Haryana

Panchkula

CC/304/2017

PAMMI RANI - Complainant(s)

Versus

MAGIC HOLIDAYS LTD. - Opp.Party(s)

COMPLAINANT IN PERSON

20 Dec 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,PANCHKULA

                                                                                                                           

Consumer Compliant No.	:	304 of 2017
Date of Institution	:	27.12.2017
Date of Decision	:	20.12.2018

 

Pammi Rani w/o Sh. Des Raj Singla, H. No. 952, Sector-11, Panchkula.                                                                                                                                                                                                                                           ....Complainant

                                           Versus

1. Magic Holidays Limited, Khatau House, Basement, Mogul Lane, Mahim (W), Mumbai-400016 & others.
2. Magic Holidays Limited, Sonam Tenzin, Holiday Consultant-Green Belt, SCO-65, Sector 32 C, above Indian Overseas Bank Chandigarh.
3. Magic Holiday Limited, Bhanu Partap, SCO 65, Sector 32C, above Indian Overseas Bank Chandigarh.

....Opposite Parties

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

Before:                      Mr. Satpal, President. 

                                Mr. Jagmohan Singh, Member.

                                Ms. Ruby Sharma, Member.

 

For the Parties:           Complainant in person.

                                None for OPs.

 

                                                  ORDER

(Satpal, President)

1.     The brief facts of the present complaint as alleged in the complaint are that the complainant was invited in the Hotel Shree Ratnam, SCO 350, Sector 9, Panchkula by the representative of M/s Magic Holidays and was offered a holiday package in the name of firm M/s Magic Holidays with its head office at Mumbai for the tenure of 25 years with a base price of Rs.2,22,000/- for hundred nights; the Respondents offered three nights four days plus two night three days in Panoramic Domestic Resorts as an enrollment offer (after payment of advance only) and accordingly, complainant made the payment of Rs.22,200/- i.e. 10% advance money at the time of enrollment through HDFC credit card to the Ops and thereafter, the complainant was issued the membership and enrolment offer dated 01.08.2017. It is further alleged that the OPs told the complainant that if the complainant would not be satisfied with the hospitality offered by the Ops, then the complainant may discontinue and Ops would make the refund and that the entitlement for usages of regular holiday would be post realization of 25% of the total payment towards flexi magic. Contrary to the terms and conditions offered mentioned in the enrollment letter dated 01.08.2017, the OP offered only two nights.  According to the terms and conditions of the offer, the complainant made a booking for 28.10.2017 for Goa for four to five days through Mr. Sonam, to which Ops offered only two nights to the complainant. After that the complainant took the matter with Mr. Sonam and Mr. Bhanu Partap at Chandigarh Office and Mr. Sachin at Mumbai office regarding the booking for Goa trip, but they again offered the complainant only two night stay/holidays at Goa. It is further mentioned that thereafter, no response had been given by the OPs even after repeated requests of the complainant and on 06.09.2017, the complainant requested through email to the Ops for refund of Rs. 22,200/-, which was personally handed over to Mr.Sonam, who had assured the complainant that refund would be given within 40-45 days. After no response by the Ops, the complainant again sent email dated 08.10.2017 for refund of 10% advance already deposited by the complainant. On 09.10.2017, the complainant received an email from the Ops that all the amounts has been adjusted towards admission cost, which was not refundable. Then the complainant sent an email to the OP on 10.10.2017, mentioning full facts of the case, but there was no response of the OPs. The complainant again sent an email dated 08.11.2017, to the OPs regarding early refund of Rs. 22,200/- as the Ops has not provided any service to the complainant, on which, complainant received email from the Ops dated 08.11.2017 enclosing the earlier emails and reiterated that “your membership is kept on hold and investigating the matter. No deduction shall be made from your advance amount till we resolve your concern.” Finally, the complainant through email dated 15.12.2017 to the Ops requested for refund of 10% advance paid at the time of enrollment as no service has been availed by the complainant till date but till filling of complaint, complainant has not been received any refund even after repeated calls and emails; this act of the opposite parties amounts to deficiency in service on their part; hence, this complaint.

2. Upon notice, the OPs appeared and filed the written statement disputing the maintainability of the complaint on the ground of jurisdiction. It is stated that the Op is a company providing time share holidays at its affiliated resorts and hotels to its members under its various schemes. It is stated that complainant jointly with her husband, Mr. Des Raj Singlaas nominee, had taken a 25 years Flexi Magic Regular White Studio Membership costing of Rs. 2,22,000/- but instead of paying the full membership amount, the complainant opted to pay the membership fees in installments and opted to pay monthly EMI plan of Rs. 5,662/- in 48 months and paid only a down payment of Rs. 22,200/- through HDFC credit card. As a regular process all the membership rules were explained to the complainant and the customer copy of the form containing membership rules was immediately given to the complainant, which was acknowledged by the complainant in the complaint, which was duly signed by the complainant. It is further stated that no one pays Rs.22,200/- without knowing for what purpose he/she is paying the same or without taking a written document. After going through the benefits and membership rules only, the complainant had taken the membership suiting to her requirements. Taking the membership was a joint decision of the complainant and her husband and both had signed the Membership Form. Further stated that the complainant herself had chosen 48 months EMI plan for payment of membership fee. The Direct Debit Mandate has been signed by the complainant and a cancelled cheque of HDFC Bank has also been submitted by the complainant for starting Direct Debit facility for paying EMI directly from his said bank account. No one signs a Direct Debit Form or submits a cancelled cheque without knowing for what purpose he is giving the same, not even an illiterate person. Due to subsequent change of mind, the complainant was making false statements and false allegations against the Ops. Further stated that a copy of the Scheme Report from Customer Relationship Management (CRM) system of the Ops showing scheme was taken by the complainant and Free Discount Voucher was accepted by the complainant. The OP has fixed offers and give equally to all members as per the scheme prevailing at that time. Acceptance of free holiday vouchers from the Ops proved that the complainant had accepted the membership rules and taken the membership on her free will and is now falsely alleging the Ops, which is strongly opposed by the Ops. A cash discount was accepted by the complainant immediately at the time of taking the membership and instead of paying 24,420/- the complainant paid only Rs. 22,200/- in cash as a discount of Rs. 2,220/- was given to the complainant by the Ops. On 28.07.2017, Ops made a pre-verification call through registered mobile number given by the complainant and the complainant’s husband had picked up the call and was informed about the scheme they have taken, EMI plan opted, holiday entitlements, annual subscription fee and other accounts payable and other rules. As a regular process a Welcome Kit containing welcome letter containing details of membership, usage rules etc. was also sent to the complainant. The Ops had given the free holiday offer of 2 nights and 3 days to the complainant, but complainant was insisting the Ops to provide the facility of 3 nights and 4 days as free holidays, but was not ready to pay 3 EMIs, which were required for availing that offer and this fact was also mentioned in the welcome letter. The welcome letter issued to the complainant also mentioned very clearly about the requirement of clearing 3 EMIs for availing the offer. One free offer of 2 nights and 3 days is offered to member immediately on taking the membership and second offer of 3 nights and 4 days is given after 3 months when 3 monthly EMIs are received from the member. On 06.09.2017 a call was made to the complainant, in which complainant herself asked the Ops for cancellation of booking as she did not want to pay 3 EMIs as required as per the terms of the membership. The complainant never had intention to continue with the membership but had planned to cancel the membership after availing Goa Holidays at the cost of the Ops. As per the Membership Rule No.8.1, 8.3 and 8.9 mentioned in the Membership Form, no refund was due to the complainant as the complainant has failed to submit her/his written request to the Ops within the period of 10 days as she had sent a request of cancellation of membership intimation email on 05.09.2017, which was received by the Ops after the look-in period of 10 days. Therefore, the complainant is not entitled for any refund. Thus, there is no deficiency in service on the part of the OP and requested for dismissal of the complaint with special cost.

3.     To prove her case, the complainant has tendered affidavit as Annexure CA along with documents Annexure C-1 to C-11 in evidence and closed the evidence by making a separate statement. On the other hand, counsel for the Ops failed to adduce any evidence on record in support of contention of the OPs despite availing several opportunities. Therefore, the opportunity to adduce evidence on record by the Ops was closed by this Forum vide its order dated 11.07.2018.     

4.     We have heard the complainant appearing in person and have also perused the record carefully and minutely.   

5.     It is evident that the complainant jointly with her husband, Mr. Des Raj Singlaas nominee, had taken a 25 years Flexi Magic Regular White Studio Membership for an amount of Rs.2,22,000/-. The complainant made the payment of Rs.22,200/- i.e. 10% advance money at the time of enrollment through HDFC Credit Card. It is not disputed that the complainant along with her husband as nominee was provided Membership No.FM/CDG/0198 with Magic Holidays Plan Tenure of 25 years having a total facility of stay of 100 nights. It is also not disputed that the complainant received the Welcome letter dated 01.08.2017 along with other details of membership etc. including the details of Enrolment Offer/Marketing Offer. On the basis of details as contained in the Enrolment Offer/Marketing Offer as received along with Welcome letter 01.08.2017 Annexure C-1, the complainant requested the Ops for providing her the facility of 4/5 nights stay at Goa from 28.10.2017, but ultimately agreed for 3 nights reservation at Goa as is evident from the perusal of Annexure C-8. However, the request of the complainant for extending the facility of 3 nights stay at Goa was declined by Ops on the ground that as per terms and conditions of the membership, she was entitled to have a facility of 2 nights 3 days only in place of 3 nights 4 days in Panoramic Domestic Resort. Upon declining the request of the complainant for extending her the facility of 3 nights 4 days as per Enrolment Offer/Marketing Offer she requested the Ops to refund her deposited amount of Rs.22,200/- vide emails dated 06.09.2017, 08.10.2017, 10.10.2017 and 08.11.2017. The Ops have resisted the claim of the complainant stating that as per terms and conditions of the membership form provided to the complainant at the time of enrollment, she was entitled to have a facility of 2 nights 3 days only and that the facility of 3 nights 4 days could be extended only after the deposition of 3 EMIs by the complainant with the Ops. It is the contention of the Ops that in the absence of deposition of 3 EMIs, the complainant was not entitled to avail the facility of 3 nights 4 days in Panoramic Domestic Resort as per the terms and conditions of membership.

        Regarding the refund of Rs.22,200/- the advance money deposited with them, the plea of the Ops is that as per Clause 8.3 of the Membership Form no refund of any amount is admissible to the complainant.

        The another plea of the Ops is that the complainant could  have surrendered the policy of her membership within 10 days from the date of issue of the policy but her request for cancellation of the policy had been received by the Ops after 41 days. Lastly, it has been pleaded in the written statement that this Forum has no territorial jurisdiction to entertain and decide the present complaint.

6.     On the basis of pleadings of the parties, it has been found that the main controversy between the parties is with regard to the fact as to whether the complainant was entitled to the facility of 3 nights 4 days in Panoramic Domestic Resort as per Enrolment Offer/Marketing Offer and in case of refusal by the Ops to provide the said facility whether the complainant is entitled to the refund of deposited amount of Rs.22,200/-.       Before deciding the main controversy, we deem it proper to discuss the issue of territorial jurisdiction first.

1. The Ops have disputed the territorial jurisdiction of this Forum stating that as per terms and conditions of the membership form, the Court/Forum in Mumbai has the jurisdiction to decide the case between the parties. We do not find in agreement with the said plea of the Ops on the ground that it is the specific and categorical version of the complainant as pleaded in Para No.1 of the complaint that “the complainant was invited in the Hotel Shree Ratnam, SCO-350, Sector-9, Panchkula by the representative of M/s Magic Holidays and offered a holiday package in the name of firm M/s Magic Holidays.

We find no rebuttal of the said averments of the complainant in corresponding para of the written statement of the Ops. Hence, we conclude that this Forum has been jurisdiction to entertain and decide the present complaint.

7.     Regarding the main controversy between the parties, we find that the complainant has received the Welcome Letter dated 01.08.2017 Annexure C-1 along with membership details, payment details and the details of Enrollment Offer/Marketing Offer. For the better appreciation of the facts the relevant part of details enclosed with the said Welcome Letter dated 01.08.2017 are reproduced as under:-

“Membership Details:

Membership: FM/CDG/0198

Member Name: Mrs. Pammi Rani

Nominee Name: Mr. Desh Raj Singla

Magic Holidays Plan Tenure: 25 Years

Season and Apartment: White-Studio

Magic Holidays Scheme Name: Flexi Magic-Reg-White-Studio-July-2017

Magic Holidays Scheme Price:222000.00

Total Nights:100

Enrolment date:28/07/2017

 

Payment Details:

Down Payment:22200.00

Payment Mode: Credit Card

EMI Tenure: 48 months

EMI Amount: Rs.5662.00

Annual subscription charge (ASC): Domestic ASC will be Rs.1185 per night and International ASC will be Rs.2010 per night in 2017.

Please Note: ASC is subject to revision from time to time and it is payable as per usage of nights.

 

Enrolment Offer(Marketing Offer):

 

1. RCI membership for 2 years.
2. Cash back on 10 DP Rs.2220/- Encashed
3. 3 Nights 4 Days in Panoramic Domestic Resorts
4. 2N3D in Panoramic Domestic Resort.”

 

From the details of Enrolment Offer/Marketing Offer as provided to the complainant at the time of her enrolment vide membership No.FM/CDG/0198, it is Crystal clear that she could avail either the facility of 3 nights 4 days or 2 nights 3 days in Panoramic Domestic Resort. From the entire record available on the file including the terms and conditions as provided by the Ops we find no clause or any such terms and conditions on the basis of which the Ops could insist for the deposition of 3 EMIs prior to the extending of facility of 3 nights 4 days. As per terms and conditions made available by the Ops along with the written statement, we find no such pre-requisite condition regarding deposition of 3 EMIs prior to the granting of facility of 3 nights 4 days to the complainant. Hence, the insisting of Ops upon the deposition of 3 EMIs prior to the extending of 3 nights 4 days stay facility to the complainant has been found completely against the terms and conditions of the membership details as provided along with Welcome Letter dated 01.08.2017 Annexure C-1. Therefore, the declining of the request of the complainant by the Ops with regard to her request about 3 nights 4 days is not legal and justifiable. Thus, we are of the considered view that the complainant was compelled to seek the refund of her deposited amount by way of cancellation of her membership. Though she had no dispute with regard to the nature of the membership and the schedule of payments including the payment of EMI etc yet, she was compelled to seek the cancellation of her membership due to deficient act of the Ops.

8.     Regarding the plea of the Ops that deposited amount is not refundable as per the terms and conditions of the membership rules we find that the complainant has been compelled to seek refund of her deposited amount by way of cancellation of membership only because of lapse and deficiency on the part of the Ops as stated above. Hence, we do not agree with the plea of the Ops that the deposited amount is not refundable.

9.     The plea of the Ops that the complainant has not requested for cancellation within the free-look period is also of no avail to them as stated by us above that the complainant had no grievances of any kind in any manner with regard to the nature of the membership, payment schedule etc. Hence, the plea of free-look period is not avail to the case of Ops.

        It would not be out of place to mention here that Ops have not even bothered to substantiate their pleadings by way of adducing cogent and credible evidence in support of their contention as raised in the pleadings as stated above. The evidence of the Ops was closed by this Forum on 11.07.2018. It is well settled law that mere pleadings unsubstantiated with any cogent, credible and reliable evidence does not carry any evidentiary value whereas, on the other hand, the version of the complainant is fully corroborated by her own affidavit Annexure CA along with documents Annexures C-1 to C-11. In view of the aforementioned facts, we have no hesitation to conclude that there has been lapse and deficiency on the part of OPs while delivering services to the complainant; hence, the complainant is entitled to relief.

10.    As a sequel to the above discussion, we partly allow the present complaint of the complainant by directing the Ops to pay Rs.22,200/- to the complainant along with interest @9% per annum w.e.f. the date of filing of the present complaint i.e. 27.12.2017 till realization. The OPs are further directed to pay a sum of Rs.10,000 /- on account of mental agony, harassment and cost of litigation charges.

11.    The OPs shall comply with the order within a period of 30 days from the date of communication of copy of this order 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:

20.12.2018     RUBY SHARMA         JAGMOHAN SINGH       SATPAL

                     MEMBER                 MEMBER                  PRESIDENT

 

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

 

                                        SATPAL                                                                                              PRESIDENT