COMPLAINT FILED: 31.01.2011

DISPOSED ON: 30.08.2011

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

30^th  AUGUST 2011

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

                     SRI.A.MUNIYAPPA                           MEMBER

COMPLAINT NOs. 209/2011 & 215/2011

C O M M O N O R D E R

SMT. M. YASHODHAMMA, MEMBER

These two complaints  are 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 on the allegations of deficiency in service on the part of the OP.

           OP is common in both the complaints, the questions involved and the relief claimed is similar.  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 Country Vacations International Holiday Club. 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, Free Holiday packages at various locations, health club facilities and sports clubs to children free of cost.  OP failed to fulfil its obligations by providing sites as assured and also failed to keep up its promises.  In Complaint No. 215/2011 OP agreed to give three complimentary plots measuring 1089 Sq. yards each.  In their proposed residential layout near “Banyan tree” at Devanahalli (Bagepalli) On becoming the member of OP club.  Complainant paid Rs.60,000/- and entered into agreement/ No.as DT 38175, copy of the agreement is produced. Instead of Devanahalli OP allotted a plot at Hindupur, Andra Pradesh.  There were no amenities provided.  Hence Complainant sought for refund.  In C.No.209/2011 OP agreed for allotment of accommodation on purchase of membership, among other offers.  Complainant entered into purchase agreement dated 2/10/2009.  There were several discrepancies in the agreement OP offered that membership would be for life time but in the purchase agreement membership was offered for only for a period of five years.  There was no Country spa package at Yadgirigutta Jangaon, as promised by OP.  Hence complainant sought for refund of amount.  OP though agreed to refund after 90 days failed to refund the amount.  Hence complainant felt deficiency in service against OP under these circumstance they are advised to file these complainant against OP for the necessary relief’s.  For convenience sake card membership No., amount paid, date of payment, date of No., of receipt, date of legal notice are noted below in the chart.

3.      The defence version in both these complaints is that it is the duly of the complainant to avail all she services.  OP has offered, many offers as per scheme it is the complainant who did not utilize the offers.  For the mistake of the complainant OP is not liable membership fees paid is a non-refundable.  As soon as complainant pays she registration and other charges OP is ready to execute the complimentary sites sale deeds in favour of the complainant.  OP is registered Company under Indian Companies Act.  Complainant being impressed with the offers expressed their willingness to become the member with OP by paying membership fees and availed all the benefits from the OP.  The membership period is only for 5 years.  OP denied that.  Complainant was offered accommodation in India and abroad as false.  This Forum has no territorial Jurisdiction to entertain this complaint, only Courts in Secunderabad and Hyderabad have jurisdiction to entertain these complaints.  Among other grounds OP prayed for dismissal of the complaints.

4.      In order to substantiate the complaint averments, each complainant filed their respective affidavit evidence and produced the purchase agreement, receipt, legal notice. On behalf of OP  Balaraj, Branch Manager filed affidavit in support of defence version. Heard arguments from both the sides .

5.      In view of the above said facts, the points now that arise 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 and allotted certain numbers to each of the complainants. Now the main grievances of these complainants are that though OP collected the membership fees, in the year ­­­2007-2008, but failed to provide the facilities offered; to allot and register the complimentary sites in their favour as promised and also not provided the services as assured as such they are entitled for refund of membership fee paid along with compensation.

8.                As against the case of the complainants the defence of OP is that complainants failed to pay entire membership fee, if as such they are not entitle for complimentary site.  As soon as complainants pay the balance membership fee OP is ready to allot and register the complimentary plots. In the absence of any documentary evidence it is difficult to accept this contention of OP.  Though OP has sworn to the fact that conversion order and sanction plan are produced as annexure, In fact in both the complaints OP has not produced the said documents.  To invoke the forfeiture clause OP has to establish the fact that layout has been formed and sites are readily available at its disposal free from encumbrances as on today.  Since OP has failed to produce any documents it cannot invoke the forfeiture clause.

9.      As against the case of the complainants the defence of the OP that since complainants are defaulters in paying full membership fees within 45 days from the date of allotment of membership;  OP can cancel the membership by forfeiting the membership fee.  The Hon’ble National Commission has stayed the order passed by 2^nd Addl Consumer Forum which in similar cases has directing OP to refund the membership fees who have made part payment.  OP has not produced the final order in Revision Petition No.1191/10 & 1192/2010.   Merely because the similar order has been stayed by the National Commission, it cannot be said that complainants are not entitled for refund of amount paid towards membership fees.

10.    In Complaint No.2689/2010 it is contented by the complainant that OP first offered the sites at coconut grove vedic spa in Tumkur on 8/1/2008.  Complainant personally went to Tumkur for identification. OP failed to disclose exact location of the sites.  In November 2008 OP again contacted the complainant with a new proposal saying OP is ready to allot 2 sites in Bagepalli, Chickkaballapura District.  Complainant agreed with a condition to issue new allotment letter.  OP failed to issue fresh allotment letters to the complainant.  In June 2010 OP promised to provide sites at Hindupur,  Andrapradesh within 3 months.  Till today complainant not received any letter from OP.  Hence complainant lost confidence in OP and stopped making further payment.  Though OP has collected the amount in the year 2007-2008 has failed to issue allotment letter.  In Complaint No.2516/2009 complainant sought for cancellation of membership on 10-7-2008 itself.  Copy of the letter is produced.  Till date OP has failed to cancel the membership and refund the amount.  This act of OP amounts to deficiency in service on its part.  The complainants are entitled for refund of the amount paid with interest at 12% p.a. as compensation and litigation cost of Rs.1000/-.  Accordingly we proceed to pass the following

ORDER

          The Complaints filed by the complainants are allowed in part.

1)      In Complaint No.209/2011 OP is directed to refund Rs.50,000/- with interest at 12% p.a. from the respective date of payments till the date of realisation and pay litigation cost of Rs.1000/- to the complainant.

2)      In Complaint No.215/2010 OP is directed to refund of    Rs.60, 000/-  with interest at 12% p.a. from the respective date of payments till the date of realisation and pay litigation cost of Rs.1000/- to the complainant.

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

This original order shall be kept in the file of the complaint No.209/2011 and a copy of it shall be placed in other respective files.

Send the copy of this order botph the parties free of cost.

(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 30^th  day of August 2011.)

MEMBER                     MEMBER                       PRESIDENT

RK.