Delhi

StateCommission

A/1049/2014

RITU BAMMI - Complainant(s)

Versus

CLUB MAHINDRA HOLIDAYS LTD. - Opp.Party(s)

22 Oct 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:  22.10. 2019

 

 

First Appeal No.1049/2014

(Arising out of the order dated 27.09.2014 passed in Complaint Case No. 146/2013 (Old No.492/2010 (DF-VII) by the District Consumer Disputes Redressal Forum (North East), Nand Nagri, Delhi)

 

 

Ms. Ritu Bammi,

120, Munirka Enclave,

New Delhi -110067.

                                                                     …..Appellant

 

Versus

 

Club Mahindra Holidays Limited,

Mahindra Towers, 5^th Floor,

2A, Bhikaji Cama Place,

New Delhi -110066.

….Respondent

 

CORAM

Ms. Salma Noor, Presiding Member

 

 

1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?

 

Ms. Salma Noor, Presiding Member

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) against order dated 27.09.2014 passed in Complaint Case No.146/2013 (Old No.492/2010 (DF-VII) by the District Consumer Disputes Redressal Forum (North East), Nand Nagri, Delhi (in short, the “District Forum”) whereby the aforesaid complaint has been dismissed being devoid of merits. For the sake of convenience, the parties herein shall be addressed as were before the District Forum.
2. Briefly stated the facts relevant for the disposal of the present appeal are that a complaint under Section 12 of the Act was filed by the appellant herein i.e. the complainant before the District Forum stating therein that complainant in March 2009 purchased a time share holiday in a Studio Apartment under the Red Season (the highest category being sold) for Rs.3,45,341/- for a period of 25 years from the OP and as the complainant paid the full amount, a discount was given and Rs.3,28,074/- was paid to the OP. It was alleged that though OP was offering a computer notebook to the customers who purchased a time share of the category that the complainant had purchased but she chose  to get cash back in lieu of the gift and accordingly a sum of Rs. 15,000/- was refunded to her. It was alleged that sales person of the OP mentioned that there was a Annual Subscription Fees (ASF) that was payable for the time share but added it was a nominal amount and did not mention that it was a variable amount which would increase year to year based on the inflation figures. It was alleged that OP did not disclose to the complainant that annual subscription fees was subject to service tax. It was alleged that complainant received an invoice for payment of ASF for the year 2010.11 whereby the ASF had been increased by 11.83% based on the increase for the Urban Consumer Price Index (CPI) published by Reserve Bank of India. Though the plaintiff admitted that the time of enrolment a lengthy form had been signed which gave various terms and conditions of the time in which the linking of ASF to Urban CPI was including. However, It was alleged that complainant was not given time to read entire form and this clause linking the ASF to the Urban CPI was never explained to her at the time of selling time share.
3. It was alleged at the time of marketing the sale representative of the OP did not explain the full implication of the inflation linking of the ASF. It was alleged that a calculation done for the period of 25 years for which the time share had been purchased shows that at the current rate of inflation i.e. 11.83%. The amount to be paid as ASF in the 25^th year would be a staggering Rs. 1,19,336/-and after adding service tax @ 10.3%, it would come to Rs. 1,31,627/-. It is alleged that the calculation would show that time share for which the complainant has paid Rs. 3,13,074/-, the cost of the ASF would be Rs. 10,59,165/- and in case service tax is added the amount becomes Rs. 11,68,259/- over the 25 years. It was alleged that complainant is 50 years of age and would stopped earning in another 10 years. Therefore, it would not be possible for the complainant to pay such exorbitant amount after retirement for a week’s holiday. It was alleged that purchasing the time share was a part of complainants retirement plan to have good holiday. Even after retirement, it was alleged that the website of the OP promoting the sale of the time share very clearly states “inflation free family holidays for the next 25 years”. It was alleged that in case a member fails to pay the ASF, no booking is done by the OP. Therefore, the customer stands to loose the right to staying at the resort of the OP, in case the ASF is not paid and all past dues not cleared to the OP. It was alleged that it is with the clear intention of keeping the customer ignoring the inflation clause regarding ASF is not highlighted by the sales person or the OP on its website. It was alleged that complainant would never have agreed to purchase the time share had the full implications of the ASF clause  been explained. It was alleged that OP would given by a time share member on letters defaulting on his/her ASF because then they do not to have to give the holiday that has been paid for in advance and they can rent out the property to someone else. It was alleged that complainant sent a letter to the company indicating the desire to terminate the membership and sought refund of the monies paid to the OP alongwith interest and the complainant at the same time offered to pay for the facilities used at the rate which is charged to non-members and deduct the value of all the benefits like cash back, food coupons etc. that has been received for upon becoming a member but in vain. Therefore, alleging deficiency in service on the part of the OP, the complainant filed a complaint before District Forum seeking direction for refund of the membership fees with interest  @ 11.83% and to refund the amount of Rs. 8,043/- paid by the complainant for first year ASF alongwith cost of litigation and after deducting the amounts received by complainant in lieu of the offer of OP while purchasing the time share.
4. The complaint was opposed by the OP by filing written statement wherein it was alleged that only allegation raised in the complaint is that the complainant had really had a change of heart after coming to know about the terms of membership rules particularly in regard to ASF.
5. It is stated that under the membership rules that contain a binding contract between the parties, the ASF is variable and inter alia had been on customer price index for urban Non-manual Employees-All India and selected centre published by the RBI as relevant for the period immediately preceding, the period of which ASF is fix and hence the ASF is refixed from time to time is relatable to the above CPI is notified from time to time. It was alleged that complainant having agreed to such term is bound by it and the present complaint is nothing but an attempt to resile from the contractual obligation. It was stated that from 2003-04 till 2007-08, the ASF was being linked to the CPR/WPI. However, from 2007-08 onwards the ASF was linked in terms of the membership rules to the UCPI and hence of the members who enrolled and/or took membership w.e.f. It was alleged that the complaint is not maintainable since the complainant is booked for and had availed complementary holiday under the membership scheme at Binsar and also utilised the food vouchers given to her also and received the case back in lieu of Jet Airways tickets and, thus, having availed of benefits under the membership scheme and contractual terms the complainant is stopped from claiming for a refund of the membership fees.
6. It was stated that there is no negligence committed by OP. It was stated that rule 5 of the membership rules clearly states about the incremental part of the ASF and basis of the same and the same is mentioned on the back of the complainant’s copy of the application form; and same has not been filed on the record by the complainant intentionally. The OP has denied that the complainant was not given time to read the membership rule. It was stated that she was clearly explained of the terms and conditions and after understanding the same, she signed the application form. It was stated that complainant had signed the contract with the OP after reading all the membership rules and the same was confirmed by her by signing the members review for confirmation of understanding mentioned in the application form.
7. The prayer for dismissal of the complaint was made. The Learned District Forum hearing the arguments, dismissed the complaint being devoid of merit. Aggrieved with the aforesaid order present appeal is filed.
8. I have heard the counsel for the parties and have gone through the material on record carefully.
9. Learned Counsel for the complainant submitted that the Ld. District Forum failed to appreciate the evidence laid by the complainant thereby denying the benefit of Consumer Protection Act of the complainant. It is submitted that the complainant notice the increase in the ASF when she received the invoice for the next year. It is stated that OP explained that as per the terms and conditions governing the time share, the ASF was linked to Consumer Price Index Number of Non-Manual Employees- All India and selected centres published by the RBI at relevant period immediately preceding period for which ASF was to be fixed. It is stated that complainant did a calculation on the projected amount of ASF for the 25 years period for which the time stock had been purchased and in case the rate of inflation was the same as for the second year. The ASF would amount to Rs. 1,19,336/- for the final year and at that time the complainant would be aged 74 years and not having regular source of income paying such huge amount of ASF for a week’s holiday for put enormous strain and  may have even force the complainant to forgo the holiday as the rules of the OP stipulate that in case ASF is not paid the member would not be entitled for availing the holidays for which payment had been made upfront at the time of become a member. It was stated that a letter through registered post was sent to the OP for cancellation of membership and refund all the subscription fees after adjusting for the benefits availed at the rate of chargeable to non-members. However, no response was received from the OP.
10. Admittedly the complainant purchased time share holiday in a studio apartment under the Red Season from M/s Club Mahindra Holiday Ltd in the year 2009 for a consideration of Rs. 3,45,341/-. It is also admitted position that complainant paid the full amount and a discount of Rs. 15,000/- was given to the complainant in lieu of the computer notebook which was being offered by the OP for the membership. Thus, the amount paid by the complainant for the time share was Rs. 3,13,074/- It is also admitted position that complainant availed a holiday under the membership scheme at Bainsar and has also utilized the food voucher given to her has also received the cash back in lieu of the Yatri tickets.
11. The main grievance of the complainant is that at the time of marketing the time share, sales representative of the OP did not explained the full implications of the inflation linking to the Annual Subscriptions fees and that ASF was a variable amount which would increase year to year basis on the inflation figures and the fact that ASF was subject to service tax. It is stated by the complainant that she come to know the said fact upon receiving the invoice for payment of ASF for the year 2010-11 whereby the ASF was increased by 11.83% based on the increase in UCPI published by RBI. Further the grievance of the complainant is that the plaintiff was not given time to read the entire of the clause linking to ASF to the Urban CPI at the time of selling the time. It is contented by the complainant that Ld. District Forum has wrongly observed that the printout submitted by the complainant as Annexere-2 with the complaint is of no hold to the complainant because it has been taken out from the website from the some other company. I have perused the said document (Annexure-2) and find that the said printout is from the website of the OP, the printout of which was taken by the complainant on 14.08.2010. Though in the said print out it has been mentioned that inflation free family holiday for the next 25 years. The that as it may the fact remains that the complainant purchased the time share in March, 2009 and the contract in question was executed between the parties which was admittedly signed by the complainant. Therefore, no reliance can be placed on the said document i.e. Annexure-2 filed with the complainant as the same was not of the relevant period. The other grievance of the complaint that she was not explained terms and conditions of the contract and time was given to her to read the same. The District has rightly held that the contract has to be construed like in other contract on the basis of its terms and conditions and outside aid for construction of the contract is impermissible. Further, the District Forum has rightly adopted the analogy of the decision rendered by the Hon’ble National Consumer Commission in National Insurance Company ltd. Vs. Vinod Puri and Another, reported 1(2014) CPJ 341 (NC), 146. The District Forum has also rightly held that if the ingredients of a valid contract are fulfilled and there are absolutely no reasons to believe that the contract had been executed signed by any of the parties to it under force, coercion, undue influence, misrepresentation etc. The contract cannot be held to be a void or voidable contract though it may be an unfair contract on the ground that any of the party to the contract was not allegedly offer full opportunity to go through the contract. In the present case the onus to prove this fact that the complainant was not given opportunity to go through contract shall be upon the complainant which she has failed to do so. Merely alleging the fact that the terms and conditions were not explained to her and she was not alleged to go through the same will not suffice.
12. Learned District Forum has also rightly held that the mere fact that after attaining the age of superannuation, the complainant would be left with no money to pay such exorbitant amount is no ground to conclude that the contract in question is not binding on her. Pertinently when the complainant preferred to receive the cash back in lieu of the services offered by the OP wherever she got the opportunity to do so.
13. Further, the complainant in para-3 of complaint has admitted the fact that the sales person of the OP mentioned that there was a Annual Subscription Fees that was payable for time share. The same was payable as a nominal amount. Since the complainant was aware about the fact that the ASF clause existed in the agreement, it was the duty of the complainant to go through the same. Merely alleging that she was not allowed to read the entire form and the clause linking to the ASF will be of no help to the complainant.
14. As regards the prayer made by the complainant that the contract in question should be declared null and void, the District Forum has rightly held that it has no power and that the District Forum is not competent to declare a contract null and void and the appropriate and efficacious remedy for the complainant is to file a civil suit.
15. In view of the above discussion, I find no infirmity in the impugned order passed by the Ld. District Forum and dismiss the appeal accordingly.
16. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information.  The record of the District Forum be sent back forthwith.

Thereafter, the file be consigned to record room.

 

 

(Salma Noor)

Presiding Member