Complaint filed on: 04-12-2012
Disposed on: 18-08-2014
BEFORE THE BENGALURU IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BENGALURU URBAN DISTRICT, NO.8, 7TH FLOOR, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BENGALURU – 560 052
C.C.No.2360/2012
DATED THIS THE 18th AUGUST 2014
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.H.JANARDHANA, MEMBER
Complainant: -
Mr.Naveen.A.V
S/o. Sri.A.V.Vishwanath,
Residing at No.72,
BSA Road, (Tannery Road),
Frazer Town,
Bangalore-05
V/s
Opposite party:-
M/s. Country Club (I) India Ltd,
Represented the Chairman,
No.187, 9th Cross, 1st Stage,
Indiranagar, Bangalore-38
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OP to refund the amount of Rs.1,15,000=00 along with 18% interest from the date of first payment till the realization and to pay damages of Rs.50,000=00 and to pay cost of litigation, in the interest of justice and equity.
2. The brief facts of the complaint can be stated as under.
The complainant was approached by one Mr.Subba Rao, Senior Executive, Sales and Marketing division of the OP with an offer of becoming the life member of the company with a scheme of getting Mr.Cool privilege card which is inclusive with the benefits of a residential plot along with membership privileges in the club and affiliated clubs situated outside Bengaluru. The complainant was offered to become member as it will benefit him by way of securing a residential plot at coconut grove near Madhugiri Taluk, Tumkur district. As the complainant was not having any residential plots in his name he agreed to become member of the said scheme with membership no.COOLCG5479 to become eligible for the assured residential plot. The complainant deposited a sum of Rs.25,000=00 on 14-12-2006 another sum of Rs.25,000=00 on 20-12-2006 and final a sum of Rs.65,000=00 on 29-12-2006 being the amount towards the membership vis-à-vis residential plot. The OP issued another receipt for having received the amount. After receiving the amount as specified by the OP he received a welcome letter for the club and that welcome letter described in detail about the facilities available at the club for the use of members. The complainant was given a membership No.Cool CG5479. There was also a mention of the site that is part and parcel of the Mr.Cool privilege card and another letter was also received by the complainant about the allotment of site and details. As per the scheme the complainant was entitled for a residential plot measuring 1089 sq. ft. at coconut grove near Madhugiri Taluk, Tumkur District. In order to get the plot the complainant had paid a sum of Rs.1,15,000=00 as the cost of site. The complainant was assured that as soon as the approval from the statutory regulating government authorities is received he shall be issued with an allotment letter, registered sale deed, possession certificate of the residential plot. After becoming member of the club, he never visited any of the clubs for the reason that the process of membership annexed with the promises and commitments have been totally ignored by the club authorities. Moreover the main intention of the complainant to become member of the club is to get residential plot and he was least bothered about the club or its facilities. The complainant was not given any information by the OP towards the progress made in the way of ensuring residential plot at the coconut grove near Madhugiri taluk, Tumkur District. Disappointed with the apathy of OP during April 2008, the complainant contacted the branch officials at Bangalore to know about the progress made in allotment of residential plots. However the complainant was disappointed by the cold response of the authorities. Frustrated over the lethargy of the OP the complainant visited the proposed place where the said residential layout scheme would be coming up. However to his dismay there was not an iota of proof of any construction of infrastructure or such other activities that was vigorously propagated. The whole project was not at all in progress the complainant called the authorities over the phone and enquired about the progress that they are going to make in the way of granting residential plot. However there was no response, ever since he made the payment towards the residential plot at coconut grove near Madhugiri taluk, Tumkur district he was not at all cared to inform the progress in the project, no intimation information was provided. Even though the complainant made several calls no positive response to the said calls. It was very much apparent that no concrete steps have been taken by the company to fulfill the promises of giving the possession of the site. When the complainant made repeated contacts to the OP pestering for the residential plot as early as possible he was told that a residential plot of same dimension as assured shall be given in Andhra Pradesh for which the complainant has to bear all the registration fees, stamp duty etc. The complainant was horrified by such changed version as he was never stepped outside Karnataka in his life time. Anyhow the complainant insisted that the residential plot should be given in the place where originally it has been assured. The complainant wrote a letter wishing to withdraw from the offer and condemned the greed shown in fleecing the amount and demanded for the refund of the said amount of Rs.1,15,000=00 collected under fraudulent methods. However the OP has neither shown courage to satisfy him nor gracefully refunded his amount. Such inaction of the OP amounts to deficiency of service. Hence the present complaint is filed.
3. After service of the notice, the OP has appeared through its counsel and filed version, contending interalia as under:
The complaint of the complainant is not maintainable and it is liable to be dismissed in limine. The complainant having learnt about the facilities and benefits provided under the cool scheme has paid a sum of Rs.1,15,000=00 towards membership fees and for the said payment this OP has issued receipts and the complainant was inducted as a member of the OP club and the OP issued a membership card bearing No.COOL CG 5479. In the membership application form, allotment letter and welcome letter, the OP has specifically informed the complainant the complementary plot allotted would be registered only on payment of the full membership fee and registration and maintenance charges. Further the OP has informed the complainant to pay a sum of Rs.20,000=00 towards the registration charges in respect of the complementary plot along with maintenance charges. The complainant would get complimentary plot at Coconut Grove 15th Extension, Rathnasandra Village, Sira Taluk, Tumkur District. The complainant has paid the membership fee but he has not paid the registration charges of Rs.20,000=00 for complimentary site. If the complainant is ready to pay the said registration charges the OP is ready to execute gift deed in respect of complimentary site in favour of the complainant. On 28-5-2011 the OP has given a paper publication in Deccan Herald and Prajavaani regarding the allotment and registration of the complimentary site to its members who have not got their plots registered requesting to contact M/s. Amrutha Esates and Hospitality Pvt. Ltd. along with their membership card, letter of allotment and currently applicable registration charges latest by 9-6-2011 to get their plots registered. The claim amount of Rs.1,15,000=00 was paid by the complainant to the OP only for the purpose of membership with the OP & the said membership fee is nonrefundable one. The offer of the OP was in addition to the services provided by the OP in general. The complainant by paying the initial fees has availed of the hospitality services provided by the OP. The sites agreed to be provided by the OP was only a complimentary offer made by the OP. Any grievance of the complainant with regard to the failure on the part of the OP to convey the agreed site would not amount to breach of the service in terms of the complimentary offer. Such alleged breach could by no stretch of imagination be considered as a breach of the original service agreed to be provided by the OP. The complainant has availed of various hospitality services provided by the OP and has no grievances in this regard. The OP has not committed any deficiency in service in that regard, so the complaint be dismissed. No consideration has been collected for allotment of the complementary plot and the member has to bear only the registration and maintenance charges. Since the complainant has not paid any consideration for the complimentary plot and his grievance in the complaint being not allotting the plot, he does not come under the meaning of consumer under the CP Act. So the complainant being a consumer in relation to the membership of the OP but not in relation to additional benefit i.e. complimentary plot, so he is not a consumer. The complainant having utilized all the services provided by the OP, has filed the complaint making false and baseless allegations against the OP. The forum erred in entertaining the complaint in view of the fact that the complaint has been filed before this forum which has no jurisdiction to entertain the same. The terms and conditions states that in case full amount of membership fee is not remitted within 45 days of allotment of membership, allotted if any would be cancelled or withhold membership without assigning any reason. The complainant has paid Rs.1,15,000=00 towards only for membership fee with the OP and it is not for cost of site. The complainant would get complimentary plot for his membership. Hence it is prayed to dismiss the complaint, in the interest of justice and equity.
4. So from the averments of the complaint of complainant and version of the OP, the following points arise for our consideration.
- Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP in not providing any service of the club after collecting the membership fee?
- If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
- What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled to any relief as prayed in the complaint.
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced 12 copies of documents. On the other hand, one Venkatesh Varma, who being the authorized signatory of the OP has filed his affidavit on behalf of the OP and produced no documents on behalf of the OP. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.
7. One Naveen.A.V, who being the complainant has stated in his affidavit that, one of the Executives of OP approached him with a scheme that becoming a life member of the club Mr.Cool Card, he shall be eligible for a residential plot at Coconut Grove near Madhugiri Taluk, Tumkur district Bangalore along with membership privileges. As he was not having any residential plots he was tempted for the offer and hence became member of the club of the OP with membership no.COOLCG5479 by paying a sum of Rs.25,000=00 on 14-12-2006 against receipt no.0193, and he has paid a sum of Rs.25,000=00 on 20-12-2006 against receipt no.0190. Further he has paid a sum of Rs.65,000=00 on 29-12-2006 against receipt no.0194 and the OP has issued receipt for the said amount and in all he has paid a total sum of Rs.1,15,000=00 towards membership, after which he shall become eligible for a residential plot. After paying the above mentioned amount of Rs.1,15,000=00 he received welcome letters from the OP mentioning all the privileges available for having become the member of the club and besides that there was also a mention of the residential plot being promised as part and parcel of the scheme. The OP has promised a residential plot measuring 1089 Sq. ft. situated at Coconut Crow near Madhugiri Taluk Tumkur district and he was assured that as soon as the approval from the statutory regulating Govt. authorities is received he shall be issued with an allotment letter, registered sale deed, possession certificate of the residential plot at Coconut Grow near Madhugiri Taluk, Tumkur district. After paying all the sums demanded he was anticipating the allotment of the site that was assured. After paying the entire amount as required to obtain residential plot at Coconut Grow near Madhugiri taluk, Tumkur District the OP did not inform further developments in this regard. He contacted the OP’s office at Bangalore and enquired about the progress made in allotment of residential plots but there is no proper response to his queries, disappointed over the apathy of the OP he himself visited the spot wherein the OP has canvassed about the allotment of residential plots. He was disillusioned by the way, he was told by the neighbourer that no such residential layout is in the offing. He called the authorities of the OP and explained about the pathetic conditions of the residential layout and enquired about the progress and probable date of starting the allotment process. However, there was no response as usual, subsequently he received an information stating that the proposed residential plot shall be issued at Penugonda of Andhra Pradesh instead of already promised residential layout at coconut Grove Madhugiri taluk, Tumkur district and informed that residential layout is ready and he should be prepared to get it registered in his name. He was amazed to find altogether an alternative place at Andhra Pradesh which is a far off place to him. It is a clear cut breach of contract and he has not at all applied or agreed to get a residential plot at a far off place like Andhra Pradesh. He drew the attention of the OP about the lacunae in the residential layout and sought clarification in this regard. However there was no response and it seems no body is interested to cater to the requirement of complainants like him. So he wrote a letter dated 1-11-2011 explaining the reasons and demanded for the refund of his amount of Rs.1,15,000=00 but the OP did not respond to his letter. He was very much frustrated for the inordinate delay from the OP in fulfilling their promise and he has caused to issue a legal notice dated 21-11-2012 to OP to issue the possession of the site immediately, but there was no reply from the OP. The act of the OP is arbitrary and against law and due to the deficiency of service of the OP he has put to unnecessary loss and hardship. So he has filed the present complaint, so he prayed to allow the complaint and grant relief as prayed for.
8. Let us a have look at the relevant documents of the complainant. Document no.1 to 3 are the receipts issued by the OP for having received RS.65,000=00, Rs.25,000=00 and Rs.25,000=00 from complainant towards Mr.COOL card membership. Document no.4 to 6 are the receipts issued by the OP for having received the said amount from the complainant. Document no.7 is the letter of OP dated 14-7-2006 addressed to the complainant highlighted the facilities of the club available to the members including site measuring 1089 sq. ft. at Coconut Grove on National Express Highway. Document no.8 is the welcome letter of OP dated 15-12-2006 addressed to the complainant congratulating the complainant for becoming a member of OP and his Mr.COOL membership number is COOLCG5479. Document No.11 is the letter of complainant addressed to the OP dated 1-11-2011 stating that he was assured of a residential plot at Coconut Grove near Madhugiri taluk, Tumkur district so far not allotted the residential plot so he requested to speed up the process and allot a plot as promised. Remaining documents of the complainant are the copies of legal notice, postal receipts and post acknowledgment card for having served the notice on the OP. The complainant has produced the copy of lay-out map formed by the OP in Coconut Grove, phase-I, Sira taluk, Tumkur district.
9. At this stage, it is relevant to have a cursory glance at the material evidence of the OP. One Venkatesh Varma, who being the Assistant Administrative Manager of the OP has stated in his affidavit that, the complaint of complainant is false frivolous and it is liable to be dismissed in limine. The complainant has paid a sum of Rs.1,15,000=00 towards membership fees and the OP has issued a receipts and he was inducted as a member of the OP club and issued a membership card bearing no. COOL CG5479. The OP has informed the complainant to pay a sum of Rs.20,000=00 towards the registration charges in respect of the complimentary plot and the plot allotment under Mr.COOL scheme is complimentary gift to the member and membership fee is collected for providing facilities. No consideration has been collected for allotment of complimentary plot and the member has to bear only registration and maintenance charges. Since the complainant has not paid any consideration for complimentary plot and his grievance in the complaint being not allotting the plot he does not come under the meaning of consumer under the CP Act. Allotment of complimentary plot was an additional attraction for taking up membership but not an intrinsic part of the contract for which the complainant made payment. So the complainant being a consumer in relation to the membership of the OP but not in relation to additional benefits. The complainant has availed all the benefits provided to its members by the OP and has no grievances whatsoever in that regard and the grievance being only regarding the complimentary plot, which is not an intrinsic part of the contract and no consideration was paid for that. The complainant has no locus standi to file a complaint under the CP Act. The OP was always ready to register the plots in the name of complainant subject to depositing the balance registration charges by the complainant. As per the terms and conditions in case of any dispute the matter shall be referred to the Arbitration of a sole arbitrator to be appointed by country club. The complaint is one for compensation simpliciter and this forum has no jurisdiction to entertain such complaint. The terms and conditions states that in case full amount of membership fee is not remitted within 45 days of allotment of membership the management of the club has all rights to cancel the membership of any member and the membership fee paid is nonrefundable as per the terms and conditions of the OP, so the complainant is not entitled to any relief, so the complaint be dismissed.
10. On making careful scrutiny of the oral and documentary evidence of complainant and oral evidence of employee of OP, it is made unambiguously clear that, the complainant has paid Rs.1,15,000=00 to the OP and got Mr.COOL Card membership bearing No.CG5479 and the OP has issued receipt for having received Rs.1,15,000=00 from the complainant and issued welcome letter dated 15-12-2006 to the complainant wherein under note column it is stated by the OP that the complimentary plot at Coconut Grove will be allotted only on payment of full membership fees towards Mr.Cool Card and the complainant will be required to remit Rs.15,000=00 towards registration charges of the plot within 30 days of the allotment of plot. The complainant has reiterated both in the complaint and during the course of evidence that, he has made payment towards residential plot at Coconut Grove near Madhugiri taluk Tumkur District, when he made repeated contacts to the OP pestering for the residential plot as early as possible he was told that a residential plot of same dimension will be given in Andhra Pradesh for which the complainant has to bear all the registration fees, stamp duty etc. In order to show that, now the OP is saying to allot a plot in Andhra Pradesh instead of allotting a plot in Coconut Grove near Madhugiri Taluk, Tumkur District, no documentary evidence is produced by the complainant. As per the records produced by the complainant, it is disclosed that, the OP has promised various facilities to its members like travel club holidays, one way flight ticket for two person to Goa etc. and one plot measuring 1089 sq. ft. in Coconut Grove on National Express highway. But it is not the case of complainant that, the OP has failed to provide any club facilities to him including allotment of complimentary plot in particular area. The entire complaint of complainant is silent about the availment of club facilities of OP by complainant as stated in the welcome letter of OP. But only grievance of the complainant in complaint is that he has not been allotment of complimentary site in particular area as promised but he was told to allot the same in Andhra Pradesh.
11. The oral evidence of complainant that, he was promised to allot a plot in Coconut Grove near Madhugiri taluk, Tumkur district but later the OP is telling to allot a plot in Andhra Pradesh is not corroborated any documentary evidence and material evidence of complainant in this regard is lacking in its credibility.
12. On the other hand, the employee of OP has stated in his affidavit that, the complainant has availed all the benefits promised to its members and he has no grievance in this regard and grievance of the complainant being only regarding complimentary plot which is not an intrinsic part of the contract and no consideration was paid for that and so the complainant has no locus standi to file a complaint under the CP Act. As per the welcome letter of OP issued to the complainant dated 15-12-2006 produced by the complainant, it is made clear that, the complainant has to remit Rs.15,000=00 being registration charges of the plot within 30 days from the date of plot allotment and to pay maintenance charges and incidental charges as per the terms and conditions of the OP. The complainant after payment of membership fee of Rs.1,15,000=00 has agreed to act as per the terms and conditions of the OP. In fact, the OP has issued membership card to the complainant after receiving the membership fee and sent congratulation letter to the complainant for having become member of the OP along with terms and conditions of the OP and the OP has acted strictly in accordance with the terms and conditions of the OP. On the other hand, the complainant has not acted in accordance with the terms and conditions of the OP for the reasons best known to him.
13. So looking to the case of complainant on the back ground of oral and documentary evidence of both parties, it is made explicitly clear that, the complainant has not paid the membership fee exclusive for allotment of complimentary plot, but he become a member of OP club to avail other facilities of OP club wherein allotment of plot to its members by OP is complimentary one and in order to get complimentary plot the complainant has to pay registration charges, maintenance charges and other incidental charges but the OP has neither paid registration charges nor maintenance charges nor incidental charges as per the terms and conditions of the OP club. Moreover, it is not the case of complainant that, he has not been provided any club facilities by OP and he has been deprived of the facilities totally. Unless and until the complainant has complied the terms and conditions of the OP club he is not entitled to claim a complimentary plot as of right. The material evidence placed by the complainant before the forum is insufficient to hold that, the OP is negligent and there is deficiency of service on the part of the OP in not providing any service after collecting the membership fee and as such we are of the view that, the complainant who comes to forum seeking relief has failed to prove this point with clear cogent and consistent material evidence that the OP is negligent and there is deficiency of service on the part of the OP, so we answer this point in a negative.
14. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. No cost.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 18th day of August 2014).
MEMBER PRESIDENT
-:ANNEXURES:-
1. Witness examined on behalf of the complainant by way of affidavit:
- Mr.Naveen.A.V, who being the complainant was examined on 17-4-2013.
2. Documents produced on behalf of the complainant:-
a) Document no.1 to 3: Copies of receipts issued by the OP for having received Rs.65,000=00, Rs.25,000=00 and Rs.25,000=00 from complainant towards Mr.COOL card membership .
b) Document no.4 to 6: Copies of receipts issued by the
OP for having received the said amount from the complainant.
c) Document no.7 to 10: Letters of OP addressed to the complainant
d) Document no.11: Letter of complainant addressed to the OP dated 1-11-2011.
e) Document no.12: Legal notice of complainant addressed to the OP dated 21-11-2012 along with postal receipt, and postal acknowledgment and
The complainant has also produced copy of layout map formed by the OP in Coconut Grove, Sira Taluk, Tumkur District
3. Witness examined on behalf of the OPs by way of affidavit:
a) Venkatesh Varma, who being the Authorized Signatory of OP club was examined on 22-7-2013.
MEMBER PRESIDENT
