DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.274/2011
Capt. Pawan Sadhana
S/o Sh. Satya Pal Sadhana
R/o D/III/3036, Vasant Kunj,
New Delhi ….Complainant
Versus
Mahindra Holidays @ Resorts India Ltd.
Mahindra Towers, 2nd Floor, 17/18,
Patullos Road, Mount Road,
Chennai-600002
Second Address:-
Mahindra Tower, 5th Floor, Bhikaji Cama Place,
New Delhi-110066
Through its Directors ……Opposite Party
Date of Institution : 09.08.11 Date of Order : 16.04.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Sh. S. S. Fonia, Member
O R D E R
S. S. Fonia, Member
Facts gathered from the complaint reveal that the case of the Complainant is that he was lured by OP to become member of their club by giving all kind of false assurances by advertising, offering free gifts by their colourful literature and promising green pasture for future holidays. Accordingly, the Complainant fell prey to their lucrative offers. The Complainant became member of OP club in the month of October, 2008 and he availed 2 nights stay in Coorg Resort in February, 2009 against his choice of Munnar holiday but for non availability. In the month of January, 2010 the Complainant wanted to go to Mussorie but was refused due to full occupation. Again he tried to book Auli which was said to have been discontinued. Again in the month of April, 2010 he was not accommodated for Mussorie due to full occupation. Thereafter, he wanted to book newly opened resort at Ooty in May -June, 2010 but he met the same fate of refusal on plea of full occupation. Having been refused to enjoy the benefits of his membership he became frustrated and asked for cancellation of his membership with the demand to refund the amount paid by him but the OP did not refund anything on one pretext or the other. The Complainant further states that he has not got any satisfactory reply of his emails as well as no fruitful result of meeting he had with members of OP. The Complainant invoked mediation and conciliation machinery of Delhi which did not materialize. Therefore, the Complainant has lodged this complaint with the following prayers:-
- Direct the OP to refund Rs.3,99,948/-, the amount paid by the Complainant and Rs.21,510/- paid as maintenance charges,
- Direct the OP to pay Rs.50,000/- as compensation and Rs.22,000/- towards litigation expenses.
OP has contested the claim of the Complainant by filing written statement on the ground that both under the membership rules as well as the common law, reservation of accommodation is always subject to availability and it is upon the customer/member to decide their plan and enquire and inform the OP regarding their preferred destination. It is stated that “it must be understood that if a particular resort at a particular point of time in a year is not available due to the fact that available bookings are already made, it could never be a deficiency of service on the part of the OP. It is stated that the complainant is fully aware of the fact that all bookings could be made subject to availability only. Even after having knowledge of the same and still making such allegations of non availability is nothing but an attempt of recovering money only which cannot be justified”. Further OP has also contested the claim of the Complainant to refund the monies paid by him on the grounds that “as per the binding contract between the parties refund of money paid can be refunded back only when a request for rescission is made by member within 10 days of the application form having submitted and not thereafter”. It is stated as under:-
“This is a matter of record that the following benefits of membership have already been taken by the complainant:
- Two Nights holiday at Coorg. resort (Worth Rs. 10,000/-)
- Sony 26’ LCD (Worth Rs. 23,000/-)
- Food Voucher (Worth Rs. 5000/-)
- RCI Enrollment (Worth Rs. 4000/-)”
Accordingly, OP has prayed for dismissal of the complaint.
Complainant has filed his own affidavit in evidence while affidavit of Sh. Jaiminikumar Shah, Corporate Manager, Legal has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties and have also gone through the file very carefully and have also examined the material before us.
Now we straightway formulate the issue as to whether the Complainant is entitled to refund of monies paid by him i.e. Rs. 3,99,948, maintenance charges of Rs.21,510/- as well as other reliefs prayed for.
We straightway advert to the contract entered into between the parties and membership rules which govern the terms and conditions of the holiday package (copy of document is Annexure-R2). This document dated 30.10.2008 called as membership application form containing RCI terms and conditions is in a very small font printed form which can only be read by magnifying glass. Thus, the contact perse would not amount to acceptance of the terms and conditions entered into with free will and consent of the Complainant who is at the receiving end of the benefits of the scheme and the OP who was in quite stronger bargaining position. The contract of such a nature does not stand on the equal footing and does not enjoy the same bargaining powers; rather the OP has imposed these conditions upon the Complainant in arbitrary and incarnalized manner. Such contracts have been inter-alia held to be unconscionable by the Apex Court in the case of Central Inland Water Transport Corporation Ltd. and Anr. Vs. Brojo Nath Ganguly and Anr. AIR 1986 SC 1571 in para No. 70 to 82. It would also be pertinent to quote extract of para 80 of this judgment as follows:
“Standardized contract form offered to consumers of goods and services on essentially ‘take it or leave it’ basis without affording consumer realistic opportunity to bargain and under such conditions that consumer cannot obtain desired product’ or services except by acquiescing in form contract.”
The contract being unconscionable within the fold of the aforesaid judgment is also bad in law. Elements of free consent and freedom of contract must be clearly visible. If the same are missing for any reason, the contract cannot be said to be enforceable contract as defined in the Indian Contract Act. Having received the huge amount of Rs. 3,99,948/- and having failed to provide the holiday resort to the Complainant on number of occasions consistently and continuously under the garb of the so-called contractual provisions that “the refund of the monies paid only when a request for rescission is made by the member within 10 days of the application form having submitted and not thereafter” is demonstrative of unconscionable clause causing unjust enrichment to the OP or that the booking of accommodation is subject to availability. In the same vein, this clause of unconscionable contract is hit by the doctrine of unjust enrichment under section 72 of the Indian Contract Act, 1872.
Be that as it may, had the Complainant known before hand that he would come across such encumbrance, he would not have in all probability accepted the offer of OP to become member of such scheme. We, therefore, hold the OP guilty of gross deficiency in service and unfair trade practices.
We, therefore, allow the complaint and direct the OP to refund the money of Rs. 3,99,948/- deposited by the Complainant after deducting the proportionate cost of holiday package availed at Coorg. for 2 nights which according to the OP is Rs. 42,000/- in all. We also direct the OP to pay compensation of Rs.50,000/- to the Complainant towards compensation for harassment and mental agony undergone by the Complainant including litigation expenses.
The order shall be complied within 30 days of receipt of copy of this order failing which OP shall become liable to pay interest @ 6% per annum from the date of filing of the complaint till its realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 16.04.16.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
Case No. 274/11
16.04.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is allowed. OP is directed to refund the money of Rs. 3,99,948/- deposited by the Complainant after deducting the proportionate cost of holiday package availed at Coorg for 2 nights which according to the OP is Rs. 42,000/- in all. We also direct the OP to pay compensation of Rs.50,000/- to the Complainant towards compensation for harassment and mental agony undergone by the Complainant including litigation expenses. The order shall be complied within 30 days of receipt of copy of this order failing which OP shall become liable to pay interest @ 6% per annum from the date of filing of the complaint till its realization. Let the file be consigned to record room.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
