Complaint filed on: 26-12-2012
Disposed on: 30-06-2014
BEFORE THE BENGALURU IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BENGALURU URBAN DISTRICT, NO.8, 7TH FLOOR, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BENGALURU – 560 052
C.C.No.2541/2012
DATED THIS THE 30th JUNE 2014
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.H.JANARDHANA, MEMBER
Complainant: -
Vijay Mahantesh
#39, 2nd Main, Green Park
Layout, Banasawadi,
Bangalore - 43
V/s
Opposite parties:-
1. Manager,
The Country Vacation,
Country Club India
Country Club Kool,
#6-3-1219/A,
2nd Floor, Begumpet,
Hyderabad-16
2. The Manager,
The country vacation,
C/o. Country club India Ltd,
Sy. No.55/1, Varthur Hobli,
Deevarabeesanahalli,
Outer ring road, Bangalore
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs, praying to pass an order, directing the OPs to pay Rs.65,000=00 along with 18% interest and to pay Rs.30,000=00 towards compensation, in the interest of justice and equity.
2. The brief facts of the complaint can be stated as under.
On 15-9-2012 the complainant got a call from Country Vacation located at Country Club Sarjapur Road, Bangalore saying that the complainant has been selected for free gift please come and collect it. After going that they made the complainant to attend session of 45 minutes and several promises were made during session and the complainant was insisted to opt for 5 years package by paying Rs.65,000=00 on the same day and accordingly the complainant has paid Rs.65,000=00 and the OPs have issued receipt for Rs.5,000=00, Rs.10,000=00 and Rs.50,000=00. The complainant was told that he will be become all season members, but he looks his profile details online season it is mentioned as BLUE mean low priority for booking holidays. The complainant has been cheated as he is not able to see the list of holiday properties and book his holiday plans. The complainant was told that he will be getting 10 weeks of holiday for a span of 5 years whereas in agreement it was mentioned as 6 nights / 7 days and on objecting that they told that this agreement is generic agreement and is not applicable to him. Looking to the point 3 of annexure – II of attachment, the complainant was told that he will not require to pay annual maintenance charge of Rs.6,000=00 and they had confirmed by putting seal saying this clause is not applicable on agreement paper. But on contacting customer care via email the complainant was told that annual maintenance charge is payable and he will have to pay utility charges and tax. The utility charges varies from Rs.700=00 to Rs.1200=00 depends on season and tax is 12% of total bill and once again the complainant was cheated by the OPs. The complainant was promised with life time membership card for country club after reading document and raised issue saying only one year is mentioned but they convinced saying that clause is not applicable and they have put seal saying that clause is not valid to complainant. Within 24 hours of becoming member the complainant went to country vacation office and asked to provide all season membership card but they refused to do so and also told that they cannot refund fee. Before filing the case in consumer forum on 29-10-2012 notice was sent to country vacation but till date the complainant has not got any of the response. The complainant is not happy with this deal of the OPs so he requests the consumer forum to help him in getting his money along with 12% interest and Rs.30,000=00 damages towards mental torture and stress. Hence the complainant has come up with the present complaint.
3. After service of the notice, the OPs has appeared through his counsel and filed version, contending inter-alia as under:
The complaint of complainant is not maintainable and it is liable to be dismissed with cost. The complainant has not approached this forum with clean hands. The complainant has made all sorts of baseless allegations against this OPs. The OPs admits receipt of total sum of Rs.65,000=00 on 15-9-2012 from the complainant subject to the terms and conditions of the purchase agreement dated 15-9-2012. The OPs have already issued the laminated cards to the complainant, there is no any deficiency of service on the part of the OPs and there is no cause of action to file the complaint. It is false to say that, the OPs have promised the complainant and the category of membership is assigned as blue instead of all seasons member. The complainant by paying Rs.65,000=00 towards the holiday vacation for which the complainant is entitled for 6 nights and 7 days every years for a period of 5 years. The complainant has to pay Rs.65,000=00 to avail the facility of 10 days for every years. The complainant cannot seek the said benefit by paying Rs.65,000=00. Every member is liable to pay annual maintenance charges depending on their category. The complainant instead of remitting the annual maintenance charges has made all sorts of baseless allegations. The complainant in addition to the holiday vacation for five years and however he is entitled for life membership to the club and at no point of time this OPs have informed the complainant that membership to the club is for one year. The complainant with a dishonest and mala-fide intention has filed the above complaint by making all false and baseless allegations. The complainant in order to avoid annual maintenance charges has conspired and filed the false and frivolous complaint. The OPs are providing best services in their field without any blemish and even in the complaint there is no iota of evidence, so the complainant is not entitled for any relief. It is crystal clear from the complaint and documents placed by the complainant that there was no deficiency on the part of the OPs. The complainant is enjoying the club facilities on one part and on the other part filed the false complaint. The complainant is not entitled for refund of amount and paying of interest thereon and there is no contract in regard to payment of interest and when there is no deficiency of service on the part of the OPs seeking compensation does not arise. Hence it is prayed to dismiss the complaint of complainant.
4. So from the averments of the complaint of complainant and version of the OPs the following points arise for our consideration.
1. Whether the complainant proves that, the OPs is negligent and there is deficiency of service on the part of the OPs, in not acting as per the agreement between them?
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 finding on the
Point no.1, the complainant is not entitled to any relief as prayed in the complaint
Point no.3: For the following reasons
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced copies of documents along with complaint and also 7 documents along with written argument of complainant. On the other hand, one Mammed Nawaz, Manager working in the OPs office has filed his affidavit on behalf of the OPs and produced four documents along with list dated 5-2-2014. 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 Vijay Mahantesh, who being the complainant has stated in his affidavit that, he got a call from Country Vacation located at Country Club Sarjapur Road, Bangalore and told him to come and collected the gift and accordingly he went and collect the gift and after that they made him to attend session of 45 minutes & after the session he was insisted to opt for 5 years package by paying Rs.65,000=00 on 15-9-2012 and obtained receipts for Rs.5,000=00, Rs.10,000=00 and Rs.50,000=00 and he will become all season members, but his online profile of country vacation says that, he was the member of blue session and he got a membership card to that effect he will not require of paying annual maintenance charge of Rs.6000=00 & in the agreement putting seal of clause is not applicable but as per the communication from OPs payment of annual maintenance charges is mandatory. Booking holiday tab was disabled until recent but now he is able to book holidays but while making payment and get message saying paying of Rs.700=00 day as utility charges as he has not paid annual maintenance charges and he has got mail confirmation for country vacation on confirming the utility charges. He will get 10 weeks of holidays for span of 5 years whereas in agreement it was mentioned that as 6 night and 7 days on objecting that they told that agreement is generic and this clause does not apply to him but still the same will show only 6 night/7 days of holiday in online profile. He was told that he will get life time membership card for family with swimming pool and gym facility, in the agreement by putting seal of clause is not applicable but this is not correct. The OPs have cheated him and he has been to office whenever they called him to discuss on this issue and he suffered loss as he has applied leave to attend hearing whenever required, so he seeks Rs.30,000=00 compensation for mental agony caused due to deficiency of service on the part of the OPs. So he prays to pass an order, directing the OPs to pay Rs.65,000=00 + Rs.30,000=00 compensation, interest and cost from the date of filing of complaint till realization, in the interest of justice and equity.
8. Document no.1 is email letter of OPs sent to the complainant dated 16-9-2012 for having received Rs.10,000=00 on 15-9-2012 from complainant towards club membership fee. Document no.2 and 3 are email letter of OPs sent to the complainant for having received Rs.5000=00 and Rs.50,000=00 from the complainant towards club membership fee. Document no.4 is copy of purchase agreement between complainant and OPs dated 15-9-2012 and it is signed by both parties. Document no.5 consists of email letters correspondences between complainant and OPs. The complainant has sent email letter to OPs asking some clarification about paying utility charges if not paying the annual maintenance fee and utility charges are mandatory to pay if use tie up properties and pay AMC fee and to that employee of OPs has given reply to the complainant stating that, after paying the AMC no need to pay any extra charges or taxes utility charges is applicable if AMC not paid which depend on property as well as on seasons regarding in booking he can reply to this mail and the complainant can pay AMC with discount also and employee of OPs has attached tie up property list to the complainant.
9. At this stage, it is relevant to have a cursory glance at the material evidence of OPs. One Mammed Nawaz, Manager working in the OPs office has stated in his affidavit that, the complainant has entered in to the purchase agreement and has paid total amount of Rs.65,000=00 on 15-9-2012 and the OPs have issued the laminated membership card to the complainant. The complainant and his dependent family members are entitled club membership for life time. However so far as concerned to the holiday vacation the complainant is entitled for 6 nights and 7 days in a year for a period of 5 years as per the terms and conditions of purchase agreement. In spite of that the complainant has filed a false case against the OPs. There is no deficiency of service on the part of the OPs and mere making false allegations against the OPs will not take any case of the complainant. The OPs never assured the complainant that he will become the member of all season’s member. The complainant never booked for Holiday vacation with the OPs such being the factual position rendering the deficiency in services does not arise. There is no cause of action to file the complaint and the complainant has filed the complaint with a dishonest and mala-fide intention, so the complaint be dismissed with cost.
10. The OPs have produced purchase agreement between the complainant and OPs dated 15-9-2012 signed by both complainant and OPs wherein it is stated that the second party i.e. the complainant desires to become a member of the company and he has gone thoroughly all the terms and conditions of the membership purchase agreement, CCIL explained all the terms and conditions of the agreement to the complainant and memberships fee is non-refundable, the AMC needs to be paid on time, failure to pay the said amount the members cannot utilize the facilities until the dues are cleared. AMC is of Rs.6,000=00 per years.
11. The oral evidence of employee of OPs as mentioned that, annual maintenance charges shall be paid by member and annual membership fee paid by member is non-refundable is countenanced by terms and conditions of purchase agreement between the complainant and OPs.
12. On making careful security of the material evidence of both parties, it is made crystal clear that, the complainant after becoming the member of OPs club by paying Rs.65,000=00 towards membership, has not paid annual maintenance charges as per the agreement. When the complainant has applied for availing the holiday facilities of OPs club, the OPs have informed to the complainant to pay utility charges as annual maintenance charges has not paid without paying AMC or utility charges, the complainant has come up with the present complaint seeking return of membership fee, compensation of Rs.30,000=00 and cost of litigation.
13. The complainant has reiterated both in the complaint and during the course of his evidence that he became all season members and he will be getting 10 weeks of holidays for a period of five years, but in the agreement it was mentioned as six nights/seven days. But in order to show before the forum that, the complainant will become all season member as per the say of OPs and he will be getting 10 weeks of holiday for a span of five years and not six nights/seven days as per the agreement no believable documentary evidence is produced by the complainant. In the absence of vouchsafing clear and tangible documentary evidence, it is unsafe and hazardous to hold on the sworn testimony of the complainant that he will be all season membership and he will be getting 10 weeks holiday for a span of five years. The complainant after becoming a member of OPs club by paying Rs.65,000=00 towards membership fee has to act in accordance with the terms and conditions of purchase agreement between the parties. Instead of that the complainant has acted quite contrary to the terms and conditions of purchase agreement between the parties. In fact, the OPs has acted in accordance with the terms and conditions of purchase agreement between the complainant and OPs and there is no negligence or deficiency of service on the part of the OPs and as such we are of the view that, the oral and documentary evidence of OPs placed before the forum are more believable trustworthy and acted upon than the material evidence of complainant. So making careful scrutiny of the case of complainant on the background of material evidence of both parties, we are of the opinion that, the complainant who comes to forum seeking relief has failed to prove this point with believable material evidence that, the OPs are negligent and there is deficiency of service on the part of the OPs in not acting as per the terms and conditions of the agreement between the parties, and accordingly we answer this point in a negative.
13. In view of our negative finding 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 foregoing 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 30th day of June 2014).
MEMBER PRESIDENT
