Ashok Lobo vs President Catholic Club

AGGRIEVED by order darted 30.6.2011 passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short ?State Commission?), petitioner has filed an appeal under Section 15 of the Consumer Protection Act, 1986 (for short ?the Act?). However, second appeal before this Commission is not maintainable but treating it as a revision petition, it has been taken up for hearing.

BRIEF facts of this case are that petitioner/complainant intended to become member of the Respondent/ OP Club. In that regard he paid Rs.35,000/- towards membership and Rs.3,605/- as service tax on 6.6.2008. Respondent assured him the Club Membership. Though petitioner waited patiently, he was not allotted with the said membership. On the other hand, some other persons who applied for the membership during that time were admitted. Repeated requests and demands made by the petitioner to respondent went in vain. Respondent arbitrarily enhanced the membership charges to Rs.50,000/- and so also service tax without there being any substantial basis. The approach of respondent is not fair and honest. Though petitioner is eligible to become the Club Member he was not considered. Due to hostile attitude of the respondent, Petitioner for no fault of his, is made to suffer both mental agony and financial loss. Hence, he felt deficiency in service. Accordingly, he filed a complaint before District Forum. According to respondent, petitioner is not a consumer as defined under the Act. Petitioner did not possess such of the legal requirements to enroll himself as a member of Club. Hence, whatever amount the petitioner has paid, the same was refunded to him very well prior to the filing of the complaint. There is no cause of action accrued to the petitioner to file the complaint. The enhancement of the membership fee is as per the resolution passed in 58th Annual General Body Meeting. Petitioner is bound by the same. Complaint is devoid of merit. When petitioner/complainant is at fault, he cannot allege the deficiency in service.

District Forum dismissed the complaint, vide its order dated 11.5.2011.

AGGRIEVED by the order of District Forum, petitioner filed an appeal before the State Commission which vide impugned order, dismissed the appeal of the petitioner. Hence, this revision. It is contended by learned counsel for the petitioner that petitioner has filed an application for membership of the club in the year 2008 and has paid a sum of Rs.35,000/- as membership fee as well as service tax.

THEREAFTER, respondent club arbitrarily enhanced the membership fee charges to Rs.50,000/-, without there being any substantial basis. Petitioner wrote a letter to the respondents challenging the enhanced charges but respondents arbitrarily cancelled the membership and returned the money deposited by the petitioner. It is also contended that the membership could not have been cancelled and once petitioner has filed an application for the membership, he was entitled to be admitted first on probation and then as temporary member until the membership is confirmed/rejected according to the Membership By-laws and as such impugned order is liable to be set aside. The District Forum in its order has held: "Admittedly, the complainant had filed application for admitting him as a member and as the pre-requisite, he has deposited some amount and he was waiting for admission. Hence, until it is decided to admit him, he does not get any right of a membership of that club. The question of providing any service to its members by the club begins after he is admitted to be a member. Hence, before such admission, there is no relationship of consumer and service-provider. Hence, we agree with this contention of the opposite party and hold that the complaint itself is not maintainable before this Forum. It may be that as a member of the Catholic Community, the complainant was eligible to become a member of the club, but that it is not sufficient. The managing committee has to admit the applicant as a member by following the procedure prescribed by the articles of the association of the club. If the managing committee has erred in deciding that he is not entitled for admission, that cannot be called as a deficiency in service. If the complainant was aggrieved by it, he has to challenge it according to law, in appropriate form and it is not within the jurisdiction of this Forum to consider that dispute as it does not relate to any deficiency in service. Even otherwise, the Opposite party has given cogent reasons for not admitting him as a member. It is stated that the membership fee was increased and the Complainant did not agree to pay the enhanced amount. Even according to the Complainant, he did not agree to pay the enhanced amount. One of the members who has proposed the name of the Complainant for admission has withdrawn his name as a seconder. Hence, his application was not in order. There were certain Complaints from the members of the club and also by the staff members."

STATE Commission while dismissing the appeal observed: "8. At the outset it is not in dispute that, the complainant applied for the Club Membership of OP on 06/06/2008 by paying Rs.35,000/-. According to the OP, as per the 58th Annual General Body Meeting, the membership fee was enhanced to Rs.50,000/- and service tax was also increased. The person who wanted to enroll himself as the member of the club, is required to pay the same for the consideration of his membership. But it appears complainant did not heed to the said demand and he refused to pay the balance of Rs.15,000/- plus Rs.1545/-. To enroll as Club Member, there are some requirements to be fulfilled. Application for membership should be proposed by one original proposer, three secondary proposers. But as could be seen one of the member who proposed the membership of the complainant withdrew his name as a seconder. Hence his application was not in order. This fact is not denied by the complainant. 9. it appears OP after close scrutiny of the application and as the complainant become ineligible and unsuitable his membership was rejected and whatever the amount that he has paid was returned to him through cheque which he encashed on 14.12.2010 without any protest. So as on the date of filing of this complaint, the dispute was already over. So it is doubtful whether complainant accrued any real cause of action to file this complaint. When complainant is not a member of the OP Club in a strict sense he will not become the consumer nor the OP is the service provider. When complainant himself did not heed to the demand of the OP to pay the enhanced membership fee he cannot allege the deficiency in service. The D.F. has thoroughly considered each and every aspect of the matter and rightly come to the conclusion that, there is no deficiency in service on the part of the OP, that finding appears to be judicious. On the other hand, appellant has failed to show before this Commission that, the impugned order is erroneous, suffers from legal infirmity, unsustainable in law or that it suffers from any error apparent on the face of record requiring our interference. We don?t find any illegality or irregularity in the impugned order passed by the DF. The appellant has failed to make out substantial grounds and reasons so as to admit this appeal and to cause notice to the respondent."

IT is not in dispute that petitioner applied for membership of the respondent club in 2008 and paid Rs.35,000/-. Later on respondent as per Annual General Body Meeting enhanced the membership fee to Rs.50,000/- but the complainant did not agree to pay enhanced charges and refused to pay the balance amount and accordingly his application for membership was rejected and amount deposited by him was returned and the same was accepted without any protest. Thus, by no means, the petitioner under these circumstances comes under the definition of ?consumer? as defined in the Act. Present revision petition has been filed under Section 21(b) of the Act. It is well settled that power of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.

Recently, Hon?ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

IN the present petition, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act, since, two fora below have given cogent reasons in their order which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction. It is not that every order passed by Fora below is to be challenged by a litigant even when the same is based on sound reasoning.

ACCORDINGLY, present revision petition is not maintainable being devoid of any merits. The same has been filed just to waste the time of this Commission. ACCORDINGLY, the petition is dismissed with costs of Rs. 10,000/-( Rupees Ten thousand only). Petitioner is directed to deposit the costs by way of cross cheque for a sum of Rs. 10,000/- in the name of "Consumer Legal Aid Account" within four weeks from today. In case, costs are not deposited within the prescribed period, petitioner shall be liable to pay interest @ 9% p.a., till realization.

LIST on 4th November, 2011 for compliance.