COMPLAINT FILED ON: 19.05.2011
DISPOSED ON: 08.12.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM AT BANGALORE (URBAN)
08th DECEMBER 2011
PRESENT:- SRI.B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.A.MUNIYAPPA MEMBER
COMPLAINT NO. 948/2011
COMPLAINANTS Sri S.M.Anantharam,
Major, R/at # 1147/20
5th Main, “A” Block,
2nd Stage, Rajajinagar,
Bangalore-560010.
(Adv: Smt B.S.Nagamani
& Associates)
V/s.
OPPOSITE PARTYS The Venue Manager,
High land Holiday
Home PVT. Ltd.,
5th Mezzanine Floor,
Rear Wing,
Dickenson Road,
Bangalore-560 042.
Unit No-523.
Rept, by:
( Adv: Younous Alikhan)
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986, by the complainant seeking direction against OP to pay a sum of Rs.1,50,700/- which includes membership fees of Rs.26,000/- with interest at 20% p.a. from 6/7/2006 to March 2011 being Rs.50,700/- and damages of Rs.1 lakh 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.
OP being a private limited Company engaged in providing facilities of resorts and vacation clubs. Complainant who wish to travel during holidays attracted by the offer made by OP became the member of OP Company. Complainant paid Rs.10,000/- cash and Rs.16,000/- by way of cheque to OP on 6/7/2006. Totally complainant paid Rs.26,000/- to OP. OP issued the receipts acknowledging receipt of amount. OP accepted the membership of the complainant and issued certificate of membership dated 21/7/2006 bearing No.HC-05-148/B. The said membership is valid till July 2011. Complainant approached OP requesting OP to provide holiday vacation for himself and his family but the staff of OP replied that resorts/clubs are not vacant and asked the complainant to wait for some time or to have the same on some other day. Believing the words of the staff of OP complainant returned back. Once again on the next vacation complainant requested OP to provide club/resort for his family and children. This time also complainant received the same answer stating clubs are not vacant complainant can try for next time. Whenever complainant approaches OP for a holiday trip OP started evading on one or the other pretext and failed to provide the accommodation. OP gave an undertaking to provide best services but failed to provide the minimum service. Complainant got issued legal notice dated 18/3/2011 calling upon OP to refund membership fees with interest and damages. OP failed to refund the amount. Hence complainant felt deficiency in service against OP. Under the circumstances he is advised to file this complaint against O.P. for appropriate reliefs.
2. On appearance OP filed the version admitting membership of the complainant and receipt of Rs.26,000/- towards membership fees. It is contended by OP that complainant has made bald averments in the complaint. Nowhere complainant mentioned as to when he approached OP for availing the facilities offered. There is no material to substantiate the claim of the complainant. Complainant never visited OP nor made any request for enjoying holidays at any of the resorts. When there is no demand for any service question of deficiency in service is ruled out. Complainant admits that he has not utilized his holidays member is entitled for holidays of 6 nights and 7 days a year for a period of 5 years which complainant not utilized. Complainant got issued notice requesting for refund not for holidays. The membership was on the verge of expiry on 10-7-2011. Hence complaint is barred by limitation. There is no cause of action for the complainant. This dispute is not a consumer dispute. In the absence of any materials there is no deficiency in service on the part of OP. Among other grounds OP prayed for dismissal of the complaint.
3. To substantiate the complaint averments, complainant filed his affidavit evidence and produced two receipts, membership certificate, terms and conditions, copy of the legal notice, reply notice, letter of complainant dated 23/5/2011. On behalf of OP Venkateshverma C., Asst. Administration Manager filed affidavit in support of the defence version. O.P. has not produced copy of the sanction plan & complainant submitted written argument. Heard oral arguments from complainant 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 are 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?
6. 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
7. At the out set it is not in dispute that complainant attracted by the offers made by OP, who is engaged in providing facilities of resorts and vacation clubs became the member of the OP Company on 6-7-2006. Complainant paid in all Rs.26,000/- to OP on 6/7/2006. OP issued the receipts acknowledging receipt of amount. The receipts are produced OP having accepted the membership of the complainant even issued the membership card bearing No.HC-05-148/B. The certificate of membership is produced. Now it is the grievance of the complainant though he invested his hard earned money to enjoy the holidays. OP failed to provide the same as promised and advertised in the pamphlet, that is why complainant fed up with the hostile attitude of the OP sought for refund of the membership amount along with interest, damages and costs. When OP failed to refund the amount complainant approached this Forum for appropriate relief’s.
8. As against the case of the complainant the defence of OP is that complainant not produced any materials to show that he has approached OP to provide the holiday facilities as promised by them. When there is no demand the question of deficiency in service is ruled out. We are unable to accept this defence of the OP. We do not think in the ordinary course of time any prudent man will fail to avail holiday facility when he has invested his hard earned money of Rs.26,000/- in the year 2006. Further complainant has sworn to the fact that he repeatedly approached the office of OP requesting OP to provide vacation club. But OP replied that clubs are not vacant. When complainant felt displeasure with regard to the hostile attitude of the OP he sought for refund of membership fees. Though in its reply notice dated 15/4/2011 OP has stated that complainant can approach its Bangalore office and collect back the invested amount after necessary deductions towards processing and service charges, but till date OP has failed to refund the same.
9. It is contended by OP that the present complaint is barred by limitation. As admitted by the OP itself the complainant has enrolled as a member for a period of five years from July 2006 to 10/07/2011 and his membership expired on 10/07/2011. When that is so, we do not find any force in the allegation of the OP that the present complaint is barred by limitation. Complainant will get recurring cause of action till the expiry of his membership. As admitted by OP it has never rendered any service or provided holiday facilities to the complainant since 2006 that means OP has retained such a huge amount of Rs.26,000/- without providing any services. Retention of amount inspite of service of legal notice and letter dated 23/3/2011 of the complainant and not rendering any service as assured amounts to deficiency in service on the part of OP.
10. We have perused the copy of the order of the Hon’ble KSCDRC in Appeal No.575/2008 produced by OP. It is observed by the Hon’ble Commission that complaint is filed after expiry of the membership. But in this case present complaint is filed on 26/5/2011 membership expire son 10/7/2011. Hence the facts of the said case are not similar to this complaint. OP admits receipt of amount. OP has not produced any materials to show that it has provided any holiday facility to the complainant. Inspite of repeated request and demands OP has failed to refund the amount. We are satisfied that complainant is able to prove deficiency in service on the part of OP. Under the circumstances we are of the considered view that the complainant is entitle for refund of amount paid with cost. Accordingly we proceed to pass the following
O R D E R
The Complaint is allowed in part. OP is directed to refund Rs.26,000/- together with litigation cost of Rs.2,000/- within four weeks from the date of communication of this order. Failing which complainant is entitled to claim interest at the rate of 9% p.a. on Rs.26,000/- from December 2007 till realization 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 08th day of December 2011.)
MEMBER MEMBER PRESIDENT
