BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29th September2016
PRESENT
SMT. C.V. SHOBHA : HONBLE PRESIDENT
SMT.LAVANYA M. RAI : HONBLE MEMBER
COMPLAINT NO.247/2012
(Admitted on 01.08.2012)
- Mr. KamleshMunnur,
Aged about 70 years,
- Mrs. SumathiKamlesh,
Aged about 65 years,
Residing at,
Apartment No. 203, 2nd Floor,
Mangalore 575003.
……… Complainants
(Advocate for Complainant by Sri. MSKP)
VERSUS
M/s Country Vacations India Ltd,
(A division of C.C.I. Ltd),
Opposite Fisheries College,
N.H.17, Ekkur, Kankanady Post,
Mangalore 575002, rep,
By its Authorised Signatory.
…. Opposite Party
(Advocate for the Opposite Party:Sri.IKS)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite party claiming certain reliefs.
- The brief facts of the case are as under:
The complainants submitted that the opposite party claiming to be a service Provider had persuaded and offered the complainants, the scheme offering incentives of gold ring.Offering sites apart from stay at holiday resort at Country club and also induced the complainants to become members, under purchase agreement CV 90/2012 dated 26-09-2008. And complainants have paid entire purchase amount towards studio type site at Devanahalli at IX Phase of proposed layout, Bangalore with 3 sites marked as 435,523,522 in the sketch at Amrutha Estates, Penakonda taluk made available. And entitled to get allotment of 3 sites referred to above near Devanahalli and gold coin as they had paid full amount. The complainant further submitted, on 27.09.2008 the complaint paid Rs.1,00,000/ under receipt No. 049 and Rs.1,00,000/ as per receipt No. 048. The complainants had further paid Rs.15,000/ as administration fee and extra Rs.5,000/ was collected by opposite party. Totally complainants had paid Rs.2,20,000/ to opposite party with membership vacation offer for 30 years in Country Clubs.
The complainant’ssubmitted that after paid full price for earning 100 points with membership period of 30 years, thereafter opposite party has not given either gold coin or allotted promised sites. In view of the aforesaid facts and the failure of the opposite party to provide the services as promised, the complainants lost faith with opposite party. Therefore the complainants issued notice on 07.05.2012 to refund of the amount with interest and compensation. Opposite party failed to refund the above amount which amount to deficiency hence the above complaint came to be filed U/S 12 of the C.P Act 1986 ( herein after referred to as the Act)seeking direction from the Forum to the opposite party to refund the sum of Rs. 2,20,000/ along with interest from 26.08.2009 till the payment and also claim compensation of Rs. 50,000/ and Rs. 20,000/ as gold coin and cost of the notice of Rs. 10,000/ also cost of the proceedings.
- Version Notice served to the opposite party by RPAD filed version stating that complainants were given the draft copy of the purchase agreement for Country Vacations International Holiday ClubMembership to thoroughly read the purchase Agreement before affixing their signatures. The opposite party explained various terms of payment and the holiday packages available to the Complainants and the complainants opted for the package called ‘Studio Blue” through which the members could enjoy holiday for One Week every year for a period of 30 years and membership costing Rs. 2,05,000/(Rupees Two lakhs Five Thousand only) and Rs. 15,000/ (Rupees fifteen thousand Only) towards the Administration charges. Believing the words of the Complainants, the opposite party prepared the work sheet, purchase Agreement along with the Purchasers Acknowledgement of representations and the complainants affixed their signature on their free will and accord. The complainants have willingly made payments of Rs. 2,20,000/ (Rupees Two Lakhs Twenty Thousand Only) in favour of Country Vacations International Holiday Club and the opposite party has executed a receipt for having received the aforesaid amount from the complainants. The said purchase Agreement along with the Purchasers Acknowledgement of representations dated 26.09.2008 bearing contract No.CV90/0012.
The opposite party submits that along with the above said vacations the complainants were offered 3 plots in Penakonda Andhra Pradesh. The opposite party states that as per the terms and condition of allotment of complimentary plot, the complainants have to pay a sumof Rs. 60,000/(Rupees Sixty Thousand Only) towards the legal charges and development charges in favour of M/s. Amrutha Estates. In this regard the opposite party makes it very clear that the opposite party had several times intimated the complainants to pay the above said charges so that the plots issued to the complainants would be registered in their favour. But the complainants have failed to make the payment and get the plots registered in their favourinspite of the repeated request of the opposite party. Hence the allegation made by the complainants that the opposite party has not allotted the promised sites in the names of the complainants is totally false. The opposite party states that even now the opposite party is ready to register the plots in the name of the complainants provided the complainants make the payment of Rs. 60,000/(Rupees Sixty Thousand Only) to the opposite party. The terms and conditions for allotment of complimentary plot the opposite party had never promised the complainants of any gold ring. Hence the question of providing gold ring/gold coin to the complainants does not arise at all. The opposite party submitted that the clause 13 of the Purchase Agreement which very clearly states This Agreement is legally binding and final. The purchase Acknowledges that he/she enters into it of his/her own free will and it is neither rescindable nor cancelable other than according to clause No.9 above (Agreement). Further clause No.9 of the above states ‘In the event of the Purchaser failing to make any payments installments balance amount on the due date(s) specified overleaf (time being the essence), then the County vacations shall have the right to cancel the agreement and forfeit 80% of the amount paid so far. Since the complainants have made complete payments to the opposite party No.1 the question of invoking the aforesaid clause No.9 does not arise at all. And clause NO. 13 of the Purchasers Acknowledgement of representations also clearly states This agreement is legally binding and final. Opposite party enter into it out of free will and acknowledge that it can be neither cancelled nor it is rescindable. The opposite party states that even now the opposite party is ready to accommodate the complainants at International Holiday Club/resorts as per the desire of the complainants provided the complainants should inform in writing at least 30 days in advance the place and days in case the complainants opt for accommodation in the purple season(super peak). Hence prays for dismissal of the complainant.
- In support of the complainant One Sri. KamleshMunnur(CW1)complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the Ex C1 to C7. One Mr. Anand K. (RW1) customer carein charge of opposite party filed counter affidavit and answered the interrogatories served on him and got marked Ex R1 and R2 for the opposite party No.2.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainants proves that there is a deficiency of service on the part of the Opposite
- If so, for what relief and from whom the complainantsentitled?
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i): As per Affirmative
Point No. (ii) & (iii): As per the final order.
REASONS
IV. POINTS No. (i) to (iii):
In the instant case the opposite party offering incentivesof gold ring, offering said apart from stay at holiday resort at country club and induced to become member, under purchase against CV 90/12 dated 26.09.2008 the complainant paid entire purchase amount towards studio type site at Devanahalli at IX phase of proposed layout, Bangalore with 3 sites marked as 435, 523, 522 in the sketch at Amrutha Estates Penakonda Taluk made available. Hence the complainants paid to above said amount the opposite party with membership vacation offer for 30 years in country club. Thereafter opposite party has got given gold coin or allotted promised sites and even provided with accommodation at specified resort of country clubs. Even after 2 years opposite party did not pay the amount hence the complainants issued legal notice to refund the amount. But opposite party not refunded the amount, hence this complaint.
On the contrary opposite party raised a contention that the draft copy of the purchase agreement for membership to thoroughly read the purchase agreement before affixing the signature of the complainant and opposite party several times contacted the complainant to avail the holiday packages offered by the opposite party and the purchase Agreement Clause 13 clearly state that the Agreement is legally binding and final. Hence denied the deficiency.
On perusal of the oral as well as documentary evidence available on record, we find that the opposite party is not at all denied the receipt of the amount of Rs. 2,20,000/ by the complainant and agreed that the complainant is the member of the opposite party club.
The opposite party counsel raised the contention that the amount paid by the complainant is non-refundable. No doubt in order to smooth functioning of the opposite party company the terms and conditions are required to be entered into for the convenience of both i.e Consumer and company. But the said terms and conditions the clause inserted in the printed format shall not be a one sided then its amounts to void agreement.
Since the complainant is not satisfied with the opposite party company of course he has got every right to cancel the membership and entitled for the refund of amount, the amount is with the opposite party company by way of cash or kind the complainant is at liberty to claim refund of the amount because he is not satisfied with service of the opposite partycompany and opposite party company in turn cannot compel the consumer’sinspite of their unwillingness to continue. Further the opposite party admitted that the complainant is the member of the club and opposite party not denied in the said aspect and also admitted that the complainant had deposited Rs.2,20,000/for membership in their club. Which is clearly reveals in Ex C 3,4 and 5 opposite party i.e.Ex R1 which itself shows that the complainant paid the amount for purchase agreement. Regarding Gold Ring there is no evidence and documents to prove the opposite party is offered gold ring and also the complainant not given proper reply to the opposite party at the time of serving interrogatories. Hence, without proof claiming relief for gold ring does not arise.
In view of the above discussion, by considering the facts and circumstances, we are of the considered opinion that the interest of justice, we direct the opposite party to pay Rs. 2,20,000/ (Rupees Two Lakhs Twenty Thousand only) to the complainant along with interest at 12% per annum from the date of payment till the date of realization and also pay Rs.5,000/(Rupees Five Thousand Only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the present case, interest considered itself is compensation, and therefore no separate amount for compensation is awarded.
In the result, accordingly we pass the following Order:
ORDER
The complaint is allowed. The opposite party is hereby directed to pay a sum of Rs. 2,20,000/ (Rupees Two Lakhs Twenty Thousand Only) to the complainants along with interest at 12% per annum from the date of payment till the date of realization and also pay Rs. 5,000/-(Rupees Five thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(1 to 8 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the29th ofSeptember2016)
PRESIDENT MEMBER
(SMT. C. V. SHOBHA) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1:Mr.KamleshMunnur
Documents marked on behalf of the Complainants:
Ex.C1: Dated: 26.09.2008Purchase agreement entered between the Complainants and opposite party.
Ex.C2: Dated: 26.09.2008Terms and conditions for allotment of Complementary plot.
Ex.C3: Dated: 27.09.2008Photocopy of receipt issued by opposite party (Receipt No.049)
Ex.C4: Dated: 27.09.2008 Photocopy of receipt issued by opposite party (Receipt No.048)
Ex.C5: Copy of sketch issued by opposite party.
Ex.C6: Photocopy of Postal Acknowledgement.
Ex.C7: Dated: 07.05.2012 Photocopy of legal notice issued on behalf of Complainants to opposite party.
Witnesses examined on behalf of the Opposite Party:
RW1: Anand K.
Documents marked on behalf of the Opposite Party:
Ex.R1: The said Purchase Agreement along with the Purchasers Acknowledgement of representations Dated 26.09.2008
BearingContract No. CV 90/12 Annexure No.1
Ex.R2: Terms and conditions of allotment of complementary plot
Dated:29.09.2016. MEMBER
