Date of Filing:28/04/2016

Date of Order:03/05/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 3^RD DAY OF MAY 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. (Rtd. Prl. District & Sessions Judge) And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.665/2016

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT

1.  This is the complaint filed by the complainants against the Opposite Parties (hereinafter referred to as O.Ps) under Section 12 of the Consumer Protection Act, 1986  praying this Forum to direct the O.Ps to pay a sum of Rs.1,00,000/- to the complainant No.1 towards flight and hotel expenses, Rs.4,00,000/- towards causing mental harassment to complainant No.1 and Rs.2,00,000/- to complainant No.2 for his mental sufferance and for litigation and other expenses as the Forum deems fit under the circumstances of the case.

2.      The brief facts made in the complaint is that, the 1^st Complainant is the power of attorney holder of the 2^nd Complainant. The 2^nd Complainant is the member of O.P.No.1 to 3 having become the member from 27.10.2004 membership No. being I.D 37960.  O.P.No.1 is a registered company engaged in the business of providing family holiday to its members or to their assignees in the resorts contracted by them. O.P.No.4 is one of such resort managed and run by O.P.No.1 in Goa.   

3.     It is the contention of the complainants that, as per the rules of the O.ps, the 2^nd Complainant gifted the holiday period from 20.6.2015 to 29.6.2015 in favour of  1^st Complainant to have his stay with O.P.No.4 to spend his annual vacation with his men. On 30.3.2015 the 2^nd Complainant reserved three rooms consisting of one bed room apartment each for three nights, for the said period in the resort of O.P.No.4.  The said reservation was done in Bengaluru. On 2.4.2015, O.P.No.4 confirmed the above reservation by way of confirmation voucher No.1855693. On 22.6.2015, O.P.No.4 reconfirmed the above reservation through email.  Subsequently, Complainant No.1 and his men booked air tickets to reach O.P.No.4 resort to have a pleasant vacation stay.  On 23.6.2015 Complainant No.2 called the office of the O.P.No.1 to enquire as to the availability to wheel chair for the use of Complainant No.1.  At that time also, O.P.No.4 confirmed the reservation and accepted to provide wheel chair.   

4.   When the Complainant No.1 along with his men went to O.P.No.4 resort as per the schedule, they were shocked to be informed that no rooms available in spite of they showing the confirmation voucher. O.P.No.4 did not make any efforts to provide rooms and humiliated and treated in a highly unprofessional manner. Left with no alternative, Complainant No.1 and his men were made to take rooms in Radison Blue Resort at extra cost. The unprofessional and arrogant attitude of the O.P.No.4 harmed Complainant No.1 and his family members financially and mentally. The annual vacation supposed to be to spent time in fun turned in to ugly night mare due to the deficiency in service of O.P.No.4.

5.     It is further contended that, the same was brought to the notice of Complainant No.2, who was also shocked and dismayed at the negligent and careless attitude of O.P.No.4 despite he having active membership. He was also embarrassed and humiliated in presence of Complainant No.1 and his family members. 

6.      It is further contended that, in the rules framed and agreed  by O.Ps that, if O.Ps are unable to provide holiday after issuance of confirmation voucher, they have to provide alternate accommodation and in the event of default they are liable to pay liquidated damage within 30 days of default.   Inspite of bringing the same to the knowledge of the O.P.No.1 regarding deficiency in service, they want to justify the unreasonable conduct in refusing to provide alternative accommodation, though they have valid confirmation voucher.  Hence they issued a legal notice on 24.8.2015 to O.Ps demanding compensation for the flight tickets, hotel expenses, damages for mental harassment. A detailed reply dated 1.12.2015 has been sent by O.P.No.1 denying their liability and making false and bald allegations that the booking of the rooms at O.P.No.4 was made on 23.6.2015 and as the Complainant failed to confirm the request for wheel chair facility, the room booking at O.P.No.4 resort was released.  At no point of time, the Complainants have cancelled or amended the booking of the rooms with O.P.No.4. The same was confirmed well in advance by O.P.No.4. The issue of wheel chair is not at all an issue and the contention of the O.Ps is frivolous and to scuttle the rights of the complainants.  Hence the services of the O.Ps is deficit, though they have received the fee or subscription or consideration.   The Complainant No.2 has paid adequate consideration for the services to be rendered by the O.P.No.1 to 4 and Complainant No.1 is the beneficiary of services that were availed by Complainant No.2.  The cause of action for the complaint arose on 30.3.2015 when they booked the resort of O.P.No.4 with O.P.No.1 and 2 and also on 2.4.2015 when O.Ps have reconfirmed the reservation and also 22.6.2015 when O.P.No.4 reaffirmed the reservation and hence pray the allow the complaint.

7.    Upon the service of notice, O.P No.1 to 4 appeared before this Forum through their counsel and filed their written version  signed by 4^th O.P adopted by O.P.No.1 to 3 admitting that the Complainant No.2 is their member by paying a sum of Rs. 2,86,500/-.  The Complainant No.2 was also provided with special offers on enrollment.   It is in the version that, the complaint is not maintainable as the Complainants have not approached with clean hands and have suppressed material facts. The Power of attorney holder cannot file the complaint on behalf of its executor. Complainant No.2 has not signed the complaint. The allegations made in the complaint are out of the purview of Section 2(i) (c) of Consumer Protection Act. This Forum do not get jurisdiction to dispose the case.  The Complainants failed to place material on record to substantiate their claim in claiming the compensation for loss or injury suffered by them.   As per clause 12.1 of Membership Rules all disputes, differences or questions arising out of transactions shall as per provisions of Arbitration and Conciliation Act, 1996 and venue of such arbitration  is at Chennai city only and Chennai City Civil Court as jurisdiction to the exclusion of other courts.   

8.   It is also mentioned that, O.P.No.1 is having customer base of 190000 long term members and has 45 resorts across India and abroad India.  O.P.No.2 and 3 relates to branch office and O.P.No.4 is one of the resort located at Goa maintained by O.P.No.1. 

9.   It is contended in the version that, the Complainant No.2 informed that he wants to book for holiday at “Club Mahindra Varca” for the period 26.6.2015 to 29.6.2015.  Complainant No.2 was informed by the O.ps that during that period booking was not available in that resort and the same was available in another resort located at Goa by name ‘Club Mahindra Emerald Palms’. Complainant No.2 requested for guest booking under the name Ramesh Kothari for 9 persons and requested them to book three (3) number one bed room apartment for the said period.   Complainant No.2 was explained the difference between the 2 resorts. After understanding the same, Complainant No.2 booked 3 one bed room apartment with ‘Club Mahindra Emerald Palms’ for a period from 26.6.2015 to 29.06.2015 and he was also specifically informed the booking would be confirmed subject to the Complainant booking and confirming the holiday through Web site for which Complainants agreed. SMS was also sent by the O.P.s on 23.6.2015 to the mobile number of the Complainant No.2.  O.P.No.4 has also mentioned above confirmation voucher 1855693 and the block released dated 23.5.2016.   

10.   It is mentioned further in the version that, since the Complainant No.2 was required to confirm the block and since O.Ps did not receive the confirmation, the block done was released and SMS was sent to that effect.  It was also informed to Complainant No.2 that he can login to their web site for other available holiday option.  Since the Complainant did not opt for making any response to them either by personal interaction or through website, the block was released due to the mistake on the part of the Complainants. Complainant No.2 has not followed the required procedures and hence the holidays blocked for the Complainants was released.  It is due to negligence on the part of Complainants.

11.   It is further contended that, initially Complainant No.2 confirmed on line booking but subsequently amended the booking as such released confirmed booking done by the O.Ps was released and same was also informed to Complainant No.2.    Complainant No.2 requested for wheel chair facility or the room preferably at the ground floor. The 2^nd complainant has not released the blocking of the holiday which was released. The O.Ps follow well defined process of booking and confirming the booking to every member.  Since the booking was done earlier at the call center of O.Ps, which was just a booking, the same was required to be confirmed by the complainants through web site.   Though the same was done earlier, later the Complainants have amended the confirmed booking thrice.  Though on two occasions they confirmed the booking, for the third time complainant did not confirm which resulted in the block being released. Hence there is no negligence on their part.

12.   The complainant No.2 had availed the services and holiday usage earlier and had not complained any deficiency in service.  They have denied all the allegations made in the complaint parawise and prayed this Forum to dismiss the complaint which is frivolous and vexatious. 

13.      We have carefully gone through the entire evidence and documents produced by the complainants and O.Ps. After hearing their counsel, the following points arise for our consideration:-

1) Whether this Forum has jurisdiction to decide this complaint?    

2)   Whether the complainants have proved

                     deficiency in service on the part of the

                     Opposite Parties?

3)  Whether the complainants are entitled to

     the relief prayed for in the complaint?

14.   Our answers to the above points are:-

POINT 1): In the affirmative.

POINT 2): In the affirmative.

POINT 3): Partly in the affirmative

As per the final order.

REASONS

ON POINT No.1:-

15.   The O.Ps have taken up the contention that the consumer Forum at Bengaluru has no jurisdiction to decide this case as it is only the Civil Court at Chennai has jurisdiction to try and dispose any kind of disputes arising between the parties and the matter has to be referred to arbitrator in view of the agreement between the parties and hence prays to dismiss the complaint. 

16.   It is to be seen here that the complainants are residents of Bengaluru and booking for the holiday time with O.P.No.4 has been done from Bengaluru only.  The correspondence and the emails were also made from Bengaluru and even Complainant No.1 has booked his ticket to go to Goa to enjoy the holiday period booked with O.P.No.4 from Bengaluru only. Hence part of cause of action has taken place in Bengaluru.

17.   Under Section 11 of Consumer Protection Act if any part of cause action has taken place in any of the places such place gets jurisdiction to file and try the complaint.  Section 11 of Consumer Protection it reads thus:-

 “11. Jurisdiction of the District Forum.—

(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 1[does not exceed rupees twenty lakhs].

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or 2[carries on business or has a branch office or] personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 3[carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 4[carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.”      

18.   Even agreeing for the movement for arguments sake, that, there is an agreement between the Complainant No.2 and the O.Ps regarding subjecting themselves to the jurisdiction of a particular place, there are several number of decisions rendered by Hon’ble Supreme Court of India wherein such contract restricting the jurisdiction and submitting to a particular court’s jurisdiction is not in consonance with the rights given under the Civil Procedure Code for sued or to be sued.  

19.   The another point raised by the O.ps are that, there is an arbitration clause and hence the matter has to be referred to arbitration.  In this regard there are several decisions to that effect that inspite of arbitration clause, under Section 3 of the Consumer Protection Act which is in addition to the other Acts, the Complainants can invoke the provisions of the Consumer Protection Act to demand his rights.  In view of this, the arguments in this respect by the O.Ps cannot be accepted and we hold that this Forum has jurisdiction to try the case and a part of cause of action has taken place within Bengaluru over which this Forum has territorial jurisdiction.  Hence we answer Point No.1 in the Affirmative.

ON POINT No.2:-

20.  In order to prove the case, the Complainant No.1 has filed his affidavit evidence mainly reiterating the facts as stated in the complaint. So also one witness by name Vasanth Kumar on behalf of O.Ps has been examined who has filed his affidavit evidence reiterating the facts as stated in the version.

21.   Admitted facts by the O.Ps in this case is that, Complainant No.2 is their member (copy of the membership certificate and rule No.1-1/06-04 produced) and that the O.Ps are doing the business in providing resort facilities to its members as per their rules and regulations. 

22.   As mentioned above, it is the specific case of the Complainant No.2 that he booked three one bed room apartments in the resort of O.P.No.4 on 30.3.2015 for the stay of his guest i.e. complainant No.1 and his eight members. The said three one bed room apartments were blocked for the occupation of Complainant No.1 and their members for the holiday period 26.6.2015 to 29.06.2015. the same has been confirmed by the O.Ps by issuing holiday confirmation voucher dated 2.4.2015 at 7.26 p.m. wherein,  it is mentioned as name Ramesh Kothari guest reservation type Number of rooms, three LTH check-in dated 26.6.2015 checkout date 29.6.2015 one bed room apartment for three nights. Date of reservation 30.3.2015, number of adults eight(8). This is exhibited as Doc.No.3.

23.   On 29.6.2015 the copy of the correspondence (Doc.No.4) have been taken wherein the email dated 22.6.2015 forwarded to the Complainant No.1 by Complainant No.2 received from the 4^th O.P at 10.50.25 a.m IST subject “Greeting from Club Mahindra Emerald Palms Goa, Dear Sir/madam, Greetings from Club Mahindra Emerald Palms Goa. It is indeed our pleasure to have your stay with us. We look forward to your arrival on 26.6.2015, we are pleased to reconfirm your booking with us.” has been sent by O.P.No.4 for confirming the booking of the three one bed room apartment for the occupation of Complainant No.1 and his eight members. Doc.No.5 is the copy of the flight tickets booking and boarding passes in respect of booking tickets from Bengaluru and Mumbai to Goa and back to Bengaluru and Mumbai.

24.   When the O.P.No.4 turned down the request of the Complainant No.1 in respect of the rooms which Complainant No.2 booked for them, left with no alternate Complainant No.1 for himself and his accompanying members had booked four rooms in Radison Blue Resort, Goa Cavelossim Beach by paying  Rs.12,000/-, 17,652.35/-, Rs.26,578.18 and Rs.14,007.70. These are documents marked as Doc.No.6. Doc.No.7 is the legal notice issued by the counsel for the complainants. Doc.No.8 is the short reply and Doc.No.9 is detailed reply given to D-7. 

25.   O.Ps have also produced along with evidence affidavit, membership application form of Complainant No.2 and the details of his usage of holidays.  There is nothing to be commented on this since the membership of Complainant No.2 and the terms and conditions and offering the resort for the holidays have been admitted.   In the reply given by the O.Ps, it is the specific case that, only on 23.6.2015 Complainant No.2 requested for holiday slot from 26.6.2015 to 29.6.2015 in Club Mahindra Varca Resort and on infirming that it is not available and that the same facility is available in Club Mahindra Emerald Palms, Complainant No.2 booked the same for Complainant No.1 and for his companion.  On 23.6.2015 they have sent a SMS stating that “Your holiday for Emerald Palm between 26.6.2015 to 29.6.2015 has been blocked on 23.6.2015.  C.V. Number 1855693.  Block release date 23.6.2015 and the same was delivered at 5.09.50 pm. And since Complainant No.2 did not confirm the block done through web site, the same was automatically released and hence they could not provide the rooms in the 4^th O.Ps resort.  It is also mentioned therein that the 2^nd Complainant requested for a wheel chair or a room preferably in ground floor and the same was not confirmed by him and hence the block was released and that there is no deficiency on their part. Even in the written arguments and also in the affidavit filed on behalf O.P.No.4 the same stand has been taken.  

26.    On analyzing the evidence, documents produced by the parties respectively. One can easily say that O.Ps do not want to put the records straight. In fact their very own document i.e. marked as Doc.No.3 sent by Club Mahindra Emerald Palms Goa dated 2.4.2015 has clearly and in unequivocal terms have booked one bed room apartment (three in numbers)  for the occupation of Complainant No.1 and for his companions for three nights. The date of reservation mentioned therein is 30.3.2015. The confirmation voucher is 1855693.  In Doc.No.4 which has been  written and sent through email dated 22.6.2015 at 10.50 hrs, the reservation has not only been confirmed but it has been  reconfirmed for the stay of Complainant No.1 and his members and in fact they were looking forward for their arrival. When this is taken in to consideration, the story of the O.Ps that on 23.6.2015 only Complainant no.2 booked for three one bed room apartment in O.P.No.4 resort and the same was confirmed and then the block was released is a story of lies woven only to suit their purpose of defence to be put forth in this case. Which is clearly calculated act on behalf of O.Ps in denying the facilities offered to its members.  Hence this contention of O.Ps are unacceptable. Further it is not the case of the O.ps that Complainants No.2 has cancelled the booking.  When such being the case, it was the boundened duty of the O.ps to provide Complainant No.1 and his members accommodation as booked by Complainant No.2 which is evident from Doc.No.3 and Doc.No.4.  In the membership rule 7.1 itself it has been made clear that:-

“7.1 In case MHRIL does not provide holiday after issuance of confirmation voucher in the allotted Mahindra Resort, MHRIL shall provide alternate accommodation and in the event of default in providing alternate accommodation, MHRIL shall pay liquidated damages equivalent to 100% of the rent/tariff that may be charged by MHRIL to other persons for staying in the allotted apartment in the allotted destination during the period for which the Confirmation Voucher is issued.”

27.    When such being the case, a responsibility was casted on the O.Ps to provide alternate suitable arrangements for the comfortable stay of the complainant No.1 and his members.   That has not been done in this case, which is clearly a negligent act on their part and deficiency in service rendered to its customers which is highly to be deprecated.  Hence we answer Point No.2 in the affirmative.

POINT No.3:

28.   In view of our above observation, the complainant No.1 is entitle for compensation.  In the complaint the Complainant No.1 has claimed a compensation of Rs.1,00,000/- towards the flight and hotel expenses incurred by him and his members and damage for Rs.4,00,000/- for sufferance and mental harassment and Rs.2,00,000/- by Complainant No.2 for sufferance and mental harassment and litigation expenses.

29.   Complainant No.1 has claimed the hotel expenses incurred by him while staying in Goa along with his members, for which he has produced bills from the Hotel amounting to Rs.70,238/- since O.ps have denied the accommodation in O.P.No.4’s resort, as per Rule 7.1, they are bound to reimburse the same as they have failed to provide alternate accommodation.   Complainant No.1 has also claimed the flight charges to be reimbursed to him by the O.Ps. We are of the opinion that, Complainant No.1 is not entitle for the flight charges for himself and 8 companions as had the O.P.No.4 provided the accommodation himself and his companions, he  had to fly from Bengaluru and Mumbai to Goa to enjoy the trip.

30.   One can understand the plight of a person whose reservation has been denied at the n’th moment that too in presence of other members and the public.  Virtually he would be on the street had he not prepared himself financially to get the alternate accommodation for himself and to his companion members. The said humiliation in presence of family members and other public cannot be compensated with any amount of damages awarded to him In view of this we are of the opinion that to compensate the said ignonimity if Rs.1,00,000/- compensation if ordered to be given would meet the ends of justice.

31.   Complainant No.2 has also claimed damages of Rs.2,00,000/- for which no substantiating evidence has been adduced by him.  Even the power of attorney holder of Complainant No.2 i.e. Complainant No.1 has not stated as to how Complainant No.2 has suffered the damage. In view of this, we are of the opinion that Complainant No.2 is not entitle for any compensation even though he was be littled   by O.Ps in the eye of Complainant No.1.

32.    Complainants have claimed the litigation expenses.  In view of the deficiency of service by O.ps and treating Complainant No.1 and his members with ignonimity, made the complainants to approach this Forum to fight for their rights, for which, they had to engage advocate, spend time in coming to the Forum by spending money and energy for which they have to be compensated.  In view of this, we are of the opinion that a sum of Rs.25,000/- if ordered to be paid by the O.Ps to the complainants ends of justice will be met. Hence we answer Point No.3 partly in the affirmative and pass the following:

ORDER

1. The complaint is partly allowed with cost.

2. The OP No.1 to 4 are jointly and severally liable to pay to the Complainant No.1  a sum of Rs.70,238/- along with interest at the rate of 12% per annum from 29.06.2015 till the entire amount is paid.

3. Further O.P No.1 to 4 are jointly and severally hereby directed to pay to the Complainant No.1 a sum of Rs.1,00,000/- as damages towards mental and physical harassment and Rs.25,000/- towards cost of the litigation expenses.

4.     The O.P No.1 to 4 are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 3^rd  Day of MAY 2018)

MEMBER                        PRESIDENT

*RAK

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1: Mr. Ramesh Kothari - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1 : Copy of Special Power of Attorney.

Doc.No.2:Copy of certificate of member ship.

Doc.No.3:Copy of the confirmation voucher.

Doc.No.4:Copy of the email

Doc.No.5:Copies of the flight tickets and boarding pass.

Doc.No.6:Copies of the bills detailing the payments made at the Radisson Blue Resort.

Doc.No.7: Copy of the legal notice dt :24.08.2015

Doc.No.8: Copy of the reply dt:3.10.2015.

Doc.No.9: Copy of the detailed reply.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: - Nil -

Copies of Documents produced on behalf of Opposite Party/s

Doc: No.1: Copy of Membership Application Form.

Doc.No.2: Copy of member payment statement.

Doc.No.3: Copy of letter dt:26.11.2005.

Doc.No.4: Copy of holiday usage Statement dt:11.9.2015.

MEMBER                        PRESIDENT