BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 18th November 2015
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 345/2012
(Admitted on 24.11.2012)
1. Mr. S.M. Anwar Razak,
S/o Late. S.M. Razak,
Aged about 52 years,
2. Mrs. Farhath Anwar,
W/o. S.M.Anwar Razak,
Aged about 45 years,
Both are residing at
Al Heen Old Convent 2nd Cross,
Menezes Compound, Bajpe,
Mangalore. ….. COMPLAINANTS
(Advocate for Complainant: Smt. Manjula N.)
VERSUS
M/s Country Vacations,
International Holiday Club,
# 15-6-303/12,
1st Floor, Hotel Gold Finch complex,
Behind part of Gold Finch Hotel,
Bunts Hostel Road,
Kodialbail, Mangalore-575 003.
Represented by Authorized Signatory. ……. OPPOSITE PARTY
(Advocate for opposite party: Smt. Aruna B.P.)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M.RAI:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The complainant is the member of Opposite Party club by remitting the membership for sum of Rs. 35,000/-. The opposite party assured that if the complainant become a member of its international Holiday club by paying a member ship of Rs. 1,40,000/- complainant will be offered better facilities and amenities like, life member ship of the country club. Access to all other affiliated clubs within India and Abroad. Free utility of TAASHA for 3 years at country club, discount of 20% on food alone at Hotel Amrutha castle- Hyderabad, Discount on room tariff at various hotels in India and abroad. Discount at various shopping outlets across the country. Accidental Insurance coverage of 5 lakhs. Among the above facility the opposite party was promised to provide the complainant free plot of 1089/242 59.ft/sq. yard at this venture vedic spa at Hindupur and this is absolutely no consideration for the said complimentary plot believing in words of the opposite party the complainants have purchased the International Holiday club membership by paying Rs. 1,35,000/- towards purchase price and Rs. 5,000/- towards administration fee totally complainants are paid a sum of Rs. 1,40,000/-. The amount has been paid as per the purchase agreement in contract No. DT-85/0020 dated 16.10.2008 for studio Bleu apartment and season type. After that from the date of purchase agreement the complainants have been requested the opposite party to show the above said site but the opposite party avoiding the same on one or other reason, hence complainant decided to seek refund of the said payment of s. 1,40,000/- with interest of 18% per annum from the date of receipt till the date of payment. Hence issued a legal notice to refund the amount with interest opposite party failed to refund the above amount which amounts to deficiency and the above complaint came to be 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 Party to refund the sum of Rs.1,40,000/- along with interest at 18% pear annum from the date of purchase agreement and also claimed Rs. 1,00,000/- as damages and Rs. 750/- as coast of the proceedings.
II. 1. Version notice served to the Opposite Party by RPAD filed version stating that the complainant themselves had approached the opposite party and the opposite party clearly explained about the various terms and conditions of the purchase agreement and requested the complainants to go through the terms and conditions of the purchase agreement thoroughly. After that the complainants made the payment of Rs. 95,00,000/- , 50,00,000/- by way of cash Rs. 45,00,000/- by way of cheque. After receiving the payment of Rs. 95,00,000/- from the complainant to pay remaining amount of Rs. 45,00,000/- the facilities are availing after complete payment of the complainant but complainant not paid the entire amount.
The opposite party further submitted that the complainants without making the complete payment pressuring the opposite party to register the free plot of 1089/242 Sq Ft/Sq yard at the Vedic Spa Ventuo of the opposite party at Hindupur. The opposite party further submitted that, as per the scheme the clubs could be accessed by the complainants the opposite party is not in the business of the real estate per contra, the opposite party is an hospitality business. It is submitted that the opposite party as per the scheme would allot a complementary site developed by its sister concurn. Onpayment of full membership fee, the same being allotted is a complementary plot that the purchase shall pay Rs. 20,000/- towards legal formalities and development charges. It is very clear from the above averments of the opposite party the complainant are yet to make the payment of Rs. 65,000/-. The opposite party further submitted the amount paid is non refundable as per the purchase agreement which is cleared. Such being the case the complainants not entitled for allotment of complementary site and contended that there is no deficiency and prayed for dismissal of the complaint.
III. 1. In support of the complaint, one Sri S.M. Anwar RAzak (CW1) – Complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the documents No. 1 to 4. One Mr Anand K. (RW-1) Customer care Manager of Opposite Party filed counter affidavit and answered the interrogatories served on him and got marked Ex R1 to R2 for the Opposite Party.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainants are entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) TO (iii):
In the instant case, if Complainant is become a member of its international Holiday club by paying a sum of Rs. 1,40,000/- the complainants are get better facilities and amenities mentioned above further the opposite party was promised to provide the complainants free plot of 1089/242 Sq/ft/Sq yard at their vedic Spa at Hindupur by no consideration for the said complimentary plot, hence the complainants paid the above said amount from the date of purchase agreement, the complainants requested the opposite party to show the said site. But opposite party postponing the same, hence the complainant issued legal notice to refund the amount. But opposite party not refunded the amount hence this complaint.
On the contrary the Opposite Party raised a contention that the complainant is not entitled any refund of amount. Opposite Party submitted that after becoming member of the club the opposite party allotting a complimentary plot at Vedic Spa in favour of the complainant. Further, pursuant to the allotment of the said complimentary plots, the opposite party had informed the complainant to deposit a sum of Rs. 20,000/- towards the registration charges along with other charges for maintenance, but complainant not complied the same. Hence denied the deficiency.
On perusal of the oral as well as documentary evidence available on record, we find that the Opposite Party is not at all denied receipt of the amount of Rs.1,40,000/- by the complainant, and agreed that the complainant is the member of the Opposite Party club.
The Opposite Party counsel raised the contention that the amount paid by the complainant is non-refundable. No doubt in order to smooth functioning of the opposite party company the terms and conditions are required to be entered into for the convenience of both i.e. Consumer and the company. But the said terms and conditions the clause inserted in the printed format shall not be a one sided then its amounts to void agreement.
Since the complainant is not satisfied with the Opposite Party company of course he has got every right to cancel the membership and entitled for the refund of amount, the amount is with the Opposite Party company by way of cash or kind the complainant is at liberty to claim refund of the amount because he is not satisfied with service of the Opposite Party Company and Opposite party company in turn cannot compel the consumers inspite of their unwillingness to continue. Further the Opposite Party admitted that the complainant is the member of the club and Opposite party not denied in the said aspect and also admitted that the complainant had deposited Rs.1,40,000/- for membership in their club. The documents produced by the opposite party i.e. Ex R-1 which its self shows that the complainant paid the entire amount for purchase agreement.
In view of the above discussion, by considering the facts and circumstances, we are of the considered opinion that the interest of justice, we direct the Opposite Party to pay Rs.1,40,000/- (Rupees One lakh Fourty thousand only) to the complainant along with interest at 12% per annum from the date of payment till the date of realization and also pay Rs.5,000/- (Rupees Five thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the present case, interest considered itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite party is hereby directed to pay a sum of Rs.1,40,000/- (Rupees One lakh Fourty thousand only) to the complainant along with interest at 12% per annum from the date of payment till the date of realization and also pay Rs.5,000/- (Rupees Five thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 18th day of November 2015)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri K. Prakash Kamath – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 28.5.2009: Letter of Allotment.
Ex C2 - 5.10.2009: Letter of the complainant to O.P.No.1.
Ex C3 – 14.10.2009: Letter of the complainant to O.P.No.1.
Ex C4 -8.5.2000: Letter of the complainant to O.P.No.1.
Ex C5 – 17.7.2010: Letter of the complainant to O.P.No.1.
Ex C6 – 23.7.2011: Letter of the complainant to O.P.No.1.
Ex C7 – 7.9.2011: Office copy of Lawyer’ notice.
Ex C8 – Postal acknowledgement due from 1st O.P.
Witnesses examined on behalf of the Opposite Party:
RW-1: Mr.Venkatesh Varma, Assistant Administrative Manager of Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1: Notarized copy of Application.
Ex R2: Copy of the reminder notice.
Ex R3: Copy of the feed back.
Dated: 18-11-2015 MEMBER
