C.C. No. 386/2022

Date of Institution: 15.07.2022

Judgment Reserved on: 15.03.2024

Judgment Passed on: 04.04.2024

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

Judgment By: Shri S.S. Malhotra (President)

JUDGMENT

By this Judgment the Commission would dispose off the complaint of the complainant alleging deficiency in not providing the agreed services to the complainant w.r.t. enjoying the vacation being its member and then in not refunding the amount despite request.

1. Brief facts as stated by the Complainant in the complaint are that in the month of February 2022 the complainant on the telephonically call from the OP for selling the vacation plans, the complainant got ready to purchase the same and accordingly the complainant alongwith his wife reached at Hotel Royal Park, Indirapuram on 11.03.2022where he was allured by the OP stating that there is excellent setup of 5 star hotels with the OP and by further assuring that they would provide holiday packages in those hotels and accordingly the complainant got ready to book the vacation plan for ten years against the payment of Rs.1,20,000/- which was paid. Certain other benefits are also to be provided /promised by the OP in the same plan as OP had showed the five star hotel network across the world and promised to provide services on priority basis and even showed photos & videos of such 5 star hotels network. After making the payment, complainant requested OP to provide package details and list of hotel details and it was assured that the same would be dispatched within 7 days but nothing except membership card was sent that too after 30 days which itself is deficiency in service. On 14.04.2022 the complainant contacted the OP for hotel reservation for Jim Corbett but instead of confirming the booking, the officials of OP starting passing the time on one pretext or the other and although the complainant was regularly in touch with OP telephonically but even after passing a month the OP failed to provide the proper reservation, as per requirement & eligibility of the complainant and officials of OP were playing delaying tactics and instead of providing proper reservation were pressurizing the complainant to accept the reservation of below category from the membership eligibility which was refused by the complainant. The complainant sent a final reminder to OP through email dated 04.05.2022 to resolve the issue which was not replied and having no other course the complainant requested the OP to cancel the membership and refund the amount and then sent a complaint on 08.05.2022 but in vain. The commitments and assurances of the OP proved false & frivolous and as such he files the present complaint thereby demanding of Rs.1,20,000/- back with interest @24% p.a., compensation of Rs.55,000/- and litigation fee of Rs.22,000/-.        
2. The OP has not filed reply within time and meanwhile the matter was fixed for settlement but since settlement was not possible the complainant filed an application for impleading the directors of the OP which application was allowed and since other OPs/directors were got added subsequently, another opportunity was granted to OPs to file reply and although initial reply was not within limitation but reply of the additional parties/directors is within limitation and therefore it is being considered for the purpose of disposal off this complaint.
3. The OP has taken the preliminary objection that complainant has not come to court with clean hands therefore the complaint is liable to be dismissed on various grounds interalia the complainant has no cause of action, the complainant was well aware of the terms & conditions while signing the agreement and it was explained to the complainant that the rooms/holidays are based on ‘first come first serve’ basis and therefore complaint is liable to be dismissed. The visit of complainant to the OP’s booking office the membership card, paying Rs.1,20,000/- entering into agreement is not disputed but it is denied that officials of the OP trapped the complainant by alluring him as alleged. It is also denied that complainant requested the OP to provide package details or that it was not provided, it is also denied that on 14.04.2022 the complainant contacted the OP for hotel reservation and the OP did not provide the same or were delaying the booking as alleged. Except for email, the OP has denied each fact word by word & the OP in entire written statement has not put-forth any of his defence although it is prayed that the complaint of the complainant be dismissed.
4. The complainant has filed rejoinder thereby denying the contents of the written statement and reaffirming/reiterating the contents of the complaint.
5. Complainant has filed his own evidence by way of affidavit. OP has filed evidence of Sh. Dev Kumar, its AR. Both parties have filed their written arguments. The Commission has heard the arguments and perused the record
6. The Commission has heard the arguments and perused the record. Since amount of Rs.1,20,000/- has been paid by the complainant to the OP which is not disputed for taking certain services from the OP therefore complainant apparently is the ‘Consumer’ qua OP. The membership is taken on 11.03.2022, the complainant has filed emails, the complainant has sent an email to the OP on 14.04.2022, the complainant made a request to provide 5 star hotel stay option in Delhi NCR for the period 14.05.2022-16.05.2022 for 2 adults and 2 children thereby telling the OP that it can deduct these dates from his package and he will use the trial coupon next time against which OP sent reply that rooms are fully sold on 15.05.2022 i.e. the date sought by the complainant. The complainant thereafter informed the OP that if 15.05.2022 is fully sold then hotel booking be provided for 13.05.2022-14.05.2022, it was also informed to the OP that the complainant is planning to stay at Tag Resort Jim Corbett from 14.05.2022-16.05.2022 and requested the OP to share the booking details as per the package but same were not provided. The OP then sent an email back to the complainant thereby informing other options near Delhi i.e Regenta Central Noida and Treehouse Today’s Sunrise Neemrana be provided and when it was reverted back, the complainant again wrote to confirm the booking but the same was not replied, rather the OP had given another option for Country Inn & Suites by Radison, Sahibabad, Ghaziabad, District and on 25.04.2022 it was informed that the booking is under process but ultimately it was not provided. Despite having such number of emails, the OP in the entire WS has denied all these facts. Even its own correspondence. Admittedly the OP has not provided any services to the complainant nor has reverted back to the complainant in time which has compelled the complainant to ask for cancellation therefore apparently the complainant has been able to prove that there is deficiency of service on the part of OP.
7. The contention of the OP in the written argument is that the space/booking is always provided on ‘first come first serve basis’. In the entire agreement there is not even a single word which can be corroborated with this defense of the OP from the record. It appears that complainant has sought booking firstly for near/around Delhi NCR then at Tag Resort Jim Corbett but none of the spaces were provided to the complainant. Therefore this contention of OP is not well found. The next contention of the OP was that the present complaint as filed by the complainant is not maintainable before this Commission as there was a arbitration clause in between the parties which is incorporated in the agreement and therefore Consumer Court does not have any jurisdiction. Law w.r.t. to this argument is well settled and in the judgment in Case No. 675/2016 decided on 12.12.2023…………
8. it was held the remedy before the Consumer Court is an additional remedy over & above arbitration clause.
8. Therefore this contention of OP is not well found. Now the issue is as to what amount the OP is liable to refund. The package is for 10 years. It is not the defence of OP in the written statement that it has spent any amount towards the booking of the complimentary destination at all. The OP has also failed to show & prove that the booking was on the basis of ‘first come first serve basis’. It is manifestly clear that OP has not provided even a single service to the complainant and has not even reverted to the emails. Therefore the OP in these circumstances is liable to refund the whole amount.

• Accordingly the OP is directed to refund the amount of Rs.1,20,000/- to the complainant with interest @10% from the date of deposit till actual payment alongwith compensation of Rs.25,000/- and litigation cost of Rs.11,000/-
• This Order is to be complied within 30 days from the receiving the order & in case the OPs would not pay the amount within 30 days the rate of interest would be @12% from the date of deposit upto the date of realization on the entire amount.

Copy of the Order be supplied/sent to both the Parties free of cost as per rules.

Announced on 04.04.2024.

File be consigned to Record Room.