Per :- Mr. Joshi, Member Place : BANDRA JUDGMENT The Complainant has filed the present complaint alleging that the Opposite Party, which is a holiday resort, has failed to provide him services and thus, committed deficiency in service. [2] It is the case of the Complainant that he had availed membership of the Opposite Party, after paying initial amount in sum of Rs.48,750/- and agreed to pay the balance consideration by way of 12 Equated Monthly Installments (EMI) in sum of Rs.23,021/-. Further, the Complainant states that when he desired to book a holiday at Hong-Kong Disney, the Opposite Party did not make arrangement as promised and as per its scheme. The Opposite Party informed the Complainant that the said facility could be made available only in case, reservation is done to that effect at-least six months in advance. On the second occasion, when the Complainant wanted to avail a trip to Thailand, he was not provided accommodation as per scheme. Therefore, the Complainant decided to cancel his membership and accordingly, sought refund of the amount paid so far. The Complainant issued a legal notice, calling upon the Opposite Party to refund the amount. However, as there was no positive response on the part of the Opposite Party, the Complainant filed present consumer complaint before this Forum, alleging adoption of unfair trade practice and deficiency in service on the part of the Opposite Party and sought for a direction, as against the Opposite Party, to refund him an amount in sum of Rs.6,92,541/- towards refund of monies, mental and physical tension and trauma and financial loss towards legal and other expenses. [3] Pursuant to the notice of appearance issued by this Forum, the Opposite Party appeared and contested the complaint by filing its written version of defence and took stand that as per agreement executed by & between the Complainant and the Opposite Party, any dispute regarding any transaction shall be settled by way of an arbitration by a sole arbitrator to be appointed by the Opposite Party and as such, this Forum has not jurisdiction to try & decide the present complaint. [4] Further, the Opposite Party has raised a contention to the effect that it was the Complainant’s own decision to become a member of the scheme and he has chosen ‘Red Season’ i.e. peak season, by paying the higher rate of membership. The Opposite Party has stated that as per membership usage rules, all holiday reservations are subject to eligibility & availability. The Opposite Party has raised a contention to the effect that before signing the application form for membership, the Complainant had read said rule and had agreed to abide by the same. Finally, the Opposite Party has stated that the Complainant has failed to provide details of his trip nor, produced any evidence to support his claim. The Complainant has failed to bring out any case of negligence or deficiency in service on the part of the Opposite Party. On these main grounds and other grounds, as set out in the written version of defence, the Opposite Party has prayed that the complaint may be dismissed. [5] The Complainant has filed his affidavit of evidence. On the other hand, the Opposite Party has produced on the record an affidavit sworn by its Divisional Manager (Finance), by name – Ms. Sumathi Mohan; in support of the contentions raised in the written version of defence. The Opposite Party has filed its written notes of arguments. [6] We heard the Learned Advocate for the Opposite Party. The Complainant chose to remain absent and did not advance his oral submissions. [7] We have gone through the pleadings, affidavits and documents as well as written notes of arguments filed by the parties. [8] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Party is guilty of deficiency in service? | NO | 2. | Whether the Complainant is entitled to seek any relief as against the Opposite Party? | NO | 3. | What order? | The complaint stands dismissed. |
REASONS FOR FINDINGS [9] Admittedly, the Complainant had paid initial amount in sum of Rs.48,750/- and he had agreed to pay balance consideration amount in 12 Equated Monthly Installments (EMI) of an amount in sum of Rs.23,021/-. Total membership fees was an amount in sum of Rs.3,25,000/-. The averments in the complaint show that the Complainant had mentioned about the initial payment paid, but there is no mention about the subsequent EMIs, which he agreed to pay. However, the payment acknowledgement statement issued in favour of the Complainant by the Opposite Party on 14/5/2007, shows that the Complainant had paid the total consideration amount in sum of Rs.3,25,000/-. [10] No doubt, the Complainant had availed the facility of ‘Red Season’, but he was well aware before signing the application form for membership that this facility was available subject to eligibility and availability. It is an admitted fact that the peak season on vacations could be planned well in advance. So, it was expected of the Complainant to plan his trip well in advance. The Complainant has read the membership usage rules, which clearly indicates that the ‘Red Season’ booking should be made at-least six months in advance. There is absolutely no material on the record to prove that the Complainant had given such intimation of his trip to the Opposite Party six months in advance. At the same time, there is no material on the record to show that at any point of time, a verbal assurance was extended on the part of the Opposite Party to the Complainant that it shall arrange for a trip for the Complainant on a short notice of 2-3 days. It is common knowledge that a trip to abroad, during the peak season, particularly on vacations, cannot be well-arranged on the basis of an intimation received at an eleventh hour. [11] The Complainant is not an illiterate person, but on the contrary he is well-educated person, holding an important position in corporate sector. So, the stand taken by the Complainant that he had accepted the membership on the ground that the Opposite Party had orally represented to him that it will arrange for a trip and accommodation for the Complainant, on a short notice, as per the Complainant’s whims & wishes, is totally baseless and unsustainable and it is without any evidence on the record. [12] The Complainant alleged that the Opposite Party had booked an accommodation at Thailand of sub-standard quality, but the Complainant has failed to produced on the record any cogent documentary or circumstantial evidence to corroborate this contention. [13] In the prayer clause of the complaint as filed, the Complainant has claimed from the Opposite Party, an amount in sum of Rs.6,92,541/- towards refund of monies, mental and physical tension and trauma and financial loss towards legal and other expenses. However, here it is pertinent to note that the Complainant has not furnished bifurcation of this figure, supported by appropriate reasoning to that effect and as such, it is not known as to how, he has arrived at such a hefty figure. [14] Thus, from the foregoing discussions, it is seen that there is absolutely no merit in the complaint as filed by the Complainant and the Complainant has miserably failed to prove his case of adoption of unfair trade practice and deficiency in service on the part of the Opposite Party and as such, the complaint deserves to be dismissed. With this, we proceed to pass the order as below:- ORDER The complaint stands dismissed. No order as to costs. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
