Tamil Nadu

StateCommission

A/92/2016

Shaman Mithru - Complainant(s)

Versus

M/s. City Club, Manager - Opp.Party(s)

J.P. Karunakaran

01 Feb 2022

ORDER

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE. R. SUBBIAH                     :     PRESIDENT

                 Tmt. Dr. S.M. LATHA MAHESWARI                            :      MEMBER

F.A. No. 92 of 2016

(Against the order passed in C.C. No.54/2010 dated 02.03.2016 on the file of the D.C.D.R.F. Chennai (South))

Tuesday, the 1^st day of February 2022

 

Mr. Shaman Mithru

S/o. S. Karuppiah

No.3, III Cross Street

Balaji Nagar, Ekaduthangal

Chennai – 600 032.                                                                                                           .. Appellant/ Complainant

- Vs -

1.  City Club

     Rep. by its General Manager

        Mr.Manian

     No.16, 1^st Lane

     Vijayaraghava Road

     T.Nagar,Chennai – 600 017.                                                                                      .. 1^st Respondent/ 1^st Opposite Party

 

2.  Benze Marketing

     Rep. by its Manager

     No.27, 19^th Street

     4^th Avenue, Ashok Nagar

      Chennai .                                                                                                                     .. 2^nd Respondent/2^nd Opposite Party   

    Counsel for Appellant /Complainant                  : M/s. J.P. Karunakaran

    Counsel for the Respondents /Opposite Parties : M/s. C.S. Nandakumar                                                                            

This appeal is coming before us for final hearing on 20.01.2022 and on hearing the arguments of the Appellant and on perusing the material records, this Commission made the following :-

O R D E R

HON’BLE THIRU JUSTICE R.SUBBIAH, PRESIDENT

1.        This appeal has been filed by the Appellant / Complainant under Section 15 of the Consumer Protection Act, 1986 as against the order dated 02.03.2016 made in C.C. No.54 of 2010 on the file of District Consumer Disputes Redressal Forum, Chennai (South), dismissing the complaint filed by the appellant herein.

2.   The factual background culminating this appeal is as follows:  The case of the Complainant is that the first opposite party is a recreational club offering various recreational and entertainment facilities to persons whom they enrol as its members.  The first opposite party was advertising and marketing through its agent, namely, Benze Marketing, the second opposite party, about the said Club.  On 01.08.2008, the appellant was contacted over phone by one Abdul Hakim of the second opposite party office, with various offers for joining as a member of the opposite party.  He had also explained to the complainant about a special package of offers introduced by the first opposite party for its Life Membership subscribed on or before 1^st August 2008, as follows :

1. Two gold coins (one gram each)
2. Tour package for five years across the country for seven people including the member
3. Massage coupon worth Rs.2000/-
4. Food voucher worth Rs.1000/-
5. Gift voucher worth Rs.1000/-
6. Free stay for twelve days and twelve nights at City Club & its resorts

Further, the said Abdul Hakim had also informed the appellant/ complainant that the said offers would be available only till 1^st August 2008.  Since it was the last date to avail the said special package of offer, the said Abdul Hakim met the appellant in person and convinced him to make the payment immediately.  When the appellant/ complainant asked for the printed materials with regard to the said offer, the representative replied that he did not bring the printed materials along with him.  However, he assured to provide the complainant a letter of the Chief Executive Officer about the said offers introduced by the first opposite party.  Believing the assurance of providing gifts by the representative, the second opposite party, the complainant paid Rs.12,000/- to become a life member and obtained a temporary receipt from him.  The next day when the complainant enquired with the said Abdul Hakim about the permanent receipt and the letter of the Chief Executive Officer of the second opposite party, he said that the same would be sent to him along with the Membership Identity Card.  He also told the complainant that the two gold coins, massage coupon, food coupon and the gift coupon would also be sent along with the Membership Identity Card.  After two weeks, the complainant received the Membership Identity Card and the permanent receipt for the payment made by him.  But to his dismay he did not receive the letter of the Chief Executive Officer of the second respondent as well as the gifts as promised by the second respondent.  Hence, the complainant immediately called Mr.Abdul Hakim and enquired about the same, his call was transferred to one Mr.Chandru, the Team Leader, who said that by mistake they have missed to send the said coupons and the letter of the CEO.  He further stated that they would send the coupon along with the Membership Identity Card. Further, assured the complainant that the same would be sent to him very soon.  But the complainant did not receive any of the coupons as promised by Mr.Chandru.  Thereafter, the complainant made several calls, sent several letters and also made personal visits requesting the opposite party to issue the above said offers as promised at the time of membership.  Complainant was compelled to write a letter and send email dated on 19.03.2009 requesting the opposite parties to make good the said offers as promised to the complainant but the complainant received only a vague reply dated 01.04.2009 from one Ms.M.Prathiba, PRO of the first opposite party.  In the said reply it was stated that the opposite parties had noted the grievance of the complainant but remained silent about implementing the offers made by the respondent at the time of appellant’s membership.  The said reply mentioned that the membership was neither transferable nor refundable as per the rules and regulations of the opposite parties.  Hence, the complainant sent a letter dated 21.04.2009 to the first opposite party clarifying that he had neither asked for refund nor transfer of the membership but had requested the first opposite party to honour the promises given to the complainant to become a member of City Club.  Though the said letter was received by the opposite party on 27.04.2009 the first opposite party neither replied nor honoured their commitments.   The first opposite party had offered the gifts, vouchers and food coupons without an intention to provide them and only to lure innocent people like the complainant to become a member in the opposite party club influenced by such an unfair trade practice.  Hence, the complainant issued a legal notice dated 03.07.2009 to the first opposite party and called upon them to make good the abovementioned offers as promised to the complainant. Though the first opposite party received the notice on 06.07.2009 they failed even to respond to the notice, much less honour their commitment.  Hence, the present complaint has been filed before the District Forum, for the following reliefs :-

1. To deliver two gold coins one gram each, tour package for five years across the country for seven people including the complainant, massage coupons worth Rs.2000/-, food voucher worth Rs.1000/-, gift voucher worth Rs.1000/- and provide free stay for twelve days and twelve nights at City Club & its resorts or in the alternative to refund to the complainant the sum of Rs.12,000/- together with interest at the rate of 24% per annum for the period from 01.08.2008 till the date of payment.
2. To pay a sum of Rs.5,00,000/- towards compensation for mental agony, hardship and loss.

3.  Countering the complaint filed by the complainant, the first opposite party filed a counter stating that the complainant while filling the membership application form had carefully gone through the terms and conditions as stated in the overleaf of the said application. After reading the application, he signed and paid the membership fee and obtained the membership card.  Moreover, the complainant is not an illiterate person but a graduate with B.Sc. degree together with diploma in Film Technology and is a cinema photographer by profession.  Absolutely no documentary evidence was produced that the first opposite party had promised such offers and special package for the new membership.  The first opposite party is not aware of the alleged promises said to have been given by the second opposite party.  Even during the personal approach of the complainant, no such assurances have been given even by the administrative staff of the first opposite party.  Ipsofacto, if the management offers any proposal, all such packages and special offers will be displayed in the notice board or by printed brochures.  No such offer was made to hood wink the people for enrolling the members for the club of the first opposite party.  The brochures held by the complainant does not figure any such offers and package.  Whileso the dispute of the complainant is meaningless.    At no point of time, promise was made with regard to the special offers and hence sought for dismissal of the complaint.

4.    In order to prove the claim, on the side of the complainant proof affidavit has been filed and 14 documents were marked as Ex.A1 to Ex.A14.  On the side of the opposite parties, no proof affidavit is filed as well as no documents were produced.

5.  The District Forum, after analyzing the evidence and entire records, has come to a conclusion that the complainant has not proved the allegations made against the opposite parties 1 and 2, by way of any documentary evidence seeking the gifts that were not issued to him and honour the promises given by the second opposite party.  The amount paid by the complainant as a life member cannot be refunded as per the terms of agreement made by the opposite parties to the complainant and thus the District Forum dismissed the complaint.  Aggrieved over the same,the present appeal has been filed.

6.  Heard the arguments and perused the material available on records.

7.  The main submission of the counsel for the appellant is that he had been contacted by a Marketing Representative of the second respondent with a special package of offers for membership in the first respondent club, which was started in the year 2002 for offering high class facilities and professional services to members and other families.  Believing the words of the Marketing representative of the second respondent, the appellant has accepted the offer and paid a sum of Rs.12,000/- for life membership.  Membership Identity Card has been received by the complainant but he has not received offers as assured by the respondent, which amounts to deficiency of service.  The appellant had sent a letter dated 19.03.2009 to the first opposite party requesting the offers made by them, for which a reply letter dated 01.04.2009 was sent by Ms.M.Prathiba, PRO of the first respondent.  In the said letter she has not specifically denied the offers made by them.  Therefore, it would amount to admission that only on the promise given by the representative of the second respondent with regard to the special offers the Complainant has paid the amount.  Thus, it is the submission of the counsel for the appellant that the complainant was made to believe that he would be offered two gold coins of one gram each, tour package for five years across the country for seven people including the complainant, massage coupons worth Rs.2000/-, food voucher worth Rs.1000/-, gift voucher worth Rs.1000/- and provide free stay for twelve days and twelve nights at City Club & its resorts.  Ultimately, he was cheated by the opposite party. 

8.  We find in the counter statement the opposite party has emphatically denied that they have not made any special offers to the complainant to make him enrol as a member of the Club.  Even agreeing to the counsel for the complainant, the said offer was made by Mr.Abdul Hakim, a representative of the second respondent.  Except this statement, no other documentary proof was produced before the Commission to show that there were offers and special package for the persons who enrol as a member of the Club.  In the absence of any documentary evidence, merely based on the statement made by the complainant, this Commission cannot grant any relief.  Moreover, a sum of Rs.12,000/- paid by the complainant is fee for life membership, which is not refundable as per the terms and conditions of the Club.  The complainant knowing fully well that the said amount is not refundable has chosen to become a member of the said club. 

9.  Therefore, we are of the opinion, in the absence of any tangible evidence to show that the opposite parties have offered special package to the complainant, on his membership, the relief sought for by the complainant cannot be granted. Therefore, we are confirming the order of the District Forum.  Consequently, the appeal is dismissed. 

 

 

S.M.LATHA MAHESWARI                                                                                         R.SUBBIAH

         MEMBER                                                                                                               PRESIDENT

 

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/February/2022