Date of Filing : 12.05.2011
Date of Order : 30.12.2011
BEFORE THE BANGALORE URBAN 4th ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
No. 8, Sahakara Bhavan, Cunningham Road, Bangalore – 560 052
Dated 30th DECEMBER 2011
PRESENT
Sri. J.N. HAVANUR ….. PRESIDENT
Sri. GANGANARASAIAH ….. MEMBER
Smt. ANITA SHIVAKUMAR ….. MEMBER
COMPLAINT NO. 916 / 2011
Sri. Mandepanda Ravindra,
#403, KHB Colony, 5th Block,
Koramangala,
Bangalore – 560 095. ……. Complainant
V/s.
M/s. Country Club (India) Ltd.,
No. 847/1, Adj. to Post Office,
100 Feet Road, Indiranagar,
Bangalore – 560 038.
Rep. by its Managing Director. …… Opposite Party
ORDER
By Smt. ANITA SHIVAKUMAR, MEMBER
This Complaint is filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986.
Brief facts of the complaint filed by the complainant against the OP are that he agreed to become Mr. Cool Member of the OP Club as per OP’s offer made through advertisement for cool membership. Accordingly, he paid Rs.1,29,472/- in six installments and OP issued receipts for the same in respective dates as per payments made. OP communicated the Complainant in writing regarding allotment of free site measuring 1089 Sq.ft at Coconut Groove. On believing the representation of OP, the Complainant paid the above said amount and was waiting for the positive reply from OP. When OP failed to keep up its promise, the Complainant requested to refund the amount paid by him. Op neither registered the site in his favour nor refunded his amount. Complainant submitted that he waited for long period of 4 years and found deficiency in service on the part of OP. Hence, he approached this Forum seeking direction to refund the amount with 18% interest and Rs.3,00,000/- towards compensation for the mental agony & hardship.
2. OP has appeared through his Advocate and filed version. OP in his version has contended that the complaint is not maintainable and denied deficiency in their service. OP has admitted that the complainant has become a member of that Club called Mr. Cool Member bearing No. BLMPL-2828 scheme and later he upgraded to COOL BT-157 scheme by paying membership fee of Rs.1,10,000/-. Though the total value of the membership was Rs.1,25,000/-, the OP had given him discount of Rs.15,000/- in the membership fee since he has upgraded his scheme to Cool membership. The remaining amount was collected towards administration charges and maintenance charges. OP has also submitted that the Complainant has become a member only to enjoy the club facilities provided by the OP. OP as a goodwill offered complimentary site to the Complainant. Therefore, the Complaint is not maintainable and prayed to dismiss the complaint.
3. In the course of enquiry into the complaint the complainant and Mr. Venkatesh Vema, Asst Administration Manager of OP have filed their affidavit evidence by reproducing what they have stated in their respective complaint and version. The complainant along with the complaint has produced the copies of receipts dated 11/12/2004 for Rs.1,500/-, dtd. 18/08/2005 for Rs.5,000/-, dtd. 15/06/2007 for Rs.15,000/-, dtd. 18/07/2008 for Rs.3,670/-, dtd. 17/05/2007 for Rs.90,000/- and dtd. 18/08/2006 for Rs.2,320/-. Along with affidavit, OP has produced copy of Offer letter, copy of proposal form of the Complainant, copy of letter dated 29/08/2005 addressed to Complainant and letter issued by Revenue Divisional Officer, Penukonda. We have heard the arguments of Counsel for the Complainant and OP and perused the records.
4. On the above materials, following points arise for determination.
1. Whether the complainant proves that the Op has caused deficiency in their service in not allotting sites and in not providing other facilities as promised?
2. To what relief the complainant is entitled to?
5. Our finding on the above points are as under:
1. Point No.1 - In the affirmative
2. Point No.2 - As per final order
REASONS
6. Point No. 1 - We have gone through the contention of both parties. There is no dispute between them in this complainant with regard to Complainant becoming a Mr. Cool membership after upgraded from BLMPL scheme to Cool scheme believing the offers made by OP bearing No. COOL BT-157 by paying Rs.1,10,000/- as membership fee excluding the discount of Rs.15,000/- given by the OP. Balance amount was paid towards administration and maintenance charges. The Op has offered a complimentary site measuring 1089 Sq.ft. at Coconut Groove. OP has neither allotted the site nor shown any progress of developmental activities of the said land. OP told him to pay Rs.15,000/- towards registration charges for complementary site for confirmation. As these facts are not disputed, the only dispute between the Parties remains for decision is with regard to non-registration of site in favour of Complainant as promised.
7. It is the grievance of the complainant that despite he approaching the OP several times and waiting for a long period of 4 years with positive hopes, OP did not register a site as promised. Complainant has asked in his prayer for refund of his membership fee on the ground that he cannot trust the Op and do not wish to continue his relationship with OP. But the OP as stated above has not controverted the statement of complainant and dissatisfaction, but OP is still ready to register the site. Along with affidavit, OP has produced a copy of letter issued by Revenue Divisional Officer, Penukonda and a copy of proposed layout plan of VS phase 7 extension which contained several sites. Since OP has not allotted site to the Complainant, the question of referring the Plan does not arise and it is irrelevant document to this complaint. Hence, the said documents are not taken into consideration. On considering all these facts placed before us, we find that there is nothing wrong with this Complainant asking for the relief of refund of membership fee because of non response or due to lacking of sincerity on the OP and we find there is no genuinity in allotment also.
8. If we carefully look at this offer, the offers in our view appears to be an uncertain and non-existing because it is not clear where exactly that Coconut Grove exists. In this way it is found that the OP has offered such type of free plots to attract the people to become its members by paying heavy amount. Similarly the offers made in this case also exhibited uncertainty. It is found that the complainant became a member on 18/07/2008 by paying full amount as a last installment. He has repeatedly stated that despite approaching the OP, it did not register the plot.
9. Op has neither registered the site as assured nor refunded his amount though Complainant requested. The OP has not even come forward to prove that they have formed any layout or sites as promised. Though the developments that have taken place in this case, we are of the view that the claim of the OP does not inspire confidence in us and also to the complainant. Therefore, under those circumstances complainant opted for taking back his membership fee which cannot be denied.
10. The OP has contended that membership fee is not refundable. But it is not their case that the complainant after becoming a member has used any sort of their service like club service and other facilities offered. Op has not produced any such documents to prove that Complainant had utilized the facilities provided by the OP Club. Therefore when the complainant has absolutely not availed any service of the OP and OP has not exhibited their interest in keeping their promises and sincerity in showing some progress in the formation of layout and allotment of plots, they don’t have rights to retain the complainant’s money. Hence, in our view, Complainant is entitled for the relief as prayed for, but not for the other compensation sought for. However, from the date of payment the complainant will be entitled for interest on the refund amount excluding administrative charges. The Complainant has produced receipts issued by OP which amounts in total Rs.1,17,490/-. Out of this amount, Rs.3,820/- is towards administrative charges. In the result, we answer point No.1 in the affirmative and we proceed to pass the following.
ORDER
Complaint is allowed.
OP is directed to refund Rs.1,13,670/- to the Complainant which excludes Rs.3,820/- (1500+2320) collected towards administrative charges.
Op is further directed to pay interest @ 16% P.A. on Rs.1,13,670/-from the date of respective payments till it is repaid.
Op shall refund entire amount within 45 days from the date of this order.
Ops shall also pay cost of Rs.2, 000/- to the complainant.
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 30th day of December 2011.
MEMBER MEMBER PRESIDENT
SSS
