COMPLAINTS FILED: 26.10.2009<br /> DISPOSED ON: 28.04.2010 <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 28TH APRIL 2010<br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER<br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT Nos.2474, 2475, 2476 & 2477/2009<br /> <br /> COMPLAINT NO.2474/09<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.2475/09<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.2476/09<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.2477/09<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> OPPOSITE PARTY<br /> Sri. Mohammad Ilyas Ahmed,<br /> S/o L.T. Abdul Khayoom,<br /> Aged about 45 years,<br /> R/at R.N. High School Building,<br /> Madeena Automobiles,<br /> B.H. Road,<br /> Tumkur – 572 101.<br /> <br /> <br /> Sri. Ameer Khan,<br /> Aged about 52 years,<br /> Indian Automobiles,<br /> Opposite Ganapathi Temple,<br /> B.H. Road, <br /> Tumkur – 572 101.<br /> <br /> <br /> Smt. Fouzia Khanum,<br /> W/o Mohammad Ilyas Ahmed,<br /> Aged about 40 years,<br /> Madeen Automobiles,<br /> R.N. High School Building,<br /> Madeena Automobiles,<br /> B.H. Road,<br /> Tumkur – 572 101.<br /> <br /> <br /> Sri. Abdul Majeed Soudagar,<br /> S/o L.T. Abdul Azeez Saheb,<br /> Aged about 52 years,<br /> Dealer in General batteries,<br /> R.N. High School Building,<br /> B.H. Road,<br /> Tumkur – 572 101.<br /> <br /> Advocate: H.R. Vasudha <br /> <br /> <br /> V/s.<br /> <br /> <br /> The Country Club, <br /> No.273, 1st Main Road,<br /> Defence colony,<br /> H.A.L. 2nd Stage, <br /> Bangalore – 560 038.<br /> <br /> Advocate: Sri S. Harish<br /> <br /> O R D E R<br /> <br /> These are the complaints 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 allot an area of 1089 sq. ft. at coconut groove at Tumkur or in the alternative to refund the membership fees and pay compensation, interest and costs on an allegations of deficiency in service on the part of the OP. <br /> <br /> As the OP in all the above complaints are common, the question involved, relief claimed being the same, in the interest of justice, in order to avoid the repetition of facts and multiplicity of reasonings, all these cases stand disposed of by this common order. <br /> The brief averments, as could be seen from the contents of the complaints, are as under:<br /> <br /> 2. The complainants being lured away with advertisement and propaganda issued by the OP who promised to provide them various facilities like coverage of insurance, membership with RCI resorts, week end stay at Goa, free air ticket, allotment of complimentary plots etc., thought of becoming the member of the OP club. For convenience sake the membership number, amount paid, issuance of legal notice and the nature of membership are mentioned in the chart given below. Though the complainants invested their hard earned money they are unable to reap the fruits of their investment because of the hostile attitude of the OP. OP failed to allot the complimentary plots at coconut grove as promised and failed to provide with any of the benefits of the country club. The complainants called upon OP to refund the membership amount; OP failed to repay the same inspite of several requests and demands; the complainants got issued legal notice to pay the amount; OP neither replied the notice nor complied the demand to repay the amount. For no fault of theirs; the complainants were made to suffer both mental agony and financial loss. Under these circumstances they are advised to file these complaints seeking necessary reliefs as stated above. <br /> <br /> Sl. No. Complaint No. Card member ship Member ship No. Receipt No. and Date Amount claimed Admitted<br /> Amount Legal Notice<br /> 1 2474/09 Mr. Cool Card Cool CG<br /> 6348 1196<br /> 03.01.07 29870<br /> 10.02.07 Rs. 25,000<br /> <br /> Rs. 90,000<br /> Rs.1,15,000 <br /> Rs.1,15,000 <br /> 29.07.09<br /> 2 2475/09 Mr. Cool Card CoolCG 6347 1194<br /> 03.01.07<br /> 29855<br /> 10.02.07 Rs. 50,000<br /> <br /> Rs. 65,000<br /> Rs.1,15,000 <br /> Rs.1,15,000 <br /> 29.07.09<br /> 3 2476/09 Mr. Cool Card CoolCG 6349 1195<br /> 03.01.07<br /> 29871<br /> 10.02.07 Rs. 25,000<br /> <br /> Rs. 90,000<br /> Rs.1,15,000 <br /> Rs.1,15,000 <br /> 29.07.09<br /> 4 2477/09 Mr. Cool Card CoolCG 7402 28781<br /> 24.01.07<br /> 52179<br /> 21.05.07 Rs. 40,000<br /> <br /> Rs. 75,000<br /> Rs.1,15,000 <br /> Rs.1,15,000 <br /> 29.07.09<br /> <br /> 3. On appearance, OP filed the version. The defence set out by the OP in all these complaints is almost identical and same. The brief averments, as could be seen from the contents of the version is as under:<br /> <br /> The complaints are all false, frivolous and vexatious, the same are liable to dismissed in limine. The complainants failed to show the deficiency of service on the part of the OP. It is contended that complainants have taken membership with a profit motive; they are not a ‘consumers’ as defined in the Consumer Protection Act. The membership fee is charged for all services provided at the clubs and resorts of OP and that no amount has been taken for allotment of the complimentary sites, refund of membership fee cannot be granted; only a direction to register the complimentary sites could be granted. Complimentary sites have been allotted to the complainants. The OP never assured to allot a complimentary sites near International Airport and had clearly informed that the complimentary sites would be allotted at the Coconut Groove and Vedic Spa / Banyan Tree which was formed by the sister concerned of the OP. Since all the members knew the place of allotment of complimentary sites; only the site numbers and the phase in which the said sites are located have been mentioned in the allotment letters. Allotment letters were issued by customer care department and not by the legal department. The transaction between OP and complainants is not a transaction for purchase of any property, the membership fee paid is non-refundable. There is no deficiency of service on the part of the OP; since OP has acted as promised and have allotted a complimentary sites in favour of the complainants and complainants are enjoying facilities provided by OP in their clubs. OP is prepared to register the complimentary sites in favour of the complainants as soon as they deposit the registration fee and maintenance charges. OP had mistakenly stated in the reply notice that the complimentary sites would be allotted at Vedic Spa situated hear Hindupur. OP never offered to allot a complimentary site at Tumkur town, the same is a creation of the complainants. OP allotted a complimentary sites at coconut groove Tumkur. Therefore the refund of the membership amount along with interest cannot be granted; a direction can be issued to register the sites already allotted in favour of the complainants. It is denied that the OP is liable to pay any compensation. Hence it is prayed to dismiss the complaints with exemplary costs. <br /> <br /> 4. In order to substantiate the complaint averments, complainants filed their affidavit evidence and produced documents. The Customer Care Manager of the OP filed affidavit evidence in support of the defence version and produced documents. <br /> <br /> 5. The complainant and OP filed written arguments. Arguments heard on both sides, the points for consideration are:<br /> <br /> Point No.1:- Whether the complainants have proved <br /> the deficiency in service on the part of<br /> the OP?<br /> <br /> Point No.2:- If so, whether the complainants are <br /> entitled for the reliefs now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 6. Our findings on the above points are: <br /> <br /> Point No.1:- In Affirmative. <br /> Point No.2:- Affirmative in part. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the outset it is not in dispute that each one of these complainants became the member of OP club by paying an amount of Rs.1,15,000/- as noted in the chart. OP having accepted their membership, allotted them membership number. The main grievances of the complainants is that OP failed to allot the complimentary sites which was promised at the time of accepting the membership fee and OP has also not provided the club facilities.<br /> <br /> 8. The defence set up by the OP is all these complainants have availed the services of OP club and membership fee paid is non refundable, complimentary sites at Phase – XV coconut groove are already allotted in favour of these complainants, since they have not deposited site confirmation administrative charges of Rs.15,000/- which includes stamp paper fee and registration expenses, on account of the same OP could not register the sites allotted. Thus it is contended that there is no deficiency in service on the part of the OP, direction cannot be issued to refund the membership fee, but however a direction can be issued register the complimentary sites already allotted in favour of the complainants. <br /> <br /> 9. OP has produced the documents like allotment letters, conversion order of the land, layout plan stated to have been approved by village panchayat in support of the defence that complimentary sites are already allotted, but the registration of the same could not be made as complainants have not deposited the site confirmation administrative charges which includes stamp duty and registration charges. After going through these documents it becomes clear that OP failed to keep up its promise of allotting sites at coconut groove at Tumkur. Annexure-C produced in all these complaints by the complainants reveals that OP offered special package with regard to the membership of the complainants. The offers made is listed in the letter dated 08.01.2007; at serial No.4 it is specifically stated that the complainants will be allotted 1089 sq. ft. of land coconut groove Tumkur. In view of the same the complainants ought to have been allotted complimentary sites at Tumkur. The allotment letters stated to have been issued to these complainants in the month of May and June – 2008 indicating the sites formed phase – XV coconut groove does not mention the place of location of the sites. The said letters were valid for 30 days from the date of letters. There is no material to show that these allotment letters were received by the complainants. In case if the complimentary sites as stated in the allotment letters were already allotted; there was no reason for OP, in the reply notice Annexure – E to inform the complainants that OP is ready to register the complimentary plot in Penukonda. For the legal notice issued; OP has given such a replies; in the reply notice there is no mention about the complimentary sites already allotted to these complainants in phase – XV of coconut groove. <br /> <br /> Further it is strange enough to note that there was no land owned by OP with conversion order as on the date of issue of the allotment letters and there was no approved layout. Without such documents we are unable to know as to how OP made Amrutha Estates to issue such allotment letters by giving site numbers. The copy of the conversion order reveals on 20.11.2008 the said order has been passed. Only after passing such an order village panchayat Rathnasandra, Sira Taluk, is stated to have approved the layout formed in survey No.159/2. We are unable to accept the contention that complainants were not promised for allotting sites at Tumkur and they were clearly made known that coconut groove layout would be formed in various phases covering Tumkur District. Phase – XV of coconut groove is stated to have been formed at Rathnasandra village of Sira Taluk. No material is placed to show that the said layout has been fully developed with all amenities. Therefore the complainants cannot be made to accept such sites formed quite away from Tumkur. Under these circumstances we are unable to accept the defence set up by OP that as per its promise complimentary sites are already allotted in favour of the complainants. The complainants were made to believe that they would be allotted sites at Tumkur, on account of the same they became the members of OP club. The documents now produced by OP reveals that phase – XV coconut groove is formed in Rathnasandra village of Sira Taluk, Tumkur District. OP has not produced any material to show that these complainants have availed the club facilities. Taking into consideration of all these facts and circumstances we are of the view that the complainants proved deficiency in service on the part of the OP in not providing complimentary sites at Tumkur and also not refunding membership amount demanded. <br /> <br /> 10. There is no merit in the contention that membership fee paid is non-refundable. When OP has not fulfilled its obligation in allotting complimentary sites as promised and provided the club facilities; the complainants are entitled for refund of the membership fee. The complainants invested their hard earned money; they are unable to reap the fruits of their investment, it is all because of the hostile attitude of the OP. Under such circumstances the complainants must have naturally suffered both the mental agony and financial loss. OP having retained the said huge amount without extending the services as promised accrued the wrongful gain to itself and caused wrong full loss to the complainants that too for no fault of theirs. There are no sites of OP at Tumkur to direct the allotment of sites in favour of the complainants. Therefore the complainants deserves alternative reliefs. Accordingly we answer point No.1 and 2 and proceed to pass the following: <br /> <br /> <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> The complaints are allowed in part. OP is directed in all these complaints to refund an amount of Rs.1,15,000/- to each of the complainants with interest at 12% p.a. from the respective date of deposits till the date of realization with litigation cost of Rs.2,000/- in each case. <br /> <br /> This order is to be complied within four weeks from the date of its communication.<br /> <br /> Send the copy of this order to both the parties free of cost.<br /> <br /> This original order shall be kept in the file of the complaint No.2474/2009 and a copy of it shall be placed in other respective files.<br /> <br /> (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 28th day of April 2010.) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Snm: <br />