For the Complainant : Mr. Ramesh Shine, Advocate
For the Opposite Party : Mr. Shashank Thatte, Advocate
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Per :- Mr. J. L. Deshpande, President Place : Bandra
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::::: JUDGMENT :::::
Facts giving rise to this complaint may be stated, in brief, as follows :
The Opposite party is a Company running Mahindra Holiday and Resort in India and providing services to its customer. The Complainant become a member of the Opposite party by making payment in sum of Rs.40,880/- by cheque on 24.01.2008 and payment of Rs.1,000/- by cash on 28.01.2008. The Complainant had agreed to pay balance amount in sum of Rs.2,20,324/- in 12 installments. According to the Complainant, he was eligible for one week Free International or Domestic Holidays through RCI.
2 According to the Complainant, the Complainant requested for booking of resort at particular location through RCI but he was not accommodated. In the next year also the Complainant was informed that the location was not available. There was no proper communication from the Opposite party. The Complainant was thus not accommodated and not provided with one week of holidays at any location of the choice of the Complainant. The Complainant got frustrated and decided to cancel the membership. The Complainant send e-mails to the Opposite party to refund all the payment and cancelled the membership. There was no response from the Opposite party and the Complainant filed present complaint for refund of Rs.81,434/- from the Opposite party which amount the Opposite party collected from the Complainant as well as compensation in sum of Rs.75,000/-.
3 The Opposite party appeared and filed written version of defence and admitted that the Complainant had become member on signing application form on 23.01.2008. The Opposite party also admitted initiated payment made by the Complainant as well as the payments through post-dated cheques. The Opposite party has taken stand that the Complainant was informed that his request was being processed and kept on hold due to non availability of the particular resort of the choice of the Complainant. However, the Complainant was adamant and decided to cancel the membership. According to the Opposite party, as per the agreement, the Complainant is not entitled to refund of the membership fees and payments. Thus the Opposite party denied deficiency in service.
4 The Complainant filed affidavit of rejoinder and reiterated his statement in the complaint.
5 The Opposite party has filed affidavit of evidence of Mr.Dinesh Kumar, Legal Head. The Complainant also filed his affidavit of evidence. Both the sides filed their written notes of arguments.
6 We have gone through the complaint, written version of defence, affidavits and written notes of the arguments. We have heard advocate for the Opposite party.
7 We take the points that arise for our consideration and record our findings there-against as below:-
No. | Points for consideration | Findings |
1 | Whether the Complainant has proved deficiency in service on the part of the Opposite party ? | No |
2 | Whether the Complainant is entitled to refund of amount as sought in the complaint ? | No |
3 | What order ? | Complaint stands dismissed. |
REASONS FOR FINDINGS :-
8 The Complainant has filed payment statement at exhibit-C which shows that the Complainant paid initial amount of Rs.41,880/- and then two post-dated cheques towards the membership installment were realised and thus the Complainant has paid total sum of Rs.81,434/- to the Opposite party. The Opposite party has also admitted to have received this amount from the Complainant.
9 The Opposite party has also admitted that the Complainant had made request for particular location through RCI. However, according to the Opposite party, request made by the Complainant was kept on hold since particular location was not available at that particular time. In this context, following clause in the Membership Agreement is material, :
3.6 :- “ All holiday reservations shall be done on a first-come-first-served basis and are consequently subject to eligibility and availability. Request for reservation can be done from upto 6 members in 1 day prior to the commencement of the holiday”.
10 This provision shows that the member is not entitled to get reservation of particular location as of right. It depends upon availability of that particular location. Then as per clause 11.1 of the Membership Agreement all requests for holidays shall be subject to eligibility and availability only.
11 As per clause no.6.1 of the Membership Agreement, member is entitled to terminate the membership within recession period which is 10 days from the date of the receipt of 25% of the admission frees. Beyond recession period, member is not eligible for any refund of the amount. This is mentioned in clause no.6.1 of the agreement.
12 In view of the above, the decision of the Complainant to cancel the membership was unreasonable. He was not entitled to reservation at particular resort as of right and that too, for particular period. In view of the provisions in the rule, the Opposite party does not appear to be guilty of deficiency in service.
13 In view of the above discussion, we hold that the Complainant is not entitled to refund of the amount paid by him. However, the Opposite party shall continue his membership provided the Complainant makes payment of arrears /balance amount.
With this, we proceed to pass the following order.
::::: ORDER :::::
1 Complaint stands dismissed with no order as to costs.
2 Original warranty card to be returned to the
Complainants after period is over.
3 Certified copies of this order to be furnished to both
the parties, free of costs, as per rule.
