By Smt. PREETHI SIVARAMAN.C, MEMBER
1. Complaint in short is as follows:-
Complainant is a member of opposite party No.1 and 2, Mahindra Holidays and Resorts India Limited. Opposite parties promised to provide superior quality familyholidays primarily through vacation. Opposite party offered to complainant a membership for a period of 10 years starting from 1/11/2019 to 31/10/2029 and complainant paid Rs. 1,90,000/- for the same . Opposite parties issued a legally valid membership certificate to complainant. Thereafter complainant paid Rs. 15,705/- towards annual subscription fee in FY 2019 -2020 and paid Rs. 18,136/- as ASF in FY 2020-2021 an increase of Rs. 2,431/-.
2. Complainant stated that the sales executives of Club Mahindra spread their nets wider to catch the upper and upper middle class customers by false and misleading advertisements which have forced the complainant to lodge a complaint against the company. From the very first meeting (counselling) with the customers that their service is ‘’inflation free’’ which is very catchy to get the customer to purchase their membership.
3. Complainant again stated that opposite parties did not allow their members to choose their preferred properties and places, citing seasonal priorities (White, blue, red etc) which in turn result in the members either postponing or cancelling their vacation plans. Opposite parties use this seasonal priority strategy to keep their property rooms vacant so that opposite parties can allot that rooms to non members who make spot booking (online or off line). 44% of the members cancel their travel plans due to this unfair trade practices of the opposite parties.
4. Complainant again stated that another tactic that opposite party followed is that they collected Rs. 2000/- from its members (2 persons) for lunch whereas lunch is inclusive in the room rent for non-members. The room rent is less for non members than that of members , which is paid even in advance. The opposite parties did not allow its members to accumulate and utilise more than 21 days laying unutilised in its credit due to unjust and unethical season policy of the opposite party, citing reasons of non payment of annual subscription fee even though the customer had fully paid membership fee in advance.
5. Complainant’s case is that as per the contract opposite parties offered to credit 7 days stay per year at their properties. Accordingly complainant had gained 21 days for 2 + years , but opposite parties deducted 7.17 days against 4 days actually stayed as shown below contrary to the mutual agreement between complainant and opposite parties.
SLNo Property Date Days stayed Days debited
1. Wayanad 10/11/2020 2 3.84
2. Arookutty 08/01/2021 1 2
3. Ashtamudi 23/08/2021 1 1.33
Total days stayed - 4
Total days debited -7.17
Days unilaterally deducted -3.17
6. The unreasonable and unilateral debits of 3.17 days over and above the days actually stayed are violations of hospitality norms and breach of trust. At that time complainant had a credit of 15 days in his membership credit. Due to the poor services and treatments provided by opposite parties during the stay, complainant wrote to opposite parties about his bad and bitter experience on 23/11/2021. But no reply received by complainant. The act of opposite parties amounts to clear deficiency in service and unfair trade practice from their side. Hence this complainant.
7. The prayer of the complainant is that, he is entitled to get a full refund of the amount he had paid as membership fee, annual subscription fee to opposite parties and he also entitled to get compensation on account of deficiency in service and unfair trade practice on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant and cost of the proceedings.
8. On admission of the complaint notice was issued to the opposite party Mr. Anas K, the sales executive of Mahindra Holidays and Resorts India Limited .On 10/05/2022 complainant filed one IA 355/2022 (A) saying that the notice to Mr Anas.K was returned undelivered. So he submitted that he wants to add Chennai Office of Mahindra Holidays and Resorts as opposite party. That petition allowed. On 12/08/2022 complainant again filed another IA 581/2022 to add Mahindra Holidays and Resorts Ernakulam as opposite party No2 and also wants to delete Mr. Anas.K from the list of opposite parties because he had resigned from the company. That IA also allowed and directed the complainant to amend the cause title of the complaint accordingly and directed to issue notice to opposite party No.1 and 2. Opposite parties received notice and they appeared before the Commission through their counsel and filed version.
9. In their version, they stated that the complaint is not maintainable either in law or on facts. The complaint is based on vague and baseless averments of the complainant. There is no deficiency of service, unfair trade practice or negligence from the part of opposite parties. They denied all allegations raised by complainant except those that are expressly admitted hereunder.
10. They stated that they are engaged in the business of vacation ownership and provides resort accommodation to its members who have enrolled into membership of the company. They are part of the leisure and hospitality sector of Mahindra group offering quality family holidays with range of services all over India as well as abroad with good will and reputation in the global market. They admitted that complainant had enrolled as a Blue studio Apartment member in September 2019 with member ID No. 2886948 . The total cost of the member ship purchased by the complainant is Rs. 1,90,000/-. They had offered a membership under which a member is allowed to avail holidays at any one of its resorts for a period of 25 years subject to availability at the time of booking. Complainant had paid a sum of Rs 50,000 on 12/09/2019 and Rs 7,000/- on 19/09/2019 and had continued to pay his 10 EMI’s Rs 11,083/- every month from November 2019 till October 2020 totalling to a tune of Rs 1,89,996/-. As per company records, (with reference to the ASF amount paid by the complainant) , complainant had paid a sum of Rs. 32,295/- and there is an outstanding of Rs. 17,386/- towards ASF.
11. They again stated that the membership taken by the member is blue studio membership through which the member is entitled to avail holidays for 25 years in his own season or through exchange programme and that member is entitled to avail holidays during blue season in studio apartment. The complainant herein has booked two days at wayanad resort during 10/11/2021. According to the membership purchased the member is entitled to avail his holiday booking during blue season , the season classification chart will vary every year and the member can check it in the website As per clause 6 of membership application form there mentioned privileges. They again stated that a member is entitled to two types of exchanges CMHM exchange and RCI exchange. As per CHM exchange a member is entitled to exchange his entitlement to a different season/apartment in the ratio prevailing at the time of request subject to the following conditions. The exchange may amount to upgradation, being the exchange to higher season or larger apartment of down gradation being the exchange to a lower season or a smaller apartment. The number of days of the Member’s holiday consumed would vary with whether there has been an upgrade or down grade and rate of such consumption is the burn rate. The burn rate for such use would be 8 days and 7 nights. The holiday burn rate would be higher for upgrades and lower for downgrades. 1. A blue season entitlement may be exchanged only for white season entitlement in the same/different apartment. 2. A white season entitlement may be exchanged only for blue season (down gradation) and red season (up gradation) entitlement in the same / different apartment. 3. A red/ purple season entitlement may be exchanged for any other season entitlement in the same/ different apartment. The above conditions were clearly mentioned in the membership rules and regulations in the membership application form.
12. They again stated that according to their records the total days debited to the account of complainant is only 5.2 days. The holiday availed at Arookutty, Alleppey resort is a holiday voucher which was given to him as a special offer on payment of ASF. The numbers of days are not debited to his account on this particular holiday. The higher number of days for the stay of complainant at Wayanad and Ashtamudi was because the complainant had availed holiday in higher season other than his own season entitlement. The complainant had easy access to the season chart and also the holiday calculator. If the holidays booked through the call centre , the executive will clearly take the members confirmation on the higher debit of days .Moreover the complainant is aware that he has purchased blue studio and his reservation request during peak season is subject to availability.
13. In their version opposite parties stated that complainant had purchased a blue studio membership which cost Rs. 1,90,000/- .As per the records of the opposite party company complainant has paid only Rs. 1,89,996/-. According to the terms and conditions of the membership 60% of the membership cost shall form the admission fee and 40% shall form the Entitlement fee as mentioned in Rule 1.5 of MAF. As per the companies Rules opposite party company is entitled to retain 60% of the membership cost as entitlement fee. Moreover a member can terminate the membership during membership usage period by tendering a request in writing duly signed by both the applicant and the co-applicant. In the event the communication for withdrawal of application by the applicant is received beyond 10 days from the date of MHRIL’s realisation the down payment made by him shall be treated as request for cancellation . As observed in clause 1.5, the admission fee amounting to 60% of the membership price is non refundable and 40% of the entitlement fee is payable subject to deductions stated in clause 8.4.
14. They again stated that members are allowed a period of 10 calendar days from the date of MHRIL’s realisation of the down payment to withdraw their membership application and claim a full refund. If not received by MHRIL’s with 10 calendar days from the date of receipt of down payment, the member’s right to claim the withdrawal and full refund shall lapse. They again stated that there is no deficiency in service and complainant filed this complaint without any cause of action against opposite parties. Complainant is bound by the membership rules signed by him. It is a settled law that a contract entered into among the parties and the terms and conditions by the parties cannot be called in question ordinarily. A prudent man is expected to read and understand the document before signing it unless there is a proof for force or fraud. Complainant accepted the membership rules and duly signed the MAF and further availed many holidays and other benefits there under , the same ought to be considered as of for most value and the complainant cannot be allowed to question by way of present complaint. There is no act on the part of opposite parties have resulted in to deficiency in service, harassment physical or mental agony and financial losses. Hence complaint may be dismissed.
15. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A13. Ext.A1 is the copy of cheque issued by complainant to opposite party dated 12/09/2019 worth Rs. 50,000/- towards membership fee. Ext.A2 is the copy of cheque issued by complainant to opposite parties dated 07/11/2019 worth Rs. 11,083/- EMI towards membership fee. Ext.A3 is the copy cheque issued by complainant to opposite party dated 07/11/2019 worth Rs. 11,083/- EMI towards membership fee. Ext.A4 is the copy of bank statement issued by Federal Bank which reflecting payment of Rs. 1,18,030/- byway of EMIs of 10 months (11,083 x 10) . Ext. A5(a) & Ext. A5(b) are the copies of payment details towards annual subscription fee of Rs. 15,705/- during 2019-2020. Ext. A6 is the copy of the details of the days in complainant’s credit gained after he had fully paid his membership fee and annual subscription fee. Ext. A7 is the copy of the details regarding the night stay of complainant at resort and the nights debited by opposite party from the credit of complainant. Ext. A8 is the copy of message received by complainant from opposite party showing that 15 days available in complainant’s credit , but it cannot be utilised till complainant ASF overdue is paid. Ext. A9 is the copy of Email complaint send by complainant to opposite party on 23/11/2021. Ext. 10 is the copy of reminder send by complainant to opposite party dated 29/11/2021 due to non receipt of any reply from the opposite parties. Ext. A11 is the copy of the Membership card which shows the validity of complainant‘s membership from 01/11/2019 to 31/10/2029 (10 years). Ext.A12 is the copy of details of complainant’s membership and payment details of membership fee. Ext. A13 is the copy of valid membership issued by opposite party to complainant. Opposite parties also filed affidavit and the documents are marked as Ext. B1 and Ext.B2. Ext.B1 is the copy of membership application form of complainant dated 12/09/2019. Ext. B2 is the copy of company records showing the payment made by the complainant to purchase the membership fees.
16. Heard complainant and opposite parties. Perused affidavit and documents. The following points arise for consideration:-
- Whether there is any deficiency of service and unfair trade practice on the part of opposite parties.
- If so, reliefs and cost.
17. Point No.1 and 2:-
Case of the complainant is that he is a member of opposite party’s company and he had paid Rs. 1,90,000/- towards membership fee for ten years from 01/11/2019 to 31/10/2029 and Rs. 15,705/- towards annual subscription fee of 2019-2020, Rs. 18,136/- towards annual subscription fee of 2020-2021 and a total of Rs. 2,23,841/-. He again stated that he had gained 21 days as per the policies of the opposite parties , but was deducted 7.17 days against the 4 days that was actually used by the complainant.
18. But opposite parties stated that complainant’s membership fell in the blue season membership and as per the terms and conditions of opposite parties exchange between seasons was possible. Moreover complainant was debited 5.2 days contrary to the allegation that he was debited 7.17 days. They further submitted that complainant had availed holidays in a higher season than his membership entitled seasons which ensued a higher burn rate , hence the higher number of days debited than the actual usage. Moreover complainant paid only Rs. 1,89,996/- towards membership fee and an amount of Rs. 17,386/- was overdue from the complainant towards the annual subscription fee.
19. As per Ext. A1 , A2, A3 and A4 documents submitted by complainant it is clear that complainant had paid Rs. 50,000/- on 12/09/2019 towards membership fee and he had paid Rs. 11,083/- in 12 occasions as the EMI towards membership to opposite parties. As per Ext. A5 (a) and (b) it is clear that complainant had paid Rs. 15,705/- towards the annual subscription fee of 2019-2020. But there is no document to prove that complainant had paid the annual subscription fee of Rs. 18,136/- for the period from 2020-2021.
20. Complainant stated that he had paid Rs. 1,90,000/- to opposite parties as membership fee. Opposite parties also admitted that complainant paid Rs1,89,996/- as membership fee. But they also submitted that there was an amount of Rs 17,386/- was overdue from the complainant towards the annual subscription fee. Opposite parties admitted that complainant was debited 5.2 days contrary to the allegation of complainant that he was debited 7.17 days. They again admitted that complainant had availed in a higher season than his membership entitled season, which ensued a higher burn rate. Hence the higher number of days debited than the actual usage. From the above points it is clear that opposite parties debited some days from the credit of complainant as per the terms and conditions mentioned by them.
21. As per the complaint he admitted that he had visited Wayanad on 10/11/2020 and stayed there two days and at Arookutty on 08/01/2021 and stayed there one day and at Ashtamudy on 23/08/2021 and stayed one day. The total days stayed by complainant is four and opposite party debited 7.17 days without informing complainant. Complainant stated that the unreasonable and unilateral debit of 3.17 days over and above the days actually stayed are violation of hospitality norms and breach of trust. Complainant again stated that, he had 15 days currently available in his membership credit, but opposite party says that complainant cannot utilise till the annual subscription fee overdue is paid. But there is no document which proves that complainant had paid the annual subscription fee of 2020 -2021. So that contention of opposite party regarding the annual subscription fee is correct. But complainant paid other fees and membership fee to opposite parties.
22. In this case complainant admitted that, he had utilised the benefits provided by opposite parties in three times one at Wayanad second at Arookutty and third Ashtamudi on 10/11/2020, 08/01/2021, 23/08/2021 respectively. So we are on the opinion that complainant utilised the benefits nearly three times in three years. As per complainant’s case he had paid Rs.1,90,000/- and annual subscription fee of Rs. 15,705/- to opposite parties. Complainant already agreed and signed the terms and conditions and the deductions at the time of seasonal changes. That means he had already agreed the conditions given by opposite parties. Complainant had no complaint about the services provided by opposite parties and the rooms and other facilities provided by opposite parties during their stay at the above mentioned places. Complainant did not prove the deficiency in service from the side of opposite parties. But he stated in his complaint that the poor services and treatment meted out to complainant during the stay and he also stated that the unilateral debit of 3.17 days over and above the days actually stayed are violations of hospitality norms and breach of trust.
23. Opposite parties stated that an amount of Rs. 17,386/- was overdue from the complainant towards annual subscription fee. As per opposite parties version, they stated that complainant has opted for blue season, according to which the complainant is entitled to avail holidays during blue season in studio apartments. Moreover they submitted some terms like burn rate CMHM exchange RCI exchange blue season , white season etc. That terms are already mentioned in their application form. The terms and conditions have been agreed upon by the complainant. Opposite parties stated that , complainant had booked holidays in three time in Wayanad, Arookkutty and Ashtamudi and Arookutty was provided to the complainant pursuant to a special offer, no days were debited to the complainant’s membership for the said holiday. They also mentioned that in Wayanad , complainant had booked the holiday from 10/11/2020 to 12/11/2020, it can be seen that complainant had availed the holiday during the red season which is two season above the complainant’s subscribed season(Blue). Hence attracted a higher burn rate. They again stated that the holiday in Ashtamudi was booked from 23/08/2021 to 24/08/2021 and it was a white season which attracted a relatively lower burn rate than his holiday in the red season
24. Complainant did not produce the documents regarding the advertisement given by opposite parties to prove the allegations made by him in the complaint. Complainant failed to produce documents to prove the allegations made by him in the complaint. In the complaint, complainant mentioned about his friend Mr. PK. Ali Akbar who had suffered due to the tactics of opposite parties by their seasonal priorities. But complainant did not submit the details of the sufferings by non utilisation of a single day by his friend Ali Akbar after taking the membership of opposite parties. Mere submission is not enough to prove the contentions raised by complainant. Moreover complainant not produced documents to prove that opposite party is trying to lure and persuade customers to buy their membership through advertisement that is the product (service) is ‘’ inflation free’’. Moreover there is no document to prove the contention of complainant that the seasonal priority strategy of opposite party is for keeping their property rooms vacant so that the opposite parties can allot them to non members who make spot bookings. The allegation regarding the collection of Rs. 2000/- for lunch by opposite parties from its members whereas lunch is inclusive in the room rent for non members is also not proved.
25. Anyhow complainant advanced an amount of Rs. 1,90,000/- and Rs. 15,705/- towards the scheme. Hence he is entitled for some benefits. Complainant was deposited that much amount with opposite party during the period which is for the enjoyment of complainant. Complainant enjoyed the benefits for three years out of the 10 years he had actually entitled. From the complaint we are on the opinion that complainant is not at all happy with the services of opposite parties. Moreover from the complaint itself it is seen that he is not wished to continue the relationship with the opposite parties. But complainant had deposited an amount of Rs. 2,05,705/- with the opposite party. So he is entitled for that amount. Hence we partly allowed this complaint by directing the opposite parties to give the amount of Rs.2,05,705/- to complainant. It is also directed the opposite party to take steps to cancel the membership of complainant after paying the full amount to complainant.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 14th day of July, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A13
Ext.A1 : Copy of cheque issued by complainant to opposite party dated 12/09/2019
worth Rs. 50,000/- towards membership fee.
Ext.A2 : Copy of cheque issued by complainant to opposite parties dated
07/11/2019 worth Rs. 11,083/- EMI towards membership fee.
Ext.A3 : Copy cheque issued by complainant to opposite party dated 07/11/2019
worth Rs. 11,083/- EMI towards membership fee.
Ext.A4 : Copy of bank statement issued by Federal Bank which reflecting payment
of Rs. 1,18,030/- byway of EMIs of 10 months (11,083 x 10) .
Ext.A5(a)& Ext.A5 (b) : Copies of payment details towards annual subscription fee of
Rs. 15,705/- during 2019-2020.
Ext. A6 : Copy of the details of the days in complainant’s credit gained after he
had fully paid his membership fee and annual subscription fee.
Ext. A7: Copy of the details regarding the night stay of complainant at resort and
the nights debited by opposite party from the credit of complainant .
Ext.A8 : Copy of message received by complainant from opposite party showing that
15 days available in complainant’s credit, but it cannot be utilised till
complainant ASF overdue is paid.
Ext.A9 : Copy of Email complaint send by complainant to opposite party on
23/11/2021.
Ext. 10: Copy of reminder send by complainant to opposite party dated 29/11/2021
due to non receipt of any reply from the opposite parties.
Ext. A11 : Copy of the Membership card which shows the validity of complainant ‘s
membership from 1/11/2019 to 31/10/2029 (10 years).
Ext.12 : Copy of details of complainant’s membership and payment details of
membership fee.
Ext. A13 : Copy of valid membership issued by opposite party to complainant. .
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B2
Ext.B1 : Copy of membership application form of complainant dated 12/09/2019. Ext. B2 : Copy of company records showing the payment made by the complainant
to purchase the membership fees
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
