BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 02^nd DAY OF NOVEMBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainants have filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OP) seeking direction to the OPs to pay them a sum of Rs.60,000/- together with interest and damages of Rs.1,00,000/- and costs of the litigation.

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

The OP-2 approached the complainants several times requesting them to become member of the OPs and in pursuance of such repeated visits, the complainants finally became the members of OPs by paying Rs.60,000/-.  The OPs entered into a purchase agreement/letter for club and vacation membership on 04.12.2011 with the complainants.  Thereafter, the complainants visited the office of OPs.2 & 3 several times and demanded to issue them membership cards for availing the services of holiday period but till filing of the complaint the OPs did not issue them membership cards.  For the last more than 1½ years the OPs without there being any valid reasons have failed to issue membership card to the complainants.  For want of membership card the complainants are unable to avail any facilities from the OPs.  The OPs having received a sum of Rs.60,000/- have cheated the complainants and failed to furnish them membership card to enable them to avail the benefits and facilities, if any, provided by the OPs.  That the conduct of OPs in failing to issue membership card even after 1½ years from the date of receiving membership fees amounts to gross deficiency in service.  Therefore, the complainants got issued a legal notice on 29.04.2013 to which the OPs gave a untenable reply.  The complainants are also contemplating to initiate criminal proceedings against the OPs who have cheated them and also for having committed fraud on them.

For the aforesaid reasons, the complainants pray for an order directing the OPs to refund them the said amount of Rs.60,000/- along with interest @ 24% p.a from the date of receipt till the date of realization and damages of Rs.1,00,000/- for deficiency in service together with costs of the proceedings.

3. The OPs in response to the notice issued appeared through their advocate and filed version admitting receipt of Rs.60,000/- towards club membership and also admitting the execution of purchase agreement/letter for club and vacation membership with the complainants dated 04.12.2011 and further contended as under:

That the OPs upon receipt of amount from the complainants issued them temporary membership cards which was duly acknowledged by the complainants.  That the OP generated laminated membership cards and sent the same to the complainants and inspite of that the complainants are making false and frivolous allegations against the OPs.  That the OPs have also furnished fresh laminated membership cards of complainants along with version.  The OPs are always ready and willing to provide the laminated card to the complainants and no delay has been caused in issuing membership card.  That the complainants for the reasons best known to them have filed this false and frivolous complaint for making wrongful gain.  That from the allegations in the complaint, no deficiency of service on the part of the OPs can be made out.

That as per the terms of the purchase agreement, there is no provision for refund of amount under any circumstances.  There is no cause of action to file the present complaint.  That the OPs are providing best of the facilities to its members and the allegations made against OPs are imaginary and baseless.

For the aforesaid reasons, the OPs pray for dismissal of the complaint.  

4. On the rival contentions of both the parties, the points that arise for our determination in this case are as under:

5. The complainant to substantiate their allegations made in the complaint filed their affidavit evidence in lieu of oral evidence and also written arguments.  The OPs filed affidavit evidence of one Sri.Girish S/o Narayanappa, Manager in lieu of oral evidence.  The OPs also filed their written arguments. 

6. Perused the allegations made in the complaint, the averments made in the version, the sworn testimony of both the parties, written submissions submitted by both the parties and various documents produced on their behalf.

7. Our answer to the above points are as under:

REASONS

8.  There is no dispute that OPs persuaded the complainants to become the members of their club and accordingly complainants paid a sum of Rs.60,000/- and entered into a purchase agreement/letter for club membership on 04.12.2011.  The complainants have produced the original purchase agreement for club and vacation membership which bears the signatures of the complainants as well as the OPs.  The complainants alleged that despite having collected a sum of Rs.60,000/- towards membership fee and despite having executed purchase agreement for club and vacation membership, the OPs failed to issue them membership card to enable them to use the vacation as well as facilities of the club. 

9. The OPs in their version as well as in their affidavit contended that immediately after receipt of the above said sum of Rs.60,000/- from the complainants generated the laminated membership cards and sent the same to the complainants which has been acknowledged by them.  The complainants stoutly denied this statement of the OPs and contended that they have never received any laminated membership cards from the OPs.  The OPs did not produce any documentary evidence to substantiate their contention that immediately after receipt of the said amount from the complainants they generated and sent the laminated membership card to the complainants.  In absence of any documentary or credible oral evidence it cannot be believed that the OPs have sent the membership cards to the complainants.

10. The statement of OPs that they have sent membership cards to the complainants immediately after receipt of membership fees from the complainants is nothing but a false statement made with an intention to defeat the claim of the complainants.  The complainants have absolutely no reason to make false allegations against the OPs.  Though the complainants were eager to avail the vacation and club facilities in pursuance of the purchase agreement, they could not do so for want of membership cards.  Admittedly the complainants could not be permitted to make use of the facilities unless they show their membership card.  There is also no evidence to the effect that the complainants were issued temporary membership card.  Thus, it is evident that the OPs despite collecting Rs.60,000/- fees from the complainants have failed to issue membership cards thereby denying the complainants their right to use the vacation as well as the club facilities.  This conduct of OPs certainly amounts to gross deficiency in service.  The OPs have no reasons at all to deny the membership cards to the complainants.

11. It is also pertinent to note that despite service of legal notice, the OPs have not bothered to issue the complainants with necessary membership cards.  This callous attitude of OPs reflects their behavior towards their esteemed members.  This conduct of OP must have put the complainants to mental agony, hardship and inconvenience.  Without there being any valid cause the OPs have failed to issue membership cards to the complainant even after lapse of 1½ years from the date of receipt of the membership fees and the execution of the purchase agreement.  Therefore, we are of the considered opinion that the OPs shall have to be directed to refund the said amount of Rs.60,000/- to the complainants together with interest @ 12% p.a.  Further the OPs have to be directed to pay compensation of Rs.25,000/- for the hardship, inconvenience and mental agony suffered by the complainants due to deficiency in service on their part.  Accordingly, point Nos.1 & 2 are answered.  The order could not be passed within the stipulated time due to heavy pendency.

12. Point No.3 – In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainants U/s.12 of the Consumer Protection Act, 1986 is allowed.  The OPs are directed to pay a sum of Rs.60,000/- to the complainants together with interest @ 12% p.a from the date of receipt till the date of realization.  Further the OPs are directed to pay compensation of Rs.25,000/- to the complainants for the deficiency in service on their part together with litigation cost of Rs.3,000/-.

The OPs shall comply the order passed by this Forum within six weeks from today.

          Send the copy of the order to both the parties free of costs.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 02^nd day of November 2015)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainants dated 20.12.2013.

1. Mr.Suresh Babu N
2. Mrs Usha C.G.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties dated 08.01.2014.

1. Sri.Girish   

Document produced by the Opposite parties:

MEMBER                            MEMBER                    PRESIDENT

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