Complaint filed on: 01-08-2011
Disposed on: 12-12-2011
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1420/2011
DATED THIS THE 12th DECEMBER 2011
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Mrs.Shanthi.R.P,
S/o. Lakshmana Murthy,
Aged about 4 years,
No.73, 2nd Floor,
24th Main Road, End (Near Food
Mart) J.P.Nagar, Bangalore – 78
V/s
Opposite party: -
M/s. Country Club (India) Ltd,
Reptd by its Manager,
No.675, 9th “A” Main, Indiranagar,
1st Stage, Bangalore - 38
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the Complainant under Section 12 of the Consumer Protection Act, 1986 against the Opposite party (herein after called as the OP) praying to refund an amount of Rs.60,000/- with interest, damages & costs.
2. Brief facts of the Complaint can be stated as under:
The OP had approached the complainant in the year 2007 and promised her to offer few attractive schemes and benefits by becoming a member of the OP club on payment of Rs.1,25,000=00 as a special offer and the complainant believing the OP words in good faith, had become member of the OP club subject to the benefits, which the OP had promised. The complainant has paid Rs.20,000=00, Rs.25,000=00 and again Rs.15,000=00 and in a total sum of Rs.60,000=00, and that amount has been acknowledged through letter dated 30-8-2007. The OP had instructed the complainant to deposit the amount towards the membership, and the complainant has to pay Rs.3,000=00 towards Luxury Tax, in accordance with the provision of the Section 3-D of the Karnataka Luxury Tax Act. The complainant has paid Rs.60,000=00 and becoming Mr.Cool Card Member of OP. The OP requested the complainant to make payments to use the facilities and the allotment of complimentary plot at COCONUT GROOVE BANYAN TREE. Thereafter, the complainant approached the OP on several times and enquired about the contention of the OP regarding the allotment of Plot at COCONUT GROOVE BANYAN TREE and registration of the same, as per the OP’s letter dated 30-8-2007. But the complainant was surprised and shocked to notice that the OP was not responding positively. Thereafter, the complainant had approached the OP on several times and enquired about the allotment of site, but the OP did not heed to request of the complainant. The OP went on giving evasive answers and none of the OP’s officials have helped the complainant to avail the benefits of the schemes. The complainant has never been made to avail the other facilities, and she has become one of the victims of the OP’s false promise. The complainant has been disappointed with the OP’s irresponsible attitude, and she has put to lot of inconvenience hardship, financial loss and mental agony. Being annoyed with the OP’s unethical and unfair business activities, the complainant has decided to withdraw her membership, she has come to clear understanding and conclusion that the OP has made all false promises and exploited her innocence. The complainant has issued notice to OP, calling upon the OP to refund the entire amount of Rs.60,000=00 together with interest, but the OP has not bothered either to reply or respond to the demand of the complainant. So, Complainant is constrained to file the Complaint against OP, praying to refund the entire amount of Rs.60,000=00 with interest and such other remedy as deemed fit by this forum.
3. After service of notice, OP has appeared through its Counsel and filed objection contending inter-alia as under:
4. OP is a Company incorporated under the Companies’ Act, and it has pioneered in making Clubs & Resorts accessible to common people. The OP has tie up with leading clubs and resorts across the country and several other countries. The OP has introduced a scheme namely Mr.Cool Card Members, Complementary plot, Holiday packages of 2 nights days stay in Bandipur, Bush Betta etc. The complainant having learnt about the facilities and benefits provided under the Cool Scheme, applied for membership by paying part payment of membership fee, and for the said payment, the OP has issued receipt. The complainant has not paid the balance membership fee. The complainant was inducted as a member of the OP Club on basis of part payment made and the complainant has sought time for payment of balance membership, the OP issued a membership card bearing No. COOLSV 1819, and the OP has issued allotment letter in favour of the complainant. The claim of the amount was paid by the complainant to the OP only for the purpose of membership. The OP is in the business of providing hospitality services to its members. The complainant by paying the initial fees had availed of the hospitality service provided by the OP and also various hospitality services, and the complainant has no grievances in this regard. The OP has not committed any deficiency in service. The Complainant has paid for getting the membership fee of the OP club and the facilities provided have been availed by her. Allotment of complimentary plot was an additional attraction for taking membership, but not an intrinsic part of the contract. So, it cannot be said that the complainant was a consumer in respect of the allotment of complimentary plot. So, she has no right to get redressal under the CP Act, 1986. The OP has acted as per its promises by providing all the services to the complainant and the complimentary plot was not registered in favour of the complainant, just because, she failed to pay the remaining membership fee. The OP having allotted a complimentary plot to the complainant and was also always ready to register the same. Subject to depositing the registration charges, the complaint was one for compensation simpliciter and this Forum has no jurisdiction to entertain such complaint. The OP Act protects the consumer’s basic right of meticulous performance of the services hired by her, without any deficiency. In view of the same going by the provisions of the CP Act without claiming for the alleged deficiency to be removed. The complainant could not have sought for merely a claim for refund. The OP denies the contents of all paragraphs of the complaint, and it is prayed to dismiss the complaint in the interest of justice and equity.
5. So, from the averments of the Complaint of the Complainant and objections of the OP, following points arise for our consideration:
1) Whether the Complainant proves that, the OP has made false promise and exploited her and there is deficiency in the service of OP, and the OP is liable to refund the amount as prayed?
2) What order?
6. Our findings on the above points are as under:
1) Point No. 1 - Affirmative
2) Point No. 2 - As per final order
REASONS
7. Answer on the point No.1: So as to prove the case, the complainant has filed her affidavit by way of evidence and produced 10 documents with list dated 01-08-2011. On the other hand, one Mr. Venkatesh Varma, who being Authorized Signatory of OP has filed his affidavit by way of evidence, but no documentary evidence is produced on behalf of the OP to show that, the complainant has availed all the benefits provided by the OP. The complainant Smt. R.P.Shanthi has asserted in her evidence that, in the year 2007, the OP approached her and promised to offer few attractive schemes and benefits by becoming a member of the OP club on payment of Rs.1,25,000=00 as a special offer and believing words of the OP, she showed her interest to become a member of the OP, she has paid Rs.20,000=00, Rs.25,000=00 and Rs.15,000=00 and in all Rs.60,000=00, which were received by the OP. Subsequently, the OP has instructed her to deposit an amount towards the membership, and she has to pay Rs.3,000=00 towards Luxury Tax payable per annum. She has paid Rs.60,000=00 towards payment of Mr.Cool Card membership fee, which were acknowledged by the OP, and the OP has given her membership No.COOLVS1819, and requested to use the facilities and the allotment of complimentary plot at COCONUT GROOVE BANYAN TREE. Thereafter, she approached the OP on several times and enquired about the plot at COCONUT GROOVE BANYAN TREE and registration of the same, but the OP did not respond positively. The OP never helped her to avail the benefits of the scheme, she has become one of the victims of the OP’s false promises of offering various benefits under Mr. COOL CARD membership. Being annoyed by the OP’s unethical and unfair business activities, she has decided to withdraw her membership with the OP. She issued legal notice dated 10-6-2011 to OP calling upon the OP to refund Rs.60,000=00 together with interest, but the OP has neither given reply nor responded to the notice. So, the order be passed as prayed in the complaint. In support of oral evidence, the complainant has produced 10 documents. Let us have a look at the documents of complainant one by one. The first document of the complainant is a copy of letter issued by the OP to the complainant dated 30-8-2007 congratulating the complainant on becoming Mr. COOL CARD Member and her membership No. is COOLVS1819 and in the said letter, the complainant was informed to pay Rs.3,000=00 towards Annual Administrative charges, and Rs.3,000=00 towards Luxury Tax per annum, the second document is copy of Credit Card Statement of the complainant issued by ICICI Bank, the third document is the letter of the OP wherein the OP has highlighted the facilities to be given to Mr. COOL Life Membership, next document is the copy of Credit Card Statement of the complainant issued by the ICICI Bank, the fifth document is the copy of the statement of account of the complainant issued by the Bank of Maharashtra, the sixth document is the copy of receipt issued by the OP in the name of the complainant for having received Rs.25,000=00, the seventh document is the copy of letter of the OP dated 22-4-2009 and in that letter membership number of the complainant is mentioned as COOLVS1819, the eighth document is the copy of Identity Card of Investment Consultant, the ninth document is the copy of letter issued by R.Prasad, Marketing Executive of OP in the name of the complainant for having received cheque for Rs.15,000=00, and the tenth document is the copy of legal notice issued to the OP by the complainant’s advocate dated 10-6-2011 calling upon the OP to refund Rs.60,000=00 to the complainant within 15 days. The oral evidence of the complainant to the effect that after becoming Mr. COOL Privilege member of the OP by paying Rs.60,000=00, the OP did not give the facilities as promised in the advertisement and they have made false promise and exploited her stands corroborated by documentary evidence namely receipt, copy of letter of the OP and legal notice. The OP’s authorized signatory by name Venkatesh Verma has deposed in his evidence that the complainant has availed all the benefits provided to its membership and allotment of the plot is complimentary one. But no iota of documentary evidence is produced by the OP to show before this forum, that the complainant has availed all the benefits provided by the OP. Except saying orally by OP, no scrape of paper is being produced. In the absence of producing any documentary evidence by the OP, it is perilous to hold on the solitary testimony authorized signatory of the OP that the complainant has availed all the benefits provided by the OP, in view of becoming member of the OP. On making comparative study of oral and documentary evidence of the complainant and oral evidence of the OP, it is made explicitly clear that in response to the advertisement of the OP, the complainant has taken Mr. COOL CARD Membership by paying Rs.60,000=00 in all and no facilities were provided to the complainant, inspite of demand made by her, and on account of it the complainant took decision to discontinue her membership with the OP and prayed to refund the amount paid by her as the OP has made false promise and exploited her. The OP ought not to have retained the amount when the facilities as promised were not provided to the complainant. So from the material evidence of both parties, we come to straight conclusion that, the OP has made false promise and exploited the complainant by not providing the facilities as promised and there is deficiency in the service of the OP. Accordingly, we answer Point No. 1 in the affirmative. In the result, for the foregoing reasons, we proceed to pass the following:
ORDER
Complaint of the Complainant is allowed. Complainant is entitled to claim refund of Rs.60,000/- from the OP. OP is directed to refund Rs.60,000/- to the Complainant along with interest @ 10% P.A. from the date of Complaint within 30 days, failing which OP shall pay the said amount to the Complainant with interest @ 12% P.A. from the date of this Order till realization.
Complainant is awarded Rs.2,000/- towards damages & costs.
Both parties are given free copies of the order.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the open Forum on this the 12th day of December 2011.
MEMBER MEMBER PRESIDENT
