Complaint filed on: 29-03-2012
Disposed on: 21-08-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.702/2012
DATED THIS THE 21st AUGUST 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainants: -
1. Mr.Madhukar.T.R.,
S/o.Mr.Rajagopal Rao T.V.
Aged about 41 years,
2. Bharathi.G.
W/o. Mr.Madhukar.T.R,
Aged about 32 years
Both are R/at No.670, Skand Giri, 10th B Main, 3rd stage
4th Block, Basaveshwaranagar,
Bangalore-79
V/s
Opposite party: -
The Country Vacations,
International Holiday Club,
A Division of country club (I) Ltd,
No.102, I floor, No.48, S & S Chambers, Next to Kamat Hotel,
Bowring hospital Road,
Bangalore-01
Represented by its Branch Manager
ORDER
SMT.ANITA SHIVAKUMAR.K., MEMBER
This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OP to refund a sum of Rs.1,30,000=00 alongwith 18% interest per annum, and to pay a sum of Rs.50,000=00 towards compensation and cost of Rs.10,000=00.
2. The brief facts of the complaint can be stated as under.
The OP representative called upon the complainants intimating that the complainant have won the prize and invited the complainants to collect the gifts and accordingly the complainants had been to the office of the OP at Shivajinagar to collect the gift articles. During the visits, on 23-7-2011 the OP has conducted the meeting and lured the complainants to become the member of the OP club and they assured that 10 years holiday club membership life time flight ticket for family to India and Srilanka vacation, and Bangkok and Singapore. The OP further informed that the said offer is only one day and specially offered for the prize winners in their lucky draw. Though the complainants were not interested the representatives of OP have forced to take membership and assured the amount can be paid even in the installments. So the complainants swiped their HDFC bank credit card for Rs.1,30,000=00, and the OP executed an agreement called purchase agreement dated 23-7-2011. The OP evenafter receipt of entire payment has failed to provide the membership card and also evenafter repeated requests and email the OP has failed to provide holiday package and even failed to respond for demand of refund of the amount. The complainant vide letter dated 22-9-2011 has requested the OP to refund the amount of Rs. 1,30,000=00 with interest. The OP acknowledged the letter and promised to resolve the disputes at an early date, but till today the OP with one or the other pretext dragging the matter without making refund of amount and the OP has not shown any valid and tenable reasons for non-refund of amount. The complainants had paid the full amount of Rs.1,30,000=00 to the OP and the OP rendered deficiency in service without providing the holiday vacation facilities. The OP intentionally and deliberately failed to perform the obligation as promised and assured and the OP is engaged in the unfair trade practice and deficiency of service. The OP made the complainants to run around from one table to another and due to the act and attitude, the complainant suffered mental agony and pain for the deficiency of service. Hence, the complaint is filed.
3. After service of notice, the OP has appeared through his counsel and filed objections contending interalia as under.
The complaint of the complainant is not maintainable either in law or on facts and it is liable to be dismissed in limine. The complainant has made all sorts of baseless allegations against the OP and the OP admits receipt of Rs.1,30,000=00 from the complainant, and entered into the purchase agreement dated 23-7-2011 with the OP. There is no deficiency in service on the part of the OP and there is no cause of action to file the complaint. The complainant has made false allegation that the OP cheated the public etc. Entering into the purchase agreement is not in dispute and in terms of the agreement clause 3, 9 and 11 there is no provision for refund of amount or cancellation of the club membership. However the complainant is at liberty to sell or transfer or gift the club membership to any third party. Inspite of that the complainant for the reasons best known to him has filed the false and frivolous complaint. There is no cause of action to file the complaint. The complainant with a dishonest and malafide intention has filed the complaint by making all false and baseless allegations. Even the annual maintenance amount is falling due to the complainant. The complainant in order to avoid annual maintenance charges has filed the false and frivolous complaint. The OP is providing best services in their field without any blemish, and the complainant suppressing the true facts has filed the complaint without any basis. The complainant is not entitled for any relief. The complaint of the complainant is imaginary and baseless; the complainant for wrongful gain has filed the above complaint which is liable to be dismissed. The complainant is not an illiterate person and is enjoying the benefits and services of the club membership. Therefore, viewed from any angle the complaint is not maintainable. The OP offered club life membership providing free vacation studio type yearly 1 week 6 nights 7 days accommodation in their property totally free of cost, it is more than two star facilities for a period of continuous 5 years either it is in India and abroad. The club membership is for life time and it is transferable to their family members apart from the health club for a period of 5 years. The complainant is not entitled for refund of amount and paying of interest thereon. The question of claiming refund alongwith interest, compensation and cost of litigation does not arise at all. Hence it is prayed to dismiss the complaint with exemplary cost, in the interest of justice and equity.
4. On the above materials, following points arise for determination.
1. Whether the complainant proves that, the OP has caused deficiency in service in not providing service as promised?
2. To what relief, the complainant is entitled to?
5. Our findings are as under.
Point No.1: In the affirmative
Point No.2: See the final order
REASONS:
6. Answer on Point No.1: The complainant has proved that, he has taken a membership in the OP’s club believing the assurance of the OP about holiday package of six nights and seven days per year at Country Club (India) Ltd, which has properties/resorts in India and Srilanka, and even in the Bangkok. There is no dispute about the offer made by the OP, since, they have issued the terms and conditions of membership, benefits of membership with club membership confirmation in the agreement copy. The complainant has paid the entire amount of Rs.1,30,000=00 on 23-7-2011 through his Credit Card for the said membership in the OP’s club as per assurance. The OP has failed to provide holiday package to the complainant, though, he has requested several times. When the OP has not provided service, the complainant has requested to refund of money. The complainant has not used the membership for availing any kind of service, and the OP has not provided any package trips to the complainant for taking membership is of no use by paying huge amount. The OP in his statement of objections and affidavit has denied the allegations of the complainant. But in email correspondences had with the complainant, the OP has admitted that, he has not provided any service to the complainant. On 22-9-2011, the complainant has requested the OP to refund the money of Rs.1,30,000=00 by issuing letter and several emails correspondences has produced by the complainant but twice, the OP has responded to it and stated that the inconvenience has regretted in not providing the service to the complainant. The OP has issued a letter dated 15-10-2011 in pursuance the letter of the complainant’s letter dated 22-9-2011 has replied and agreed to refund the amount on or before Nov.2011, but the OP did not do so.
7. Believing the assurance of the OP, the complainant had taken membership by paying the huge amount of Rs.1,30,000=00 and he has deprived by the service of the OP, there is no fault in claiming refund of the amount which has paid and the OP has admitted he has not provided any service to the complainant and also he agreed to pay back his amount within Nov.2011. It clearly shows the deficiency of service on the part of the OP in not providing the service to the complainant, and has not refunded the amount as he assured. Hence, he is liable to compensate it, and accordingly, we answer point no.1 in the affirmative, and pass the following order.
ORDER
Complainant is allowed
OP is directed to refund Rs.1,30,000=00 (Rs.One Lakh Thirty thousand only) to the complainant within 30 days from the date of the order alongwith Rs.30,000=00 (Rs.Thirty thousand only) towards compensation for his mental agony, hardship and inconvenience.
Failing which, the OP shall pay interest @ 14% per annum on Rs.1,30,000=00 (Rs.One Lakh Thirty thousand only) from the date of the order to till the date of realization alongwith compensation amount of Rs.30,000=00 (Rs.Thirty thousand only).
OP shall pay Rs.3,000=00 (Rs.Three thousand only) towards cost of litigation.
Supply free copy of this order to both parties
Dictated to the Stenographer, got it transcribed and corrected, Pronounced on the Open Forum on this 21st August 2012.
MEMBER MEMBER PRESIDENT
