BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 15^th DAY OF JUNE 2016

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 Party (herein after referred as OP) with a prayer to direct them to refund a sum of Rs.93,000/- received towards membership fees with interest and a sum of Rs.50,000/- towards damages for the deficiency in service with cost of litigation.

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

The complainants influenced and lured by the flashy advertisement by the OP in electronic and print media and the presentation made by representative of OP in the last week of December 2011, decided to purchase membership in the OP and have paid a sum of Rs.93,000/- by way of cheque dated 02.01.2011 drawn on State Bank of India, Bangalore.  Upon collecting the said amount, OP issued a temporary membership to the complainants.  However, OP failed to furnish related documents and also acknowledgement for having received the said amount from the complainants.  That as per the representation the temporary membership card is valid for a period of 3 months.  At the time of issuing temporary membership card, OP promised to deliver permanent membership cards within a short span of time and assured to furnish duly authenticated copy of documents.  But thereafter OP Company failed to provide permanent membership cards to the complainants which are very much required to make use of the facilities of the club.  Non issuing the permanent membership card, the OP virtually deprived the complainants from making use of the facilities of the club as well as vacations.  That as and when the complainant called the personnel of the OP requested for the permanent card they were promised that the same will be issued to them at an early date.  However, the permanent cards were never issued.

Added to the indifferent attitude of the OP, the facilities available in the club situated at Mysore Road was not at all good and in accordance with the flashy advertisements by the OP.  That the complainant-1 opted to take membership with OP with a hope of spending the summer holidays with his family in out station and so also if possible winter holidays without any hassles so far as accommodation, food etc.  The concerned however due to non furnishing of permanent membership card, the complainant could not make use of the membership obtained by them.  Without there being any valid cause OP failed to provide permanent membership card thereby deprived the complainant by making use of the club facilities as well as vacations.  This conduct of OP amounts to grave deficiency in service.  Having fed up with callous attitude of the OP, the complainant decided to cancel their membership and got issued a legal notice on 02.06.2012 demanding refund of Rs.93,000/- collected by the OP towards membership fee together with interest.     OP instead of complying the demand made in the legal notice gave an untenable reply.  Therefore, the complainants were compelled to file this complaint with a prayer to direct the OP to refund a sum of Rs.93,000/- paid towards membership together with interest @ 18% p.a and also Rs.50,000/- towards deficiency in service.

3. OP in response to notice issued entered their appearance through their advocate and filed their version contending that the complainants have purchased membership by paying Rs.93,000/- as claimed by the complainant and further contended as under.

The OP generated laminated membership card and sent the same to the complainants and in spite of receiving the same, the complainants are making false and frivolous allegations by filing this false complaint.  The OP is always ready and willing to provide laminated membership card to the complainants.  In terms of the purchase agreement, the complainants are entitled for holiday vacations for 6 days and 7 nights in the year for a period of 30 years and club membership of life time subject to the terms and conditions mentioned in the purchase agreement.  The OP has replied to the legal notice dated 02.06.2012 got issued by the complainants.  The complainants have filed this complaint for making wrongful gain.  The OP is always ready and willing to provide holiday vacations and club facilities to the complainants.  The complainants have not all booked any holiday vacations so as to facilitate for arranging the same.  The complainants have created false story only for the purpose of filing this complaint.  As per the terms and conditions of the purchase agreement the membership amount is non refundable.  However, the complainants are at liberty to sell or to transfer or gift the club membership to any third party.  The complainants have also not paid annual maintenance amount of Rs.6,742/-.  The complainants are not all entitled to any of the reliefs claimed.  Therefore, OP prays for dismissal of the complaint.

4. The complainants to substantiate the allegations made in the complaint filed the affidavit evidence of complainant-1 reiterating the allegations made in the complaint.  The OP filed the affidavit evidence of their customer care Manager in support of the averments made in the version.  Both the parties have submitted certain documents in support of their respective contentions.  Written arguments have also been filed by both parties.

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

        6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both sides, written arguments, documents produced by both parties and other materials placed on record.

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

REASONS

8.  The OP is a limited company rendering club, resorts etc., and the said company has floated a scheme “country vacations international holiday club membership”.  Admittedly, the complainants have purchased vacations from OP Country Vacations by paying a sum of Rs.93,000/- on 02.01.2011.  Admittedly, the complainants required a membership card and other relevant documents to make use of the vacations as well as the club facilities.  Immediately after the complainants purchased the membership they have been issued with temporary membership cards which have been purchased by the complainants, which are valid for a period of 90 days from the date of issue.  Temporary membership cards have been issued to both the complainants on 03.01.2011 which expires after lapse of 90 days.  As alleged by the complainants and also as admitted by the OP, the complainants were to issue permanent laminated membership card to both the complainants so as to enable them to make use of club facilities and also to book vacations together with relevant documents.  The temporary membership card issued to the complainants expires after 90 days.  The complainants alleged that they did not receive the permanent membership cards and other relevant documents pertaining to their membership from the OP, even after expiry of the temporary membership cards issued to them.  Admittedly the complainants cannot make use of the club facilities and also cannot book any vacations without permanent membership card and relevant documents for having purchased membership.

9. It is apparent from the material placed on record despite repeated communications by the complainants and request OP has failed to provide them permanent membership card as well as relevant documents to the complainants so as to enable them to make use of club facilities as well as book vacations.  Having fed up with the attitude of the OP in not providing them permanent membership card and relevant documents, the complainant got issued a legal notice to the OP cancelling their membership and demanding refund of Rs.93,000/- paid by them.  In the reply notice, the OP claimed that, the complainants have refused to receive the permanent membership cards when dispatched to them and the cards have returned as un-served.  However, in their version as well as in their affidavit evidence OP took up a contention that the complainants have received permanent membership card and have also acknowledged the receipt of the same.  However, the OP failed to produce any acknowledgement said to have been issued by the complainants for having received the membership card.  This contradictory stand taken by the OP goes to show that they have not at all issued permanent membership card to the complainants despite promise made to issue the same as early as possible. 

10. The failure on the part of OP either to produce the refused postal documents or the acknowledgement of the complainants goes to show that the OP has not at all issued any permanent cards in favour of the complainants thereby depriving the complainants from making use of the club facilities as well as from booking any vacations.  This conduct of OP in not issuing permanent membership cards and the relevant documents amounts to grave deficiency of service on their part.  The temporary membership cards issued by the OP are valid for a period of 90 days from the date of issue.  After expiry of the temporary membership cards the complainant could not make use of the club facilities and book any vacations with the OP despite paying huge sum of Rs.93,000/-.  Therefore, the complainants are justified in seeking cancellation of their membership as well as refund of the membership fee of Rs.93,000/-.  The OP has miserably failed in establishing that they have provided permanent membership cards to the complainants.  Therefore, we are of the considered opinion that the OP has to be directed to refund the membership fees paid by the complainants.  The OP has retained the membership fee received from the complainant without providing them any facility.  Therefore, they are liable to pay a reasonable amount of interest on the said sum.  The OPs are also liable to pay compensation/damages to the complainants for inconvenience, hardship and mental agony caused to them for deficiency of service on their part.

11. Looking to the facts and circumstances of the case, we feel it appropriate to direct the OP to pay interest @ 12% p.a on the said sum of Rs.93,000/- from the date of expiry of temporary membership card and to direct them to pay compensation of Rs.25,000/- towards deficiency of service with litigation cost of Rs.5,000/-.

12. The order could not be passed within the stipulated time due to heavy pendency. 

13. 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 in part.  OP is directed to refund Rs.93,000/- to the complainants together with interest @ 12% p.a from 02.04.2011 till the date of realization.  OP is further directed to pay compensation of Rs.25,000/- towards deficiency of service with litigation cost of Rs.5,000/-.

This order is to be complied within four weeks from the date of communication.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 15^th day of June 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 26.07.2014.

1. Sri.T.N Jaiprakash

Documents produced by the complainants:

Witnesses examined on behalf of the Opposite party dated 22.01.2015.

1. Sri.Girish Kumar V.N

Documents produced by the Opposite Party:

  MEMBER                           MEMBER                     PRESIDENT

   Vln*