BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                             Dated this the 28^th of February 2011

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.280/2010

(Admitted on 23.10.2010)

Mr.Vivek Kumar,

Aged about 38 years,

So. H.S. Kumar,

RA. Flat No.403,

Rawal Court, Sturrock Road,

Mangalore.                                       …….. COMPLAINANT

(Advocate for the Complainant: Sri.Anil Kumar K.)

          VERSUS

Club Mahindra Holidays & Resorts India Ltd.,

Alfa Towers,

1^st Floor, Mandovi Motors,

Hampankatta, Mangalore  1.

Rep. by its Authorized Signatory.        ……. OPPOSITE PARTY

(Opposite Party: Exparte).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, he became a member of the Opposite Party’s Club Mahindra Holiday’s by paying Rs.25,426/- by way of account payee cheque drawn in favour of the Opposite Party.  The Opposite Party has issued a certificate of membership on 21.04.2009 allotting membership No.1450647.  It is stated that, at the time of issuing said certificate, the Opposite Party has undertaken to give the following services i.e., as under:-

1. Two air tickets to travel anywhere in India.
2. 5 days Holiday package which is complementary.
3. Referral benefit of Rs.4,000/- per member (benefit which I would receive on referring any new member to the Opposite Party on my side).
4. L.C.D. TV of 32 inches.
5. Offered Food Coupons worth Rs.5,000/-.

          It is stated that, the Complainant was asked to pay initial payment of Rs.25,000/- and three installments of Rs.5,687/- each as onetime payment and the balance of fee by monthly installment of Rs.5,687/- for five years and it has been assured to enjoy the benefit of seven days in a year for 25 years in their resorts.  Believing upon the Opposite Party’s representation, the Complainant become their club’s member in good faith.  It is stated that, apart from paying Rs.25,426/- and three installments at a time plus monthly installment of Rs.5,687/- till February 2010 paid to the Opposite Party.  But contrary to their assurances, the Opposite Party failed to provide the services agreed to be given at the time of issuance of the membership certificate.  It is stated that, Opposite Party not given two air tickets and five days Holiday Package which is complementary one.  After becoming the member of the Opposite Party’s club, Complainant has referred five persons to the Opposite Party but they have paid Rs.4,000/- only as against Rs.20,000/- i.e., the referral benefit agreed/promised i.e., Rs.4,000/- per person.  Opposite Party also failed to issue food coupons worth Rs.5,000/- which was promised at the time of admission as member of their club.  It is stated that, the Opposite Party has delivered 26’’ L.C.D. TV as against the 32” T.V as promised.  It is stated that, till today the Opposite Party not given the services agreed to be given.  When the Complainant insisted for the complementary 5 days Holidays Package, during the month of February 2010 which he wanted to gift his sister.  Opposite Party has asked the Complainant to pay charges for the same which is contrary to their assurance.  It is stated that, because of the Opposite Party’s indifferent attitude and failure to provide the services agreed/promised to be given at the time of issuing the said membership certificate, the Complainant has suffered mental agony and hardship and hence he discontinued the membership and was forced to stop the ECS clearance towards the monthly installment.  Finally on 01.07.2010, Complainant wrote a registered requisition to Opposite Party to cancel/terminate the membership and requested them to refund the amount, to which Opposite Party has given vague reply. It is stated that, the Complainant not aware of such rules and conditions of the Opposite Party nor furnished such terms and conditions or rules to the knowledge of the Complainant and stated that, the Opposite Party has persuaded the Complainant to purchase the Opposite Party’s membership assuring several gifts and lower membership fee.  It is not feasible for ordinary person like Complainant who works in a Private Firm for a meager salary to have such an exorbitant and costly membership as against one offered.  It is stated that, the Complainant has withdrawn from the Opposite Party’s membership and issued a legal notice to refund the amount but the Opposite Party failed and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to refund Rs.87,557/- with interest at 12% p.a. from 23.03.2009 till payment and also claimed Rs.1,05,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD, despite of serving notice neither appeared nor contested the case till this date.  Hence, we have proceeded exparte as against the Opposite Party.  The acknowledgement placed before the FORA marked as court document No.1.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Mr.Vivek Kumar (CW1) filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C8. The Complainant filed notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsel for the Complainant and also considered the materials that was placed before this Forum and answer the points are as follows:                   

                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

The Complainant sworn to the fact that, he become a member of Club Mahindra Holidays by paying Rs.25,426/- as down payment on 23.03.2009 through an account payee cheque as per Ex C1 i.e., the certificate of membership issued by the Opposite Party dated 21.04.2009 bearing membership No.1450647.  It is also stated that, the Opposite Party has undertaken to give following services to the Complainant:-

6. Two air tickets to travel anywhere in India.
7. 5 days Holiday package which is complementary.
8. Referral benefit of Rs.4,000/- per member (benefit which I would receive on referring any new member to the Opposite Party on my side).
9. L.C.D. TV of 32 inches.
10. Offered Food Coupons worth Rs.5,000/-,  for which the Complainant asked to pay initial payment of Rs.25,000/- plus three installment of Rs.5,687/- each at a time.  It is also stated that, on believing the representation of the Opposite Party, Complainant has become their club’s member in good faith and made down payment of Rs.25,426/- and three installments at a time plus monthly installment of Rs.5,687/- till February 2010.  But contrary to the assurance, the Opposite Party has failed to provide the services agreed to be given at the time of issuance of said membership certificate.  It is stated that, Opposite Party did not given two air tickets and 5 days Holidays Package which is a complementary one.  Further stated that, after becoming member of the Opposite Party club, Complainant has referred 5 persons to Opposite Party but they have paid Rs.4,000/- only as against Rs.20,000/- i.e., the referral benefit agreed/promised.  And further alleged that, Opposite Party has also failed to give food coupons and to deliver 32 inches LCD T.V.  It is stated that, the Opposite Party delivered 26 inches LCD T.V as against 32 inches. Further stated that, the Opposite Party not furnished rules and conditions to the Complainant and he is not aware of the terms and conditions of the Opposite Party.  Hence, he is fed up with the service of the Opposite Party and forced to stop the monthly installment and issued a registered letter dated 01.07.2010 to cancel/terminate the membership and sought for refund of the amount paid by him but the Opposite Party not complied, hence filed this complaint along with document number Ex C1 to C8.     The Opposite Party despite of receiving version notice not appeared nor contested the case till this date. The entire oral evidence by way of affidavit as well as documentary evidence not controverted/contradicted by the Opposite Party appearing before this FORA.

          On scrutiny of the oral as well as documentary evidence available on record, we find that, the certificate of membership issued by the Opposite Party to the Complainant shows that, Complainant became the member of the Opposite Party Club Mahindra Holidays (i.e., Ex C1).  Further  the Ex C7 i.e., payment statement issued by the Opposite Party reveals that Complainant paid  Rs.25,426/- as down payment on 23.03.2009 plus three installment of Rs.5,687/- at a time and balance of fee by monthly installment of Rs.5,687/- till February 2010 to the Opposite Party.  Further, we observed that, it is a definite case of the Complainant that, the Opposite Party not furnished rules and regulations or terms and conditions at the time of issuing the said membership certificate and he is not aware of the rules and conditions of the Opposite Party.  When the Complainant alleged that, the Opposite Party not served the terms and conditions, it is the bounden duty of the Opposite Party to satisfy that they have furnished the terms and conditions at the time of issuing membership certificate or thereafter to the Complainant.  Nothing has been placed on record to show that the Opposite Party supplied the rules i.e., Clause No.6.1 or 6.1(a) to the Complainant and he was aware of the same.  In the instant case, the entire oral as well as documentary evidence is not controverted nor contradicted by the Opposite Party.  In the absence of any contradictions, we hold that, whatever stated by the Complainant in this case requires no further proof.  The documents as well as the evidence affidavit of the Complainant proved that, the Opposite Party has failed to provide the services agreed to be given at the time of issuance of the membership certificate. When that being the case, it is quite natural that the member would seek for cancellation of the membership. 

          In view of the above discussion, we are of the considered opinion that the Opposite Party committed deficiency of service as they have not provided the services as agreed by them.  Under that circumstances, we direct the Opposite Party to refund the entire amount of Rs.87,557/- along with interest at 10% p.a. from the respective date of payment till the date of realization and also pay Rs.1,000/- as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

            In the present case, the interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.

6.       In the result, we pass the following:                          

ORDER

            The complaint is allowed.  We direct the Opposite Party to refund the entire amount of Rs.87,557/- (Rupees eighty seven thousand five hundred and fifty seven only) to the Complainant along with interest at 10% p.a. from the respective date of payment till the date of realization.  Further Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 28^th day of February 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Vivek Kumar – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 21.04.2009: Certificate of membership (original).

Ex C2 – 01.07.2010: Letter sent to the Opposite Party by the Complainant with postal acknowledgement and receipt.

Ex C3 – 12.07.2010: E-mail reply of the Opposite Party.

Ex C4 – 03.08.2010: Lawyer’s notice sent to the Opposite Party on behalf of the Complainant along with postal acknowledgement and receipt.

Ex C5 & C6 –    : Notarized copies of bank pass book of the Complainant (2 in numbers).

Ex C7 – 02.09.2010: Statement of payment issued by the Opposite Party to the Complainant.

Ex C8 –                 : Offer list with contact and payment details issued by the Opposite Party to the Complainant (it contains 5 pages).

Witnesses examined on behalf of the Opposite Party:

RW1 – Nil.

Documents produced on behalf of the Opposite Party:   

• Nil -

Dated:28.02.2011                            PRESIDENT