DATE OF FILING : 2.07.2010
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 18th day of October, 2010
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.SHEELA JACOB MEMBER
SMT.BINDU SOMAN MEMBER
C.C No.136/2010
Between
Complainant : Dr.Reji Jose,
Chilampil House,
Thodupuzha P.O,
Thodupuzha East,
Idukki District.
(By Adv: Shiji Joseph)
And
Opposite Parties : 1. Mahindra Holiday & Resort India Limited,
Mahindra Towers, 2nd Floor,
17/18, Patullos Road,
Chennai – 600 002.
(By Advs: P.B.Sahasranaman, K.J.Thomas &
Arun Jose Thomas)
2. Mahindra Holiday & Resort India Limited,
KG Oxford Business Centre, 7th Floor,
39/4609, Sreekandath Road, Ravipuram, Cochin – 16.
O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
The complainant is a Physician practising at Thodupuzha. The opposite party invited the complainant over telephone for an interview at Ernakulam. On participating the interview on 13.07.2008 they have induced to join as member in "Club Mahindra" on payment of an admission fee of Rs.29,978/- together with monthly instalment of Rs.4,858/- each. They assured 7 days stay every year in any of their resorts at different places all over India and abroad. After the interview, the opposite party issued a gift certificate thereby he could stay for 2 nights and 3 days free of charge at any of the selected resorts of the opposite party. During the interview, the opposite party explained the merits of taking three types of membership such as Red season, White Studio and Blue. The opposite party offered 5 Star and 7 star facilities in all their resorts. Free food vouchers were also issued to the complainant after the interview. On 16.07.2008 the staff of the 2nd opposite party came to the complainant's residence at Thodupuzha and got signed from the complainant on the application form, received Rs.29,978/- as cash and also received 12 post dated cheque leaves for the balance payment. On 15.08.2008 the complainant wanted the opposite party to book his stay in the resorts at Ashtamudi or Coorg. But the opposite party's personnel expressed their inability to accommodate him stating that the bookings were full at Ashtamudi as well as in Coorg. Again during the Onam holidays the complainant approached for booking at Ashtamudi, which was also turned down by the opposite party. In the circumstances, the complainant issued instructions to his banker to stop the payment of the cheque issued to the opposite party by E-Mail. Also issued to the Ist opposite party bringing to their notice that the opposite party failed to discharge their contractual obligations. But there was no response from the opposite party. In the month of October 2008 also, the complainant again approached the opposite party to book his stay at Ashtamudi during Avani Pooja holidays. But the opposite parties could not arrange the same. In December 2008, the complainant requested for booking his stay in their resort at Goa. But it was informed that the stay at Goa resort had to be booked 3 months in advance. Hence the complainant requested the opposite party to book his stay at Goa resort during the Easter holidays in April 2009. But the opposite party failed to arrange for the request. So the complainant had to stay in the Kennel Worth Hotel at Goa during the month of May 2009 and the complainant had to spent Rs.20,000/- for the same. This was caused because of the deficiency in service of the opposite party and the opposite party is liable to make good the loss. So the complainant sent an E-Mail to the opposite party requesting for refund the sum of Rs.34,836/- as if failed to perform their part of the contract. After collecting the admission fee and the Ist installment fee amounting to Rs.34,836/-, the opposite party did not care to provide any of the bookings sought for by the complainant. The food coupons issued and the gift certificate awarded to the complainant in July 2003 are still lying idle with the complainant as the opposite party failed to arrange the assured stay in their resorts of his choice. The very purpose of joining the opposite party's club was to spend the complainant's holidays in the opposite party's resort of his own choice. But the opposite party failed to arrange the same inspite of his several requests. So this petition is filed for getting back the amount paid by the complainant as Rs.34,836/- together with interest, for getting the amount incurred by the complainant for his stay at Goa and also such other reliefs.
2. The opposite party filed a written version wherein it is stated that as per the membership rules of the opposite parties, all the disputes between the parties can be settled only as per arbitration proceedings and the complaint is not all maintainable. It is admitted that the complainant was a member of the opposite party and was entitled to avail holidays at any resorts of the opposite party, but subject to membership rules governing allotment and usage of Club Mahindra Holiday Membership. Since the complainant has never availed the services of the opposite party as a service provider the question of deficiency of service does not arise. The complainant signed the Application Form for the Membership after agreeing all the rules annexed to the same. The contract of membership is cancelled and the complainant is no longer a member of the opposite party. So the complainant is not a consumer of the opposite party. On receiving a call from the complainant, the Sales Correspondent of the opposite party visited the complainant and explained to him in detail about the membership. Being satisfied about the features of the membership, the complainant chose the white season studio apartment and signed the application for membership form after reading and understanding the details given therein. A letter along with membership card and laminated membership rules were issued by the opposite party as per its normal procedure after receiving the down payment from the complainant and the said letter informed the complainant that the holidays due will commence after completion of 6 months from the admission as a member and are subject to availability. A member is entitled to holiday in his season only. Therefore when the opposite party received the holiday request from the complainant, he was informed that the resorts were full and he was given the option of another date and another resort, which he did not choose. However, the complainant voluntarily defaulted the payment of the monthly instalments and made himself dis-entitled to get any benefit under the membership. The opposite party is a part of Mahindra Group, one of India's premier corporate houses and a trusted household name for more than 60 years. The opposite party provides quality holiday experiences to over 100000 families across the world and is the India's largest family holiday brand. The opposite party always provides prompt and quality service to its members assuring complete customer satisfaction and gives full value for their money. The opposite party is enjoying an enormous customer base and the members are highly satisfied with the service of the opposite party. The opposite party further requested the complainant not to cancel his membership as he would not benefit from the same. As per Clause 6 of the Membership rules, withdrawal of application for membership shall be permitted within 10 days from the date of realization of 25% of admission fee and should reach the opposite party within 10 days from the date of application. In the event of such withdrawal, the opposite party refund the entire amount received from the member towards membership fee within 30 days from the date of receipt of request for cancellation. However, in the event of withdrawal of the application beyond 10 days from the date of application, the applicant shall not be eligible for any refund of the amounts of the admission fee paid by him. So the complainant's claim cannot be acceptable. The complainant received free food vouchers worth Rs.5,000/- and a Nikon digital camera worth Rs.11,000/- approximately and the fact is intentionally concealed by the complainant and is now deliberately digging out frivolous reasons to find faults with the opposite party. So the complainant is not eligible for any refund of the amount and there is no negligence from the part of the opposite party.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?
4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P8 marked on the side of the complainant. No oral evidence adduced by the opposite parties and Exts.R1 and R2 marked on the side of the opposite parties.
5. The POINT :- The complainant joined as a Member in the Club Mahindra Resort after attending an interview conducted by the opposite party at Ernakulam. The complainant deposed as PW1. PW1 attended the interview on 13.07.2008 .After the interview, the opposite party offered a gift certificate for which he could stay for 2 nights and 3 days free of charge at any of the selected resorts of the opposite party, copy of which is marked as Ext.P1. Food coupons worth Rs.500/- each 10 in numbers were supplied by the opposite party to the complainant which were marked as Ext.P5(series). The staff of the opposite party approached the complainant's residence on 16.07.2008 and PW1 signed in the application form after giving Rs.29,978/- as cash and 12 post dated cheque leaves given for the balance payment. The opposite party offered 5 star and 7 star facilities in all resorts of them and offered 7 days stay every year in any of their resorts at different places all over India and abroad. On 15.08.2008 PW1 wanted to book his stay at Ashtamudi or Coorg. But the opposite party's personnel expressed their inability to accommodate him, because the booking were full at Ashtamudi as well as in Coorg. Again during Onam holidays the complainant approached for booking at Ashtamudi which was also turned down by the opposite party. So PW1 advised his banker to stop the payment of cheque leaves issued to them, after one instalment of Rs.4,858/-. The matter was intimated to the opposite party also, but there was no response from the opposite party. In October 2008, again the complainant approached the opposite party to book his stay at Ashtamudi during Avani Pooja holidays, but the opposite party could not arrange the same. In December 2008 again the complainant requested for booking his stay at their resort at Goa. But the opposite party informed that it was to be done before 3 months in advance. So the complainant was constrained to stay at Goa with his family in another resort in the month of May 2008 and paid expenses of Rs.20,000/- from his pocket. Ext.P2 is the certificate of membership issued by the opposite party to PW1 for his membership. Ext.P3 is the international classification chart issued by the opposite party for their resorts. On 28.09.2009 PW1 issued a letter to the opposite party stating to cancel his membership and return the money which he paid with interest, because the opposite party provided very poor customer care and response from their side. Ext.P6 is the copy of the same. Another letter was issued by the complainant on 22.01.2010 demanding the money paid by the complainant and his willingness to cancel the membership and return the food coupons issued. It is also stated that legal action will be initiated against the opposite party, copy of the same is marked as Ext.P7. A reply dated 2.12.2009 was issued by the opposite party stating that there is no refund amount in his account because a member is allowed an exit option only for the first 6 months of the membership, which is marked as Ext.P8. As per the cross examination of the learned counsel for the opposite party, PW1 admitted that the period for Ext.P1 is 6 months. In the month of October, November and April, PW1 booked resort of the opposite party. But he never requested for the service as per the free gift coupon. He booked twice as per the free gift coupon, that was in the Independent day and in the Onam season. After that bookings were done as per the membership. It is also admitted that a free gift Nikon camera worth Rs.11,000/- was given by the opposite party at the time of taking the membership.
6. Ext.R1 is the membership application form signed by the complainant. As per the opposite party, because of the inconvenience of PW1, who is a doctor, was not able to use the dates noted in the gift voucher and so the gift vouchers were cancelled after that period. After September 2008, the complainant is not a member of the opposite party and so he is not entitled for the benefit of the same. The complainant signed in the membership application after reading all the rules and conditions of the opposite party and as per Clause 6 of the membership rules, withdrawal of application for membership shall be permitted within 10 days from the date of realization of 25% of admission fee and should reach the opposite party within 10 days from the date of application. In the event of such withdrawal the opposite party refund the entire amount received from the member towards membership fee within 30 days from the date of receipt of request for cancellation. The complainant is not applied within the stipulated period and shall not be eligible for any refund of the amounts of the admission fee paid by him. The opposite party supplied a Nikon camera worth Rs.11,000/-and food vouchers worth Rs.5,000/-. The complainant was entitled to avail of holidays only after completion of 6 months after admission as a Member. The complainant has failed to specify the name of the company representative to whom he had communicated.
7. It is admitted by the opposite party that they have received an amount of Rs.29,978/- as admission fee and an amount of Rs.4,858/- as Ist monthly instalment, from the complainant for joining in the opposite party's holiday resort which is in the name and style “Club Mahindra”. It is also admitted by the opposite party in their written version in the 6th paragraph that 'when the opposite party received the holiday request from the complainant, he was informed that the resorts were full and he was given the option of another date and another resort, which he did not choose'. As per the complainant, the opposite party offered 2 nights and 3 days free of charge accommodation at any of their selected resorts as per the gift certificate issued by them on 13.07.2008, within 6 months. Ext.P1 also clearly shows the same. Another offer as food coupons worth Rs.500/- each of 10 numbers were issued to the complainant in his Member ship Number, which are marked as Ext.P5(series). But in Ext.P5(series) it is not written that they were given as gift coupons, but the membership number is also written there and the validity was upto 1.09.2010 starting from 7.08.2008. The complainant was not able to use these coupons because the opposite party never arranged accommodation in their resorts. Ext.P5(series) also show the same.
8. Another offer from the opposite party was that 7 days stay in every year in any of their resorts at different places all over India and abroad. The complainant wanted to book his stay in the opposite party's resort at Ashtamudi or Coorg on the Independent Day and during the Onam holidays. But the opposite party never registered the request because the rooms were full at that time. Again the complainant booked the resort as per the membership in October 2008 during Avani Pooja holidays also in December at Goa and in the month of April at Goa. But the opposite party declined the same. So the complainant constrained to stay at Goa by paying money from his pocket. So the complainant was decided to cancel the membership and gave Ext.P6 letter to the opposite party to cancel his membership stating that the opposite party never provided accommodation as per the offer given by them. Because of very poor customer care and response from the opposite party's side the complainant was constrained to cancel the membership and demanded for the paid amount which is Rs.34,836/- as per Ext.P6 on 28.09.2009. But no reply was given by the opposite party and never disputed the same to prove the innocence of the opposite party. But a letter which is Ext.R2 issued stating that no money can be refunded to the complainant stating the details of membership charge, deduction on the product price, EMI etc. Another letter was issued by the complainant as Ext.P7 to the opposite party demanding the money paid by the complainant, also stating that legal action will be taken against the opposite party which is dated 22.01.2010. But no reply was issued by the opposite party for the same.
9. So it is very clear that the complainant booked twice in the gift certificate period and after that several times in the membership period for the holiday resort of the opposite party. But the opposite party never offered any accommodation to the complainant. No specific reply was given or letter given to the complainant to say that what was the reason caused for the non-acceptance of the request of the complainant. So it is a gross deficiency in service and unfair trade practice from the part of the opposite party. The complainant who is a practising doctor who was invited by the opposite party through telephone for an interview at Ernakulam. After attending the interview the complainant duly paid the membership fee and the Ist monthly instalment fee as per the request of the opposite party. But the opposite party never gave accommodation to the complainant in any of the resorts of the opposite party at anywhere. It is also admitted by the opposite party that they were not provided the same. If any of the resorts requested by the complainant were filled at that time, there is no evidence to show that the opposite party offered any other options to the complainant as per the request of the complainant. Even two letters were given by the complainant for getting back the money and cancelling the membership, but the opposite party never offered any of the resorts of the opposite party as a matter of compromise. But they only replied stating that no money will be given to the complainant and stated the details of membership fees, service charges and other charges. So it means that the opposite party deliberately cheated the complainant by accepting a huge money from the complainant. As per clause 6 of membership rules, the membership will be cancelled and money will be returned only if the party applied within 10 days. We think that it is not a proper choice because, how the consumer will aware about the mode of accommodation of the opposite party within 10 days. The customer can get accommodation only after 6 months of the date of joining of membership. If the opposite party never provides an accommodation or good hospitality the chance of the customer of getting back the money will be lost as per the membership clause. So that is a deliberate cheating from the part of the opposite party. So we direct the opposite party to give back the amount paid by the complainant at the time of availing the membership as per Ext.R1 and monthly instalment which is Rs.4,858/- with interest. The complainant constrained to stay at Goa by paying money from his pocket because of the non-availability of the resort of the opposite party. He paid an amount of Rs.20,000/- for the same. But no evidence produced by the complainant to show the same. The complainant is a practising doctor who attended the interview at Ernakulam and accepted the offer of the opposite party. But the opposite party never acted upon that. The complainant and his family several times requested for the offer but they were not accepted by the opposite party which made hardships and inconvenience to the complainant. So the complainant is entitled to get Rs.3,000/- as compensation for the same. The complainant received a gift which is a Nikon camera worth Rs.11,000/- from the opposite party, the complainant is ready to give back the same to the opposite party. The opposite party can take back the same if they wants. It was only a gift given by the opposite party and which is not connected with any of the offer given by the opposite party in anywhere.
Hence the petition allowed. The opposite parties are directed to return to the complainant an amount of Rs.29,978/- as per Ext.R1 with 12% interest from the date of payment and also return Rs.4,858/- which is the monthly instalment paid by the complainant within one month. The opposite parties are also directed to pay Rs.3,000/- as compensation and Rs.2,000/- as cost of this petition within one moth of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.
Pronounced in the Open Forum on this the 18th day of October, 2010
Sd/-
SRI. LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/-
SMT. SHEELA JACOB(MEMBER) Sd/-
SMT. BINDU SOMAN(MEMBER)
APPENDIX
Depositions :
On the side of Complainant :
PW1 - Dr.Reji Jose
On the side of Opposite Party :
Nil
Exhibits:
On the side of Complainant:
Ext.P1 - Gift Certificate dated 13.07.2008 issued by the opposite party
Ext.P2 - Certificate of Membership issued by the opposite party
Ext.P3 - International Classification Chart issued by the opposite party
Ext.P4 - Membership Rules issued by the opposite party
Ext.P5(series) - Food Coupons worth Rs.500/- (10 Nos)
Ext.P6 - Copy of complainant's letter dated 28.09.2009 addressed to the opposite party
Ext.P7 - Copy of complainant's letter dated 22.01.2010 addressed to the opposite party
Ext.P8 - Opposite party's reply letter dated 2.12.2009 addressed to the complainant
On the side of Opposite Party :
Ext.R1 - Photocopy of Membership Application Form
Ext.R2 - Copy of Opposite party's letter dated 2.12.2009 addressed to the complainant
