BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 08th of March 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.335/2010
(Admitted on 04.12.2010)
1. T.Ganapathi Pai,
So. Late T.Kamalaksha Pai,
Aged about 52 years,
Residing at 3 23 2003,
Kadri Temple Road,
Mangalore 575 002.
2. T.Rathnakar Pai,
S/o. Late T.Kamalaksha Pai,
Aged about 49 years,
Residing at 3-23-2003,
Kadri Temple Road,
Mangalore – 575 002.
3. Vijaya S. Rao,
D/o. Late T.Kamalaksha Pai,
Aged about 42 years,
Residing at 3-23-2003,
Kadri Temple Road,
Mangalore – 575 002. …….. COMPLAINANTS
(Advocate for the Complainants: Sri.M.R. Ballal)
VERSUS
1. Ms. Country Club India Limited,
Rep. by Managing Director,
847 1, Next to Indiranagar Post Office,
100 feet Road, Indiranagar,
Bangalore 560 038.
2. The Manager,
Country Club India Limited.,
3rd Floor, Crystal Arc Building,
Balmatta Road,
Mangalore – 575 001. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri.G.A. Gopi)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainants submits that, in July 2004 the Executives of the Opposite Parties visited the Complainants and offered that the membership of their club to be started in Mangalore and proposed club is already purchased in Mangalore and assured that the club will start operation in Mangalore within a period of one year and gave a special offer of Rs.10,000/- for life time founder membership to the Complainants. The Complainants agreed to accept the offer and paid full amount of Rs.10,000/- each and the Opposite Parties issued club life membership and also issued a membership number as MLLM 254, MLLM 255 and MLLM 256 respectively. It is stated that, the Opposite Party Company started calling the Complainants and asked to pay further sum of Rs.5,000/- towards the balance amount membership. After talking to the Opposite Parties, they confirmed that the membership amount payable by the Complainants is only Rs.10,000/- as it is a special offer for founder membership and issued a letter dated 27.10.2004. It is stated that, inspite of lapse of one year, the Opposite Party Company’s club at Mangalore did not start but on the other hand the Complainants started getting frequent calls and SMS asking to pay the annual maintenance charges which they have refused to pay as the club has not started in Mangalore and the question of maintenance does not arise. Now it is more than six years and till now the Opposite Party Company has not started club operations in Mangalore but the Opposite Party Company sending statement of account showing the dues of Rs.3,399/- from each of the Complainants. The Complainants sent a reply and stated that they have been oftenly receiving the call and SMS from the Opposite Parties to pay the dues and causing trouble to the Complainants and stated that they have not started the club operations in Mangalore and stated that without opening the operations in Mangalore, they started demanding the maintenance fee which amounts to deficiency. Feeling aggrieved by the above, the Complainants issued a letter to cancel the membership but the Opposite Parties failed to refund the amount and hence the above complaint 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 Parties to refund the membership amount of Rs.10,000/- paid by each of the Complainants and claimed Rs.1,00,000/- to each of the Complainants as compensation.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel but not filed any version nor contested the case till this date.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainants prove that the Opposite Parties committed deficiency in service?
- If so, whether the Complainants are entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.T.Ganapathi Pai (CW1) – Complainant No.1 filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C12 as listed in the annexure. The Complainant filed notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsel for the Complainant 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
5. Point No. (i) to (iii):
The Complainant No.1 has sworn affidavit stating that, the Complainant No.1 to 3 became founder members of the Opposite Party Club by paying Rs.10,000/- each. That the Opposite Parties offered the Complainants that their club to be started in Mangalore within a period of one year but till this date the Opposite Party’s club not started operations in Mangalore. Hence, the above complaint came to be filed seeking refund of the membership fee.
The Opposite Parties served with the version notice and appeared through counsel but not bothered to file version nor contest the case till this date. The entire evidence affidavit not contradicted/controverted by the Opposite Parties in this case.
On scrutiny of the oral as well as documentary evidence available on record, we find that, the Ex.C1 and C2 i.e., copies of the membership application of the complainant No.1 and 2 and the Ex.C3 to C5 i.e., the payment of consideration by the Complainants is evidenced from the above documents i.e., receipts and correspondence dated 27.10.2004 issued by the 2nd Opposite Party. The Ex C6 to C9 are the correspondences and copy of the courier acknowledgement show that the Complainants sought refund of their membership fee paid by them because the Opposite Parties not offered the club services in Mangalore and there is a delay of about six years but till this date they have not provided all the services in Mangalore. The Ex.C10 is the photo copy of the membership card issued by the Opposite Parties to the complainant No.1 to 3 confirms once again that, the Complainants are the members. Ex C11 and C12 are the statement of accounts sent by the Opposite Parties showing due of Rs.3,399/-. From the above documents as well as the oral evidence of the Complainants clearly shows that the Opposite Parties have failed to start operating the facilities in their club in Mangalore as per their assurance given by them. But on the other hand, it is very strange to note that the Opposite Parties are demanding annual maintenance without providing the facilities in Mangalore Club. Moreover, the Opposite Parties issued a club life membership to the Complainants that they are going to start the club within one year from the date of receipt of amount. Further, we have observed in this case that, the Complainants became the founder member of the Opposite Parties club to be started in Mangalore not in club situated in other districts. When that being the case, it is the bounden duty of the Opposite Parties to start the club in Mangalore along with facilities offered by them. In the instant case, we have further observed that, one could accept the reasonable delay, but in the instant case the Opposite Parties have taken more than six years but till this date they have not started operating their club with the facilities as assured by them to their members which amounts to deficiency. The Opposite Parties not started their club in Mangalore but they have gone one step further and issued a bill demanding dues of Rs.3,399/- without providing the facilities to the members herein the Complainants amounts to unfair trade practice. The Opposite Parties have got no right to demand the annual maintenance charges without providing the club facilities in Mangalore. The Opposite Parties though appeared through their counsel but not contested the case on hand which shows the attitude of the Opposite Parties.
In view of the above, we are of the opinion that, the Opposite Parties without providing the facilities cannot retain the membership fee with them for unreasonable time, that the Complainants would be entitled to refund of the amount i.e., Rs.10,000/- each towards the membership fee. Further the Complainants shall be entitled reasonable compensation for the deficiency committed by the Opposite Parties. Under that head, the Complainants shall be entitled interest at the rate of 10% p.a. on the above said amount from the date of receipt of the amount till payment is made. Besides this, Rs.1,000/- is also awarded in favour of the Complainants as cost of the litigation expenses of this complaint. The complaint is accordingly allowed in aforesaid counts. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Parties are hereby directed to refund Rs.10,000/- (Rupees ten thousand only) each paid by the complainants as membership fee along with interest at 10% p.a. from the date of receipt of the membership fee till the date of payment and also pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 08th day of March 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 – Sri.T.Ganapathi Pai – Complainant No.1.
Documents produced on behalf of the Complainants:
Ex C1 & C2 - : Copies of the membership application of Complainant No.1 and 2.
Ex C3 & C4 - : Copies of the receipts issued by the Opposite Parties to the Complainant No.1 and 2.
Ex C5 – 27.10.2004: Letter issued by the Opposite Party to the Complainant No.1.
Ex C6 – 27.08.2010: Letter of the Complainants to the Opposite Party No.1.
Ex C7 - : Copy of the courier acknowledgement.
Ex C8 – 17.09.2010: Letter of the Complainants to Opposite Party No.1.
Ex C9 - : Postal acknowledgement.
Ex C10 - : Copy of the membership card issued to the Complainant No.1, 2 and 3 and their family members.
Ex C11 - : Copy of the statement of account sent to the Complainant No.1 showing a due of Rs.3,399/-
Ex C12 - : Copy of the statement of account sent to the Complainant No.2 showing a due of Rs.3,399/-.
Witnesses examined on behalf of the Opposite Parties:
Documents produced on behalf of the Opposite Parties:
Dated:08.03.2011 PRESIDENT
