BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    07^th DAY OF SEPTEMBER 2019

Complainant/s: -                           

Sri.R.Krishnappa

S/o Late Ramappa,

Aged about 53 years

R/at: C/o Rajanna,

Teacher Colony,

M.V.Badavane,

Hoskote,

Bengaluru.

By Adv.Sri.D.Nagaraja Reddy

V/s

Opposite party/s:-    

1. Country Club,

Reg.Office at Amrutha

Castle, 5-9-16,

Saifabad,

Opp.Secretaiat,

Hyderabad-500063.

Rep. by The General Manager

2. Country Club,

Branch Office at No.55/1, Devarabisanahalli,

Marathahalli,

Outer Ring Road,

Bengaluru-37.

By Adv.Sri.D.Narase Gowda

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party No.1 & 2 (herein after called as OPs) to refund Rs.40,000/- with interest at 18% p.a.; to pay damages of Rs.50,000/-; to pay cost and to award such other reliefs.

2. The brief facts of the complaint are as under:

The Complainant submits that, he entered in to Purchase Agreement for Country Vacations Classic Membership with OP on 03.02.13 by paying entire membership fee of Rs.40,000/- and furnished all relevant documents. But OPs have not issued the membership card. Whenever the Complainant approached the OPs, they keep on postponing the matter by giving one or the other vague reasons. As per the terms and conditions, OPs agreed to provide the facilities like free Tassha Gym for 1 year, 2 nights and 3 days holiday each year for 3 years for members, which are provided only for limited period. Without membership card, the so called facilities cannot be availed. The said acts amount to deficiency of service on the part of OPs. In this context, he caused legal notice dtd.05.10.13, for which no response from the OPs. Hence this complaint.

3. After issuance of notice, OPs did appear and filed version.  In the version, OPs submit that, the Complainant paid the said membership fee under various installments. Upon receipt of the amount, OPs have issued the Temporary Membership Card. Thereafter issued laminated Membership Cards. As per the terms of the Purchase Agreement, the Complainant can avail the said facilities by using Temporary Membership Card. Ops further submit that, the Complainant has not booked the holiday vacation so as to facilitate him. To Avail the holiday/vacation package, there should be 30 days in advance booking to make necessary arrangements. The club membership is for life time. There is no provision for refund of amount or cancellation of the club membership. However, the Complainant is at liberty to sell/transfer/gift the club membership to any third party. Even the annual maintenance amount of Rs.6,742/- not paid the Complainant. Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OPs filed affidavit evidence and produced the documents.  Both filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?

2. What order?

        6. Our answer to the above points are as under:

Point No.1:- Partly in the affirmative

Point No.2:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OPs. The undisputed facts which reveal from the pleadings of the parties goes to show that, the Complainant has entered in to Purchase Agreement for Country Vacations Classic Membership from Country Club India Ltd.,/Doc.1 with OPs by paying Rs.40,000/-. As per the case of the Complainant, the membership card ought to have been issued to avail the facilities provided by the OPs. But OPs did not issue the same. Whenever the Complainant approached the OPs, they keep on postponing to issue the membership card by giving one or the other vague reasons. Without membership card, OPs did not allow the Complainant to avail their service/facilities. In this context, the Complainant has issued legal notice/Doc.4 dtd.05.10.13. But OPs neither issued the membership card nor refunded the paid amount. The Temporary Membership Card/Doc.6 issued by OPs valid till June 2013 only, which has no value at all as the OPs did not permit the Complainant to visit the club.

8. The OPs to show their bonafides produced the original membership card/Doc.4 which does not bears any date. During the course of the arguments, learned counsel for the Complainant submits that, the said cards appeared to be prepared after filing of this complaint just to save their skin by the OPs. In our considered view, this possibility cannot be ruled out for the simple reasons that, the said cards are appears to be got up just to suit the defense of the OPs, as the said cards are produced by the OPs with list of documents dtd.27.03.14. These cards never seen the light of the day until produced by the OPs with list of documents dtd.27.03.14. Further it goes to show that, the Complainant was not the custodian of the said cards till filing of this complaint. Hence, the said original membership cards produced by the OPs are not from the proper custody. Hence, much reliance cannot be placed on them as the same are got up cards.

9. In the instant case, none of the service has been availed by the Complainant after paying membership fee of Rs.40,000/-. When such being the fact, the payment of “Annual Maintenance Amount” does not arise. When the Complainant has not availed any kind of service, definitely he is entitled for the refund of the paid amount as per the latest decision of Hon'ble National Commission reported in 2019(1) CPR 647 (NC) in the case of Chief in Charge of M/s.Country Vacations and Anr. vs. Jayanti Mukherjee, wherein it is held that “no amount can be retained by the service provider without offering any service.” Hence, in the light of the said decision cited supra, we come to the conclusion that, as the OP being the service provider, did not respond to the legal notice/Doc.4 sent by the Complainant for return of the paid amount. Under such circumstances, the amount of Rs.40,000/- paid by the Complainant being payment of the membership fee is certainly refundable with interest at 8% p.a. from the date of the said legal notice dtd.05.10.13 till the date of realization with litigation cost of Rs.5,000/-. Accordingly we answered point No.1 partly in the affirmative.

          10. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the Complainant is allowed in part.

2. The OP.1 & 2 jointly and severally liable to refund Rs.40,000/- to the Complainant along with interest at 8% p.a. from the date of legal notice dtd.05.10.13 till the date of realization along with litigation cost of Rs.5,000/-.

3. This order to be complied by OPs within six weeks from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 07^th day of September 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.13.03.14

Sri.R.Krishnappa

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OPs dated.07.08.14

Sri.Mohammed Akmal Pasha, Manager of OP

Copies of Documents produced by OPs

            MEMBER                                           PRESIDENT