Complaint filed on: 10.05.2013

                                                      Disposed on: 21.08.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.937/2013

DATED THIS THE 21^st AUGUST OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant/s: -                           

1. Richa Bhooshan

w/o Kumar Ayush,

Aged 29 years

2. Kumar Ayush

s/o Prem Kishore Sinha

Aged 28 years

Available at,

801, 8^th floor,

Prestige Meridian – I,

No.29, M.G.Road,

Bengaluru-01

By Adv.Smt.Nandita Haldipur    

V/s

Opposite party/s:-    

Club Mahindra

Holidays and Resorts,

Rep. by its Managing Director, Having office at Pushpanjali, No.641, 80 feet road, Koramanagala, 4^th block, Bengaluru-45.

By Adv.Sri.B.J.Mahesh

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainants no.1 & 2 have sought direction against the Opposite party for refund of Rs.72,950/- with interest at 18% from July 2011 till realization along with compensation of Rs.2.5 lakhs alleging the deficiency in service in not providing the privileges after they obtained the membership with Opposite party.     

          2. The case of the Complainants in brief is that, believing the assurances of sales executive one Mr.Suresh, they became the member of “White Studio” provided by the Opposite party, to enjoy the privileges by making down payment of Rs.26,000/-, hoping to get free Panasonic 32’’ LCD TV and 7 nights 8 days stay package, so as to avail the benefit from their first marriage anniversary i.e. from January 2012. They made email transactions to get the privilege from 01.07.11 itself, but got confirmation on 22.06.11 for their stay at Yercaud from 30^th July till 1^st August and found that they did not offer three meals a day, but offered the food for higher rate and not for Rs.500/- as promised and they never availed 7 nights 8 days stay holiday package. No amounts were debited from credit card in July or August and the entries therein were wrongly entered by the executives and then it was brought to one such officer Ms.Lakshmi. She made fun of them with one Mr.Joe. Hence they met Mr.Brian and checked through account person Mr.Gernad, where they played blaming game at sales department about the wrong entries. Later she made efforts to see that Rs.26,570/- was debited in her account and thereby totally paid Rs.72,950/- to the Opposite party.  They insisted for RCI membership to get 7 nights 8 days holiday package to get privileges at any time. They found that the membership amount was not debited till December 2011, answering that there was no sufficient balance in her account.  Her credit card not swiped electrically or manually to avail from the debit entries. Hence they got issued the legal notice dtd.13.03.13 seeking refund of amount of Rs.72,950/- with compensation for which the Opposite party neither complied nor sent the reply. Hence this complaint.

          3. The Opposite party in its version denied the entire allegations made against the club, seeking dismissal of the complaint u/s 26 of CP Act, on the ground that the membership rules being part and parcel of the contract was suppressed by the Complainants to file this complaint on false grounds to gain illegally. They executed valid membership agreement & agreed to the terms & conditions of the membership rules on 16.04.11 by selecting “white Segment” out of four segments which is based on its cost for which she had to pay Rs.2,75,000/- payable in 24 EMIs of Rs.11,595/- per month. The Complainants paid only Rs.73,880/- through down payment of Rs.27,500/- and four EMIs and got Panasonic LCD TV of 32” and one week stay at RCI affiliated resort which was subject to the realization of 10% down payment of three EMIs for receipt of the gift. Regarding the second offer, there should not be any dues of EMIs at the time of reservation. The executives logged in the sales on 19.04.11 explained all its rules before they became member even regarding the cancellation process, but no assurances were made as alleged by the Complainants. Welcome kit was supplied within 30 days as usual practice. As per her request EMI was also started from July 2011 by informing her on 04.06.11 itself. The Complainant booked for holiday at Yercaud and availed all facilities without there being any scope for complaint. 7 nights and 8 days holiday programme becomes possible only accumulating of three years benefits. The Complainants came to branch of the Opposite party on 12.09.11 and paid two EMIs seeking updating of credit entry expiry date which was done immediately. The refund would be made if compliance is done as per clause 6.1(b), 6.2 of rules which made the Complainants to pay Rs.1,65,000/- as on the date of filing of the complaint, but she has paid only Rs.73,380/- and thereby nothing remains to be paid by the Opposite party to them. This complaint is speculative in nature filed on illusory grounds. It becomes liable to be dismissed with costs.

          4. The Complainant and the authorized person of Opposite party filed their affidavit evidences. The Complainant has relied on Ex-A1 to A51 documents and no documents produced by the Opposite party. Written arguments were filed by both sides. Complainant has relied on reported decisions. Perused the records. Arguments were heard.

          5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainants establish the alleged deficiency in service in not providing the privileges to them and for not refunding the paid amount after obtaining the membership with the Opposite party ?   
2. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative

2) As per final order – for the following      

REASONS

          7. Consumer Dispute No.1: The undisputed facts reveal that the Opposite party club through Ex-A1 letter dtd.23.04.11 offered the membership assuring to furnish membership kit within 30 days from realization of 10% of membership fees, expecting the holiday plans from the Complainants. The membership price was mentioned as Rs.2,75,002/- for the white segment out of four segments. It was for the period of 25 years starting from 01.02.12.

8. Accordingly the Complainant no.1 became the member with the Complainant no.2 as co-applicant as per Ex-A2 & A3 membership card. Panasonic LCD 32” TV was offered on receipt of not less than 10% of the amount from the Complainant no.1.

9. She wanted to start the programme from July 2011 itself, instead of membership privileges to be started from February 2012 and in this connection she made email enquiries from 01.06.11 as per Ex-A4 to A9. As the Complainant was still within the waiting period to enjoy the privileges of the membership, the Opposite party suggested to get enrolment with RCI which empowers her to enjoy any time of the year and in this connection she made transaction Ex-A10 to A14.

10. As per Ex-A1, the Complainant became the member for the privilege of “White Segment and Studio Apartment” and the Opposite party says that there were four segments to be chosen from different segments namely purple (for all season), red, white and blue (as per the seasons shown in the charts) and the white segment costing Rs.2,75,002/- which made the Complainant to pay the same in 24 EMIs of Rs.11,595/- per month and she paid down payment of Rs.27,500/- and four EMIs and made total payment of Rs.73,880/- as on the date of the Complaint. In Ex-A19 extract, the entries show the down payment of Rs.26,570/- dtd.16.04.11 and instalments of Rs.23,190/- dtd.10.09.11, Rs.11,595/- each dtd.16.09.11 & dtd.17.10.11 and the said payments as per the Opposite party amounted to Rs.73,880/-.

          11. In response to her demand about the complimentary package given to her wide Ex-A11, the Opposite party issued Ex-A12/letter about the options for which she had issued the holiday confirmation voucher/Ex-A14 for the period from 30.07.11 to 01.08.11 to be spent at Yercaud of Kerala. After enjoying the said privilege, the Complainant made the allegation that the Opposite party did not furnish the amenities for the assured amount but collected excess amount from her.

          12. Ex-A16 to A19 are the detailed account extracts. The Complainant stated that the wrong entries made therein made her to enquire with the concerned officials of the Opposite party, where she was humiliated. The discrepancies/alleged wrong entries are not the subject matter of this dispute. Hence there is no need to discuss the same though reflected in number of email copies marked in this case, namely Ex-A25, A42, A43, and A44 etc.,

          13. The allegation of the Complainant is that she made enquiries about “7 nights and 8 days holiday package”. The Opposite party answered the Complainant that in order to get the said package she has to become the member of RCI and assured that RCI membership kit would be dispatched within 21 days of her enrolment if she is enrolled within 30 days from 23.09.11 as shown in Ex-A24/letter.

          14. After she came to know about the privileges under four different segments and the demanded privileges not available in her white segment, she opted to seek refund of the amount expressing her intention to come out from the membership. In this regard she made email transactions as per Ex-A20 to A49. The Opposite party though offered the goodwill gesture by way of resort credit voucher worth Rs.3,000/- through Ex-A47, again reiterated informing the Complainant to follow the membership rules mentioned at clause 6.1 in claiming the refund.

          15. Through her legal notice/Ex-A50 dtd.13.03.13, she demanded refund of Rs.72,950/- paid by her with compensation of Rs.2.5 lakhs and notice charges of Rs.5,000/-. She has alleged therein that 7 nights and 8 days package was assured while taking Ex-A1 membership and now they demanded membership for RCI. In the said notice she has not narrated about the availing of TV as the complimentary.

          16. The Opposite party has contended that one week at RCI affiliated resort, available to her, if no EMIs/ASF are due at the time of redemption of that scheme and the Complainant has availed both the said offers of 32” LCD colour TV and a week stay at RCI affiliated resort. The Opposite party contended that the member becomes entitled to advance the holiday package for three years and can accumulate 21 days for utilizing the same at the convenience of the member. He has also stated that such enjoyment is subject to availability of rooms at demanded place. The Opposite party has mentioned the clause 6.1 and clause 6.2 which read as here under:  

          Clause 6.1 - in the event of termination/ cancellation of the Club Mahindra Holidays Membership (CMHM), the following shall apply:

          “Recession Period/Termination/Cancellation: Withdrawal of application for Club Mahindra Holidays Membership (CMHM) shall be permitted within the Recession period which is 10 days from the date of realization of 25% of Admission fee, provided such request for withdrawal is made in writing and signed (by both the applicants/ Members in case of Joint Membership) and reaches Mahindra Holidays & Resorts India Ltd (MHRIL) within 10 days from the date of application. 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.”

          Clause 6.2 - “Upon termination, the following deductions shall be made by MHRIL from the amounts paid by the member towards the Entitlement Fee (EF):

1. Pro rated EF for the period (in years) from the start of membership usage period to the date of termination. Part of the year shall be treated as full year for the purpose of calculating the deductions,
2. Outstanding ASF together with interest, if any,
3. Taxes due,
4. Cost of holidays enjoyed by the member in       excess of entitlement,
5. Any other amount/s due to MHRIL,
6. Any premium/enrolment incentives

17. In Ex-A49 dtd.29.02.12 the Opposite party informed the details of amount to be refunded after deduction is as here under:

          Hence amount to be refunded = Not applicable

18. The Complainant in her legal notice/Ex-A50 at the end of para no.1 contended that she would be entitled to get the entire paid amount within 10 days from her application and even if she is made to pay some minimal cancellation charges remaining amount could be refunded. In support of her contention she has not produced any cogent materials. Her allegations that she was informed by Opposite party about such privileges which empowered even to rent or sell her membership, is remained as bald allegations, having no evidentially value.   

          19. In Ex-A49/letter, the Opposite party has addressed the Complainant no.1 stating that she became the valuable member of the club since 19.04.11. The Complainant has also alleged that the membership fees ought to have been started from June 2011 and not from July 2011 and she has utilized the privilege from July 2011 itself as supported by email transactions. When the membership was started from April 2011, she opted to come out in February 2012 and hence it has become necessary to apply clause 6.2 of terms & conditions of the Opposite party. Clause 6.1 though empowers the Complainants to get refund of the entire amount, the said right should be read along with clause 6.2 towards the settlement of the liabilities against each other.  The Complainants who availed holiday privileges worth Rs.5,000/- and LCD TV worth Rs.20,500/-, as entitled benefits, have no right to rely on clause 6.1 only. There is no reason to disbelieve the calculation made in Ex-A49 towards the Complainant’s liability to pay the total amount of EMIs, annual subscription amount and the value of the availed privileges and thereby the Opposite party has every right to demand Rs.85,961/- from the Complainants. Since there is no excess amount than the calculated one by the Opposite party,   the Complainant herself become liable to pay balance amount towards the demanded Rs.85,961/-. The Opposite party does not become liable to refund the alleged deposit amount of the Complainants. The Opposite party even by exercising the discretionary powers offered the holiday packages in advance and has already furnished the promised TV and there remains no offered privileges with the Opposite party towards the Complainants. In the result Complainants have failed to establish the alleged deficiency of not returning the demanded amount and not providing the privileges. There is no liability on the part of the Opposite party to refund the alleged deposit amount of Rs.73,880/- as claimed by the Complainants. In the result the Consumer Dispute no.1 is answered in the negative.

          20. Consumer Dispute No.2: The Complainants have relied on two Supreme Court judgments to contend that this court has jurisdiction to try this complaint, irrespective of the conditions entered in to between the parties and irrespective of existence of proviso to approach arbitrator and the same do not obstruct this forum to proceed with this complaint. In view of findings of the Consumer Dispute No.1 the Complainants deserve to get the following:

ORDER

          The CC.No.937/2013 filed by the Complainants is hereby dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 21^st August of 2017).

Copies of Documents marked on behalf of Complainant/s:

Copies of Documents marked on behalf of Opposite party/s