COMPLAINT FILED ON: 10.06.2011
DISPOSED ON: 05.11.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM AT BANGALORE (URBAN)
05th NOVEMBER 2011
PRESENT:- SRI.B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.A.MUNIYAPPA MEMBER
COMPLAINT NO. 1053/2011
COMPLAINANTS Sri.Shivanna,
S/o Late Ramegowda,
Aged about 48 years,
R/at No.47,5th ‘B’ Block,
BHCS Layout,
BSK III Stage,
Bangalore- 560 085.
(Adv: Suresh S.Kadur)
V/s.
OPPOSITE PARTYS The General Manager,
The Country Club
No.273, 1st Main,
Defence Colony, Indiranagar, HAL II Stage,
Bangalore – 560 038.
( Adv: G.A.GOPI)
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a complaint filed by the complainant u/s. 12 of the Consumer Protection Act of 1986, seeking direction to the Opposite Party (herein after called as O.P) to refund Rs.1,05,000/- paid towards membership fees, with interest at the rate of 18% p.a., and compensation of Rs. 5 lakhs towards mental agony and suffering on the allegations of deficiency in service on the part of the O.P.
2. The brief averments made in the complaint are as follows.
Attracted by the offers made by representative of OP in the month of May 2006 complainant became the member of O.P. Club. Complainant paid Rs.10,000/- by way of cheque dated 23-2-2002, further Rs.95,000/- on 16-6-2007 to OP towards membership fee. O.P. accepted the membership of the complainant and issued Cool Card membership bearing No. COOL BT 738 and also issued two receipts acknowledging the receipt of amount of Rs.1,05,000/-. On 23-6-2007 OP wrote a letter to the complainant requesting to remit Rs.15,000/- within 30 days towards registration and maintenance charges. By that time complainant came to know that through TV and Newspapers that OP has duped and cheated many of its members. Hence complainant did not make any further payment as demanded by the OP. Complainant requested O.P. to refund Rs.1,05,000/- with interest at 18% p.a. OP went on dodging the matter without any reason not bothered to refund the amount. Complainant visited the office of OP number of occasions. OP started avoiding the complainant. Hence on 30-5-2011 complainant got issued a legal notice calling upon OP to refund Rs.1,05,000/- along with interest and damages. Inspite of service of notice there was no response from O.P. Hence complainant felt deficiency in service against O.P. Under the circumstances he is advised to file this complaint against O.P. for necessary reliefs.
2. On appearance OP filed the version mainly contending that after payment of Rs.95,000/- towards membership fee Complainant has utilized club facilities extensively till date and also utilized the free trip to Goa offered by OP under the membership scheme. On 8-4-2008 Complainant visited Goa club along with wife and children. It is contended by OP that the receipts issued by the OP are produced and marked as annexure A. But in fact OP has not produced any document. OP has already issued allotment letter infavour of the complainant allotting complimentary plot at vedic spa, phase VII, In the said allotment letter OP has asked the complainant to deposit registration and maintenance charges towards the plot allotted. Subsequently OP has been calling upon complainant but complainant has not deposited the said registration and maintenance charges in spite of several requests and reminders. Hence OP could not register complimentary plot in favour of the complainant. Allotment of complimentary plot is subject to approval of Government and also availability of the same. OP is ready to register the complimentary plot at vedic spa, phase VII, Pandiparthi village, Ananatapur Dist. All the plans and conversion order are obtained by the OP. It is contended by the OP that sanction plan, conversion order and MOU are produced as annexures. In fact OP has not produced any document. OP admits receipts of 1,05,000/- towards membership fee. Since complainant has already utilized all the facilities offered by OP, Complainant cannot seek for refund of amount. There is no deficiency in service on the part of O.P. Among other grounds OP prayed for dismissal of the complaint.
3. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced two receipts, membership card, letter of OP, copy of legal notice and postal receipts and acknowledgement. On behalf of OP Venkatesh Verma C. Asst. Administration Manager, filed his affidavit evidence in support of the defence version. O.P. has not produced any documents. Heard arguments from complainant side and taken as heard from O.P. side.
4. In view of the above said facts, the points now that arises for our consideration in this complaint is as under:
Point No.1:- Whether the complainant
proved the deficiency in service
on the part of the OP ?
Point No.2:- If so, whether the complainant is
entitled for the relief now claimed?
Point No.3:- To what Order?
5. We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
6. At the out set it is not in dispute that complainant attracted by the offers made by O.P. became the member of the O.P. club by paying a sum of Rs.10,000/-. On 23/5/2002 and Rs.95,000/- on 16/6/2007. Complainant paid Rs.1,05,000/- to OP towards the membership fees. OP accepted the membership of the complainant and issued membership card bearing No. COOL BT 738. OP has also issued the receipts acknowledging receipt of amount. Now the grievance of the complainant is as per annexure-‘D’. Vide its letter dated 23/6/2007. OP insisted the complainant to make further payment of Rs.15,000/- and by that time Complainant came to know through media that OP has cheated many of its members. Hence complainant requested OP to refund the amount. Inspite of repeated visits to the office of OP, OP started evading the complainant. Hence complainant got issued legal notice calling upon OP to refund the amount along with interest and damages. Inspite of service of notice there was no response. Hence complainant approached this forum for the necessary reliefs.
7. As against the case of the complainant the defence of the O.P. that it has already issued allotment letter infavour of complainant allotting a complimentary plot situated at vedic spa, project II, phase-A. There is no basis for this defence. Hence in the absence of any materials such as copy of allotment letter, correspondences etc, we are unable to accept the defence of the OP that it has already made allotment of complimentary plot infavour of the complainant.
8. Further it is contended by OP that complainant failed to deposit the registration and maintenance charges of Rs.15,000/-, hence OP could not register the allotted plot infavour of complainant. Allotment of plot is subject to government approvals and sanctions. OP is ready to register a complimentary plot at vedic spa, project-I, 7th phase, pandiparthy village, Ananthpur District. OP has obtained conversion order, sanction plan. Though it is contended by OP that it has produced sanction plan, conversion order and MOU but in fact OP has not produced any documents to substantiate its defence. Hence in the absence of any material whether OP has obtained conversion order and sanction plan, from the statutory authorities, layout has been formed, vacant sites free from encumbrances are available at the disposal of OP. We are unable to accept the defence of OP that OP is ready to register the complimentary plot in favour of the complainant. OP admits receipt of Rs.1,05,000/- from the complainant towards membership fees in the year 2002-2007. If OP is aware of the fact that it cannot allot and register the complimentary plot as offered it could have fairly refunded the amount to the complainant. OP has retained the amount for more than 4 years so as to enrich itself. This act of OP in neither allotting and register the complimentary plot nor refund of amount inspite of repeated requests and legal notice amounts to deficiency in service on the part of OP. Complainant is able to prove the deficiency in service on the part of OP. Under the circumstances we are of the considered view that complainant is entitled for refund amount paid along with interest at the rate of 12% p.a. as compensation and litigation cost of Rs.2000/-. Accordingly we proceed to pass the following
O R D E R
The Complaint is allowed in part. OP is directed to refund Rs.1,05,000/- paid towards membership fees together with interest at the rate of 12% p.a. from the date of respective payments till the date of realisation and pay litigation cost of Rs.2000/- to the complainant.
This order is to be complied within four weeks from the date communication of this order.
Send the copy of this order both the parties free of cost.
(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 5th day of November 2011.)
MEMBER MEMBER PRESIDENT
