COMPLAINT FILED : 03.03.2011

DISPOSED ON : 18.05.2011

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

18^TH MAY 2011

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

       COMPLAINT NO.439/2011

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainants seeking direction against the Opposite Party (herein after called as O.P) to refund Rs.37,000/- along with interest at the rate of 18% p.a. from 23.12.2009 and compensation of Rs.50,000/- and litigation cost of Rs.10,000/- on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

          Complainants 1 and 2 being husband and wife lured away with the offer made by the executives of the OP; became the member of the OP club. On 23.12.2009 complainants paid Rs.10,000/- and Rs.27,000/- on 26.12.2009 to OP. The receipts issued by OP are produced. On 23.12.2009 OP executed the purchase agreement in favour of the complainants to avail holiday package for a period of 5 years and 7 days each year at various places like Bandipura, Goa, Kerala, Srilanka etc. In addition to the above life membership of country club and life insurance coverage of Rs.5 lakhs etc., as provided in the purchase agreement. Now grievance of the complaint is though they have paid entire membership fees. OP failed to issue membership card and failed to allow the complainants to avail holiday packages as promised.  Hence on 05.09.2010 complainant requested OP to provide for holiday packages for Bandipura for their family for 5 days for the month of October 2010. But OP took their own time and after lapse of 7 days informed the complainants that the rooms are already booked and holiday package could not be provided for the month of October 2010.  Further request of the complainants to provide holiday package for the month of November 2010 also not yielded any reasons. Hence complainants without any option sent letter dated 19.11.2010 requesting OP to refund the amount paid as they have failed to provide any facilities as agreed. OP in its reply letter dated 29.10.2011 informed the complainants that the letter of the complainants being forwarded to Head Office and they will redress the disputes at the earliest. Complainants having invested their hard earned money and waited all these days but OP has taken their patience as their weakness and failed to refund the amount till date.   Hence complainants felt deficiency in service on the part of the OP. Under these circumstances they are advised to file this complaint for the necessary relief’s.

3.      On appearance OP filed the version admitting the payment of Rs.37,000/-  from the complainants and complainants entered into purchase agreement dated 23.12.2009 with OP; There is no cause of action to file this complaint; As per the clause 9 and 10 of purchase agreement there is no provision for refund of amount or cancellation of the club membership.  However complainants are at liberty to sell or transfer or gift the club membership to any 3^rd party; the Annual maintainance amount is falling due by the complainants; In order to avoid annual maintainance charges complainants filed this frivolous complaint;  There is no iota of  evidence in the complaint. Complainants suppressing true facts filed this complaint; Complainants not entitled for any reliefs. There is no deficiency in service on the part of the OP. Complainants are not an illiterate persons and enjoying the benefits and services of OP club. The main benefits for club membership and a holiday/vacation packages. OP offered yearly one week accommodation in their property totally free of cost (except the service tax applicable). It is more than 2 star facilities for a period of continuous 5 years either it is in India or Abroad; Complainants are not entitled for refund of amount. There is no contract with regard to payment of interest at 18% p.a. and also payment of compensation of Rs.50,000/- does not arise. Among other grounds OP prayed for dismissal of the complaint.

4.      To substantiate the complaint averments complainant No.1 filed his affidavit evidence on behalf of himself and also on behalf of his wife i.e. second complainant and produced copy of the purchase agreement dated 23.12.2009 which was signed by both parties along with terms conditions, purchasers acknowledgement, additional benefits to the members, Receipts issued by OP, letter of the complainant dated 19.11.2010, Reply of OP dated 29.10.2011. On behalf of OP Mohammed Akmal Pasha working as Manager filed his affidavit evidence in support of his defence version.  OP has not produced any documents. Heard arguments from the complainants and OP side.

5.      In view of the above said facts, the points now that arises for our consideration in this complaint is 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 out set it is not in dispute that the complainants became the members of the OP club. OP offered many facilities such as life membership of country club, Access to all other clubs within India and abroad, free utility of TAASHA at country club, 20% discount on food at Hotel Amrutha Castle Hyderabad, discount on room tariff at various hotels in India and abroad discount on shopping outlets across the country accidental insurance coverage upto Rs.5 lakhs etc. The above benefit can be availed by the member if they pay 50% of the total purchase price. It is also not in dispute that complainants paid entire purchase amount of Rs.37,000/- i.e. Rs.10,000/- on 23.12.2009 and Rs.27,000/- on 26.12.2009. The receipts issued by OP are produced.  The copy of purchase agreement dated 23.12.2009 contract No.013 signed by the both the parties is produced.  It is the grievance of the complainants that though they paid the entire purchase amount. OP failed to provide any facilities offered.  Inspite of acknowledging to refund the amount OP failed to refund the amount.  Hence complainants approached this forum.

8.      As against the case of the complainants the defence of the OP that there is no provision to cancel the club membership has no basis.  Further defence of the OP is that there is no cause of action to file this complaint.  As against the letter dated 19.11.2010 of complainants for refund of amount and for non issuance of membership card and non availability of the holiday package, OP in its reply dated 29.11.2010 has assured the complainant to sort out the grievances by 2^nd week of December 2010.  When OP failed to fulfill its promise even after 2^nd week of December 2010 cause of action accrued to the complainants.  Hence the defence that there is no cause of action to the complaint cannot be accepted.

9.      OP having accepted the entire membership fees of Rs.37,000/- in the year 2009 itself from the complainants has failed to provide any holiday package offered even after acknowledging to sort out the grievances in its reply letter dated 29.11.2010 has failed to comply the same.  OP having retained such a huge amount has failed to provide the promised facilities and membership card.  When OP is aware of the fact that it cannot provide the facilities offered and issue membership card could have fairly refunded the amount to the complainant. Retention of amount for more than around 1 ½ years amounts to deficiency in service on the part of the OP.  We are satisfied that the complainant is able to prove deficiency in service on the part of the OP.  Under these circumstances we are of the considered view that complainant is entitled for the refund of the amount paid along with interest. Awarding of interest at the rate of 12 % p.a. can be taken as compensation. Interest claimed at the rate of 18% p.a. is on the higher side. In similar cases against OP we have awarded interest at 12% p.a. only. Under these circumstances we proceed to pass the following:

O R D E R

          The complaint filed by the complainant is allowed in part. OP is directed to refund Rs.37,000/- along with interest at 12% p.a. from the respective date of payments till the date of realization and pay litigation cost of Rs.2,000/- to the complainants.

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

(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 18^th day of May 2011.)

MEMBER                                  PRESIDENT                                                 

gm.