Chandigarh

StateCommission

A/105/2015

Mahindra Holidays & Resorts India Ltd. - Complainant(s)

Versus

Charanjit Singh - Opp.Party(s)

Jasmeet Singh Bhatia, Adv.

06 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	105 of 2015
Date of Institution	:	15.5.2015
Date of Decision		6.7.2015

 

1.    M/s Mahindra Holidays & Resorts India Ltd., Mahindra Towers, 2nd Floor, 17/18, Patullous Road, Chennai.

2.    Mahindra Holidays & Resorts India Ltd.,
having B.O. SCO 188-189, 2nd Floor, Sector 8-C, Madhya Marg, Chandigarh(Now shifted to No.-504, Block A, 5^th floor, Elante Office Suits, Plot No.178-178/A, Industrial Area, Phase-I, Chandigarh 160001) through its authorized signatory,  Mahindra Holidays & Resort India Limited.

……Appellants

V e r s u s

Charanjit Singh S/o Sh. Sunder Singh, R/o H. No.114, Dashmesh Colony, Rupnagar, Tehsil and District Rupnagar.

              ....Respondent

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY

               

Argued by: Jasmeet Singh Bhatia, Advocate for the appellants.

                Sh. Gaurav Bhardwaj, Advocate for the respondent.

 

PER PADMA PANDEY, MEMBER

              This appeal is directed against the order dated 10.4.2015, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly allowed the complaint filed by the complainant(now respondent) in the following manner:-

“In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is partly allowed, qua them. The Opposite Parties are, jointly and severally, directed to:-

 

[a]  To refund Rs.79,941/-, being the 40% of the membership fee, to the Complainant;

 

[b]  To pay Rs.15,000/- on account of deficiency in service and causing mental and harassment to the Complainant; 

 

[C] To pay Rs.7,000/- as cost of litigation;

The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, Opposite Parties shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] & [b] above, apart from cost of litigation of Rs.7,000/-, from the date of institution of this complaint, till it is paid.” 

 

2.        The facts in brief, are that the complainant allured by the offer of 32” LCD, two domestic tour of 8 days, one international tour of one week, 10 food vouchers of Rs.500/- each, 10 resort credit vouchers of Rs.500/- each valid upto 31.5.2012, given by one Garish Makkar, representative of the Opposite Parties, obtained their Membership, under ‘White Studio’ category, on 26.3.2008, for Rs.1,99,850, by paying Rs.29,978/- as down payment, while the remaining amount was to be paid in monthly installments. It was stated that the Complainant paid the remaining amount up to April, 2009. It was further stated that the service, as per terms of the Opposite Parties, was to be availed of online. It was further stated that the complainant applied for Dharamshala holidays and thereafter Goa Holidays, but the same were not confirmed by the Opposite Parties, despite repeated requests and reminders. Resultantly, the food and resort vouchers issued by the Opposite Parties were not used and stood lapsed due to non-confirmation of holidays by the Opposite Parties. The complainant, thereafter, applied for international tour to USA in 2011, but again when the booking was not confirmed, as assured by the Opposite Parties at the time of obtaining their Membership, he got his tour arranged from M/s Shaan World Travels, from 04.07.2011 to 08.07.2011. it was further stated that without providing any service/facilities, as promised (except giving a LCD of 32”), the Opposite Parties further raised a demand of Rs.56,399/- with regard to ASF charges, service tax etc. It was further stated that the aforesaid act of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
3.        In their joint reply, the Opposite Parties, took up preliminary objection that the complaint being barred by time was not maintainable as the Membership was purchased in 2008, while the complaint was filed in October 2014. It was stated that the as per the Membership Rules the Courts at Chennai had the exclusive jurisdiction over all the disputes.  It was further stated that as per the arbitration clause of the Membership Rules, all the disputes were to be settled under the Abrbitration Act 1996. The Opposite Parties while admitting the factual matrix of the case, stated that as per record, the complainant only paid a total amount of Rs.1,99,850/- towards the White Studio Membership. Upon subscription/ purchase of membership, the complainant was dispatched Sony Bravia LCD on 21.5.2008. Food Vouchers were dispatched on 14.12.2011 (Annexure R-4 Colly). With regard to 5 Club Mahindra Night Holiday and 3 Club Mahindra Night Holiday, it was stated that the same could be availed of by the complainant, subject to the eligibility and availability with the resort. With regard to one week holiday through RCI, it was stated that RCI Holiday was subject to availability of RCI destination and was a matter purely between the Member and RCI for which answering Opposite Parties are not liable in any manner. It was further stated that there was no reservation request for Goa & USA as alleged by the complainant. With regard to Dharamshala, it was stated that OP Company had booked holiday for the Complainant at Kangra Valley, Dharamshala from 10.12.2012 to 13.12.2012 (Annexure R-5). It was further stated that Annual Subscription Fee (ASF) was payable annually, irrespective of holiday utilization. However, the Complainant did not pay the ASF of Rs.68,968/-, which covered the actual costs of maintaining, upgrading, refurbishing and renovating the resorts, including cost of maintaining other facilities, towards servicing the membership. It was further stated that as per Clause 6 of the Membership Rule, the complainant was not entitled to the full refund, in the event of cancellation of membership after rescission period.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4.        The complainant filed rejoinder, wherein the averments, as contained in the complaint, were reiterated and those as alleged in the written statement by the Opposite Parties were controverted.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, as stated above, in the opening para of the instant order. 
7. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
8. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 
9. The Counsel for the appellants/Opposite Parties submitted that the cost of the white Studio category membership purchased by the complainant was Rs.1,99,850/-, against which the complainant paid a down payment of Rs.29,,978/-  and paid the remaining amount in 12 monthly installment being membership fees.  He further submitted that at the time of enrollment the respondent/complainant signed the Membership Review for Confirmation of Understanding constituting a part of Membership Contract between the respondent/complainant and the appellants, wherein  the complainant undertook that he understood the terms and conditions of  Membership Rules. As such, the complainant was fully aware of the terms and of cancellation norms. It was further stated that the complainant never made any request for holiday to Goa and USA. However, the complainant was given certain enrolment benefits, as per the Membership Application Form subject to the terms and conditions and on request. He further submitted that refund was to be made as per the Membership Rules only as agreed to by the complainant and not otherwise as is evident from Annexures R-1 and R-2. He further submitted that the complainant did not pay Annual Subscription Fee to the tune of Rs.68,968/- for the years 2008 to 2013. Hence he was not entitled to any refund as per terms and conditions of the contract. He further submitted that the District Forum erred while passing the order by not taking into consideration the terms and conditions of the contract signed by the complainant. He further submitted that the order of the District Forum being wrong be set aside.
10.        The Counsel for the respondent/complainant submitted that the complainant paid Rs.1,99,850/- towards the membership, yet the promises made by the appellants/Opposite Parties  were not fulfilled. He further submitted that the appellants/Opposite Parties after taking the aforesaid huge amount did not provide the benefits promised by them, and therefore, they (appellants/Opposite Parties) were deficient in rendering service and indulged into unfair trade practice. He further submitted that thus, the District Forum rightly allowed the complaint, and the impugned order does not require interference of this Commission.
11.        The First question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by limitation or not. The cause of action accrued to the complainant in November, 2013 when the appellants/Opposite Parties demanded the due Annual Subscription Fee of Rs.56,399/ from the complainant as is apparent from the document at pages No. 9 and 10 of the District Forum file, which the complainant was either required to pay or to raise protest regarding the same.  The complainant instead of paying the said dues filed the complaint on 14.10.2014, which is well within the stipulated period. As such the complaint was filed by the complainant was not barred by time. Hence the plea of the appellants/Opposite Parties to this effect stands rejected.
12.        The second question that falls for consideration, is, as to whether, the District Forum at Chandigarh had got territorial Jurisdiction to entertain and decide the consumer complaint, or not. No doubt, the Counsel for Opposite Parties, submitted that as per the Membership Rules which contained the terms of the binding contract between the parties, the Courts at Chennai had the exclusive jurisdiction over all disputes and the District Forum at Chandigarh had got no territorial Jurisdiction, to entertain and decide the complaint. The submission of the Counsel for Opposite Parties, in this regard, being devoid of merit, is liable to be rejected, for the reasons, to be recorded hereinafter. In the first instance, it may be stated here that the Consumer Foras' are not the Courts. Clause 13.3 of the Membership Rules, Annexure R/1, only confers Jurisdiction on the Courts at Chennai. Under these circumstances, no help can be drawn, from this Clause for coming to the conclusion that District Forum at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are not the Courts.  It was further held, in the said case, that there is a difference between Section 11 of the Act, which is a para materia to Section 17/12 of the Act and the provisions  of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. In the instant case Sony LCD 32” T.V. towards enrolment offer was given by the Opposite Parties from Chandigarh vide letter dated 21.5.2008. As such, a part of cause of action, accrued to the complainant, at Chandigarh. Accordingly, the District Forum at  Chandigarh, in view of the provisions of Section 12 of the Act, had territorial Jurisdiction to entertain and decide the complaint. The submission of the Counsel for Opposite Parties, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
13.        The third question, that falls for consideration is as to whether, the consumer complaint under Section 12 of the Act, was not maintainable, before the District Forum at Chandigarh, on account of the reason that an arbitration Clause existed. Undoubtedly arbitration clause 13 exists in the Membership Rules. Mere existence of arbitration clause in the Membership Rules was not sufficient to hold that the complaint was not maintainable. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the act is made, which reproduced as under:-

“3.Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in Membership Rules,    would not oust the Jurisdiction of the District Forum at Chandigarh, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I. Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

14.         The next question, that falls for consideration, is as to whether, there was deficiency in rendering service, on the part of the appellants/Opposite Parties or not? It is evident from the record that the complainant purchased white Studio category membership of the Opposite Parties for a sum of Rs.1,99,850//-, out of which he paid Rs.29,978/- as down payment of membership fee and the remaining amount in 12 monthly installments. The sole grievance of the complainant was that after paying a hefty amount of Rs.1,99,850/ towards the Membership of the appellants/Opposite Parties they did not provide the promised benefits to him and, as such he was entitled for refund of the entire amount deposited by him as membership fee. As per the Opposite Parties, the refund was to be made as per the Membership Rules only, as agreed to by the complainant and he did not pay the Annual Subscription Fee from 2008 to 2013. Even the complainant in the complaint nowhere stated that he had paid the Annual Subscription Fee from 2008 to 2013. He only stated that he paid Rs.1,99,850/ towards membership fees, refund whereof was sought by him, in the complaint, nor produced any document on record to this effect meaning thereby that he  admitted that he did not pay the ASF to the Opposite Parties from 2008 to 2013.   It is evident that the complainant duly signed the document at page 51 of the District Forum file, which is Member’s Review for Confirmation of Understanding  Relevant Clauses 8 whereof is reproduced hereunder:-

“8.   I/we understand that MHRIL, needs to maintain the resort towards which I/We confirm having agreed to pay Annual Subscription Fees (ASF) whether I/We avail of holiday in particular year or not and non-payment of the same shall result in my/our disentitlement from the use of and/or cancellation of CMHM”

 

15.        From the afore-extracted  clause of Member’s Review for Confirmation of Understanding, it is obvious that in case of non-payment of ASF the membership of Club Mahindra Holidays  Membership shall result into disentitlement from the use of and/or cancellation of CMHM. Since admittedly the complainant did not pay the ASF as per the terms and conditions of the Membership Rules he was not entitled for use of any holiday till payment of due ASF.  As per clauses 5.2 a member cannot avail of holiday entitlements unless the entire ASF due was paid. The plea of the complainant that the opposite parties did not provide him any benefit promised by them is also not tenable. According to the opposite parties the complainant availed of certain benefits but holidays for Goa and USA were never requested by him nor he produced on record any document to show that he had made any such request. It is evident from Clause 3.6 of the Membership Rules that a member can avail of holidays by giving a request for reservation in a form(s) as may be prescribed by MHRIL. In the instant case the Opposite Parties, as is evident from the record provided certain benefits to the complainant on request but regarding request for availing of the holidays in Goa and USA no document was produced by the complainant, which was mandatory as per clause 3.6 aforesaid. Hence this plea of the complainant stands rejected. As per clause 5.7(b) in the event of non-payment of ASF and/or interest by Member for two consecutive years, at any point of time, MHRIL had the right to terminate the CMHM as set out in Clause 6.1.  As per termination Clause 6.1 withdrawal of application for CMHM shall be permitted within the rescission period which was 10 days from the date of realization of the down payment, provided such request for withdrawal was made in writing and signed (by both the applicants/members in case of joint membership) and reached MHRIL within 10 days from the date of realization. In the event of such withdrawal MHRIL shall refund the entire amount received from the Member towards Membership Fee within 30 days from the date of receipt of request for withdrawal. Further as per termination clause 6(1))(a)  in the event of withdrawal of the application by an applicant beyond 10 days from the date of realization of the down payment, the applicant was not eligible for any refund of the amount of the AF paid by him/her.  Hence it is clear from the aforesaid termination clause that in case the request for cancellation of membership was made beyond 10 days from the date of realization of down payment, the applicant was not entitled to the refund of admission fee. In the instant case the  down payment made by the complainant was realized on 26.3.2008 as is evident from the document at page 16 i.e. Member Payment Statement, whereas the applicant never requested for refund of the Admission Fee prior to filing of the complaint. He only in the complaint sought refund of the entire membership fee, which is far beyond the period stipulated in clause 6.1 of the Membership Rules. As such the complainant was not entitled to the refund of amount paid by her towards the membership fee  to the Opposite Parties as per termination clause 6(a) of the Membership Rules (Annexure R/1).
16.  Thus it is proved that the complainant was not entitled to the refund of the amount paid by him towards membership fee, as per the terms and conditions of the Membership Rules (Annexure R/1). However, the District Forum failed to appreciate this factum of the case and ordered 40% refund of the membership fee to the complainant, which was illegal. Hence the order of the District Forum is liable to be set aside. 
17.        For the reasons, recorded above, the appeal is allowed with no order as to costs. The order of the District Forum is set aside and the complaint is dismissed.
18.        Certified copies of this order, be sent to the parties, free of charge.
19.        The file be consigned to Record Room, after completion

Pronounced.

06.07.2015                                                            sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

sd-

[DEV RAJ]

MEMBER

 

Sd/-

PADMA PANDEY

MEMBER