Complaint filed on: 20-03-2016
Disposed on: 14-06-2016
BEFORE THE BENGALURU III ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COMPLEX, 1ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027
CC.No.536/2015
DATED THIS THE 14th DAY OF JUNE 2016
PRESENT
SRI.H.S.RAMAKRISHNA, PRESIDENT
SMT.L.MAMATHA, MEMBER
Complainant: -
Sri.V.V.Ramaraju
S/o. V.Chittiraju
Aged about 46 years,
R/ at Flat no.306,
Mahaveer Springs Annexe,
17th Cross, 15th Main,
JP Nagar, 5th Phase,
Bengaluru -78
V/s
Opposite parties:-
- The Country Club India Ltd,
No.55/1, Devarabeesanahalli, Marathahalli outer ring road, Varthur hobli, Bengaluru-37
Reptd by its Secretary
- Administration and Customer Care Manager,
The country club India Ltd,
No.55/1, Devarabeesanahalli, Marathahalli outer ring road, Varthur hobli, Bengaluru -37
ORDER
SRI.H.S.RAMAKRISHNA, PRESIDENT
This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the 1st OP to refund a sum of Rs.1,25,000=00 together with interest thereon at 18% per annum with effect from 10-7-2007 till the date of payment by cancelling the membership and to pay a sum of Rs.25,000=00 as damages/compensation.
2. In the complaint, the complainant alleges that, the complainant became a member of “Mr.Cool Life Membership” of OP and paid a sum of Rs.1,25,000=00 and the OP offer promising several incentives like allotment of site measuring 1633 sq. ft. at Tumkur. The OP fails to allot the site and the complainant made several requests and personal visits to the OP has not formed any layout. The complainant requested to cancel his membership and to refund the amount Rs.1,25,000=000. The OPs are falsely stating that they allotting the site at Hindupur in Andra Pradesh provide the complainant pay them an additional amount of Rs.35,000=00 and are putting several terms and conditions. The complainant demanded the OPs to cancel the membership and for refund the sum of Rs.1,25,000=00. Hence the present complaint is filed.
3. In response to the notice, the OPs have appeared through their counsel and filed common version. In the version, they pleaded that, the complaint is false and frivolous. The OP introduced a scheme i.e. Mr.Cool Card Members. A member of the club under the said scheme would get the following facilities 1) Country Club Cool Life Membership, 2) Complementary plot, 3) Holiday package of 2 nights 3 days stay in Bandipur, Bush Betta, 4) Access to all the Clubs in India and other facilities and 5) Non-refundable membership fee in this scheme is Rs.1,25,000=00. The complainant having learnt about the facilities and benefits provided under the cool scheme applied for membership by paying Rs.1,25,000=00 by paying Rs.1,25,000=00, thereby the complainant was inducted as a member of the OP club and OP has issued a membership card bearing No.COOL VS1093. Thereafter, the OP has issued allotment letter in favour of the complainant. In the membership application form, welcome letter and also in the allotment letter, the OP specifically informed the complainant that the complementary plot allotted would be registered only on payment of full membership fee and registration and maintenance charges. Further pursuant to the allotment of the said complementary plot, the OP has informed the complainant to deposit a sum of Rs.35,000=00 towards the registration charges and the complainant has to pay AMC charges of Rs.25,572=00. Since entire process for procuring and allotment of complementary plot was being done by M/s. Country Condos Limited / Amrutha Estates are sister concern of the OPs. The OPs had purchased several lands in their favour and subsequently they would execute necessary gift deeds concerning the free complementary plot in favour of the eligible members. The complainant would get a complimentary site for his membership in Vedic Spa, Project-II, Penukonda, Pandiparthy village, Ananthapur district, AP. Upon payment of registration fee of Rs.35,000=00. The claim amount was paid by the complainant to the OP only for the purpose of membership with the OP. The offer of the OP was in addition to the service provided by the OP in general. The complainant by paying the initial fees, has availed of the hospitality services provided by the OP. The sites agreed to be provided by the OP was only a complimentary offer. 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 it 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. The complainant has availed of various hospitability services provided by the OP and has no grievances in this regard. The OP has not committed any deficiency in service in this regard. Under the circumstance, this forum may dismiss the above complaint. The complainant has become member of the OP club solely to enjoy the facilities provided in its clubs and resorts which facilities he has to avail by visiting the clubs and resorts. The plot alloted 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 which was made known in the membership application itself. Since the OP has not paid any consideration for the complimentary 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. The complainant has paid for getting the membership of the OP club and the facilities provided has been availed by him. 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. Thus in so far as the allotment of complementary plot is concerned, it is cannot be said that the complainant was a consumer. Hence he has no right to get redressal 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. The complimentary plot was not registered in favour of the complainant just because he failed to pay the registration charges and AMC charges and miscellaneous charges inspite of several reminders. Hence for the lapse on the part of the complainant it cannot be said that the OP has committed unfair trade practice. The OP having allotted a complimentary plot to the complainant and was always ready to register the same in his name subject to depositing the registration charges by the complainant, the OP has fulfill its part of the obligation by providing all the services to the complainant. This forum has no jurisdiction to entertain the same. As per clause 36 of the terms and conditions, in case of any dispute the mater same shall be referred to the Arbitration of a sole arbitrator to be appointed by country club, governing such arbitration shall be the Arbitration and Consolation Act 1996. Clause 27 and 29 of the terms and conditions states that in case full amount of membership fee is not remitted within 45 days of allotment of membership, membership allotted if any would be cancelled withhold membership without assigning any reason and the management of the club has all right to cancel the membership of any member with immediate effect for whatsoever reason and the said member is not liable for refund of any membership fee. Hence prays for dismissal of the complaint.
4. On behalf of the complainant, the affidavit of one V.V.Ramaraju has been filed. On behalf of the OPs, the affidavit of one Venkatesh Varma has been filed. Heard the arguments of both the parties.
5. Now the points that arise for our consideration are;
- Whether the complainant has proved the alleged deficiency in service by the OPs?
- If so, to what relief the complainant is entitled?
6. Our findings on the above points are;
Point no.1: In the Affirmative
Point no.2: As per the final order
REASONS
7. As looking into the allegations made in the complaint and also version filed by the OPs, it is not in dispute that, the complainant became the member of Mr.Cool Life Membership on payment of Rs.1,25,000=00 to the OPs, for that to substantiate this fact, the complainant in his affidavit reiterated the same and also produced the application form of Mr.Cool Life Membership. As looking into this document, on 19-7-2007 the complainant applied for membership of Mr.Cool Vedic Spa Membership Fee in the OPs and he has paid a sum of Rs.1,25,000=00 towards membership fee. In support of this, the complainant is also produced receipt issued by the OP, the receipt no.13132 dated 10-7-2007, under this receipt, the OP has received Rs.75,000=00 from the complainant and receipt no.54715 dated 10-7-2007, under this receipt, the OP has received Rs.25,000=00 from the complainant on account of Mr.Cool Vedic Spa Membership fee and under receipt no.54716 dated 10-7-2007 under this receipt the OP has received a sum of Rs.25,000=00 from the complainant, on account of Mr.Cool Vedic Spa Membership fee and also produced welcome letter addressed by the OP to the complainant informing about the facilities provided by OP to complainant, the member of Mr.Cool Life Membership. This evidence of complainant remains unchallenged, to discard the evidence of complainant, there is no rebuttal evidence, therefore it is proper to accept the contention of complainant that, the complainant became the member of Mr.Cool Life Membership of OP Company by paying a membership fee of Rs.1,25,000=00.
8. It is further case of complainant that, at the time of enrolment of complainant as Mr.Cool Life Membership of the OP, the OP had assured the complainant that a site measuring about 1633 sq. ft. at Tumkur would be allotted to the complainant. Even as days passed by the OP did not allot any site at Tumkur as assured or at any other place nearer to Bengaluru. The complainant made several requests over phone and also by personally visiting the office of OP and requesting the OP to adhere to the assurance. The OP has not formed any layout nor is it possessed of any sites to be allotted to its member and OP by practicing deception, misrepresentation and offering inducement has collected crores of rupees from various members. All efforts made by the complainant till date to prevail upon the OPs to allot him a site at Tumkur as assured by them as futile. In the circumstances the complainant requested the OPs to cancel his life membership and to refund a sum of Rs.1,25,000=00 with interest. The OPs are falsely stating that they would try to allot a site at Hindupur in Andhra Pradesh to provide the complainant to pay an additional amount of Rs.35,000=00 and are putting forth several terms and conditions which were not at all mentioned at the time of enrolment of the complainant as a Mr.Cool Life Member. In order to establish the same, the complainant in his sworn testimony reiterated the same and the complainant has produced a letter of allotment, as looking into this document dated 4-8-2007 addressed to the complainant informing the complainant that, the OP has allotted a complimentary free site at Coconut Grove Vedic Country Spa, Phase-IV, Site no.224, site measuring 1633 sq. ft. but in the said allotment of letter, it is not mentioned that, the site was alloted at Tumkur, but on the other hand, the site was alloted in Phase –VI of Coconut Grove Vedic Country Spa. No doubt, in the allotment of letter issued by the OP mentioning that, the complainant has required to pay a sum of Rs.20,000=00 towards site confirmation administration charges which includes at the time of registration the stamp paper fees, registration expenses and along with maintenance charges, but in the application form Mr.Cool Life membership it is not show in the application form, they have mentioned that, the country club membership + complimentary of plot at Coconut Groove Banyan Tree free plot and also they mentioned introductory offer Rs.1,25,000=00, inspite of it, the OPs have not got registered the site in favour of the complainant and also produced the letter dated 7-6-2008 addressed by the complainant to OPs requested for cancellation of life membership and return the membership amount, since the OP has not registered the site as per the allotment letter dated 4-8-2007 till 7-6-2008 i.e. more than 10 months, as per the promise, the OP has failed to register the site at Phase-VI in favour of the complainant due to that reasons, the complainant on 7-6-2008 by addressing the letter to OP requested for cancellation of life membership and demanded for refund of amount, this evidence of complainant is not challenged by the OP, thereby the evidence of complainant remains unchallenged.
9. On the other hand, the defence of OP is that, the OP has issued the allotment of letter in favour of complainant and specifically informed to the complainant that, the complimentary plot allotted would be registered only on payment of full membership fee and registration and maintenance charges, further pursuant to the allotment of the said complimentary plot, the OP had informed the complainant to deposit a sum of Rs.35,000=00 towards the registration charges and the complainant has to pay AMC charges of Rs.25,572=00, on the payment of registration fee of Rs.35,000=00, the complainant would get a complimentary site for his membership in Vedic Spa, project-II, Penukonda, Pandiparthy Village and further the OP has taken defence that the complainant has availed of various hospitality services provided by the OP and has no grievances in this regard. In order to substantiate this fact, the OP has filed affidavit and reiterated the same, but except the interested version of OP, the OP has not produced any supporting evidence. On the other hand, even as looking into the allotment of letter dated 4-8-2007, the OP has allotted a site to complainant bearing site no.224, phase-IV at Coconut Grove Vedic Country Spa and requested to pay Rs.20,000=00 and at the time of registration fee the stamp paper fees, registration expenses and along with maintenance charges for a period of 30 months, but this is in contrary to the application form of Mr.Cool life membership. In the application form of Mr.Cool Life membership, they have mentioned all these, but on the other hand, they have mentioned that Country Club membership + complimentary plot at Coconut Grove Banyan Tree for a sum of Rs.1,25,000=00, therefore accepted the defence taken by the OP. On the other hand, this evidence placed by the complainant clearly goes to show that, the OP is adopting unfair trade practice that amounts to deficiency of service, even if, they promised to allot a site and as per the allotment of letter, they alloted the site in favour of complainant, but failure to get registered the same in favour of complainant, in spite of making best efforts by complainant, thereby it amounts deficiency of service on the part of the OP.
10. The learned counsel for the OP has argued before us, the complainant after becoming the member of OP club to enjoy the facilities provided in its clubs and resorts, which facilities he has to avail by visiting the clubs and resorts. The plot allotted under the cool scheme is a complimentary gift to the membership and the member fee is collected for providing the facilities. No consideration has been collected for allotment of the complimentary plot and member has to bear only the registration and maintenance charges, which was made known in the membership application itself. Since the OP has not paid any consideration for the complimentary 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. In support of his arguments, he relied upon the unreported decisions passed by the Hon’ble State Commission in appeal Nos.2201/11, 3119/11 to 3123/11, 3559/11 to 3561/11, 3565/11 and 3567/11, 3675/11 and 3676/11, 3679/11 to 3683/11, 3901/11 to 3905/11 and 127/12 to 130/12, Country Club (India) Ltd V/s Lakshminarayana Bhat and others. As stated earlier, the OP has not placed any piece of evidence to show before the forum. The complainant after becoming the member and enjoyed all the facilities provided in its clubs and resorts and he has to avail by visiting the clubs and resorts in that event the complainant has visited the clubs and resorts and availed the facilities. The OP has to produce the evidence to the effect, in support of evidence of OP, he has not placed any piece of evidence and therefore it is not proper to accept the arguments put forth by the learned counsel of OP. Further, the complainant has availed all facilities provided by the OP after he becoming the member and also it is not proper to accept the arguments put forth by the learned counsel for the OP, the members has to bear only registration and maintenance charges which was made known in the membership application itself. Since the complimentary plot was not registered in favour of the complainant just because he failed to pay the registration, AMC and miscellaneous charges inspite of several reminders. But in support of his argument is also the OP has not placed any evidence and the OP has demanded the complainant to pay registration charges and AMC charges. On the other hand, as per the allotment of letter dated 4-8-2007, at the time of registration the stamp paper fees, registration expenses and along with maintenance charges shall be paid by the complainant, but in spite of repeated demand made by the complainant, the OP has not come forward to register the site as per the allotment of letter, therefore it is not proper to accept the arguments put forth by the learned counsel for the OP. Further, as looking into the decision citied by the learned counsel for the OP, the law laydown in the said decision is not come to aid of the present case of OP. Since paragraph 7 of the order of Hon’ble State Commission has observed that, the complainants are the members of the OP/club. According to the OP, the complainants have not paid the full consideration to become the members, but it is not so in the present case. The complainant has paid full consideration of Rs.1,25,000=00 and also the Hon’ble State Commission has observed that the complainants have not deposited the registration fees as stated earlier, in the allotment of letter, the registration expenses will be payable at the time of registration, therefore the law laydown in the said decision is not come to aid of OP in this case. On the other hand, the complainant by placing relevant evidence have clearly established that, there is deficiency of service on the part of the OP. Hence, we answered these points in the affirmative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint is allowed holding that there is deficiency in service on the part of the OPs. The OPs are directed to refund a sum of Rs.1,25,000=00 to the complainant. The OPs are further directed to pay a sum of Rs.30,000=00 as compensation for causing mental agony and Rs.3,000=00 as cost of this litigation to the complainant. The OPs are granted 30 days times from this date to comply this order. Failing which, the aforesaid amount shall carry interest at 15% per annum from the date of this order, till the date of realization.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 14th day of June 2016).
MEMBER PRESIDENT
-:ANNEXURES:-
1. Witness examined on behalf of the complainant by way of affidavit:
V.V.Ramaraju, who being the complainant was examined.
2. Documents produced on behalf of the complainant:-
1. Application form for Mr.Cool Life Membership
2. Four Receipts dated 10-7-2007
3. Copy of Identity card
4. Email correspondences
5. Complainant letter dated 7-6-2008
6. OP letter dated 4-8-2007
3. Witness examined on behalf of the OPs by way of affidavit:
Venkatesh Varma, who being the OP was examined.
4. Documents produced on behalf of the OPs:-
No documents are produced
MEMBER PRESIDENT
