.COMPLAINT FILED ON: 28.12.2010

DISPOSED ON: 14.07.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

^{14th JULY -2011}

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                 MEMBER                   

                     SRI.M.MUNIYAPPA                          MEMBER

       COMPLAINT NOs. 2603/2010, 2768/2010,

2784/2010, & 347/2011

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, compensation and  litigation cost 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. Kool Card Life Membership”. OP accepted their membership and collected the amount towards membership fees. OP promised so many benefits including allotment of free sites for its members in Coconut Groves, Vedic spa, Free Holiday packages at various locations, health club facilities and discount on hotel Amrutha Castle for life time and such other facilities but thereafter some how OP failed to issue allotment letters  and 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. and 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 these 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, allotted complimentary sites mentioned the site no., phase no. area etc. In the said letters OP has asked complainants to deposit registration and maintenance charges of Rs.15,000/- and Rs.20,000/- & Rs.30,000/-respectively which has not been deposited by the 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 as soon as complainants deposit the registration charges. 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. 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; 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. 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 both the complaints; Prayer seeking direction to pay interest at the rate of 24% p.a. is commercial in nature and cannot be granted; Prayer seeking compensation of Rs.3 lakh and expenses cannot be granted for the reason stated herein 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 letters offer letter, membership applications, receipts for having paid registration fees, bank statements, correspondences, copy of the police complaint, the demand notice and postal receipts. On behalf of OP Venkatesh Verma C. Asst. Administration Manager, filed his affidavit evidence only in C.No.347/2011 and in C.No. 2784/10 OP produced copy of membership application, welcome letter, terms and conditions, conversion order and plan. 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 each complainant became the member 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 ­­­ 2007 to 2008, 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; within 45 days from the date of payment of membership fees. 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 complimentary sites at project I & II at Penugonda, if the complainants pay the required registration fee and stamp duty. There is no basis for this defence.  In C.No.2603/10 & 2768/10 OP has not produced any documents in support of its defence that layout has been formed, approved layout 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. In version as well as affidavit evidence OP has stated that it has produced conversion order.  Sanction plan & MOU as annexures.  But in fact OP has not produced any documents in support of its defence version.  Hence defence of OP cannot be accepted.

10.    In C.No.2784/2010 it is contended by the OP that as per allotment letter plot No.235 situated at vedic spa project II phase-K is allotted to the complainant.  In support of its contention OP has not produced copy of the allotment letter or any postal receipts for having sent the allotment letter to the complainant. The plot No.235 does not find place in the copy of the layout plan produced by OP.  The conversion order produced is not in the name of the OP.  Hence it is no way concerned with OP.  In the letter of OP dated:4-8-07 produced by the complainant OP informs that allotment of complimentary plot at coconut grove banyan tree.  Hence in the  absence of any material proof we are unable to accept the contention of the OP that it is ready to register the plot infavour of the complainants.

11.    In C.No.347/11 it is contended by the OP that OP has already issued allotment in favour of the complainant allotting plot No.278, at phase-7 project-I Vedic Spa & plot No.279 in the same phase under MGM scheme.  In support of its contention OP has not produced copy of the allotment letter or postal receipts.  In a letter produced by the Complainant dated 22-10-2007 it was informed by OP that allotment of complimentary plot at coconut grove banyan tree.  In the copy of the layout plan produced by OP

plot No.278 & 279 does not find place and the conversion order does not stand in the name of OP.  It is no way concerned with OP. Hence in the absence of any material proof we are unable to accept the contention of the OP that it is ready to register the plots in favour of the complainant.

12.    Though OP received such a huge amount from these complainants in the year 2007-08 itself failed to issue allotment letters to the complainants and failed to register the complimentary sites as promised and failed to supply the basic information regarding the location of the plots, details of the layout approved, sanction plan etc. Inspite of repeated requests  correspondences and legal notice. OP failed to respond properly. Failure of the OP to form any layout duly approved and in not registering complimentary plots in favour of the complainants as promised is deficiency in service on its part.

13.    In C.No.347/11 M/s. Amrutha Estates is made as a party No.2.  But no receipts is issued by O.P.2.  No relief is claimed against O.P.2.  hence no liability can be fixed against O.P.2.  Complaint against O.P.2 is to be dismissed.  O.P.1 has denied payment of Rs.10,000/- paid to its executive Mr.John pious.  Complainant has produced the bank statement in support of his claim.  For all the acts of its agents/executives as a principal  O.P. is liable for the complainant.

14.    Complainants have claimed compensation  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, with interest and litigation cost. Accordingly we proceed to pass the following:    

O R D E R