Complaint filed on: 01-08-2011
Disposed on: 28-05-2014
BEFORE THE BENGALURU IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BENGALURU URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BENGALURU – 560 052
C.C.No.1419/2011
DATED THIS THE 28th MAY 2014
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.H.JANARDHANA, MEMBER
Complainant: -
Sri.Jayashankarachar,
S/o. Late Lingachar,
Aged about 40 years,
Residing at No.23,
2nd Cross, Raghavanagar,
New Timber Layout,
Mysore Road, Bangalore
V/s
Opposite party: -
M/s. Country Club (India) Ltd,
Member Relation Division,
No.847/1 (Adj. to Post office),
100 ft road, Indiranagar,
Bangalore-38
Reptd by Manager
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, under section 12 and 13 of the Consumer Protection Act, praying to pass an order, directing the OP to refund Rs.55,000=00 alongwith interest at 24% p.a. from the date of payment till the date of repayment, to pay Rs.25,000=00 towards compensation and damages and other reliefs, in the interest of justice and equity.
2. The brief facts of the complaint can be stated as under.
The OP has invited the application for becoming Mr.Super Cool Member of OP club by issuing brochures and promised of providing one week holiday for 30 years across 3800 destinations in 97 country for one week accommodation for 2 adults and 2 children at an exclusive studio accommodation at any of the country club properties, RCI exchange holiday at any of the 3800 destinations across 97 countries, direct access to 16 own clubs in India and 220 affiliates across the globe and RCI membership and 2178 Sq ft of land at the country club coconut grave. He was induced to accept the above offer by OP representatives who called on him and he was compelled to accept the above offer. The complainant was forced to pay initially a sum of Rs.55,000=00 towards the above offer and promise of providing the benefits. The complainant has paid the amount of Rs.55,000=00 on 23-7-2007 and OP has issued the receipt. After payment of Rs.55,000=00, the complainant has contacted OP and enquired with regard to the allotment of site in his favour, but the OP has not assisted properly. On the other hand, the OP has demanded the complainant to pay additional amount without providing proper service. The OP has not shown any sites in favour of complainant even though the part of payment of Rs.55,000=00 was paid. Whenever he visited the OP office, officials of the OP have not properly informed the progress of the complainant membership and official of the OP has given evasive reply. The complainant has paid Rs.55,000=00 with a fond of hope that the he may get site facility as promised by OP. But the OP had not fulfilled the assurance and promise made by OP. So, the complainant has got doubt with the attitude of the OP. The complainant with an intention to take back the amount has requested and demanded the OP for refund of the above amount. Inspite of repeated requests and demands for refund of the amount, the OP never bothered either to refund the amount or to take any steps in favour of the complainant. So the complainant has come up with the present complainant.
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 and it is liable to be dismissed in limine. The complainant having learnt about the facilities and benefits provided under the said scheme, applied for membership and he had paid part payment of Rs.55,000=00 towards membership fees through cheques and he was inducted as a member of the OP club. The OP issued a membership card bearing no.BLGCK 338B. In the membership application form, 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 charges. Pursuant to the allotment of the said complementary plot the OP has informed the complainant to deposit a sum of Rs.15,000=00 towards the registration charges along with other charges for maintenance, service tax and etc. in favour of the club. The OP has purchased several lands in their favour and subsequently they would execute necessary gift deeds concerning the free complementary plot in favour of eligible members. However the complainant did not deposit the said charges in spite of several reminders and as such the complementary plot allotted in favour of the complainant was not registered. The sites agreed to be provided by the OP was only a complimentary offer made by the OP & any grievance of the complainant with regard to the failure on the part of the OP to convey the agreed site would be a breach of the service provided by the OP, 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. The complainant has availed of various hospitality services provided by the OP and has no grievances in this regard. The OP has not committed any deficiency in service / unfair trade practice in that regard. The plot allotted under the cool scheme is a complementary gift to the membership and the membership 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 which was made known in the membership application itself. Since complainant has not paid any consideration for the complimentary plot and his grievance in the complaint being not allotting the plot 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 for which the complainant made payment. Hence the complainant has no right to get redressal under the CP Act. Hence, the complainant is not a consumer within the meaning of Section 2 (d) of CP Act. The complainant having utilized all the services provided by the OP has filed the complaint making false and baseless allegations against the OP. The complimentary plot was not registered in favour of the complainant as he failed to pay the remaining membership fee and the registration and miscellaneous charges in spite of several reminders. So for the lapse on the part of the complainant it cannot be said that the OP has committed unfair trade practice. This forum has no jurisdiction to entertain such complaint. The OP has sent various reminders through mobile, email and post letters to the OP to pay the remaining money and register the said complimentary plot. Since the complainant did not revert to OP in time, question of allotting the site does not arise. The terms and conditions states that, in case amount is remitted in part along with the application the balance of money should be remitted within 30 days of the payment of the initial payment. In case the application is not accepted by the board of governors, the application money will be refunded within 90 days of date of application. In case full amount of membership fee is not remitted within six months of allotment of membership then the money remitted till then would be forfeited by the club and membership allotted if any would be cancelled and accordingly the complainant’s membership is cancelled. The OP denies the averments of para 3, 4, 6 to 9 of the complaint, hence it is prayed to dismiss the complaint, 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 the service after collecting the amount from him as promised in respect of site?
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 three documents with list dated 1-8-2011. 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. 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 Jayashankar Char, who being the complainant has stated in his affidavit that, the OP has invited an application for becoming Mr.Super Cool Member of OP club by issuing brochures and promised of providing one week holiday for 30 years across 3800 destinations in 97 country for one week accommodation for 2 adults and 2 children at an exclusive studio accommodation at any of the country club properties, RCI exchange holiday at any of the 3800 destinations across 97 countries, direct access to 16 own clubs in India and 220 affiliates across the globe and RCI membership and 2178 Sq. ft. of land at the country club coconut grave and the OP has promised to provide the site facility and accordingly he took the membership with the OP and he has accepted the above offer of representatives of the OP and the OP representatives forced him to pay initial payment of Rs.55,000=00 on 23-7-2007 and OP has issued the receipt. After payment of Rs.55,000=00, he has contacted OP and enquired with regard to the allotment of site in his favour as promised by the OP, but the OP has not properly assisted him and demanded him to pay additional payment. Whenever he visited the OP office, officials of the OP have not properly informed the progress of the membership and have given evasive reply. He has paid Rs.55,000=00 with a fond of hope that he may get the site facility as promised by the OP, but the OP has not fulfilled the assurance and promise, despite of receiving Rs.55,000=00 from him & so he got doubt about the attitude of the OP. Thereafter, without alternative remedy he has contacted the OP and requested him to repay the said amount, but the OP refused to repay the said amount. The OP has not bothered to refund the amount nor taken any steps. This is clear negligence on the part of the OP, so he has come up with the present complainant, so the complaint be allowed and grant relief as prayed for.
8. Let us have a look at the relevant documents of the complainant. Document no.1 of the complainant is letter of OP dated 27-7-2007 addressed to the complainant enclosing receipts, laminated membership card. Document no.2 is the letter of OP addressed to the complainant dated 23-7-2007 telling congratulation for becoming the gold crown premium super country kuteeram after payment of Rs.55,000=00 toward facility. Document no.3 is the letter of complainant along with endorsement copy praying for return of the amount, the said document was annexed with the member request form, on the remarks, to return the amount of Rs.55,000=00 having seal of the OP office and signature of the employee of OP.
9. Let us have a cursory glance at the material evidence of the OP. One Venkatesh Varma who being the authorized signatory of the OP has stated in his affidavit that, the OP has pioneered in making the clubs and resorts accessible to the common people, by offering the membership at affordable prices. The complainant having learnt about the facilities and benefits provided under the said scheme, applied for membership and he had paid part payment of Rs.55,000=00 towards membership fees and he was inducted as a member of the OP club and the OP has issued a receipt. The OP has informed the complainant specifically that, the complementary plot allotted would be registered only on payment of the full membership and registration charges and further pursuant to the allotment of the said complementary site, the OP has informed the complainant to deposit a sum of Rs.15,000=00 towards the registration charges along with other charges for maintenance and service tax to the OP, but the complainant did not deposit the said charges in spite of several reminders and as such the complementary plot allotted in favour of the complainant was not registered. The claim amount of Rs.55,000=00 was paid by the complainant for the purpose of membership with the OP. The OP is in the business of providing hospitality services to its members and the offer of the OP was in addition to the services provided by the OP in general. 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 complainant has not paid any charges for complaint, so his grievance in the complaint being allotting a plot does not come under the CP Act. There is no negligence or deficiency of service on the part of the OP in not allotting a complementary plot, so the complaint of complainant be dismissed with cost.
10. The OP has produced the copy of application form filled up and signed by complainant to OP wherein we have found non-refundable clause.
11. On making careful scrutiny of the oral and documentary evidence of both parties, it is made manifest that, the complainant has become a member of OP club by paying Rs.55,000=00 and receipt has been issued to the complainant by OP and in the document produced by the complainant dated 23-7-2007, it is specifically stated that, the complimentary plot will be allotted only on payment of full membership fees towards gold crown premium super life card. But unfortunately no documentary evidence is produced by the complainant for having paid full member ship fees to the OP. The offer of plot by OP to complainant is complimentary one provided the member pays full membership fees to the Ops. Moreover, the complainant has no grievance against the OP in the complaint with regard to not providing other facilities in the OP club. But the main grievance of complainant in the complaint is about not allotting the plot as per the promise of OP. Since the OP has collected the amount Rs.55,000=00 towards membership fees of club and not towards allotment of complimentary plot. So there is no question of asking the OP to allot a site as promised. The complimentary plot was not registered in favour of the complainant as the complainant has failed to pay the remaining membership fees, registration charges and miscellaneous charges in spite of demand by the OP. So far the laps on the part of the complainant it cannot be held on presumption and assumption that the OP has committed negligence or there is deficiency of service on the part of the OP in not providing the service after collecting the amount from the complainant. The oral and documentary evidence of the complainant placed before the forum are not sufficient enough to hold that, the OP is negligent and there is deficiency of service on the part of the OP in not allotting the complimentary site to the complainant and as such, we are of the view that, the complainant has failed to prove this point with believable evidence that the OP is negligent and there is deficiency of service on the part of the OP in not allotting the complimentary site, and accordingly, we answer this point in a negative.
12. 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 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 28th day of May 2014).
MEMBER PRESIDENT
