Punjab

Ludhiana

CC/19/529

Kamaljit Singh - Complainant(s)

Versus

Mahindra Holiday & Resorts India Ltd - Opp.Party(s)

Sunil Sharma Adv.

22 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:529 dated 18.11.2019.                                                        Date of decision: 22.03.2023.

 

Kamaljit Singh, resident of House No.1217, Phase I, Urban Estate, Dugri, Ludhiana.

..…Complainant

                                                Versus

1. Mahindra Holidays & Resorts India Ltd., 17/78, Mahindra Tower, 2^nd floor, Patullos Road, Mount Road, Chennai-600002, Tamil Nadu, through its Director/M.D.
2. Mahindra Holidays & Resorts India Ltd., Branch Office Show Room No.32, Ist Floor, Westend Mall, Ferozepur Road, Ludhiana through its Officer Incharge.   
3. Sunil Verma, Representative, Mahindra Holidays & Resorts India Ltd., Branch Office Show Room No.32, Ist Floor, Westend Mall, Ferozepur Road, Ludhiana.
4. Balwinder Singh Representative, Mahindra Holidays & Resorts India Ltd., Branch Office Show Room No.32, Ist Floor, Westend Mall, Ferozepur Road, Ludhiana.        

.….Opposite parties.

Complaint Under Section 12 and 14 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Sunil Sharma, Advocate. 

For OP1 and OP2          :         Sh. J.S. Bindra, Advocate.

For OP3                         :         Exparte.

For OP4                         :         Complaint against OP4 dismissed as withdrawn                                                 vide order dated 04.03.2022.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that in the month of June 2015, the complainant received call from opposite party No.3 Sunil Verma, on executive of opposite parties and represented him that the opposite parties are engaged in business of trip management and trip planner, for promotion of their business/company they are giving handsome offers to the customers for their outdoor trips. Opposite party No.3 deputed his representative Balwinder Singh i.e. opposite party No.4 to visit complainant and to submit the details of offer to the complainant. Opposite party No.4 visited the complainant in June 2015 and gave handsome and lucrative offer to the complainant that he will have to invest an initial amount of Rs.33,200/- and ASF amount of Rs.12,569/- for membership and thereafter, EMIs will be deducted from his account. Opposite party No.4 further induced the complainant that in case the complainant avails the membership of opposite parties, then he will get handsome discount on resort booking, food/meals etc. and whenever the complainant wants to visit their resort, he will be given confirmed booking on his each and every outdoor visit as well as abroad visit. On the false inducements of the representative of the opposite parties, the complainant agreed to invest the money and become a member and on the demand of opposite parties, he paid a sum of Rs.33,200/- and also made payment of ASF amount of Rs.12,500/-. The opposite parties allotted membership No.2593059 to the complainant having validity for 25 years w.e.f. 01.07.2015 to 30.06.2040. Thereafter, the opposite parties started deducting periodic EMIs from the account of the complainant.

                   The complainant further submitted that he made his first outdoor visit to Manali in the month of March 2015 and at that time no quality food was provided to him regarding which he made complaint with the representative of the opposite parties with request to improve the quality of food but there was no improvement in the quality of the food and under compelling circumstances, the complainant had to take meals from outside by paying a hefty amount. The complainant further submitted that he wished to visit Safari Resort Cobett, Nainital in the summer vacations of June/July 2015 but his booking was not confirmed till the end by the opposite parties despite their assurance of confirmed booking at the time of availing their membership. The complainant was given the booking in August 2015 due to which his entire trip was spoiled and the complainant suffered a lot of harassment, humiliation and anguish on this account.

                   The complainant further submitted that again in the month of June 2016, he tried booking in Kanda Ghat, Shimla but again booking was not given to him in the month of June 2016 despite the assurance given by the opposite parties at the time of availing membership of the opposite parties and the booking was given in August 2016 due to which again the entire trip of the complainant was spoiled and the complainant suffered a lot of harassment, humiliation and anguish on this account. Even during this trip in August 2016 very poor quality of the food was provided to the complainant and the quality of food was not improved despite his complaints and repeated requests due to which the complainant had to purchase food from outside at a very high price. The complainant further submitted that when he raised the complaint, at this the official of the opposite parties told him not to worry as the representative of the opposite parties told the complainant that he is giving another booking of Kanda Ghat to the complainant in the month of January 2017 but even during this trip, the quality of food was not good.

                   The complainant further submitted that again in the month of June 2017 he tried for booking at Shimla but again his booking was not confirmed despite repeated requests rather the complainant was given the booking in the month of October 2017 due to which he was utterly disappointed and faced humiliation. The complainant made telephonic complaint to the representative of the opposite parties regarding the deficiency in service on which he gave booking to the complainant of Nandehra, Shimla in the month of December 2017. The complainant further submitted that in the month of June 2018 he applied for booking to Shimla but this time again the booking of Shimla was not provided to him despite repeated requests and despite promise of the opposite parties at the time of availing membership. This time, the complainant was given booking in the month of September 2018 due to which he again faced humiliation upon which he made complaint to the representative of opposite parties telephonically who felt sorry and assured the complainant that this was the last time booking has been denied to the complainant in June month and next time the complainant will be definitely given assured booking in June 2019. The complainant further submitted that each and every time he was unsatisfied with the services of opposite parties and he used to stop the payment of EMI on which the representative of opposite parties visited the complainant and took the installment from him on false inducements. The complainant submitted that again in the month of May 2019, he tried for booking in the month of June 2019 but again the opposite parties refused his booking in the month of June 2019 on the pretext of heavy rush and when the complainant made enquiries, it transpired to him that the opposite parties have been giving booking to the non-members immediate visitors on high prices by denying booking to the members like complainant who have been regularly paying to the opposite parties for the past long time. The complainant has paid a huge sum of Rs.3,91,242/- approximately to the opposite parties but they have committed grave deficiency in service and unfair trade practice due to which the complainant suffered utmost physical and mental agony, harassment, humiliation, anguish and remained under depression for a number of days. The complainant served a registered legal notice dated 15.06.2019 upon the opposite parties through his counsel Sh. Sunil Sharma, Advocate but to no avail. Hence this complaint, whereby the complainant has prayed for issuing direction to the opposite parties to pay the amount of Rs.3,91,242/- and to pay compensation of Rs.1,00,000/- besides litigation expenses of Rs.21,000/-.

2.                Notice was issued to opposite party No.3 through registered post on 05.12.2019 but opposite party No.3 did not appear despite service and was proceeded against exparte vide order dated 10.02.2020. However, the complaint as against opposite party No.4 was dismissed as withdrawn vide order dated 04.03.2022.

3.                Upon notice, opposite party No.1 and 2 filed joint written statement and took preliminary objections and assailed the complaint on the ground that the present complaint has been filed with sole motive of extracting money and to wriggle out of contractual obligations by abusing the process of law and the complainant is not entitled to any relief claimed for as no cause of action ever arose in his favour. Further the complaint is hopelessly time barred and also bad for mis-joinder of necessary parties. Further that there is no negligence or deficiency in service on the part of opposite party company and the opposite party company has provided all the assistance to the complainant and honoured all contractual obligations. Further the booking of resorts are always subject to eligibility and availability of particular location and therefore, the complaint is not maintainable.

                   On merits, it is submitted that the complainant had shown his keenness towards the   membership of the opposite parties  who has more than 60 resorts spread all over India with a membership base of over 2,40,000/-. The opposite party company offers to its members a membership for 25 years (Membership Usage Period) under its Holiday Product the Club Mahindra Holiday Membership (CMHM) which entitles the member to avail a week of holiday every year in the apartment and season specified in the certificate of membership. Under the membership, the member is entitled for the holiday and accommodation, while food and other charges are to be borne by the members as per consumption. The holiday bookings are subject to eligibility and availability at the relevant point of time and all holiday reservations are done on first come first service basis. In addition to the membership fees, the member has to pay Annual Subscription Fee (ASF) every year to the opposite parties at applicable rates. However, it is admitted that the  company representative visited the complainant and gave detailed representation on the benefit of membership, procedure and formalities for taking membership and availing holidays and also explained the membership rules, terms and conditions governing the membership apart from the cost of membership and ASF payable there under. The complainant opted to subscribe/purchase “White Studio” membership from the opposite party company and signed & submitted the duly filled and signed application form dated 30.09.2014 (Annexure-B) thereby agreeing and accepting the membership rules and terms and conditions of the membership as contained therein and forming the binding contract between the parties. He also signed the “Member’s Review for Confirmation of undertaking”. Accordingly, the complainant paid a down payment of Rs.26,200/-  (being 10% of the membership cost, less down payment discount of Rs.7,000/-) against a total membership cost of rs.3,32,000/- and promised to pay the balance cost (including interest) vide 48 EMIs of Rs.8,468/- each. The complainant paid Rs.26,200/- in cash and thereafter, a membership ID No.2593059 was allotted. It was further submitted that the complainant had opted 48 EMIs plan for payment of total membership cost, the holiday start date under his membership was to commence after 9 months from the down payment i.e. from 01.07.2015.

                   The complainant further submitted that for the facilitation of the 48 EMI payments as per original payment plan, the Complainant has submitted the Auto Clearing House (ACH) Form mandating auto- debit of his EMIS from his account along with a cancelled cheque as per requirements. The complainant has paid 6 EMIs of Rs. 8,468/- i.e. till April 2015 and defaulted in payment of balance EMIs. The complainant later approached the opposite party company in the month of July 2015 with the request to change the payment plan and promised to pay the balance membership cost vide 12 EMIs of Rs. 23,468/-, out off which the complainant had paid only 2 EMIs (for the months of August & September 2015) and again defaulted in payment of balance EMIs. It is further submitted here after lapse of about 3 months, the complainant again approached the opposite party company with the request to continue his membership with change in payment plan and now promised to pay the balance membership cost vide 12 EMIs of Rs.19,557/-. The complainant again defaulted in payment of the said EMIs and paid only 2 EMIs i.e. one in December 2016 and then in the month of April 2016. The opposite parties further submitted that  despite the complainant being chronic defaulter in payment of EMIs, the opposite party company has always adhered to his requests for payment plan change which were made citing personal difficulties and provided the bookings to the complainant as a goodwill gesture in the interest of better Company-Member relationship. The complainant had in the month of August 2016 again approached the opposite party company and promised to pay the balance cost vide 12 EMIs of Rs.16,298/-, which was again adhered to by the opposite party company and the said EMIs were paid by the complainant till the month of July 2017.  The opposite parties in reply to para No.3 to 6 of the complaint had vehemently denied the allegations of the complaint with regard to deficiency in service and adoption of unfair trade practice. Rather it was elaborately submitted in these paras that the complainant had enjoyed the hospitality of the opposite parties, the details of which are summarized as under:-

1. Manali in the month of March, 2015
2. Safari Resort Cobett, Nanital, Summer Vacations June July, 2015 and then again booking in August 2015.
3. Kandaghat, Shimla, Month of June, 2016 against August, 2016.
4. Booking of Kandaghat in the month of January, 2017 but only complaint of the complainant is the quality of food which was alleged by the complainant "was not good". It is so stated by the complainant in Para No. 6 of the Complaint. Interestingly nobody can judge or adjudicate weather the salt or mirchi in the food dish provided to the complainant was to his choice or not. This is so alleged by the complainant in para number 6 of the complaint.
5. Shimla June, 2017 and then again the complainant was given the booking in the month of October, 2017. But it not understandable as to how and why the complainant was utterly disappointed and faced humiliation.
6. Again the booking by the Company to the complainant was given for Nandhera. Shimla in the month of December. 2017 (in fact the name of the place is Naldhera and not Nandhera) which has been wrongly written in the Complaint.
7. Again the complainant was given the booking in September, 2018 about Shimla.
8. The complainant had asked for booking in May, 2019 for the month of June, 2019 but the company showed its inability for June, 2019 due to the heavy rush……

 

Which otherwise means to convey that all along the complainant was enjoying the hospitality of the Company. If a man repeatedly asks for the accommodation facility/booking then it goes to show that he is enjoying the facilities being provided by the OP Company.

                   In the written statement, opposite party No.1 and 2 have referred to the relevant clause of member rules with regard to Membership Application Form. The opposite parties have denied that the complainant suffered any humiliation or harassment on account of booking or services of any unhygienic food on the destination mentioned herein before. The opposite parties have also reiterated its legal objections in detail and asserted that membership contact by the complainant contains binding contractual stipulations and the opposite parties are not indulged in deficient or negligent from any act detriment to the complainant and have further prayed for dismissal of the complaint.

4.                 In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of Aadhar card, Ex. C2 is the copy of members details, Ex. C3 is the legal notice dated 15.06.2019, Ex. C4 to Ex. C7 are the postal receipts and closed the evidence.

5.                On the other hand, the counsel for opposite party No.1 and 2 tendered affidavit Ex. OA of Sh. Amit Nijhawan, Corporate Manager - Legal and Authorized signatory of opposite parties along with documents Ex. OW1&2/1 is the copy of power of attorney, Ex. OW1&2/2  is the copy of membership application form, Ex. OW1&2/3 is the copy of member payment statement, Ex. OW1&2/4 is the copy of holiday confirmation voucher, Ex. OW1&2/5 is the copy of holiday confirmation voucher, Ex. OW1&2/6 is copy the brochure White Meadows Manali by Mahindra Holidays, Ex. OW1&2/7  is the copy of receipt, Ex. OW1&2/8 is the copy of holiday information voucher, Ex. OW1&2/9 is the copy of holiday confirmation voucher, Ex. OW1&2/10  is the copy of holiday confirmation voucher, Ex. OW1&2/11 is the copy of holiday confirmation voucher, Ex. OW1&2/12 is the copy of reply dated 30.07.2019 to legal notice dated 15.06.2019 of the complainant, Ex. OW1&2/13 is the copy of courier receipt and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply, affidavit and documents produced on record by both the parties. We have also gone the written arguments submitted by the opposite parties.

7.                Undisputably, the complainant availed a membership No.2593059 having its validity for the period from 01.07.2015 to 30.06.2040. The complainant was entitled to the facilities and booking food etc. as per the instructions and at the same time, he was under legal obligation to pay the agreed EMIs in time. The total cost of membership was Rs.3,32,000/- and the complainant was required to pay the balance cost along with interest in 48 EMIs of Rs.8468/- each and the membership was to commence from 01.07.2015 or after paying six EMIs of Rs.8468/- till April 2015. The complainant defaulted in repayment and got the payment plan rescheduled into 12 EMIs of Rs.23,468/-. The complainant again paid just 2 EMIs and further default was committed. Again on the request of the complainant, balance membership cost was rescheduled into 12 EMIs of Rs.19,557/-. The complainant once again just paid 2 EMIs in December 2016 and April 2016 and in August 2016, again the plan was changed at the request of the complainant. It is evident that the complainant was repeatedly defaulting in repayment of membership cost and was not discharging his contractual obligation arising out to the membership agreement. However, the complainant concealed these material facts from the Commission while presenting the present complaint. Even the complainant did not offer any explanation or submitted any rejoinder to the aforesaid contentions of the opposite parties.

8.                The grievance of the complainant in the complaint is of two folds. Firstly, the booking was not done at the desired time and quality of food was poor. The allegations of the complainant are bald, sketchy and not supported by any evidence. No written document or email has been adduced in support of the claim with regard to poor quality of food. As far as booking aspect is concerned, the complainant was fully aware of stipulations in the membership application form Ex. OW1&2/2 that holiday bookings are subject to eligibility and availability at the relevant point of time and all the bookings are done on first come and first service basis. The opposite parties have adduced holiday confirmation vouchers Ex. OW1&2/4, Ex. OW1&2/5, Ex. OW1&2/8 to Ex. OW1&2/11. It is evident that the complainant had availed and enjoyed facility extended by the opposite parties more than 7 occasions in between March 2015 till September 2018. It appears that the complainant had filed the present complaint in order to avoid the payment of balance membership cost. Part-C of the membership application form Ex. OW1&2/2 provides the general condition with regard to termination/cancellation of the membership by either of the parties. The complainant has also failed to bring his case within the four corners of these terms and conditions which could have entitled him to seek refund of membership cost. The complainant has also not specifically sought the cancellation of membership. As such, the complainant has failed to discharge his initial burden of proving deficiency in service on the part of the opposite parties.

9.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:22.03.2023.

Gobind Ram.

 

 

Kamaljit Singh Vs Mahindra Holiday                                     CC/19/529

Present:       Sh. Sunil Sharma, Advocate for the complainant.

                   Sh. J.S. Bindra, Advocate for OP1 and OP2.

                   OP3 exparte.

                   Complaint against OP4 dismissed as withdrawn vide order dated             04.03.2022.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:22.03.2023.

Gobind Ram.