Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.56/26.02.2021
Jyoti Malhotra wife of Sh. Som Prakash Malhotra
(through her special attorney Som Prakash Malhotra)
resident of H-316, 2nd Floor, Vikas Puri, Tilak Nagar,
Delhi-110018 ...Complainant
Versus
Ms Country Holidays Inn & Suites Pvt. Ltd.
[through it's Director/Authorized person]
Regd. Office at - 2045/1, II Floor, Street No.6,
Chuna Mandi, Paharganj, New Delhi-110015.
Corporate Office at: OBS Tower, III Floor, A-Block,
A-37, Sector-63, Noida, Gautam Budh Nagar,
Uttra Pradesh -201301. ...Opposite Party
Order Reserved on: 01.03.2023
Date of Order: 10.05.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER [ex-parte]
1. (Introduction to dispute and relief claimed) : The complainant and the opposite party had enter into an agreement dated 04.08.2018, being membership purchase agreement for a period of 10 years and complainant had paid a total sum of Rs. 1,42,500/-, wherein OP had agreed to provide good and satisfactory services of high standard quality in respect of tour and travel package, hostels as per choice and also to the satisfaction of the complainant. The OP failed to honour the same. The complainant had asked for return of amount given to OP but no result.
Thus OP is liable to return the entire money of Rs.1,42,500/- (along-with interest thereon @ 18% per annum w.e.f. 22.10.2019
till realization of the amount) which was taken fraudulently from the complainant. The OP is also liable to pay lump-sum compensation of Rs.3,00,000/- along-with interest thereon to the complainant for causing mental agony, pain, harassment, injury and committing deficiency in services under the law of the Consumer Protection Act, apart from costs.
2.1 (Case of complainant): The complainant filed his complaint through her attorney/husband Sh. Som Prakash Malhotra by virtue of Power of Attorney dated 09.02.2021 in his favour. The OP is a registered company, in the business of hospitality, operating clubs, hotels, resorts and marketing vacations at domestic level and at international levels. The complainant and the OP had entered into membership agreement, she paid Rs. 95,000/- on 04.08.2018 through credit card, Rs. 40,000/- on 04.12.2018 through cheque and Rs. 7,500/- on 29.12.2018 by online transfer to the OP, accordingly total amount of Rs. 1,42,500/- was paid to the OP. There was verbal discussion, along with noting between them, OP was being represented by Sh. Shiv Bhushan and Sh. Abdul Khursid Ahmed and it was promised to the complainant & her husband to adjust three adults members in place of two minor children as per ‘Plan T-1’. The complainant well informed to OP about their major children, their status and other relevant information asked for.
The OP had assured for highly standard quality in respect of hotel hospitality, hotel booking, tour travel and related services would be provided promptly, timely and efficiently to the complainant as per her choice and adjusting three adult member for staying in hotel for a period of 6 nights and 7 days in a year for a total period of 10 years and in case of extra person, if any only, reasonable/ suitable charges would be payable, there would be no complaint in this regard from the side of OP. However, the complainant had not gone through the agreement before signing it on 04.08.2018 but she believed upon the assurances, promises and representations of OP made verbally through its representatives in respect of all these circumstances mentioned. However, the OP failed to honour its promise, commitment and other assurance given, for which the complainant and her family faced a lot of trouble and inconvenience.
2.2. The complainant has mentioned three episodes of different intervals/periods, when OP was requested as well as asked in well advance for planned trip under the agreement but OP made it unsuccessful, their narrations are given being relevant :
(a) It was 28.4.2019, when complainant through e-mail requested OP in advance for booking of hotel in Manali from 26.05.2019 (check in) to 31.5.2019 (check out), which was followed another email dated 30.04.2019 through her son to OP. But OP by its emails dated 30.4.2019 and 01.05.2019 informed for different booking date and other options, which were not suitable to the complainant. Then complainant got issued e-mails dated 01.05.2019 and 03.05.2019 to OP and the OP through its e-mail dated 02.05.2019, 03.05.2019, 04.05.2019, 10.05.2019 apologized from the complainant. There were many e-mails, messages/ correspondence dated 03.05.2019, 04.05.2019, 08.05.2019, 09.05.2019, 10.05.2019, 12.05.2019 and 14.05.2019, between them but all in vain. The OP failed to provide satisfactorily or good services to the complainant as per her choice and request despite assured for and agreed by OP.
(b) On 22.10.2019, the complainant by e-mail letter sent through her son requested OP in advance to book two rooms in a hotel in Chokhi Dhani the Palace Hotel (Jaisalmer) in Rajasthan to accommodate 5 adults and 1 kid (3 years) for utilizing their all 6 nights for the same starting from 24.12.2019 and checkout on 27.12.19. But, the OP again failed to provide its satisfactorily services to the complainant as per her choice and request, OP by its e-mail reply dated 22.10.2019 informed the complainant of non-availability for the captioned dates due to 'blackout date' and sold out reasons. [During arguments it was explained, that blackout date means, the room are not available or already booked].
(c ). On 23.10.2019, the complainant by e-mail dated 23.10.2019 through her son asked OP for booking of Desert Palace Jaisalmer for all three nights starting from 22.12. 2019 and checkout on 24.12. 2019. The OP repeated its deeds and failed to provide its services accordingly.
The OP vide it's reply e-mail dated 22.10.2019 and other e-mail dated 23.10.2019 informed and offered to the complainant different date, time and also place which was inferior place i.e. tent houses to the complainant, but of no avail. The OP made false and frivolous excuses time and again and failed to fulfill its promises and assurances. Moreover, the complainant by e-mail dated 24.10.2019 had informed the OP that they cannot keep on changing hotels in between the trip as it was not feasible for them as well as they were not willing to stay in any of the tent houses as offered by OP.
Then, complainant through her messages, telephone calls and e-mails dated 25.10.2019 requested OP to do the needful and to provide hotel facility and services etc. in terms of the aforesaid agreement, but of no avail. The OP had miserably failed to provide satisfactorily services as agreed by them to the complainant as per sweet will, desire and comfort of the complainant.
As and when the complainant had requested OP, several times, in the month of October 2019 and November 2019 for advance booking of room/hotel and to provide services in terms of the agreement dated 04.08.2018 as per plan, date, time and place etc., OP always failed to honour the same and OP always offered entirely different options, time schedule etc., which was not suitable and comfortable to the complainant, which is manifested from various e-mails/ correspondences as exchanged during October 2019 and November 2019.
2.3 There were always denial and deficiencies in the services by OP. The OP has also been negligent in providing services to the complainant and OP failed to adhere to promise, commitments and assurances given and agreed to the complainant, whereas the complainant had paid entire agreement in advance. Consequently, the complainant has suffered a great mental pain, loss, harassment and agony due to inadequate, negligent and deficient services of OP. Therefore, the OP is liable to return the entire amount, fraudulently taken by OP from the complainant along-with interest @ 18 % per annum besides compensation for all such losses, injury and harassment as suffered by the complainant.
The complaint is accompanying with documentary record/copies of identity proof of complainant, of her attorney/husband and family, power of attorney, noting of calculations, supposed to be at the time of negotiations between the complainant and representative of OP & agreement, welcome letter, copy of membership purchase agreement along with other literature, copy of passbook of complainant of various payments made to OP, correspondence exchanged, more specifically emails between the parties with regard to proposed plan to visit at different places, request for booking in advance as well as its responses by OP and legal notice sent to OP by the complainant seeking return of the amount.
3.: The OP was served with notice to complaint, however, it remained abstained from attending the proceeding, thus OP was proceeded ex-parte on 26.09.2022.
4.1 (Evidence & Submissions): The complainant’s attorney Sh. Som Prakash Malhotra led evidence by filing his detailed affidavit, supplementing with the documents inclusive of emails exchanged, which were also filed with complaint.
4.2. The complainant filed written arguments, which are on the lines of complaint/affidavit of evidence. Shri S.K Gupta, Advocate along-with Ms. Monika Chaudhary, Advocate also made oral submissions on behalf of complainant.
5.1 (Findings) - The case of complainant is considered keeping in view, the narration of complainant along-with documentary record, which are reconciling and corroborating each other. Moreover, the e-mails exchanged between the parties, from time to time, are also establishing the case of complainant that she had requested OP for advance booking on many occasions, but on each occasion she was suggested a different option and schedule, whereas complainant had paid the amount in advance for 10 years period, with options of particular tenure in year and she had exercised that option within parameter of agreement, however, the OP made other counter schedule, which was not according to plan and schedule of complainant. The OP cannot force its time plan & other schedule on the complainant, nor it was a condition in the agreement. The detailed facts and allegations against OP of three episode, narrated in paragraph 2.2. above, are proved by the complainant against OP and same remained un-contested and un-rebutted for want of appearance of OP and to face & counter them. Thus, complainant has proved her case against OP of not providing services agreed upon despite taking advance amount, it is deficiency of services as well as unfair trade practice, there is also negligence on its part and OP had also apologized there-for in the email exchanged. The complaint served legal notice asking refund the amount paid since the OP failed to perform its contractual obligations, and to honour its own commitments and promise, apart from deficiency of service, the OP failed to return the amount Rs.1,42,500/-; the complainant is held entitled for return of her advance amount given to OP.
Since, the complainant had parted with her money, OP had utilized the amount without any services to complainant and OP had not returned the amount despite asking for it, therefore, reasonable simple interest @ 7%pa from the date of filing of complainant till payment by OP is allowed in favour of complainant and against the OP.
5.2: The complainant seeks compensation of Rs.3,00,000/- for harassment, mental, agony, trauma and other humiliations since she is working lady and OP was well knowing about the family, as it was so inquired when agreement was entered into. The complainant had entered into agreement so that the complainant along-with her family may have advance hassle free booking of hotel and not to bother in searing the hotels and room and to utilize the time optimum free from stress, however, it was spoiled. Thus, in these circumstances compensation of Rs.30,000/- in favour of complainant and against OP will meet both sides ends. The cost of litigation are also quantified as Rs.5000/- in favour of complainant and against the OP.
5.3: Accordingly, the complaint is allowed in favour of complainant and against the OP to return entire advance amount of Rs.1,42,500/- along-with simple interest of 7% p.a. from date of filing of complainant till realization of amount, apart from damages of Rs.30,000/- & costs of Rs.5000/- to be payable within 30 days from the date of receipt of this order.
In case, OP does not pay the amount within 30 days from date of receipt of this Order, OP will be liable to pay interest @ 9% per annum on amount of Rs.1,42,500/-.
6: Copy of this Order be sent/provided forthwith to the parties free of cost as per Regulations.
7: Announced on this 10th May, 2023 [वैशाख 20 , साका 1945].
[ Shahina] [Inder Jeet Singh]
Member (Female) President
