Complaint filed on: 11-04-2012
Disposed on: 03-06-2014
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.772/2012
DATED THIS THE 3rd JUNE 2014
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.H.JANARDHANA, MEMBER
Complainant: -
Sri.A.S.Manjunath,
Major in age
Residing at No.64/1,
2nd B Main, Venkata Gowda
Layout, Pampa Extension,
Hebbal Kempapura,
Bangalore-24
V/s
Opposite party: -
The Managing Director,
Country Club India Ltd,
Office at No.675, Old Syndicate
Bank Road, 1st stage, Indiranagar, Bangalore-38
And also at:
No.478, “Maha Padma”,
1st Main, 1st Stage,
Indiranagar,
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, praying to pass an order, directing the OP to pay Rs.1,15,000=00 along with 24% interest from the date of receipt of the amount to till the date of refund and to pay Rs.1.00 lakh as compensation and to pay travelling expenses and cost of litigation.
2. The brief facts of the complaint can be stated as under.
The OP has issued pamphlets, advertisement, circulation, catalogs and broachers to general public about the benefits of becoming a member of their club. Being introduced by the promotion and the offer he paid a membership fee and also after completion of formalities the authorities of OP given membership to the complainant having membership no.KOOL-3836 of country club. In this regard OP marketing executive approached the complainant to explain the benefits of scheme, and the OP executive also informed that the complainant will be entitled residential site. The complainant as per his instructions amount paid through cheques same is encashed and authorities of OP issued receipts. The details of receipts are as under:
a) BAN085260 dated 23-6-2008, amount Rs.15,000=00
b) BAN07102 dated 17-7-2008, amount Rs.25,000=00
c) BAN08907 dated 16-8-2008, amount Rs.25,000=00
d) BAN09796 dated 30-8-2008, amount Rs.25,000=00
e) BAN-15328 dated 25-12-2008, amount Rs.25,000=00
Total amount of Rs.1,15,000=00.
The OP did not respond, again the complainant has approached his authority several times to refund the entire amount. The OP authority assured to refund the entire amount in the month of Nov.2011, however even after expiry of Nov-2011 the authorities of OP failed to repay the amount of Rs.1,15,000=00 inspite of several requests and reminders on one pretext or other pretext. The authorities of OP were avoiding the complainant. Suddenly in the month of Feb.2012 the complainant has received a call from country club informing regarding the requirement for payment of Rs.40,000=00 towards registration charges and in this regard the complainant several times approached through phone but customer care people of OP have not responded. All the above events clearly go to show that country club has cheated the complainant. Therefore the complainant got issued a legal notice to the OP on 15-3-2012 and the said notice was served on the OP, the OP has not made the payment nor replied the notice. The complainant has paid hard earned life savings to the OP with a hope that he would get the benefit of the club. The complainant had to travel to the office of the OP at Bangalore on several occasions for demanding repayment of the amount. The complainant has spent a huge amount. There is a deficiency of service on the part of the OP, on account of it the complainant has undergone greater hardship and suffered physical pain, mental stress and agony. The OP has failed to settle the genuine claim of the complainant, so there is deficiency of service on the part of the OP. Hence, the complainant has come up with the present complaint.
3. After service of the notice, the OP has appeared through its counsel and filed version, contending interalia as under:
The complaint of complainant is not maintainable either in law or on facts. The complainant having learnt about the facilities and benefits provided under the cool scheme, applied for membership by paying part payment through various cheques and the OP has issued receipts. The complainant was inducted as a member of the OP club and issued a membership card bearing no.KOOL3836. The OP has issued allotment letter in favour of the complainant, allotting two complimentary plots at VEDIC SPA. In the membership application form, welcome letter and also in the allotment letter, the OP has specifically informed the complainant that the complementary plot allotted would be registered only on payment of the full membership fee and registration and maintenance charges. Pursuant to the allotment of the said complementary plot, the OP has informed the complainant to deposit a sum of Rs.50,000=00 towards the registration charges of the complimentary plot along with other charges for maintenance within 30 days, if the complainant is ready to register the two complimentary plots at Vedic SPA, Pandiparthy village, Ananthapur district. The offer of the OP was in addition to the services provided by the OP in general, the complainant by paying the initial fees had availed of the hospitality services provided by the OP. The sites agreed to be provided by the OP was only a complimentary offer. Any grievances of the complainant with regard to the failure on the part to convey the agreed site would be a breach of the service provided by the OP in terms of the complimentary offer. Such alleged breach could by no stretch of imagination be considered as a breach of the original service agreed to be provided by the OP and has no grievances in this regard. The OP has not committed any deficiency in service. The complainant has become member of the OP club solely to enjoy the facilities provided in its clubs and resorts. The plot allotted under the cool scheme is a complementary gift to the membership and the member fee is collected for providing the facilities. No consideration has been collected for allotment of the complementary plot and the member has to bear only the registration and maintenance charges. Since the OP has not paid any consideration for the complementary plot and his grievance in the complaint being not allotting the plot, he does not come under the meaning of consumer under the CP Act. Allotment of complimentary plot was an additional attraction for taking up membership but not an intrinsic part of the contract. Thus insofar as the allotment of complementary plot is concerned it cannot be said that the complainant was a consumer. So the complainant has no right to get redressal under the CP Act. The complainant being a consumer in relation to the membership of the OP but not in relation to additional benefit i.e. complimentary plot, so he has no locus standi to file a complaint under the CP Act. The OP has acted as per its promises by providing all the services to the complainant and also by allotting a complimentary plot. The complainant having utilized all the services provided by the OP has filed the complaint making false and baseless allegations against the OP. So far the lapse on the part of the complainant it cannot be said that the OP has committed unfair trade practice. The OP would register plot in favour of the complainant only on full payment of membership fees, statutory fees etc. and completion of legal requirement like layout, plotting necessary conversions and surveys and other necessary government formalities involved in the process. The complainant was one of the compensation simpliciter and this forum has no jurisdiction to entertain such complaint. A claim for compensation simpliciter arising out of an alleged breach of contract must be filed before a civil court and not before the district forum. The OP denies the averments of para no.6 to 12 and the complainant is put to strict proof of same. So, the complainant being a consumer in relation to the membership of the OP but not in relation to additional benefit i.e. complimentary plot and he is not a consumer within the meaning of Section 2 (d) of the CP Act. So the complaint of complainant be dismissed with cost, 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 any service including allotment of complimentary plot as stated in the complaint?
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 Negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled to any relief as prayed in the complaint.
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 ten copies of documents along with list dated 10-4-2012. On the other hand, one Venkatesh Varma, who being the authorized signatory of the OP has filed his affidavit on behalf of the OP and produced documents alongwith the version of OP and one more document alongwith the memo dated 14-8-2012. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.
7. One A.S.Manjunath, who being the complainant has filed his affidavit stating that, the OP has issued pamphlets, advertisement, circulation, catalogs and broachers to general public about the benefits of becoming a member of the OP. Being introduced by the promotion, and offer he paid a membership fee and also after completion of formalities the authorities of OP have given membership to him bearing no.KOOL-3836 of country club. In this regard OP marketing executive approached him to explain the benefits of scheme, but the OP executive also informed him that he will be entitled for residential site. He has paid that amount through cheques, as per the OP’s instruction and he has paid Rs.1,15,000=00 by issuing cheques for Rs.15,000=00, Rs.25,000=00, Rs.25,000=00, Rs.25,000=00 and Rs.25,000=00 and the OP has issued receipts. The OP did not respond; again he has approached the OP several times to refund the entire amount. The OP authority assured to refund the entire amount in the month of Nov.2011, but the OP authorities failed to repay the amount of Rs.1,15,000=00 after expiry of Nov.2011 the OP’s authorities started avoiding him under one or the other pretext. Suddenly in the month of Feb.2012 he has received a call from OP informing the payment of Rs.40,000=00 towards registration charges and in this regard he has several times approached through phone but the OP customer care people have not responded. All the above events clearly go to show that the OP has cheated him, so he got issued a legal notice to the OP and in spite of service of notice; the OP has neither complied the demand nor given any reply. He has paid hard earned money with a hope that he would get the benefit of the club and in this regard he traveled to the office of OP at Bangalore on several occasions for demanding repayment of the amount due to him. There is a deficiency of service on the part of the OP and due to that he has undergone hardship and suffered both physically and mentally. So he has filed this complaint, so the complaint be allowed and grant relief as prayed for.
8. Let us have a cursory glance at the relevant documents of the complainant. Document no.1 of the complainant is the Xerox copy of membership card of the complainant issued by the OP having membership no.KOOL-3836 and CK-522. Document no.2 is the copy of Air ticket issued in the name of complainant by OP to go to Goa. Document no.3 consists of pamphlets and Broachers of the OP given to general public. Document no.4 consists of five copies of receipts issued in the name of complainant by OP for having received Rs.15,000=00, Rs.25,000=00 Rs.25,000=00, Rs.25,000=00 and Rs.25,000=00 and in all Rs.1,15,000=00 towards membership fees. Document no.5 is the copy of letter of OP dated 26-11-2008 addressed to the complainant stating that his plot will be registered at Vedic Spa with in 30 to 50 days from the date of clearing payments. Document no.6 and 7 are the two letters of OP dated 7-1-2009 and 29-5-2009 addressed to the complainant stating that the OP has sent receipt no.15328 and laminated membership cards and CK27-M card to the complainant and the complainant was requested to remit all dues to the club and his membership number is KOOL3836. The complainant has produced copy of legal notice dated 15-3-2012 addressed to the OP stating that the complainant became a member of OP club by paying Rs.1,15,000=00 and marketing executive of OP approached the complainant and explained the benefits of scheme and executive of the OP also informed that the complainant will be entitled to residential site, but authorities of OP did not respond, the complainant has approached the OP’s authorities several times to refund the amount paid by him. The authorities of OP assured to refund the entire amount in the month of Nov.2011, but they failed to repay the amount after expiry of Nov.2011 suddenly in the month of Fe.2012 the complainant has received a call from OP to pay Rs.40,000=00 towards registration charges and in this regard the complainant several times approached the OP through phone but no reply. In fact, the OP has cheated the complainant, so the complainant will take legal action against the OP before appropriate forum and called upon to pay Rs.1,15,000=00 alongwith 24% interest and cost of notice of Rs.5,000=00 within 15 days, the complainant initiate legal proceedings against the OP for deficiency of service at the cost of the OP. The complainant has produced copies of postal receipts and postal acknowledgment card.
9. The said oral and documentary evidence of complainant go to disclose that, the complainant has gone to Goa through Air at the cost of OP. But in the complaint and evidence of complainant nowhere the complainant stated specifically that he has availed other facilities of OP, but the OP did not allot a site. The entire complaint and evidence of complainant is silent about the availment of other facilities of OP by complainant. But the complainant has made much in the complaint and during the course of evidence that, the OP has not allotted a site as promised. It is an admitted fact between the parties that, the site to be allotted to the complainant by OP is a complimentary site. The complainant has not paid any amount, particularly for the allotment of site but he paid the amount towards membership of OP club. The OP has produced one letter dated 21-5-2009 addressed to the complainant stating that, the complainant has been allotted a complementary free site at Vedic country Spa project II KOOL and he requested to pay Rs.25,000=00 towards site confirmation administrative charges which includes registration the stamp paper fees along with miscellaneous charges. Since no attempt was made by the complainant to pay the said amount to the OP towards registration and administration charges complimentary site has not been transferred in the name of complainant and offer of the complimentary site was in addition to service provided by the OP to its customers. The OP has stated both in the version and in the evidence of employee of OP that, the complainant has availed of various hospitality services provided by the OP and has no grievances in this regard as the complainant has not paid any consideration for the complimentary site and his main grievances in the complaint being not allotting the plot, the complainant does not come under the definition of consumer under the CP Act.
10. The oral evidence of complainant that, the OP did not act as per the terms of the contract by not conveying the site to him is not corroborated by any tangible documentary evidence.
11. At this stage, it is relevant to have as cursory glace at the material evidence of the OP. One Venkatesh Verma who being the authorized signatory of the OP has stated in his affidavit that, the complainant was inducted as a member of the OP club and OP issued a membership card No.KOOL3826 and the OP has issued allotment letter in favour of the complainant allotting two complimentary plots in VEDIC SPA and the OP has informed the complainant to deposit a sum of Rs.50,000=00 towards the registration charges within 30 days, the sites agreed to be provided by the OP was only a complimentary offer. The complainant has availed of various hospitality services provided by the OP and he has no grievances of hospitality service of the OP, and only grievance of the complainant is for not conveying the agreed site in terms of the complimentary offer and such alleged breach could be considered as a breach of the original service agreed to be provided by the OP. The complainant does not come under the meaning of consumer under the CP Act as he has not paid any consideration for complimentary plot. Since the complainant did not pay Rs.50,000=00 towards registration charges it can not be said that the OP has committed unfair trade practice. The OP has fulfilled its part of the obligation by providing all the services to the complainant, there is not negligence or deficiency of service on the part of the OP, so the complaint be dismissed with cost.
12. The OP has produced one letter dated 25-5-2009 issued by the OP addressed to the complainant stating that, the complainant has been allotted a complimentary free site at VEDIC Country Spa and he requested to pay a sum of Rs.20,000=00 towards administrative charges within 30 days. In order to show before the forum that, the complainant has not availed any hospitality service of the OP, no documentary evidence is produced by the complainant. Moreover, it is not the case of complainant that, he has not availed hospitality service of OP after becoming the member of OP club. On the other hand, the OP has reiterated both in the version and during the course of evidence of employee of OP that, the complainant has availed hospitality service of OP very well, he was allotted complimentary site but he did not pay the administrative charges. The oral evidence of employee of OP that, the plot was allotted to the complainant but he did not pay the registration charge stands corroborated by documentary evidence of OP.
13. Taking and oral and documentary evidence of OP and compare the same with the material evidence of complainant, it is vivid and clear that, the complainant after becoming the member of OP club by paying the membership fees has availed hospitality service and whatever offer of the site made by the OP is complimentary officer in addition to hospitality service. The complainant has been allotted a site, as per the allotment letter issued by the OP, but the complainant has failed to pay registration charges as requested by the OP. In fact, there is lapse on the part of the complainant in not paying the registration charges, even after the OP called upon the complainant to pay it by issuing a letter. The OP has provided all service to the complainant as per the agreement between the parties. As the complainant did not pay the registration charges, so the site allotted has not been conveyed to the complainant and as such, we are of the view that, the oral and documentary evidence of OP are more believable trustworthy and acted upon than the material evidence of complainant. So under the circumstance, we are of the considered opinion that, the complainant who comes to forum seeking relief has utterly failed to prove this point with clear and tangible material evidence that, the OP is negligent and there is deficiency of service on the part of the OP in not providing any service including allotment of complimentary site as agreed and accordingly we answer this point in a negative.
14. In view of the negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. No cost.
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 3rd day of June 2014).
MEMBER PRESIDENT
