COMPLAINT FILED: 21.09.2010

DISPOSED ON: 16.05.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE (URBAN)

16^TH MAY 2011

       PRESENT:- SRI.B.S.REDDY                      PRESIDENT           

                         SMT. M. YASHODHAMMA     MEMBER

                         SRI.A.MUNIYAPPA                MEMBER

O R D E R

SMT. M. YASHODHAMMA, MEMBER

These are the complaints filed u/s. 12 of the Consumer Protection Act of 1986 by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to refund the amount paid towards Membership fees along with interest at 24% p.a., compensation of Rs.3,00,000/- and  litigation cost Rs.50,000/- on the allegations of deficiency in service on the part of the OP.

          As the OP in all the complaints is common, the question involved, relief claimed being the same, in order to avoid repetition of facts and multiplicity of reasoning these cases stand disposed of by this common order.

          2.    The brief averments as could be seen from the contents of these complaints are as under:

          Complainants being attracted by the offer made by OP thought of becoming members of OP’s Club under the name and style “Mr.COOL Membership”. OP accepted their membership and collected the amount towards membership fees. OP promised so many benefits including allotment of free sites at phase VIII Coconut Grove Tumkur. As per the request of OP complainants paid Rs.10,000/- towards stamp duty and registration expenses. On enquiry regarding the plot and location of the sites there was no proper details. Complainant came to know that there was no phase VIII formed in Karnataka.  No layout nor any roads were formed. It was just barren land. OP has not obtained any approval from the concerned authorities to form the layout. Hence complainant demanded for refund of amount paid. There was no response. OP failed to keep up its promise. For no fault of their complainants were made to suffer both mental agony and financial loss. Under such circumstances complainants felt deficiency in service on the part of the OP. For the convenience sake the card membership, Membership No. amount paid, Receipt No., date of receipt, date of legal notice are noted below in the chart. When the repeated requests and demands made by the complainants have gone in vain they are advised to file these complaints and sought for the reliefs accordingly.

3.      On appearance OP filed the version. The defence set out in all the complaints is almost identical and same. The brief averments made in the version are as under:

According to OP it has already issued allotment letters in favour of the complainants, allotting complimentary sites mentioned the site no., at phase VIII and III Extn. Coconut Grove. In the said letters OP has asked complainants to deposit registration and maintenance charges of Rs.10,000/- which has not been deposited by complainants inspite of several requests and reminders. Due to the said reason OP could not register the allotted site in favour of the complainants. OP is ready for registration of sites at phase XV Extn. Rathnasandra Village, Sira Taluk Tumkur District as soon as complainants deposit the registration charges. All the plans and conversion has been obtained by the OP. OP has earmarked the site in the said layout in favour of the complainants. Inspite of several requests complainants not turned up for registration. Under these circumstances this forum can only direct the OP to register the complimentary plots on receipt of full registration fees. In this scheme complainants cannot seek refund of amount on the alleged ground of not providing of complimentary plots as the same is not part of the facilities assured; complainants having utilized all the facilities are 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; OP never assured to allot the complimentary sites at Bangalore and that they had clearly informed them that the complimentary sites would be allotted at the Coconut Groove and Vedic Spa/Banyan Tree which was formed by the sister Concern of the OP; All the members knew the place of allotment of complimentary sites. Only the site numbers and the phase in which the said sites are located being mentioned in the allotment letter and there is no malafide in not mentioning the details of the place of allotment. The said letter of allotment to the members was issued by the customer care department and not by the legal department. The contents of the said allotment letter could have been different with details of the boundary etc; Membership fee paid by the members is non refundable, since the same would be utilized for development, maintenance and development of the clubs and resorts across the country. Any order for refund would cause irreparable harm and loss to the OP; Complainants are enjoying the facilities provided by OP in their clubs; Complainants are not consumers and does not satisfy the said definition under the Consumer Protection Act 1986. OP is a company incorporated under Companies Act, 1956 and carrying on the hospitality business and having several clubs and resorts across the country and has been providing good services to its members. OP admits the payments of membership fee in all the complaints; Prayer seeking direction to pay interest at the rate of 24% is commercial in nature and cannot be granted; Prayer seeking compensation of Rs.3 lakh and litigation cost of Rs.10,000/- cannot be granted for the reason stated here in above; Complainants are not entitled for allotment of any complimentary plots; When the non registration is due to default of the complainants who have not turned up for registration and not paid full registration charges.  Among these grounds OP prayed for dismissal of the complaints.

4.      In order to substantiate the complaint averments, each one of these complainants filed their affidavit evidence and produced receipts issued by OP, copy of letter of allotment, copy of the police complaint dated 25.08.2009 and correspondences; legal notice and posted acknowledge card and receipts. On behalf of OP Sri Venktesh Verma C., Assistant Administration Manager, filed his affidavit evidence and not produced any documents. Heard arguments from complainants side and taken as heard from OP side.

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

       Point No.1:-  Whether the complainants have

   proved the deficiency in service

    on the part of the OP?

Point No.2:-   If so, whether the complainants are

                     entitled for the relief now claimed?

       Point No.3:-  To what Order?

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

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 outset it is not in dispute that the complainants became the members of the OP’s scheme as noted in the chart. The OPs accepted their membership fees and allotted certain numbers as shown in the chart to each of the complainants. Now the main grievances of these complainants are that though OP collected the membership fees, in the year ­­­2006, but failed to provide the facilities offered; to allot and register the complimentary sites in their favour as promised.

8.      According to complainants OP promised them to allot complimentary sites; they with a sole intention of getting the complimentary sites became the members of the OP Club and paid membership fees. The receipts issued by the OP are produced. Inspite of repeated requests OP failed to fulfill its promises and extend the services offered. Both affidavit evidence and documentary evidence produced by these complainants support their cases. There is nothing to discard their sworn testimony.

9.      As against this unimpeachable evidence of the complainants; the defence of the OP that whatever club membership fees paid is non-refundable has no basis. Further contention of the OP is that even now OP is ready to register the documents with respect to complimentary sites in favour of the complainants, if the complainants pay the required registration fee and stamp duty. There is no basis for this defence; though OP has stated in it’s version and affidavit evidence that it had produced the sanction plan and conversion order MOU and layout approved documents but infact OP has not produced any documents in support of its defence 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 all encumbrances as on today.  Hence the version of the OP cannot be accepted.

10.    Except in complaint No.2165/10 in other 3 complainants all the complainants have paid the entire membership fees in the year 2006 itself. Each of the complainants have paid Rs.10,000/- towards. Stamp duty registration expenses and maintainence charge to OP in the year 2006 itself.  The receipts issued by OP are produced. Again in the year 2009 OP in its allotment letters demanded the complainants to pay Rs.10,000/- towards maintenance charges and registration expenses. We have perused the allotment letters produced by the complainants. Hence the defence of the OP that non-registration of sites is due to failure of the complainants to pay registration charges is not sustainable. OP has allotted sites at phase VIII and phase III Extn. Coconut grove but in version it is contended by the OP that it is ready to register the sites at phase XV extn. Rathnasandra Village, Sira Tumkur.

11.    Though OP has received such a huge amount from these complainants in the year 2006 itself but failed to allot and register the complimentary sites as promised and failed to provide the basic information regarding the location of the plots, details of the layout approved sanction plan etc., There is no reply to correspondence and legal notice sent by the complainants since five years.  There is no response from OP.

12.    In complaint No.2165/10 complainant claimed refund of Rs.1,09,000/- from OP. But failed to produce any proof for having paid Rs.1,09,000/-. The receipts produced are to the extent of Rs.50,000/- only. Hence complainant in this complaint is entitled for refund of Rs.50,000/- only along with interest and costs.

13.    Complainants have claimed compensation of Rs.3 lakhs for mental agony, pain and suffering. Awarding interest at the rate of 12% p.a. on the amount paid can be taken as compensation. We are satisfied that complainants are able to prove the deficiency in service on the part of the OP. Under these circumstances complainants are entitled for certain reliefs. In our view ends of justice would be met by directing the OP to refund whatever the amount it has received from these complainants towards membership fees, along with interest and litigation cost. Accordingly we proceed to pass the following:    

O R D E R

The complaints are allowed in part.

1. In complaint No.2163/2010 OP is directed to refund Rs.1,09,000/- along with interest at 12% p.a from the respective  date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.

2. In complaint No.2164/2010 OP is directed to refund Rs.1,09,000/- along with interest at 12% p.a from the respective  date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.

3. In complaint No.2165/2010 OP is directed to refund Rs.50,000/- along with interest at 12% p.a from the respective  date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.

4. In complaint No.2166/2010 OP is directed to refund Rs.1,09,000/- along with interest at 12% p.a from the respective  date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.

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

This original order shall be kept in the file of the complaint No.2163/2010 and copies of it shall be placed in other respective files.

Send the copy of this order both the parties free of cost.

(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 16^th day of May 2011.)

                   MEMBER                                           PRESIDENT                                        

gm.