A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.685 OF 2012 AGAINST C.C.NO.453 OF 2011 DISTRICT FORUM-II HYDERABAD
Between:
Mandeep Kumar Markandey
S/o Sri Tarsem Lal Markandey
aged about 32 years, Occ: Software Engineer
W-5, 1155, Street No.2, Juhar Nagar, Moga (Punjab)
142 001 Appellant/complainant
A N D
The Country Club (India) Ltd.,
Rep. by its Managing Director Mr.Rajiv Reddy
H.No.3-6-12/13, 4th Floor, Al-Samad Building
Himayatnagar, Hyderabad-029
Respondent/opposite party
Counsel for the Appellants M/s Gopi Rajesh & Associates
Counsel for the Respondents M/s Rajesh Jaiswal
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
WEDNESDAY THE THIRD DAY OF APRIL
TWO THOUSAND THIRTEEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The complainant being dissatisfied with the quantam of amount granted as compensation filed the appeal seeking for award of interest on the amount of `75,000/- directed to be refunded by the District Forum .
2. The appellant paid an amount of `30,000/- on 27.09.2008 through his credit card account to the respondent-club towards part of membership with the respondent-club. An amount of `45,000/- paid through the same credit card account of the appellant to the respondent. The respondent issued receipts bearing nos.2729 and 2825 on 30.09.3008 for `30,000/- and `45,000/- respectively.
3. The appellant’s claim is that he was induced by the advertisement made by the respondent offering gifts to its members and the respondent offered him membership for `75,000/- by giving him concession of `10,000/- besides offering him a plot and that the respondent collected the amount of `45,000/- from his banker without informing him on 30.09.2008. Further, it is the case of the appellant that the respondent collected the amount in two installments against the agreement providing for payment of the amount in 12 monthly equated installments and that respondent without issuing him membership card demanded him to pay excess amount of `10,000/- whereon he addressed letter on 15.12.2008 requesting the respondent to issue membership and allot him a plot at Hyderabad or Bangalore. Thereafter, the appellant said to have sent e-mail and notice through International Consumer Protection Council demanding for refund of the amount with interest and costs.
4. The respondent remained exparte.
5. The appellant filed his affidavit and the documents, ExA1 to A7.
6. The District Forum allowed the complaint on the premise that the respondent after receipt of the membership fee failed to issue membership card to the appellant and the respondent by making false promise made the appellant to pay the amount. The District Forum observed that failure of the respondent to provide facilities to the appellant amounts to deficiency in service and unfair trade practice.
7. The complainant has filed appeal contending that he suffered financial loss and mental tension due to the respondent not providing the facilities promised and not issuing the membership card. The appellant claimed compensation of `2,00,000/- and interest on the amount that was paid to the respondent towards membership fee.
8. The point for consideration is whether the appellant is entitled to the interest and enhancement of compensation?
9. The appellant claimed to have been induced by the advertisement as regards gifts and facilities stated to have been made by the respondent as also offer of plot and concession to the tune of `10,000/- on the membership fee, paid `30,000/- towards membership fee on 27.09.2008 and `45,000/- on 30.09.2008. The receipts marked ExA1 andA2 would show that the appellant paid the amount in two installments of `30,000/- and `45,000/-on the same day, i.e., 30.09.2008. However, the receipts would not prove the plea of the appellant that the respondent collected the amount of `45,000/- from his credit card account without the knowledge of the appellant. It can be said that the contention of the learned counsel for the appellant as to promise as to facilities to be provided by the respondent has acceptable force as in the receipts it is specifically mentioned that the amount was arranged to be paid through the credit card account of the appellant.
10. The plea that the appellant agreed to subscribe to the membership with the respondent-club on the foot of understanding that the membership can be paid in 12 equated monthly installments has no legs to stand as the appellant with his eyes wide open granted permission for withdrawal of the amount in two installments from his credit card account. After making payment of the amount in two installments and not making any whisper in the letter, email or the notice sent on different occasions, the appellant cannot be heard to say that he proceeded to subscribe for the membership with the respondent-club basing on understanding that the membership was agreed to be paid in 12 monthly installments.
11. The respondent issued notice on 21.10.2008 with a demand for `55,000/- towards balance membership fee and for a sum of Rs.100/- per month towards concessional membership subscription under introductory offer. The appellant was informed that a monthly magazine would be sent to him and the specimen signature form and membership cards were stated to have been sent along with the notice. The respondent sending the membership card is stated in page 2 of the notice which read as under:
“We are enclosing herewith the Un-laminated membership cars valid upto 5.12.2008 to enable you to avail the facilities of the club in the interim period pending issue of regular photo laminated membership cards of permanent nature.
Please note that you would be allowed to avail the facilities of The Country Club, Mumbai 3 (Three) times a month while there are no restrictions in visiting The Country Clubs at other locations. However you have to settle your bills ON SPOT PAYMENT BASIS only either by cash or credit card.”
12. A host of facilities such as complimentary health club facility, hotels at pilgrimages, hospital, education Centre, holiday packages etc. are mentioned in the notice which read as follows:
“1. You are offered complimentary health club facilities at The Country Club Hyderabad for a period of 2 years from 28.10.2009 to 27.10.2010. In case this facility is not availed, it would lapse and in no case would be extended.
2. You are offered discounts at various pilgrim hotels, hospitals, travels, education centers, pubs and bards local and other states discounted hotels.
3. You are offered 5 packages for “3 days and 2 nights in The Country Clubs – Chennai, Bangalore, Mysore & Hyderabad. You can avail this subject to availability of accommodation and payment of Nominal booking Charges.
4. You are permitted free entry into the clubs under same management in various cities (Except in Mumbai where you can visit only 3 times a month) However, you have to settle your bills on “Spot Payment” basis either by cash or credit card.
5. You are offered Holiday packages of “3 days and 2 nights” at special discount rats in 45 resorts. This is subject to availability of accommodation, prior reservation and remittance of nominal booking charges.
6. You are offered 5 holiday packages at Goa, Shimla, Puri, Auli, Naintal, Bhimtal, Mussori & Lini for 7 days and 6 nioghts. This is subject to availability of accommodation and remittance of Nominal Booking Charges.
7. You are offered Holiday package of “7 days and 6 nights” in any of the 3 International Resort’s with which the club has a tie-up. This is subject to availability of accommodation and remittance of Registration Fee.”.
13. The respondent had not chosen to contest the complaint before the District Forum. The appellant filed the aforementioned notice and got marked it ExA3. As it is specifically mentioned in the notice that the membership cards were enclosed thereto and the appellant keeping quite till he had decided to address letter dated 15.12.2008 establish issue and dispatch of membership cards by the respondent-club to the appellant and the appellant in the circumstances estopped from raising plea of non-issuance of membership cards by the respondent.
14. The Hon’ble Supreme Court in “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”.
15. 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”.
16. The respondent rendered deficient service on two counts, it lured the appellant to subscribe to its membership offering plot on the premise that the membership fee included the cost of the plot and the appellant would be given benefit of concession to the extent of `10,000/-. The plot was not allotted to the appellant after receiving the membership fee from him and the respondent issued notice dated 21.10.2008 demanding for `55,000/- towards balance membership fee which in the light of the two receipts is manifested unfair trade practice. The receipts are issued for `30,000/- and `45,000/- and even if the amount mentioned in the receipts is not collected from the appellant, the respondent cannot demand for any amount than what is mentioned in the receipts.
17. As the respondent had not allotted the plot as agreed and demanded an excess amount of `10,000/- than what was agreed to be paid, the appellant got issued notice on 7.02.2011through International Consumer Rights Protection Council, Thane, Maharashtra claiming for refund of the amount paid by him and thereafter he had sent e-mail to the respondent. The notice referring to collection of `75,000/- by the respondent as unfair trade practice reads as under:
“1. You first called the consumer by saying that he was won prize, then dorced him to take membership of your country vacations with lure of free plot in Hyderabad and interest free installments for payment of 45,000/-.
2) after the consumer paid you Rs.30,000, you deducted Rs.45,000 in one lot thus cheating the consumer. And then did not give free plot in Hyderabad against his membership no MLM 6403
3) You have conducted Unfair Trade Practice under section 2(1) (r) of the Consumer Protection Act, by misleading the consumer to believe that he will be paying interest free installments for the amount of Rs.45,000/- and he will get free plot in Hyderabad
4) There is deficiency in your services as you have misled the consumer with false information and then did not refund the amount when he wanted to cancel the membership as you had violated the terms.
Under such circumstances, we request you to refund Rs.75,000/- to the consumer with interest @ 18% per annum within 7 days after the receipt of this notice by you. Please also compensate the consumers with Rs.50,000 for causing him losses, mental agony and harassment due to your unfair trade practice and and deficient service”.
18. There was no response to the request of the appellant for allotment of the plot as also there was no response to the letter, notice and email sent by the appellant. The respondent collected a sum ofRs.75,000/-from the appellant and failed to provide the facilities such as allotment of plot and registration of the plot etc.,. Failure to prove the facilities and failure to respond to the request made by the appellant either to allot plot or to refund the amount paid by him would in our opinion constitute deficiency in service on the part of the respondent.
19. The District Forum awarded a sum of `3,000/- towards compensation besides granting relief of refund of the amount. Admittedly, the appellant had not availed any of the facilities offered by the respondent. The respondent had not provided the facility of plot and allotment thereof to the appellant. The respondent retained the amount with it without taking steps to perform its part of contract. In such circumstances, the respondent is liable to pay interest on the amount collected from the appellant. Therefore, we award interest @ 9% p.a on the amount of `75,000/- from the date of complaint and set aside the compensation component of reliefs granted by the district Forum.
20. In the result, the appeal is allowed modifying the order of the District Forum by setting aside the relief of compensation for Rs.3,000/- and awarding interest 9% p.a from the date of filing of complaint till payment as also confirming the rest of the order. In the circumstances of the case, there shall be no order as to costs in the appeal. Time for compliance four weeks.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.03.04.2013
కె.ఎం.కె.*
