Date of Filing : 01.08.2011
Date of Order : 12.12.2011
BEFORE THE BANGALORE URBAN 4th ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
No. 8, Sahakara Bhavan, Cunningham Road, Bangalore – 560 052
Dated 12th DECEMBER 2011
PRESENT
Sri. J.N. HAVANUR ….. PRESIDENT
Sri. GANGANARASAIAH ….. MEMBER
Smt. ANITA SHIVAKUMAR ….. MEMBER
COMPLAINT NO. 1421 / 2011
Sri. Jagadeesh Chandra.T.
S/o. Late Jayaramulu, Aged about 42 years,
No. 49, 10th Main Road, Behiknd Swapna Bar,
Hongasandra Begur Road,
Bangalore – 560 068. ……. Complainant
V/s.
The Manager,
M/s. Country Club India Pvt. Ltd.,
No. 478, Mahapadma, 1st Main,
1st Stage, Indiranagar,
Bangalore – 560 038. …… Opposite Party
ORDER
By Sri. J.N. HAVANUR, PRESIDENT
This Complaint is filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986 praying to refund of Rs.1,15,000/- with interest, damages & costs. Brief facts of the Complaint can be stated as under:
Complainant has become member of the OP by paying membership fees of Rs.1,15,000/- under the system of Kool Member and his membership No. is KOOLCG406A. Under the said scheme, Complainant has paid the amount on different dates to the OP. He has paid Rs.40,000/- on 11.09.2007 vide Receipt No. 15126, Rs.10,000/- on 12.05.2007 vide Receipt No. 51674 & Rs.65,000/- on 03.05.2007 vide Receipt No. 10860 and totally he has paid Rs.1,15,000/-. OP is a leading concern in acquiring lands from the Landlords and after getting the necessary permission from the competent authorities from agricultural purpose to non-agricultural purpose, after forming layout, it intends to sell the same to the intending purchasers for the valuable consideration by taking membership from the siteless / houseless persons and is allotting the area and has issued advertisement in the locality and on seeing the advertisement Complainant has approached OP. On careful reading of the brochure issued by the OP, Complainant agreed to purchase the site from the OP and he has paid necessary amounts and become one of the members of the OP and his membership No. is KOOL CG 406A. After paying the said amount to the OP, Complainant went to the spot situated near Tumkur Road where OP was supposed to give the Site, surprisingly there was no site as assured by the OP. Complainant thought that the OP has cheated the Complainant. The attitude of the OP goes to show that OP has committed deficiency of service in allotting the site to the Complainant as per its own words and failed to comply with its words and due to the said acts Complainant has suffered mental agony, suffering & loss. Hence, OP is liable to pay the damages in a sum of Rs.50,000/- and a sum of Rs.1,15,000/- being the amounts collected from the Complainant. Complainant got issued legal notice on 04.07.2011 to the OP, but the same was not returned back to the Complainant. The cause of action for the Complaint arose on 03.05.2007, the date of first payment made by the Complainant and on 04.07.2011, the date of issuance of the legal notice to the OP. So, Complainant is constrained to file the Complaint against OP praying to pass the order granting compensation of Rs.1,15,000/- along with damages and any other reliefs as this Forum may deem fit including the costs of the proceedings.
2. After service of notice, OP has appeared through its Counsel and filed version contending inter-alia as under:
OP is a Company incorporated under the Companies’ Act and OP is a pioneer in making Clubs & Resorts accessible to common people which hitherto was a forte of upper class and rich people by offering membership at affordable prices. OP has tied up with the leading Clubs & Resorts across the Country and several other Countries. OP introduced “Mr. Cool Card Members” and members of the Club would get facilities of Country Club Cool Life Membership, Complementary Plot, Holiday Package of 2 nights 3 days stay in Bandipur etc. Complainant having learnt about the facilities and benefits provided under the Cool Scheme, applied for membership by paying Rs.1,15,000/- through various cheques and for the said payment OP has issued Receipts. Complainant has not paid balance sum of Rs.10,000/- towards membership fees. Thereafter Complainant was inducted as member of the OP Club and OP issued membership card bearing No. COOLCG406A and issued allotment letter in favour of the Complainant and in the allotment letter OP has informed the Complainant that complementary plot allotted would be registered only on payment of full membership fees and registration and maintenance charges. OP has informed the Complainant to deposit a sum of Rs.15,000/- towards registration charges along with other charges for maintenance. OP had purchased several lands in their favour and subsequently they would execute necessary gift deeds concerning the free complementary plot in favour of the eligible members. Claim amount of Rs.1,15,000/- was paid by the Complainant to the OP for the purpose of membership. OP is in the business of providing hospitality services to the members. Complainant has availed of various hospitality services provided by the OP and has no grievance in this regard. OP has not committed any deficiency in service in this regard. So, the Forum may kindly dismiss the above Complaint. No consideration has been collected for allotment of complementary plot and member has to bear only registration & maintenance charges. Since the Complainant has not paid any consideration for complementary plot, his grievance in the complaint being not allotting the plot does not come under the meaning of consumer under the C.P. Act. Allotment of complementary plot was additional attraction for taking the membership, but not on an intrinsic part of the contract for which Complainant made payment. In so far as the allotment of plot is concerned, it cannot be said that the Complainant was a consumer. So, Complainant has no right to get redressal under the C.P. Act. OP has acted as per its promise for providing all the services to the Complainant and also by allotting complementary plot. Complainant having utilized all the services provided by the OP has filed complaint making false & baseless allegations against OP. Complaint was one for compensation simpliciter and this Forum has no jurisdiction to entertain such Complaint. Clause 8 of the terms & conditions states that “in case full amount of membership is not remitted within 45 days of allotment of membership, then money remitted would be forfeited”. Contents of Paras 5 & 7 are denied as false. Hence, it is prayed to dismiss the Complaint of the Complainant in the interest of justice & equity.
3. So, from the averments of the Complaint of the Complainant and objection of the OP, following points arise for our consideration:
(1) Whether the Complainant proves that after becoming a member of the OP, OP has cheated him and there is deficiency of service in allotting the site to him and he has suffered lot and he is entitled to claim refund of Rs.1,15,000/- along with damages & costs.
(2) What order ?
4. Our findings on the above points are as under:
(1) Point No. 1 - Affirmative
(2) Point No. 2 - As per final order
5. Point Nos. 1 & 2 - So as to prove the case, Complainant has filed his affidavit by way of evidence and produced 8 documents with list. On the other hand, one Mr. Venkatesh Varma who being Authorized Signatory of OP has filed his affidavit by way of evidence and produced no documentary evidence for having provided facilities to the Complainant. We have heard the arguments of both the sides. We have gone through the oral evidence of both the parties and documentary evidence of the Complainant meticulously.
6. Complainant Jagadeesh Chandra.T. has asserted in his evidence i.e., in the affidavit that he became a member of OP by paying Rs.1,15,000/- under the system of Kool Member and his membership No. is KOOLCG 406A. OP is leading concern in acquiring the lands from the Landlords and after getting necessary permission from the competent authorities and after forming the layout it intends to sell the same to the intending purchasers by taking membership from the siteless persons and it is allotting the sites and it has issued advertisement in the locality and on seeing the advertisement he had approached OP and agreed to purchase site from the OP and he has paid Rs.1,15,000/- on different dates and become a member and OP has issued membership. After paying the amount to the OP, he went to the spot where the OP was supposed to give the site, but there was no site as assured by the OP and he thought that OP has cheated him and there is deficiency of service in allotting the site to him and due to that he suffered mental agony and loss. So, OP is liable to refund his amount along with interest, damages & costs and order be passed as prayed for. In support of oral evidence, Complainant has produced 8 documents. Document No., 1 is the original receipt issued by the OP in the name of the Complainant for having received Rs.65,000/-. Document Nos. 2 & 3 are the receipts issued by the OP for having collected Rs.10,000/- & Rs.40,000/- respectively from the Complainant and in these documents membership number is mentioned as COOLCG406A. Document No. 4 is the letter of the OP issued to the Complainant dtd. 05.05.2007 calling upon him to pay Rs.3,000/- as administration charges and Rs.300/- towards luxury tax and calling upon the Complainant to pay Rs.1,25,000/- towards Cool Membership fees against which they have received Rs.65,000/-. Next two documents are the letters of the OP calling upon the Complainant to pay all the dues. Document No. 7 is the copy of legal notice issued to OP. Document No. 8 is the reply notice of the OP wherein he has highlighted the services to be provided to the members of the Club. The oral evidence of the Complainant that after becoming member of the OP, OP has not provided the facilities including allotment of site as promised and there is deficiency of service is countenanced by the documentary evidence produced by the Complainant. As against this, the authorized signatory of the OP has stated in his affidavit that Complainant has availed all the benefits provided to its members and has no grievance of whatsoever and OP has acted as per its promise by providing all the services to the Complainant and also by allotting the plot and he has filed false complaint and complaint be dismissed with cost. But it is worthy to be noted from the materials on record that OP has not produced any documentary evidence to demonstrate before this Forum that it has provided all the facilities including allotment of plot to the Complainant. Documentary evidence in this regard is lacking for the reasons best known to the OP. In the absence of vouchsafing any documentary evidence, it is not worthwhile to accept the oral evidence of the OP, as a gospel truth. On making careful scrutiny of the oral evidence of both the parties and documentary evidence of the Complainant, it is made explicitly clear that the case of the Complainant is more believable and trustworthy as compared to the defence of the OP as the Complainant has proved his case by placing oral & documentary evidence satisfactorily. When once the OP has accepted the Complainant as a member of its club by receiving Rs.1,15,000/-, it is the bounden duty of the OP to provide facilities including allotment of site or plot to the Complainant as per the advertisement given in the newspaper. Having failed in keeping up the promise by the OP, Complainant is entitled to claim refund of Rs.1,15,000/- as prayed in the Complaint. So, from the material evidence placed before this Forum, we are of the considered opinion that the Complainant has proved his case that he is entitled to claim refund of Rs.1,15,000/- from the OP. So for as claim of damages & interest are concerned, whatever the amount prayed in the Complaint and evidence appears tobe exorbitant. So, we would like to award Rs.2,000/- towards damages & costs to the Complainant and direct the OP to refund the amount of Rs.1,15,000/- to the Complainant within 30 days along with interest @ 10% P.A. from the date of Complaint, failing which OP shall pay entire amount with interest @ 12% P.A. from the date of order till realization. Accordingly, we answer Point No. 1. In the result, we proceed to pass the following:
ORDER
Complaint of the Complainant is allowed. Complainant is entitled to claim refund of Rs.1,15,000/- from the OP. OP is directed to refund Rs.1,15,000/- to the Complainant along with interest @ 10% P.A. from the date of Complaint within 30 days, failing which OP shall pay the said amount to the Complainant with interest @ 12% P.A. from the date of this Order till realization.
Complainant is awarded Rs.2,000/- towards damages & costs.
Both parties are given free copies of the order.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the open Forum on this the 12th day of December 2011.
MEMBER MEMBER PRESIDENT
SSS
