BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.119 OF 2011 AGAINST C.C.NO.746 OF 2010 DISTRICT FORUM-I HYDERABAD
Between:
- M.Sree Ramulu S/o M.Ramdas
aged about 55 years, Occ: Govt. Service
- Smt M.Chandrakala W/o Sri M.Sree Ramulu
aged about 45 years, Occ: Housewife
Both are Flat No.21019, Janapriya Utopia
Hyderguda, Attapur, Hyderabad-48
Appellant/complainants
A N D
M/s Country Vacations
(A division of country club (India) Ltd.,)
H.No.3-6-12/13, 4th Floor, A-1, Samad Bldg.,
Himayatnagar, Hyderabad.
Respondent/complainant
Counsel for the Appellant M/s Gopi Rajesh & Associates
Counsel for the Respondent M/s S.Rajesh Jaiswal
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
THURSDAY THE THIRTEENTH DAY OF SEPTEMBER
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
The complainants are the appellants. They filed complaint seeking direction to the respondents to refund an amount of Rs.1,99,000/- with interest @24%p.a. , Rs.50,000/- towards compensation and Rs.3,000/- towards costs.
The version of the appellants is that they being informed by the respondent that it is engaged in hotel and real estate business and its members would be allotted plots and allowed into its hotels and resorts, paid towards membership an amount of Rs.1,99,,000/- on 30.07.2009. The respondent executed purchase agreement in favour of the appellants on 28.07.2009 stating that no balance is due from the appellants and the appellants are entitled to allotment of accommodation in In International Holiday Club.
It is contended that the respondent addressed letter dated 28.07.2009 informing the appellants that it had allotted plot admeasuring 300 sq.yards as compliment, at Vedic SPA and the plot was allotted without any consideration and they were informed by the respondent that the plot would be registered after completion of all formalities and subject of total payment due to it. The appellants for several times requested the respondent to register the plot and book a country package and the respondent failed to register the plot and allot the holiday resort. The appellants addressed letter dated 14.12.2009 requested the respondent to refund the amount with interest.
The respondent resisted the claim on the premise that there was no contract between the parties for the appellants to purchase plot from it . It is contended that the respondent entered into purchase agreement with the appellants on 28.07.2009 wherein it was mentioned that the appellants can avail the accommodation for one week in a calendar year and for 30 years in studio type of apartment blue season in the property.The respondent issued VLM card bearing number VLM-7650 for life membership to the appellants in the respondent-club.as per the terms of the agreement, the appellants have no right to demand for allotment of the plot and the appellants have to bear development charges and registration charges.
The respondent requested the appellants for several times to pay the development charges and registration charges and it is ready to register the plot in their favour. The appellants had not requested the respondent to book a country spa package.As per clause 8 of the Purchase Agreement, the choice of resorts is available to the appellants with all facilities and the appellants can request for accommodation in advance. The appellants are not entitled to refund of the amount. The appellants have no cause of action to file the complaint. There was no deficiency in service on the part of the respondent. Hence, prayed for dismissal of the complaint.
In support of their case, the first appellant filed his affidavit and the documents marked as Exhibits A1 to A7. On behalf of the respondents, ----- filed his affidavit and the documents, ExB1 to B5.
The District Forum allowed the complaint on the premise that the respondent failed to allot accommodation to the appellants and the respondent had not specified the time within which the appellants can request the respondent for accommodation. The District Forum allowed the complaint awarding the relief for refund of the amount and declined to grant interest and compensation on the premise that the appellants had willingly withdrawn their membership.
Feeling dissatisfied by the order of the District Forum, the complainants have filed appeal contending that the District Forum ought to have seen that the appellants were compelled to join as members in the respondent-club and that the respondent entered into agreement with the appellants wherein it is mentioned that the appellants are not due any amount and they are entitled to allotment of plot. It is contended that the respondent failed to register the plot and book SPA package for the appellants and there was no response for the letters dated 14.12.2009 and 4.03.2010 requesting the respondent to provide accommodation to them. It is contended that due to the unfair attitude and negligence on the part of the respondent in allotting the accommodation and registering the plot, the appellants were compelled to cancel the membership and they did not do it willingly or voluntarily.
The point for consideration is whether the appellants are entitled to the interest and compensation on the amount paid by them to the respondent company?
The appellants paid a sum of Rs.49,000/- in cash and an amount of Rs.1,50,000/- through cheque on 27.07.2009 and the respondent received the total amount on 30.07.2009. The receipt dated 30.07.2009 was issued acknowledging receipt of the amount of Rs.1,99,,000/- towards membership fee. Membership Purchase Agreement was entered into, between the appellants and the second respondent club on 28.07.2009. The terms and conditions of the agreement provide for 1.pooints rights, 2.allotment of accommodation, 3.issuance of points certificate. 4. Management of charges. 5. Choice of resorts 6. Country vacations alliance. 6. Country vacations alliance. 9. Default in making payment of installments. 10. Rights of the member to transfer vacation. Additional benefits extended to the appellants are as under:
1.Life membership of the country club. 2. Access to all other affiliated clubs in India. 3. Free utility of vehicle. 4. Discount on room-tariff at various hotels in India and abroad. 5. Discount at various shopping outlets across the country. 6. Accidental insurance coverage of Rs.5 lakh. These benefits are made applicable to the appellants subject to making payment of 50% of the total purchase
The plea of the appellants that the respondent compelled them join as members with it is not supported by evidence except the statement of the first appellant. The first appellant states that he is a government employee and was compelled by the respondent to join as a member. The statement of the first appellant as to the compulsion he was subjected by the respondent is not established.
It is not disputed that the respondent allotted plot measuring 300 sq.yards at vedic SPA at Bangalore. The respondent issue allotment letter dated 28.07.2009 where under the appellants were informed that the plot would be registered in their name after completion of formalities pertaining to the acquiring of the land such as conversion of the land, approval of the layout, survey of the land etc.,. The terms and conditions mentioned in the allotment letter are that the plot would be registered within 18 months from the date of full payment of membership fee, completion of legal formalities and development of the project and also subject to payment of registration charges and development charges of Rs.30,000/- in favour of M/s Country Condos Ltd.
The other conditions mentioned in the allotment letter are that venture, phase, dimensions, plot numbers and layout plans are subject to change from what was mentioned in the brochure. Construction rights over the plot are vested in the respondent-club and any construction over the plot would be made through the respondent-club. Except stating that the appellants have not paid the registration charges and development charges, the respondent-club had not adduced evidence to show that it had discharged its part of the contract. The respondent has not stated the stage of the project and whether the layout is approved and whether there was any change in the dimensions of the plot etc., It is not the case of the respondent that the appellants had not paid entire membership fee
As the appellants had paid the entire membership fee, the obligation rests on the respondent –club to inform them the stage of development of project and changes made if any, in the layout plan and in the policy of government regarding land acquisition etc., The respondent cannot take shelter under non-payment of registration charges and development charges by the appellants. It is not clear whether the amount of Rs.30,000/- mentioned in the allotment letter is consolidated amount or the development charges are different from the registration charges. In any view of the matter there has been deficiency in service on the part of the respondent-club in its failure to inform the appellants the stage of development of the project and the amount to be paid by them towards registration charges and development charges.
The first appellant addressed letter dated 14.12.2009 bringing it to the knowledge of the respondent-club that he was compelled to join as a member on 28.07.2009 and the respondent failed to issue membership card for his wife and him and it had not allotted plot despite request made therefor, by him and the letter had drawn no response compelling the first appellant send another letter on 4.03.2010 with request to refund the amount with interest thereon. Both letters failed to draw any response from the respondent-company. The appellants contend that the attitude of the respondent-club compelled them to opt for seeking refund of the amount with interest.
The appellants had stated that their request for allotment of accommodation of SPA package and the respondent postponed to book the accommodation on one pretext or other. The second appellant in her affidavit had stated that the failure of the respondent to book the package made them and their children disappointed as they could not enjoy the holiday despite they having invested huge amount of money with the respondent-club.
The Hon’ble Supreme Court “State of Gujarath vs Shantilal Mangaldas” AIR 1969 SC 634. held the compensation to mean”…..In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression ‘paid’ would have been more appropriate”.
The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In “Charan Singh vs Healing Touch Hospital and others” 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. The Court held “While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge”.
It is settled law that the parties are bound by the terms and conditions of contract. The appellants have issued notice to the respondents seeking for refund of the amount paid by them. The respondents have not given reply to the notice. The inaction of the respondents in this regard is made basis for claim for return of the entire amount paid by the appellants. The District Forum has not taken into consideration of all the circumstances and awarded the relief for refund of the amount and discarded the relief for grant of interest and compensation. In view of the hardship suffered by the appellants and deficiency in service rendered by the respondent club, we feel it proper and reasonable to hold the appellants entitled to interest @ 9% per annum on the amount from the date of issuance of notice i.e., 4.3.2010. As the interest awarded in the form of compensation, no other amount under the head of compensation need be awarded.
In the result the appeal is allowed modifying the order of the District Forum. The opposite party is directed to pay Rs.1,99,000/- together with interest @ 9% per annum from 4.3.2010 till payment and costs of Rs.5,000/-. Time for compliance four weeks.
MEMBER
MEMBER
Dt.13.09.2012
KMK*
