SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/S 12 of Consumer Protection Act 1986.
The fact of this case are that complainant on believing the privilege offer given by the opposite party to avail benefit of 7 days international holidays, 5 days Indian holidays and payment voucher, entered as a member of opposite party’s project on 27/10/2013 having member ship No.2529007, contract No.279879 and paid Rs.26,200/- as initial down payment.
The facilities offered to him was of studio apartment in selected resorts in India and abroad and access to over 6500 RCI affiliated resorts across the global. OP have, in writing, agreed that complainant would get membership kit before November 2013 itself containing membership card, certificate, term of usage and other documents concerning the benefit available to him. But right from the beginning, OP have been showing a careless approach in the matter of giving best service as OP had propagated through their communications and advertisement in medias. Breaching of promise to hand over the membership kit within one month, send the same only in the month of August 2014. The kit, however, did not contain the benefit of privilege offer. The breach of performance and promise on OP’s part caused much mental anguish and uncertainty of further performance in future and therefore complainant with held the payment of further EMI due insisting 10 comply OP’s terms of contract strictly and adhering to the promise they have initially offered. Later, hoping that OP will not commit any fault or deficiency of service in future complainant thereafter effected all the payment and settled the transactions sum. It is submitted that complainant was always ready and willing to effect the payment of EMI in the prescribed schedule time itself but he was placed in uncertainty, vagueness and in predicament position due to the laches and errant attitude made by OP and subordinates right from the beginning.
Complainant had remitted a sum of Rs.26,200/- being down payment, a sum of Rs.31,293/- being the 2nd phase of settlement as per three cheques and further sum of Rs.93,879/- as the last payment vide nine cheques making a total sum of Rs.1,51,372/-. As per your promise he is entitled the discount for the said payment at Rs.7,000/-. In spite of the remitting these amount OP deprived the complainant the benefit and OP of using the holiday options at the appropriate time which he had made in advance after discussion and planning in the family. At a time when it was really in need taking into consideration of the convenience and other objects of spending leisure days comfortably, it was not provided to him solely due to OP’s deficiency in service and unfair trade practice. It is submitted that OP are bound to refund the entire amount collected from him with interest at 10% per annum there on from the time of payment effected. Complainant had constrained to issue Lawyer notice to pay back entire amount of Rs.1,51,372/- together with interest @ 10% per annum plus a sum of Rs.10,000/-being compensation for deficiency of service, unfair trade practice and deceitful foul play committed against him. After receiving notice, OP had sent reply with untenable contentions. Hence this complaint.
After receiving notice OPs filed version stating that the complaint is not maintainable as there is no act amounting to deficiency of service, unfair trade practice or negligence from the part of the OPs herein. It is submitted that the complainant after being satisfied with salient features offered by the OPs agreed to become a member and was allotted Membership ID No. 279879 under the season “White” and had opted for Apartment “STUDIO”. The complainant had accordingly signed membership Application Form (MAF) along with the Membership Rules (herein after referred to as Contract) dated 31/10/2013 fully aware of the contents of the said contract. The averment that the complainant was offered the option to pay Rs.26,200/- down payment and to pay the rest of the amount as Equated Monthly Installments (EMI) is not correct hence denied. It is submitted that the membership fee amounted to Rs.4,08,716/- which includes Down payment amount of Rs.33,200/- and the complainant was provided with a discount of Rs.7,000/- and hence the complainant had pad a sum of Rs.26,200/- as down payment. The complainant had opted to pay the remaining sum by 36 Equated monthly Installments (EMI), each amounting to Rs.10431/-. The averment that the complainant was promised that he would receive the membership kit with in 1month, ie. within 2013 November and the same was received only by 2014 March is incorrect . The averment that the membership Kit received did not contain the privilege documents that were promised is also incorrect. It is submitted that a validation call, wherein the salient features about the membership purchased was placed on the complainant on 22nd November 2013 after which the welcome kit along with the necessary documents was dispatched to the complainant on 5th December 2013 through speed post tracking No. EM975702775IN, and the complaint had stated that he required a duplicate copy of the same and the same was sent again during 2014 July. The complainant without any apparent reason had refused to pay the outstanding dues payable by him as per the contract executed by him, arbitrarily on his own volition. The averment that in the month of September 2015 the complainant had tried to book the resort but the same was rejected on ground of unpaid EMI is not fully correct and hence denied. It is submitted that the complainant had not honored 24 EMI’s and a sum of Rs.2,50,244/- is due and pending from the complainant. The remaining 24 EMI amounting to Rs.2,50,344/- is due and liable to be paid to the OPs. The averment that the complainant is eligible for a discount of Rs.7,000/- is incorrect. It is submitted that the complainant was offered with a discount of Rs.14,000/-. The same was split into two discounts of Rs.7,000/- each. The remaining discount of Rs.7000/- was to be provided to the complainant subject to the condition that the complainant had to clear 3 EMI within the validity period stated which the complainant failed to honour. The averment that even after paying the whole amount there was deficiency in service provided by the OPs and the complainant had contacted the OPs several times regarding the same and there was no response is incorrect. The averment that when the complainant had tried to avail the 5 days Indian holidays that were offered to him, it was rejected and instead only 2 days holiday at Coorg was issued to him is not correct . Complainant had only requested for a 3 days Holiday from 17/12/2014 till 19/12/2014. Accordingly he was provided with a 2 night/3 days holiday at Coorg at Club Mahindra Madikeri Resort, despite the fact being the complainant had dues at the time of request for holidays. Hence there was deficiency in service or unfair trade practice from the OPs are all incorrect.
It is submitted that the total membership fee agreed to be paid by the complainant amounts to 3,32,000/-, and with interest it amounts to Rs.4,08,716/-. The complainant had opted to pay the same vide Equated Monthly Installments (EMI) amounting to 36 numbers and the amount of EMI agreed to be paid every month amounted to Rs.10,431/- The complainant had thus far paid only a sum of Rs.26,200/- as Down payment and amount of Rs.1,51,372/- and a sum of Rs.2,50,344/- is due from the complainant. It is submitted that the welcome kit along with the necessary documents was dispatched on 5th December, 2013 itself. There was absolutely no deficiency of service or unfair trade practice from the part of the OPs and the averment to that effect is not correct and hence any member of the OPs is entitled for refund as per the clause 6.1 of the contract which states that any members are allowed a period of 10 days from the date of realization of down payment to withdraw Club Mahindra Holidays Member ship (CMHM) and claim the refund of the entire amount paid towards membership fee and any cancellation beyond 10 days from the realization of Down payment will be subject to applicable deductions. It is submitted that any refund can only be made according to clause 6 of the contract and that the complainant has made a request well beyond the said rescission period of 10 days and hence is not entitled to any refund. As per Clause 1.5 of the Membership Rules in the Membership application form (NAF), Membership fee shall comprise of non-refundable one time Admission fee (AF) being 60% of the total membership fee and only the remaining 40% appropriated towards entitlement fee can be refunded subject to Termination under clause 6 of the contract. Hence it is submitted that the complainant is not entitled to any refund of the AF. Further the complainant is not entitled to refund of any service tax that may have been paid by MHRIL in connection with CMHM. It is submitted that there was no deficiency in service or unfair trade practice or negligence on part of the OPs. So the complainant is not entitled to get any of the reliefs sought for in the complaint and the complaint is liable to be dismissed.
Complainant has filed proof affidavit and documents Ext.A1 to A10. Ext.A1 is membership application. Ext.A2 Lawyer notice. Ext.A3 reply notice. Ext.A4 membership details Ext.A5 Payment acknowledgement Ext.A6 Payment statement. Ext.A7 letter sent by complainant Ext.A8 Confirmation Voucher. Ext.A9 E-mail conversation (4 in Nos.) and Ext.A10 series are G-mail copies (15 in Nos.). Complainant has been subjected to cross-examination for the OPs. OP has not adduced oral evidence. Produced agreement executed by complainant dated 27/10/22013. Marked as Ext.B1
After that counsels of complainant and OP placed oral submissions. The grievance of the complainant is that even though the OPs offered facilities and benefit of 7 days international holiday, 5 days Indian Holiday and payment voucher as a privilege offer, from the very beginning itself, he has been cheated by the OP by giving false promises in respect of this offers and privileges. Not only this, against the promise to handover the membership kit within one month, from joining, OP had sent same only in the month of August 2014. More over the kit did not contain the benefit of privilege offer. Thereafter, after effecting payment of Rs. 1,51,372/- to OP as per the agreement with the OP, when the complainant chose the holiday options at the appropriate time, OP deprived the demand of complainant. Complainant submitted that he had been offered Rs.7,000/- as discount as per the settlement between parties. Complainant further alleged that when the complainant had tried to avail 5 days Indian holiday, It was rejected by OP and instead only two days holiday at Coorg was issued to him. Thus there was serious negligence and deficiency in service on the part of the OPs because of which complainant demanded refund of the amount Rs.1,51,372/- paid to OPs.
OP submitted that the membership purchased by the complainant was placed on the complainant on 22/11/2013 that is within one month of entry of membership after which the welcome kit along with the necessary documents were dispatched to the complainant on 05/12/2013 through speed post and the complainant had stated that he required a duplicate copy of the same and it was sent again during in 2014 July. OP further submitted that the complainant without any apparent reason had refused to pay the outstanding dues payable by him as per the contract executed by him arbitrarily on his own decision. OP further contended that the complainant had not honoured 24 EMI’s and a sum o f Rs.2,50,244/- is due and pending from the complainant. According to OP the total membership fee the complainant had to pay amounts to Rs.4,08,716/- (membership fee Rs.3,32,000/- and interest) which includes down payment of 33,200/-. The complainant was provided with the discount of Rs.7,000/- in the down payment and thus the complainant had paid Rs.26,200/-. It is also submitted that the OP offered to the complainant with a discount of Rs.14,000/-. The remaining discount of Rs.7000/- was to be provided to the complainant subject to the condition that the complainant had to clear 3 EMI within the validity period stated which the complainant failed to honour. OP further submitted that against which the averment of complainant that even after paying the whole amount, there was deficiency in service provided by the OPs and the complainant had contacted the OPs several times regarding the same and there was no response is incorrect. It is also pleaded that the averment of complainant that in the month of September 2015 he had tried to book the resort but the same was rejected on ground of unpaid EMI and when the complainant had tried to avail the 5 days Indian holidays that offered to him, was also rejected and instead of 5 days, only two days holiday at Coorg was isssued are not correct. OPs explained that the complainant had only requested for a 3 days holiday from 17/12/2014 till 19/12/2014 and it was provided with a 2 night/ 3 days holiday at Coorg, despite the fact being that the complainant had dues at the time of request for holidays. OP vehemently contended that complainant is not entitled to get refund of any amount as claimed by complainant because any member of the OPs is entitled for refund as per the clause 6.1 of the contract which states that any members are allowed a period of 10 days from the date of realization of down payment to withdraw Club Mahindra Holidays Membership (CMHM) and claim the refund of the entire amount paid towards membership fee and any cancellation beyond 10 days from the realization of Down payment will be subject to applicable deductions. It is submitted that any refund can only be made according to clause 6 of the contract and that the complainant has made a request well beyond the said rescission period of 10 days and hence is not entitled to any refund. As per Clause 1.5 of the Membership Rules in the Membership application form (MAF), Membership fee shall comprise of non-refundable one time Admission fee (AF) being 60% of the total membership fee and only the remaining 40% appropriated towards entitlement fee can be refunded subject to Termination under clause 6 of the contract. Hence it is submitted that the complainant is not entitled to any refund of the AF. Further the complainant is not entitled to refund of any service tax that may have been paid by MHRIL in connection with CMHM.
The point for consideration is whether there is any deficiency in service on the part of the OP in non-refunding of membership fee remitted by complainant to OPs?
It is an undisputed facts that complainant had paid Rs.1,51,372/- ie Rs.26,200/- towards initial down payment and the balance amount through cheques on different dates.
OP focused on the conditions stipulated in member ship Rules. OPs vehemently submitted that as per clause 6.1 and clause 1.5 of membership rules complainant is not entitled to any refund of membership fee as well as any fund of the Admission fee. On the other hand complainant submitted that at the time of taking membership he had no idea about all the conditions in the membership Rules. Further denied the contention of OP that total membership amount was 4,08,716/- and initial down payment amount was R.33,200/- further from the said amount they had given discount of Rs.7,000/- as their offer and thus arrived Rs.26,200/- as initial down payment amount. Further denied the fact that complainant agreed and expressed his willingness to pay Rs.10431/- AS EMI for 36 months. According to complainant, OPs made assurance at the time of taking membership that if the initial down payment made at the time of enrollment, he will get 5 days selected. Resorts free Holiday benefit. Complainant alleged had though he had paid Rs.1,51,372, OP deprived from giving the benefit.
A scrutiny of the document submitted reveals as follow. Ext.A1 is the member application form filled by the complainant at the time of enrollment dated 27/10/2013. The application form states enrollment benefit Holiday: 5 nights CMH selected Resorts Free Holidays, other:1 week International holiday through DAE, Food voucher 5000 RCV, discount 14,000/-. Payment details sates that membership price Rs.3,32,000/-. Down payment amount Rs.26,200/-. Ext.A4 reveals that OP offered that complainant has all membership privilege will full use of all club services, and facilities as on 25/07/2014. Ext.A5 payment acknowledgement issued by OP reveals that complainant had made initial down payment Rs.26,200/- and regular payment of EMI Rs.10431 from 07/12/2013 till 07/11/2014 ie Rs/.1,51,372/-. Ext.A9 series and A10 series are the e-mail conversation between complainant and OPs.
OPs contended that the averment of the complainant that in the month of September 2015, the complainant had tried to book the resort, but the same was rejected on ground of unpaid EMI is not fully correct.
But Ext.A10 series reveals that on 02/09/2015, complainant sent an e-mail to OP that ‘Today I have tried to book holidays in December, unfortunately. It cannot be processed due to non -payment of EMI 1st 10 installments’. Ext.A5 reveals that complainant had already paid installment till November 2014 and cleared all EMI till then without any dues. Hence Ext.A10 series evident that the OP had not provided membership privileges to complainant even though he had no dues till 2014 December. E-mail dated 30/09/2015 reveals that OP had not sent any reply to complainant to his letter dated 02/09/2015 demanding Holiday benefit in spite of several reminders sent. Hence Ext.A9 series and A10 series reveals that complainant was forced to close the dealings with OP and demanded to refund the amount remitted towards initial down payment and EMI.
It is evident from the exhibit Ext.B1 submitted by OP states that withdrawal of application for CMHM shall be permitted within the Rescission period which in 10 days from the date of realization of the down payment, provided such request for withdrawal is made in writing and signed and reaches MHRIL within 10 days from the date of realization.
Thus as per condition No.6(1) cancellation should be done within 10 days from the date of realization of down payment. Here it is pertinent to be noted that the admitted fact that complainant had paid down payment on 27/10/2013. Then the cancellation ought to have been made within 09/11/2013. Complainant pleaded that he came to know the membership rules and non providing privilege benefits, only after receiving the membership kit. OP himself admitted that they have sent membership card on 22/11/2013 and welcome kit along with necessary documents was dispatched to the complainant through speed post on 05/12/2013. Then how OP can insist to cancel the membership within 10 days after the date of realization of the down payment. This led to a lot a confusion. Further it is the bounden duty of the OP to clarity the membership fee amounted to Rs.4,08,716/- which includes down payment amount of Rs.33,200/- and the complainant was provided with a discount of Rs.7,000/-. Further OP should have proved that complainant has not remitted EMI regularly till the month of September 2015, the date complainant tried to book the resort and also bound to clarity that the complainant has dues of Rs.2,50,244/-.
Here, OP is evaded from giving oral evidence and substantial documentary evidence to establish and clarity their contentions. Until and unless OP had not proved their contentions, they cannot assume not to refund the remitted amount to complainant on the basis of the agreement condition 6.1 in Ext.B1. Further OP failed to provide Ext.B1 within 10 days after the date of realization of the down payment.
Therefore a deficiency in service is established to the OP. Complainant is entitled to get relief.
Having heard the submissions of the counsels of both sides and seen documents placed on file, we are of the considered view that, the complainant is entailed to claim refund of membership fee and compensation as there is deficiency in service on the part of OPs.
In the result complainant is allowed in part. Opposite party is liable to refund Rs.1,51,372/- with interest 4% from the date of complaint till the date of realization. Opposite parties are further directed to pay Rs.20,000/- towards compensation for the mental agony caused to the complainant due to the deficiency of service on the part of Opposite parties along with Rs.10,000/- as cost to the proceedings. Opposite parties shall comply the order within one month from the date of receipt of this order, failing which the amount Rs.1,51,372/- carries interest @ 9% per annum from the date of complaint till realization. Complainant is at liberty to execute the order as per provisions in Consumer Protection Act 2019.
Exts.
A1- Membership application(with objection)
A2- Lawyer notice
A3- Reply notice
A4 -Membership details
A5 -Payment acknowledgement
A6- Payment statement (copy)
A7- Letter send by complainant dated 27/09/2014 (objection)
A8 -Confirmation Voucher(mail-copy)
A9- E-mail conversation (4 in Nos.)
A10 (series)- G-mail copies (15 in Nos.)
B1-Membership application form
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
