recorded on point No.1, complainants are entitled to recover a sum of Rs.99,000/- with interest 18% from the respective dates of payments with compensation of  `30,000/- and litigation expenses of `2,000/-. Hence, the following

:: O R D E R ::

1. The complaint is partly allowed.
2. The opposite parties are jointly and severally hereby directed to pay a sum of Rs.99,000/- to the complainants with interest at 18% p.a. from the respective dates of payments as narrated in para 5 of complaint within 60 days from the date of this order.  Fail to comply with the same, the opposite parties have to pay penalty of Rs.100/- per day to the complainants till compliance is made.
3. The opposite parties are jointly and severally hereby directed to pay a compensation of `30,000/- towards compensation and `2,000/- towards litigation expenses, within 60 days from the date of this order.
4.  In default to comply, the opposite parties shall pay interest at 12% p.a. on the said total sum of `32,000/- from the date of this order until compliance is made.
5. In case of default to comply this order, the opposite parties 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.