STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

1.  Mahindra Holidays and Resorts India Limited, Mahindra Tower, 2^nd Floor, 17/18, Patullous Road, Chennai, Tamil Nadu 600002.

2. Mahindra Holidays and Resorts India Limited, Suit No.504, Block A, 5^th Floor, Elante Office Suits, Plot No.178-178/A, Industrial Area, Phase-I,
Chandigarh-160001.

3. Mahindra Holidays and Resorts India Limited, Suit No.504, Block A, 5^th Floor, Elante Office Suits, Plot No.178-178/A, Industrial Area, Phase-I,
Chandigarh-160001.

Appellants through its Authorized Signatory, Mahindra Holidays & Resorts India Limited.

                                     …..Appellants/Opposite Parties

Versus

Deepak Kumar Verma S/o Sh. Sushli Kumar Verma
R/o 285, First Floor, Phase 3-A, Mohali. 

                                …..Respondent/Complainant                   

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                 MR. DEV RAJ, MEMBER

                 MRS. PADMA PANDEY, MEMBER

Argued by:  Sh. J.S. Bhatia, Advocate for the appellants.

                  Ms. Meena Bansal, Advocate for the respondent.

PER PADMA PANDEY, MEMBER

              This appeal is directed against an order dated 18.02.2016, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed the Consumer Complaint bearing No.123 of 2015, filed by the complainant, with the following directions:-

“17]   In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed against Opposite Parties.  Accordingly, the complaint is allowed against Opposite Parties. The OPs are jointly & severally directed as under:-

1. To refund an amount of Rs.1,04,725/- to the complainant along with interest @9% p.a. from the date of deposit till actual payment;
2. To pay a sum of Rs.25,000/- as compensation to the complainant on account of mental tension, agony, harassment suffered on account of deficiency in service and for the unfair trade practice of OPs.
3. To pay Rs.5,000/- as litigation expenses.

This order shall be complied with by Opposite Parties No.1 & 2 jointly & severally within 45 days from the date of receipt of its certified copy, failing which, they shall be liable to pay interest at the rate of 18% per annum on the amount as mentioned in sub-para (i) from the date of deposit and on the amount as mentioned in sub-para (ii) above, from the date of filing of this complaint, till realization, besides paying litigation expenses.” 

2. The facts, in brief, are that the complainant under the influence of Opposite Party No.3 purchased Membership of Club Mahindra on 25.03.2014 vide Membership No.2570272 from the Opposite Parties. It was stated that the total membership price was Rs.4,99,000/- out of which the complainant had paid to the Opposite Parties Rs.1,04,725/-. It was further stated that the Membership commenced from 12/2014 to 11/2039. It was further stated that the complainant purchased a Red Studio category membership for which he was issued membership card (Annexures C-1 to C-3). It was further stated that as the total membership price was Rs.4,99,000/- and the Opposite Parties had offered an enrollment of 10% of down payment and then the total amount of down payment was Rs.49,900/- out of which, after deducting 10% of the down payment, complainant had paid an amount of Rs.39,400/- towards the down payment (Annexure C-2). It was further stated that the EMI Plan was of 24 months and EMI amount was Rs.21,775/-.  It was further stated that on 06.06.2014 the complainant had paid an amount of Rs.65,325/- to the Opposite Parties. It was further stated that when the  complainant for availing the services of the Opposite Parties opted for booking of firstly Udaipur resort then Goa Beach Resort and then Dubai Resorts and thereafter, Mahindra Ashtamud Kerala, of the Opposite Parties well in advance, the same were back to back denied by the Opposite Parties on the ground of non-availability.  It was further stated that finally being frustrated by the services of the Opposite Parties, the complainant vide Annexure C-10 asked the Opposite Parties for cancellation of the membership and sought refund but to no effect. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
3.  The Opposite Parties have filed joint reply and admitted the factual matrix of the case and stated that the complainant after being satisfied with the rules and regulations of the membership purchased Red Studio membership and entered into a contract with Opposite Parties’ Company by signing the membership application form i.e. the membership contract on 25.03.2014. It was further stated that the complainant agreed to pay remaining amount of the membership fees in 24 Equated Monthly Installments (EMI) of Rs.21,775/- each and he paid Rs.1,04,725/- (Annexure R-4) only and after that has become defaulter.  It was further stated that the complainant also not paid the Annual Subscription Fee (ASF) for the year 2014 amounting to Rs.12,569/-.  It was further stated that the complainant was offered certain enrollment benefits i.e. (a) 10 nights club Mahindra Night Holiday (b) 2 years RCI enrolment (c) resort credit voucher worth Rs.10,000/- (d) Rs.10,500/- cash back discount after 3 EMI, which were subject to certain terms and conditions and were explained to the complainant.  It was further stated that as per record benefit no.(a) was credited to the account of the complainant.  It was further stated that with regard to benefit (b) the complainant was enrolled under RCI membership and the other benefits (c) and (d) were dispatched/released to the complainant as is apparent from Annexure R-5. It was further stated that as per membership agreement RCI Exchange/Holiday is subject to availability of RCI destinations and is a matter purely between the member and RCI for which Opposite Parties’ company is not liable.  It was further stated that there was no any irregularity in the ledger account of the Opposite Parties. It was further stated that the allegation of the complainant that he was not provided booking due to non-availability is without any merit because as per membership rules the confirmation of booking of holiday is always subject to eligibility, availability and on first-come-first-serve basis only and the holiday can be booked 4 months in advance and also one day prior to holiday date, subject to availability and eligibility.  It was further stated that the booking was also made for the complainant at Kumbhalgarh with check-in date of 05.10.2014 and check-out date of 10.10.2014, thus allegation of the complainant that he was not provided with the booking is without any substance.
4.   It was admitted that the complainant in the letter dated 19.09.2014 applied for cancellation of membership and sought refund. It was stated that the refund was sought beyond 10 days of rescission/free look period and the complainant was very much aware of the cancellation norms that as per clause 6 of the membership rule he was not entitled for full refund in the event cancellation of membership after rescission period/free look period of 10 days.  It was further stated that the membership form itself contains extracts from Rules and the complainant duly signed Membership’ Review for Confirmation of Understanding. It was further stated that withdrawal of application is permitted only within rescission period, if request for cancellation is made, in writing, within 10 days from the date of application, and in that eventuality the entire amount was to be refunded within 30 days. It was further stated that in the case of post-rescission period cancellation is made, only entitlement fees was to be refunded i.e. in the form of 40% of the total membership fees. It was further stated that since in the instant case, the complainant paid less than 60% of the membership cost, which is payable towards non-refundable Admission fee, the entire money paid by the complainant stands forfeited. Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed. It was further stated that there is no deficiency in service on its part, and the answering Opposite Parties had prayed for dismissal of the complaint.
5.  In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the Parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
9. We have heard the Counsel for the Parties, and have gone through the evidence, and record of the case, carefully.
10. After going through the facts of the case we are of the considered opinion that the appeal in the instant case deserves to be dismissed for the following reasons.
11. On going through the record of the case, we find from the submission of the Opposite Parties/Appellants that Opposite Party company is in the business of providing vacation membership to its members (i.e. for a period of 25 years) who have purchased Club Mahindra Holidays Membership (CMHM), which entitles the members to avail 7 days of holidays every year, during the allotted season, in the allotted apartment, in any of the resort of Club Mahindra, in India and abroad, for a period of 25 years. The complainant/respondent in this case, in order to avail the aforesaid benefits of the membership, availed by him, when tried bookings for various places at different time intervals, but remained unsuccessful every time and could not get any benefit of the aforesaid membership, due to non-availability of vacation bookings. In fact, the respondent tried his luck for four times, but the result was the same, which caused frustration to the respondent, as the very purpose of availing the membership got defeated. The appellants could not place on record anything, to show the reason of non-availability, and also the appellants have not placed on record, any document, showing that the benefit of bookings made by other persons, at the proposed resorts or any document showing that the benefit of bookings, were actually availed. The appellants have also taken a submission that the respondent has failed to pay the annual subscription fee amounting to Rs.12,569/- and therefore, he is not entitled to the benefit of membership. However, it is clear that the respondent was entitled to avail the benefits of the membership, though he had not paid the full membership fee. Therefore, the respondent is right in asking for the refund of his amount, which he paid under the misrepresentation, that he will enjoy the benefits of membership, which was explained at the time of becoming a member, but in reality he could not avail any facility of the said Club Mahindra membership. As a result, we find that the appellants have been grossly deficient in rendering their services and accordingly, the said appeal is dismissed with no order as to costs.
12. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
13.        Certified copies of this order, be sent to the parties, free of charge.
14.        The file be consigned to Record Room, after completion.

Pronounced.

02.09.2016                              

                                                                                                       Sd/-

                        [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

                                                                                    Sd/-                                        

[DEV RAJ]

MEMBER

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[PADMA PANDEY]

 MEMBER

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                                STATE COMMISSION

FIRST APPEAL No.130 of 2016

(Mahindra Holidays & Resorts & Ors. Vs. Deepak Kumar Verma)

Argued by:

Sh. J.S. Bhatia, Advocate for the appellants.

Ms. Meena Bansal, Advocate for the respondent.

Dated    the   2^nd   day of  September, 2016

             Vide our detailed order of the even date, recorded separately, the appeal filed by the appellants has been dismissed, with no order as to cost and the order passed by the District Forum has been upheld.

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Gp