Order No.  9  dt.  29/11/2016

            The case of the complainant in brief is that the complainant received one phone call on 12.01.2014  from OP informing the complainants that they had won a gift  and O.Ps  requested  to attend  at City Centre, Salt Lke to collect Holiday Package. The complainant went there and saw many couples were waiting for their gift. Complainant had been told about the package and OP showed  many picture and made many promises so that the complainant took the membership on that day. OP told the complainant that if they would take the membership immediately they would get a fee holiday package in a year. After discussion with the OP complainant became the member of the  OP after initial deposit of Rs.26,200/-. Then OP informed the complainant that after realization  of  3 EMIs they would be eligible for Holiday Package and cash back of Rs.7,000/-. After clearing  the 3 EMIs  complainant approached the OP over the phone for a holiday package at Gangtok in the 1^st week of June, 2014.  But to the utter dismay the complainants was offered to visit Jaisalmer in June and Baigune in the month of July. These places are tough to visit in such summer/rainy season. However, complainant booked themselves a package at Gangtok and spent around Rs.18,000/- for room rent since rooms were not available at last moment for booking on 04.06.2014. After returning  from  Gangtok complainant  approached OP to discontinue their membership  to avoid the future hassle.  When complainant asked them for refund  OP informed the complainant that there is no  refund provision. Then the complainant instructed to her banker for stop payment. But after the instruction of the stop payment OP managed to take another EMI from the complainant’s Savings A/c. Then complainant wrote a letter to OP in the December,2014 stating their inability to continue  any terms with the company and asked for refund of the money. Again OP informed them that there was  no provision of refund of money . Hence the application prayer for refund of Rs.57,072/- along with compensation with cost.

OPs appeared before the Forum and filed their written version. In their written version OPs denied all material allegations inter alia stated that   the complainant had failed to set out any case for deficiency in service. The liability of the OP under the membership rule is part and parcel of the contract executed between the parties. Complainant has not approached the Forum with clean hands and suppressed several facts. As per Clause 16.1 ‘ All or any disputes, differences or questions arising out of this transaction shall be settled by Arbitration  by a Sole Arbitrator to be appointed by Mahindra Holidays & Resorts India Limited(MHRIL).’  Features of the membership were   explained to the complainant and after being convinced on the terms of the membership complainant  agreed to avail of the service of the OP. Accordingly complainant agreed to pay the down payment for OP’s membership claims and also agree to pay installments viz.the membership fees etc. calculated as per the membership opted by the complainant. Total membership price  was Rs.3,32,000/- The complainant opted   to pay  through EMIs. Hence the membership fees was calculated  as Rs.4,39,664/- along with  the interest.  The down payment was  Rs.33,200/-, the complainant was provided  with  Rs.7,000/- as discount  and accordingly  complainant paid Rs.26,200/-. The complainant paid  only 5 EMIs amounting to Rs.42,340/-  out of 48 EMI.

          OP also stated in their w/v that complainant had placed a request for availability of OP’s  Resort at Gangtok during 1^st week of June, 2014. OP reverted the request of the complainant and stated that rooms  were not available on the said  date and they provided the complainant with alternate choices of destination like Club Mahindra Bangkok, Club Mahindra Jaisalmer and Club Mahindra Poovar. But complainant had not accepted the alternate locations provided by the OP. OP stated that  being a hill station, Gangtok was not   recommended in rainy season and as such Jaisalmer, poovar or Bangkok was suggested. Complainant visited  Gangtok without any involvement of  OP and hence OP cannot be liable for the alleged incurred room rent. As per Clause 8.1 relating to withdrawal of application and terms of refund, members are allowed  a period of 10 calendar days from the date of MHRIL’s realization of down payment to withdraw the membership application and claim full refund. The complainant did not request the OP within the said 10 days   and hence the provisions stated  in Clause 8.1 is applicable. As per Clause 8.4  deductions would be applicable upon cancellation/termination. In accordance with the terms of the contract duly executed by the complainant both the OP and complainant are bound by the terms stated in the contract.

          Hence the case is liable to be dismissed with exemplary cost.

Decision with reasons

We have gone through the pleading of the parties and evidence along with documents in particular.

It is admitted fact that complainant received a phone call on 12.01.2014 that the complainant had own a Holiday package and she had to visit  at City Centre, Salt Lake to collect the same. After being allured  by the representation  of OPs complainant agreed to enter into a Club membership agreement with OP after initial payment  of Rs.26,200/-. OP issued a receipt  to that effect. Thereafter the complainant paid EMI @ 8,468/- on 07.04.2014, 06.06.2014 and 09.10.2014. As per terms and conditions after giving  3 EMIs  complainant  applied  for a holiday package to OP to visit Gangtok in 1^st week of June,2014. But OPs denied complainant’s request  since rooms were not available in Gangtok. Instead of  providing any arrangement in Gangtok  OPs offered the complainant to visit Jaisalmer or Bangkok in July, 2014. In their w/v OPs stated that rooms were not available in Gangtok in the month of June,2014 OP also stated  in their w/v that  being a hill station Gangtok was not recommended in rainy season and as such Jaisalmer , poovar and Bangkok was  suggested to the complainant. OPs did not furnish any document showing non-availability of rooms in Gangtok in June, 2014 It is astonishing that OPs offered the complainant to visit in Jaisalmer in summer.  Complainant opted fir holiday package after clearing three EMIs as settled by O.Ps. But O.Ps did not give any service to the complainant. When complainant wanted to visit Gangtok in Summer O.Ps offered the complainant to visit Jaisalmer. Thereafter O.Ps also did not try to satisfy the complainant. Moreover they were strict for non cancellation of the membership. Being frustrated upon the act of O.Ps, complainant opted for cancellation of the membership. From the documents it is evident that complainant paid Rs.26,200/- by Debit Card as Booking amount. Thereafter complainant paid Rs.8,468/- in cash on 14.05.2014. Complainant paid another three EMIs @ Rs.8,468/- through  ECS payment. Therefore complainant paid Rs.60,072/- and complainant prayed for refund of Rs.57,072/-.

In view of above we find deficiency in service and unfair trade practice on the part of O.Ps and therefore complainant is entitled to get relief as prayed for.

Hence, ordered

that the case being no.CC/258/2015 is allowed  on contest. 

O.Ps are  hereby directed to refund Rs.57,072/- to complainant. OPs are also hereby directed to pay Rs.10,000/- as compensation for prolonged mental agony  and harassment and along with litigation cost of Rs.5,000/- within 30 days from the date of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.

          Supply certified copy of this order to the parties free of cost.