Haryana

Panchkula

CC/189/2018

MR.SUSHILA SHEOKAND - Complainant(s)

Versus

COUNTRY HOLIDAYS INN & SUITS PVT.LTD. - Opp.Party(s)

Mr.Aseem Gupta

08 May 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                

Consumer Complaint No.	:	189 of 2018
Date of Institution	:	25.10.2018
Date of Decision	:	08.05.2019

                   

Ms.Sushila Sheokand W/o Sh.Sumit Rathee, R/o H.No.2058, Sector-21, Panchkula, Haryana.

         …….Complainant

Versus

 

1.     Country Holidays Inn & Suits Pvt. Ltd., through its Chairman/ Managing Director/Authorised Representative/ Take Over Manager, having its Regd. Office at 2045/1, II Floor, Street No.6, Chuna Mandi, Paharganj, New Delhi-110055.

        2^nd Address:-

        Country Holidays Inn & Suits Pvt. Ltd., through its Chairman/ Managing Director/Authorised Representative/Take Over Manager, Having its Corp. Office at OBS Tower, Suite G-04, 104, A-Block, A-37, Sector 63, Noida, Gautam Budh Nagar, U.P.-201301.

2.     Deepak Kaushal, Working as Take Over Manager at Country Holidays Inn & Suits Pvt. Ltd., Regd. Office at 2045/1, II Floor, Street No.6, Chuna Mandi, Paharganj, New Delhi-110055.

                                                            ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:              Mr.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.

                       

For the Parties:   Mr.Aseem Gupta, Adv., for the complainant. 

                        Mr.R.B.Singh, Adv., for the Ops.

 

ORDER

(Dr.Sushma Garg, Member)

1.     Brief facts in this complaint are that the complainant took the membership of Holiday Package No.CHISPH772330 on 23.09.2017 which was valid for 5 years from 23.09.2017 to 22.09.2022 for a total sum of Rs.70,000/-. The complainant paid part payment of Rs.35,000/- to the Ops through her debit card and also issued a cheque bearing No.923527 dated 25.09.2017 for Rs.35,000/- for the remaining payment. The complainant stated further that she was assured by the Ops that she has to pay Rs.70,000/- only once for next five years and no other charges would be charged from her. Further she was assured that she would be provided studio apartment rooms with five star facilities, whenever she books a Hotel for next five years during the policy. On 24.09.2017 when complainant read the agreement and terms & conditions, they were different from what was assured by the Ops. According to agreement, complainant has to pay Rs.7000/- annually as subscription charges and other additional taxes. Then complainant immediately refused to carry on with the contract but the Ops refused to refund the money. Then on 25.09.2017, complainant requested to the bank to stop the payment of the cheque issued to Ops on 23.09.2017. The complainant time and again sent e-mails and requested the Ops to refund the entire amount; but the Ops refused to refund the amount on the ground that membership fee is non-refundable. When complainant had no option, she requested the Ops to adjust her amount by providing any holiday package. The Ops offered her a package for two nights which she did not find value worth; hence, she refused for the same. Thereafter, the complainant requested the Ops to book a hotel at Jim Corbett, Nanital for two nights from 23.03.2018 to 25.03.2018. The Ops demanded Rs.2360/- towards utility charges which the complainant deposited with them. Thereafter, the Ops booked a leopard room alongwith free breakfast at Jim Corbett. Since the room booked by Ops not a studio apartment as was assured by the Ops at the time of agreement. The complainant requested the Ops either to book the studio apartment or to postpone the booking. Though the Ops postpone/ cancel the booking yet they did not refund the amount of Rs.2360/-. Thereafter, the complainant requested the Ops to make a booking at Dharamshala for two nights stay from 13.04.2018 to 15.03.2018. The Ops confirmed the booking and asked her to deposit Rs.7,000/- alongwith Rs.1400/- for breakfast and Rs.1512/- as GST charges. The Ops also demanded Rs.1000/- for extra bed plus 16% GST charges, however, it was Rs.500/- as per agreement. Thereafter, on 12.04.2018, the complainant requested to Ops to cancel the booking due to mis-happening in the family but the Ops refused to cancel the booking at later stage and forfeited the amount deposited by the complainant. Thereafter, the complainant requested several times at different dates for booking for Dharamshala and Nanital but the Ops refused for the same. The complainant availed only two booking/stay from the Ops i.e. one at Haridwar and the second one at Dharamshala, but the services provided by the hotels/Ops were not good as promised by the Ops in agreement and even did not provide the basic amenities. The complainant therefore, has claimed the refund of entire amount of Rs.45,620/- (Rs.35,000/- as Membership fee, Rs.8260/- as annual subscription, Rs.2360/- as utility charges plus Rs.55,000/- as litigation charges and Rs.5,00,000/- as compensation for mental harassment).

2.     In reply, the Ops have denied any deficiency in service or misrepresentation on the part of Ops. It has been pleaded that complainant has purchased the holidays membership after detailed discussion reading and understanding the terms & conditions of the agreement and thereafter executed the agreement dated 23.09.2017 and paid Rs.35,000/ to the Ops as part payment. However, the complainant did not pay the remaining amount. Thereafter, email/correspondence exchanged between the parties and the complainant was informed that as per terms of agreement the membership cannot be cancelled and the amount was non-refundable. On the request of the complainant for adjusting the amount deposited, the OP booked hotels four times for different destinations. The aforesaid booking was done on the condition that the booking cannot be altered/cancelled and the complainant was duly informed in this respect. However, the complainant has availed/visited only two destinations. For which the Op cannot be faulted. That the complainant has filed a false & frivolous complaint which is liable to be dismissed.

3.     Rejoinder to the written statement of Ops has been filed by the complainant.

4.     To prove her claim, the ld. counsel for the complainant has tendered the affidavit Annexure CA alongwith documents Annexure C-1 to C-34 in evidence and closed the evidence. On the other hand, counsel for the Ops has tendered the affidavit Annexure RA alongwith documents Annexure R-1 to R-8 and closed the evidence. 

5.     We have heard the rival contentions of the learned counsel for the parties and also gone through the record carefully and minutely.

        It is evident that the complainant was provided a Holiday Vacation package by the OPs vide membership No. CHISPH772330 valid for five years w.e.f.23.09.2017 till 22.09.2022 for a total consideration of Rs.70,000/-. It is also an admitted fact that the complainant paid Rs.35,000/- to OPs through her debit card on 23.09.2017 and issued a cheque No.923527 dated 25.09.2017 drawn on State Bank of India, amounting to Rs.35,000/- in favour of the OPs. The complainant feeling aggrieved with the terms and conditions of the agreement requested the OPs to refund her amount of Rs.35,000/- vide her mail dated 26.09.2017 and 27.09.2017.

The OPs have denied the refund mainly on the ground that the amount is not refundable as per the terms and conditions of the agreement. The ld. counsel appearing on behalf of the OPs laid great emphasis upon the condition No.2 of the agreement Annexure R-1/C-7 which says that the vacation charges are non-refundable under any circumstances. The ld. counsel contended that the terms and conditions of the said agreement were duly explained to the complainant before signing by her and vide condition No.4 of the said agreement, she was duly apprised that the Annual Subscription Fees would be Rs.7,000/- for Studio apartment and she was also duly informed vide said agreement that she will have to pay taxes and other levies as levied by the Government. It is, further, contended that the complainant being Assistant Professor in Law put her signature on the agreement after understanding the terms and conditions of the same and she sought the refund only on the ground that she was in urgent need of money as she had to deposit her PhD. fees as is evident from the emails dated 30.09.2017 and 01.10.2017 Annexure C-10 and Annexure C-11.

6.     From the pleadings and arguments advanced by both the parties, we find that the controversy between the parties revolves around the terms and conditions of the said agreement dated 23.09.2017 Annexure C-7/R-1. A bare perusal of the said agreement would reveal that the said agreement does not bear the signature by any authorized person of the OPs. It is pertinent to mention here that the OPs have failed to produce the signed copy of the agreement on record despite the specific and categorical plea of the complainant that the agreement is not a valid contract in the absence of the signature by any authorized person of the OPs. Hence, we conclude that the document signed by the complainant was just a proposal which has not been accepted expressly by the Ops by signing the said agreement. The complainant had withdrawn the proposal, therefore, the OPs were liable to refund the money deposited by the complainant. Even, the complainant was not given a reasonable free look period to fully understand the printed terms and conditions of the agreement.  

Even if we assume the said agreement to be a valid contract then we find that the complainant without any delay conveyed to the OPs her grievances vide email dated 26.09.2017 (Annexure C-9) that the terms and conditions of the agreement as explained to her verbally were contrary to the assurances as provided to her on 23.09.2017. The email Annexure C-9 is reproduced as under:-

“This is Sushila recently I become a member of country holidays my membership no. is CHIS772330 for which I have paid Rs.35,000/- dated on 23.09.2017 on the basis of credibility of facts which were represented in front of me but all the facts are turned to be false so on the basis of the breach of conditions stipulated in front of me I want to refund of the payment. Kindly refund the amount incurred in favour of country holidays Inn & suits.

I am not satisfied with the terms of policy which were disclosed to me after the making of payment”

The complainant on finding the terms and conditions of the agreement contrary to the verbal assurances given to her had also asked the bank manager vide letter dated 25.09.2017 Annexure C-8 to stop the payment in favour of the OPs. Therefore, we are of the considered view that the complainant put her signature on the said agreement without going through the same. Needless to mention here that one of the vital condition of a valid contract is that the parties should enter into the contract with their free consent. Section 13 of the Contract Act defines consent as two or more persons are said to consent when they agree upon the same thing in the same sense i.e. consensus as idem. In other words, there must be real consent, in the absence of which there is no contract formed. Under the Indian Contract Act, some of the contracts are voidable when the same are based on or created by mis-representation. A mere consent is not enough for a valid contract. As per Section 14, of the Contract Act consent is said to be free when it is not caused by coercion, undue influence, fraud or misrepresentation.

7.     In the present case, we are satisfied that the complainant was allured and explained about the different terms, benefits and facilities, which were not part and parcel of the copy of the agreement received by her. It is clear that the complainant never got an opportunity to go through the terms and conditions of the said agreement while signing the same being influenced by the allurements made by the representative of the OPs and only get an opportunity to read the same when the copy of the said agreement landed in the hands of the complainant. Further, we find that, perforce, the complainant had to request for adjustment of the amount by way of booking/arranging stay at some destination as mentioned in the complaint. The complainant had requested for booking at four destinations but the complainant could avail the facility at two destinations only. Further, we find that the OPs booked a Leopard Room vide email dated 08.03.2018 instead of promised Studio Apartment.

8.     In view of the above discussion, we find clear lapse and deficiency on the part of the OPs; hence, the complainant is entitled to relief. However, the Ops are entitled to claim/deduct reasonable expenditure of service given to the complainant for two destinations, which we assess as Rs.15,000/-.

9.     As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs:-

1. To refund of Rs.10,620/- (Rs.8260/- as annual subscription fee + Rs.2360/- as utility charges, taxes etc.) to the complainant.
2. To pay the remaining amount of Rs.20,000/- to complainant along with interest @ 9% per annum from the date of filing of complaint till realization of order.

 

3. The Ops shall pay a lump sum amount of Rs.5,000/- to the complainant on account of mental agony, harassment and cost of litigation charges.

10.    The OPs shall comply with the directions/order within a period of 30 days from the date of communication of copy of this order to OPs failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

 

Announced

08.05.2019    Dr.Sushma Garg    Dr.Pawan Kumar Saini        Satpal

                            Member                Member                  President

 

Note: Each and every page of this order has been duly signed by me.

 

   

                                           Dr.Sushma Garg                                                                                                 Member