Complaint filed on: 24-11-2011 Disposed on: 13-09-2013 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.2131/2011 DATED THIS THE 13th SEPTEMBER 2013 PRESENT SRI.J.N.HAVANUR, PRESIDENT SRI.H.M.SHIVALINGAPPA, MEMBER Complainant: - N.C.Sharma R/at Flat no.207, Gitanjali Apartments, No.1039, HAL III Stage, Bangalore-75 V/s Opposite party: - The Manager (Customer Care) Country Club, No.478, Maha Padma, 1st Floor, 1st Main, Indiranagar 1st stage, Bangalore-38 ORDER SRI.J.N.HAVANUR, PRESIDENT This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OP to refund Rs.38,450=00 towards damages, compensation and deficiency of service alongwith cost of litigation, in the interest of justice and equity. 2. The brief facts of the complaint can be stated as under. The OP approached the complainant during 2001 and he made a permanent member with No.BLS 1724 on payment of Rs.10,000=00. The complainant’s membership was upgraded to life membership and allotted membership No.BLLM 5422 on introduction of two persons as permanent members of the club. As per the scheme on introduction of two members, the complainant is entitled to six months utilization of Spa at CCI alongwith three months complimentary package. At the time of giving the membership, the complainant has promised by one Narendra Yadhav, Executive of the OP club that the complainant can make use of GYM facilities at TASHA Indiranagar, Bangalore, he was issued with TASHA membership No.56 by the OP. The complainant requested the corporate manager of the OP club to allow him to make use of TASHA facilities at Marthahalli club since the complainant moved into a new residence close to Marathahalli. The Gym facility at Marthahalli club was not at all operative and TASHA management was demanding payments for use of above club. The OP neither provided facilities offered nor refunded the membership fees by cancelling the same. The complainant issued a legal notice on 15-10-2011 requesting to return of the membership fees with interest. Though the OP received the legal notice, he kept mum and no reply has been received. The complainant could not utilize the Gym facility of the OP club. Though there is a notice to return the money the same has not been done. So the present complaint is filed, praying to pass an order, directing the OP to refund Rs.10,000=00 alongwith 18% interest p.a. from 18-7-2011 till date and compensation and litigation cost of Rs.10,000=00. Hence the present complaint is filed. 3. After service of notice, the OP has appeared through its counsel and filed version contending interalia as under: The complaint of the complainant is not maintainable either in law or on facts and same is liable to be dismissed in limine. The OP has pioneered in making the clubs and resorts accessible to the common people which hitherto was a forte of upper class and rich people by offering the membership at affordable prices. The OP has tied up with leading clubs and resorts across the country and several other countries. The OP introduced a scheme namely BLLM membership and in this membership scheme no complementary plot will be given to the member. The member can only utilize the club facilities at Bannerughatta club, the Bannerughatta club offered facilities like bar, restaurant, table tennis, swimming pool, children’s play area, accommodation, lawns and reading room etc. The complainant has not paid the AMC charges and without paying AMC charges the complainant cannot avail the club facilities. The complainant having learnt about the facilities and benefits provided under the said scheme, applied for membership and he had paid a payment of Rs.10,000=00 towards membership fees through cheque and he was inducted as a member of the OP club and issued a membership card bearing no. BLLM 5422. The complainant introduced two new members for which the complainant was entitled for three months of utilization. Since, the complainant has introduced new members, he is entitled for six months of utilization of Spa at CCI alongwith three months complimentary package. The said services cannot be provided at the door steps of the complainant. The OP is in the business of providing hospitality services to its members. The offer of the OP was in addition to the services provided by the OP in general. The claim amount of Rs.10,000=00 was paid by the complainant to OP for the purpose of membership with the OP. The complainant by paying the initial fees had availed of the hospitality services provided by the OP. Any grievance of the complainant with regard to the failure on the part of the OP to provide the facilities at a particular location as stated by the complainant would be a breach of the service provided by the OP in terms of the offer. The complainant has availed of various hospitality services provided by the OP and has no grievances in this regard. The OP has not committed any deficiency in service. The complainant is not disputing the services provided by the OP, the OP has acted as per its promises by providing all the services to the complainant. The complainant having utilized all the services provided by the OP has filed the false complaint. Hence it is prayed to dismiss the complaint, in the interest of justice and equity. 4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration. 1. Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP in not providing the facilities as agreed upon? 2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to? 3. What order? 5. Our findings on the above points are; Point no.1: In the Affirmative Point no.2: The complainant is entitled to refund of Rs.10,000=00 alongwith 8% interest p.a. on the said amount from the date of payment within 30 days from the date of this order, failing which, the OP shall pay the said amount to the complainant alongwith 9% interest p.a. from the date of the payment to till the date of realization alongwith cost of Rs.2,000=00 Point no.3: For the following order REASONS 6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced nine documents with list. On the other hand, one Venkatesh Varma who being the authorized signatory of the OP has filed his affidavit by way evidence and no documentary evidence is produced on behalf of the OP. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides scrupulously. 7. One N.C.Sharma, who being the complainant has stated in his affidavit that, the OP/respondent approached him during 2001 and made him a permanent member with No.BLS 1724 on payment of Rs.10,000=00 and his membership was upgraded to life membership and allotted membership No.BLLM 5422 on introduction of two persons as permanent members of the club. As per the scheme on introduction of two members, he was entitled to six months utilization of Spa at CCI alongwith three months complimentary package. At the time of giving the membership by OP, he was promised by one Narendra Yadhav, Executive of the OP club that he can make use of Gym facilities at TASHA Indiranagar, Bangalore, he was issued with TASHA membership No.56 by the OP. He requested the corporate manager of the OP club to allow him to make use of TASHA facilities at Marthahalli club since, he moved into a new residence close to Marathahalli. The Gym facility at Marthahalli club was not at all operative and TASHA management was demanding payments for use of above club. He was neither provided facilities offered nor refunded the membership fees by cancelling the same. He issued a legal notice on 15-10-2011, but the OP has kept mum, so he filed the present complaint, so he prays to pass an order as prayed in the complaint. 8. Ex-C1 is the receipt issued by the OP dated 18-7-2001 in the name of complainant for having received Rs.10,000=00 through cheque towards membership fee. Ex-C2 is the letter of OP dated 21-7-2001 addressed to the complainant stating congratulation to the complainant on becoming the permanent member of the country club and his member would be upgraded to life membership. Ex-C3 is the letter of OP addressed to the complainant informing that his permanent membership has been upgraded to a life membership and as a result he exempted from paying the monthly subscription fee. Ex-C4 is the letter of OP addressed to the complainant dated 23-8-2003 stating that the Gym facilities at Spa CCI are available to members on payment, since the complainant has introduced two members, so he is entitled for six months of utilization of Spa at CCI alongwith the three months complimentary package. Ex-C5 is the letter of OP to the complainant dated 16-8-2001 informing membership number as TASHA-56. Ex-C6 is the letter of complainant addressed to the OP dated 14-8-2003 stating that he has been using TASHA facilities ever since he became the member of country club and recently he has moved into new residence close to Maratha halli, so he would like to use the facilities at the same place and like to use the Gym facilities at Maratha Halli. Ex-C7 is the letter of complainant addressed to the OP dated 1-3-2002 stating that the Gym facilities of the country club located at Maratha Halli is not yet functional and operational and TASHA management is asking for payment for use of their facilities, promises made for short term goals for a prospective customers are not fulfilled on long term basis thus resulting disillusioned and dissatisfied customer, so please resolve the problem. Ex-C8 is the legal notice of the complainant dated 15-10-2011 issued to the OP to refund Rs.10,000=00 alongwith 18% interest p.a from the date of payment as the OP neither provided the facilities nor refunded the membership fees alongwith interest and there is gross negligence and there is deficiency of service on the part of the OP. Ex-C9 is the postal acknowledgment card for having served notice on the OP. 9. Let us have a cursory glance at the material evidence of the OP. One Venkatesh Varma who being the authorized signatory of the OP has stated in his affidavit that, the complaint of complainant is false and frivolous and same is liable to be dismissed, the complainant having learnt about the facilities and benefits provided under the said scheme, applied for membership and he has paid Rs.10,000=00 towards membership fee and he was inducted as a member of the OP club, since the complainant has introduced two members for which he is entitled for six months utilization of Spa at CCI alongwith 3 months complimentary package. The complainant by paying the fees had availed of the hospitality services provided by the OP, the site provided by the OP was only a complimentary offer, the OP has not committed any deficiency of service. The complainant is not entitled any relief and the complainant is not disputing the services provided by the OP, so the complaint be dismissed, in the interest of justice and equity. 10. It is pertinent to note that, the OP has not produced any documentary evidence to support the evidence of authorized signatory of the OP to show before the forum that, it has provided all the facilities to the members as per the contract, and accordingly the complainant has availed all the facilities of OP. Except, stating orally by the authorized signatory of OP, no iota of documentary evidence is produced by the OP. In the absence of vouchsafing any clear and tangible documentary evidence, it is unsafe and unhazardous to believe the evidence of authorized signatory as gospel truth. 11. On the other hand, the complainant has asserted in his evidence that, after becoming the member of the OP by paying Rs.10,000=00, the OP has neither provided the facilities as agreed nor refunded the amount alongwith interest and there is deficiency of service on the part of the OP. The said oral evidence of the complainant stands corroborated by Ex-C1 to C9. The act of the OP in not giving service to the complainant after collecting the membership fee of Rs.10,000=00 tantamounts to negligence and deficiency of service on the part of the OP. So making careful scrutiny of the oral and documentary evidence of the complainant, it is vivid and clear that, the complainant who comes to the forum seeking relief has proved his case by placing believable material evidence that, the OP is negligent and there is deficiency of service on the part of the OP in not providing the facilities as agreed upon, and accordingly, we answer this point in a affirmative. 12. In view of our affirmative finding on point no.1, the complainant is entitled to get refund of Rs.10,000=00 from the OP alongwith nominal interest, so the OP is directed to refund Rs.10,000=00 to the complainant alongwith 8% interest per annum on the said amount from the date of payment, within 30 days from the date of this order, failing which, the OP shall pay the said amount to the complainant alongwith 9% interest per annum on the said amount from the date of payment to till the date of realization and the OP is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order. ORDER The complaint of the complainant is partly allowed. The OP is directed to refund Rs.10,000=00 to the complainant alongwith 8% interest per annum on the said amount from the date of payment, within 30 days from the date of this order, failing which, the OP shall pay the said amount to the complainant alongwith 9% interest per annum on the said amount from the date of payment to till the date of realization. The OP is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation. Supply free copy of this order to both parties. (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 13th day of September 2013). MEMBER PRESIDENT |
