COMPLAINT FILED ON: 02.04.2011
DISPOSED ON: 02.08.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
2nd DAY of AUGUST – 2011
PRESENT:- SRI. B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINANT | S.Parvez Ahmed Pasha S/o Syed Yousuff Pasha, Residing at No.3375 Sait Compound, Bangarpet, Kolar District. Inperson. V/s. |
OPPOSITE PARTIES | 1. The Manager/Managing Director, Country Club(India) Limited, No.675, ‘A’ Main, Indiranagar 1st Stage, Bangalore-560 038. 2. The Manager, Country Club India Limited, 1st Main, Defence Colony, HAL 2nd Stage, Indiranagar, Bangalore-560 038. Advocate:Sri.G.A.G., |
O R D E R S
SRI. B.S.REDDY, PRESIDENT
The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Parties (herein after called as O.Ps) to refund membership fee of Rs.1,50,000/- with interest at 18% p.a. along with litigation costs of Rs.5,000/- on the allegation of deficiency in service on the part of OPs.
2. The case of the complainant to be stated in brief is that:
OPs assured that they will allot free sites at various places as desired by the members with other benefits. The complainant being satisfied with the assurance of the OPs, with the intention to avail the benefits of the OPs by becoming a member, entered with OPs to become a member by signing the forms as prescribed by the OPs. Initial payment of Rs.15,000/- was paid on 31.12.2007, other payments to an extent of Rs.1,25,000/- was made on different dates from 31.12.2007 to 09.12.2009 and an amount of Rs.25,000/- was transferred from other person. OPs issued letter on 04.05.2009 stating that the complainant had paid sum of Rs.1,25,000/- and there is no balance payable. OPs also issued a membership as Kool-2059 with particulars to send the photo etc and it is only temporary card for the period of 45 days, later they issue original card. Further OPs also collected sum of Rs.25,000/- apart from membership fee as registration and informed to pay the Administrative and maintenance charges. OPs neither allotted free sites nor informed about the club facilities as assured. OPs at no point of time informed about the boarding, lodging, and allotment of free sites voluntarily as promised. The acts of OPs neither informing about the facilities nor allotting the free sites made the complainant to approach this Forum. Hence the complaint.
3. On appearance, Ops filed version contending that the total fee payable by the complainant is only sum of Rs.1,25,000/-. One.Afzal Pasha(Kool 2106) had requested to OP to merge his membership with the complainant’s membership by adjusting a sum of Rs.25,000/- paid by him to the account of the complainant. As per the said request OPs adjusted the amount paid by him to the account of the complainant and the complainant had paid the balance of Rs.1,00,000/-, thus in all the complainant paid sum of Rs.1,25,000/- only. The allegation that the complainant had paid further sum of Rs.25,000/- in support of the same, the receipt dt.09.12.2009 produced is false and fabricated document. The sites allotted under the Kool Scheme are complementary gift towards the membership and the membership fee is collected for providing facilities. No consideration is paid for allotment of complementary plot, hence complainant is not a consumer under Consumer Protection Act. OPs have already issued allotment letter allotting a complementary plot No.138, towards the membership Scheme situated at Phase- A, Project-II, Vedic Spa. The complainant has been asked to deposit a sum of Rs.15,000/- towards the registration and maintenance charges for the plot allotted. The complainant has not deposited the said amount, due to this reason OPs could not register the allotted site in favour of complainant. The Country Condos Ltd., the sister concern of the OPs purchased several parcels of lands, gift deeds are executed in respect of free complimentary plots in favorer of the eligible members. The complainant has not deposited the registration charges within 30 days from the date of allotment as intimated in the terms and conditions of the membership, welcome letter and allotment letter. OPs would register a complimentary plot at Project-1 at Phase-7 extension situated at Vedic Spa pandiparthi Village, Survey No.355/2, Somandepalli, Mandal, Hindupr Road, Penugonda. All the plans and conversion have been obtained by the OPs, OP is earmarking a site in the said layout in favour of he complainant and would register the same as soon as the complainant deposits the registration and maintenance charges. The membership paid by the complainant is nonrefundable. There is no deficiency of service on the part of OPs. The value of the benefits of members from OPs club even without the complementary plot is more than the membership fee and it is for this reasons that the complainant has availed the membership of OPs-Club and not for the purpose of getting complementary site. Only a direction to provide the said complementary plot could be ordered as per the terms and conditions of the membership, after depositing of the full membership fee and any order refund is contrary to the Consumer Protection Act itself. The facilities to be provided by OP have to be voluntarily availed by the complainant by visiting the clubs or by placing calling the Customer Care Department for booking a Holiday Trip. The complainant has not requested in the free trip and has not come forward to avail the services. The complainant having utilized all services is trying to coerce the OP by filing the present complaint. Hence, it is prayed to dismiss the complaint with exemplary costs.
4.In order to substantiate complaint averments, the complainant filed affidavit evidence and produced documents. The Assistant Administrative Manager of OP filed affidavit evidence in support of the defence version.
5. Arguments on both sides heard.
6. Points for our consideration are:
Point No.1:- Whether the complainant proved the
deficiency in service on the part of
the OPs?
Point No.2:- Whether the complainant is entitled
for the reliefs claimed?
Point No.3:- To what Order?
7. We record our findings on the above points are:
Point No.1:- Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
8. At the out set, it is not at dispute that the complainant paid an amount of Rs.1,25,000/- towards membership fee and became member of OPs-Club under the Kool Scheme. An amount of Rs.1,00,000/- was paid towards membership fee between 31.12.2007 to 09.12.2009 and an amount of Rs.25,000/- membership fee was transferred from the account of one Afzal Pasha to the account of the complainant. Thus, the total amount paid is Rs.1,25,000/-. In addition to that the complainant claims that an amount of Rs.25,000/- was paid towards registration charges, in support of the same he has produced the receipt, the same has been issued by sales and marketing department of OPs-Club. OPs are denying the receipt of the said amount stating that the said receipt is fabricated. In our view, the payment of Rs.25,000/- in cash on 09.12.2009 towards registration fee is doubtful for the reason that when the complainant has not received any allotment letter of the sites from OPs, it is difficult to accept that he would have paid the registration charges even before the receipt of allotment letter. Therefore, we are of the view that only an amount of Rs.1,25,000/- is paid by the complainant towards membership fee which has been admitted by OPs.
9. The main grievances of the complainant is that at the time of becoming member of OPs, it was assured that complementary sites would be allotted and other facilities will be provided, but OPs have not allotted any sites and no facilities are provided. In the version filed and also in the affidavit evidence OPs have come up with the version that complementary plot No.138 at Phase A, Project-II, Vedic Spa was allotted to the complainant and he was required to pay registration charges of Rs.15,000/- but he has not paid the said amount within 30 days. Subsequently, OPs formed a layout at the project-1 Phase-7 extension, situated at Vedic Spa Pandiparthi Village, Survey No:355/2, Somandepalli, Mandal, Hindupur Road, Penugonda. OPs are ready to allot a complementary plot in that project and register the same in favour of the complainant. It may be noted that in the version and affidavit evidence OPs have stated that the documents, conversion order, sanction plan and MOU are produced and marked as Annexure-B but no documents are produced with the version and affidavit evidence. OPs have not produced any material to show that any land has been acquired for formation of the layout and sites are formed after obtaining the conversion order. Without there being any documents in support of the same, we are unable to accept that OPs are prepared to allot a site and register the same in favour of the complainant. No material has been placed to prove the fact that any site has been allotted to the complainant as assured. The very act of OPs in not allotting any site and registering the same in favour of the complainant and not providing the services as assured amounts to deficiency in service on the part of the OPs.
10. There is no merit in the contention that membership fee paid is nonrefundable. The complainant became member of OPs-Club only with an intention to get a complimentary plot, when OPs have not fulfilled the obligation by providing the plot, it is not open to contended that membership fee once paid is nonrefundable. Under these circumstances, we are of the view that the complainant is entitled for refund of the membership fee along with interest at 12% p.a. by way of compensation and litigation costs of Rs.2,000/-. Accordingly, we proceed to pass the following:
O R D E R
The complaint filed by the complainants is allowed in part.
The OPs are directed to refund an amount of Rs.1,25,000/- with interest at 12% p.a. from the respective date of payment till the date of realization and pay litigation costs of Rs.2,000/- to the complainant within 4 weeks from the date of this Order.
Send copy of this order to both the parties free of costs.
(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 2nd day of August – 2011.)
MEMBER MEMBER PRESIDENT
Cs:
