DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 15^th day of December, 2023

                                                                   Filed on: 29/08/2014

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member Smt.Sreevidhia.T.N                                                             Member

C.C. NO. 643/2014

COMPLAINANT

Vinayan Menon, Suite No. 5, Karuna Apartments, Mahakavi G Road, Ernakulam.

(Rep. by Adv. Vivek Varghese P.J., M/s. Varghese & Jacob, Puthoor, Near KSRTC Bus Stand, Mahakavi Bharathiyar Road, Ernakulam)

VS

OPPOSITE PARTY

Mahindra Holidays and Resorts India Ltd., KG Oxford Business Centre, 7^th Floor, 39/4609, Sreekandath Road, Ravipuram, Ernakulam 682016

(Rep. by Adv. P.J. Philip, 7/1, Chilavannoor Road, Kochi 682020)

F I N A L    O R D E R

V. Ramachandran, Member:

This consumer complaint is filed by Vinayan Menon, Suite No. 5, Karuna Apartments, Mahakavi G Road, Ernakulam alleging deficiency of service and unfair trade practice from the side of the opposite party which is Mahindra Holidays and Resorts India Ltd. During October, 2012Robin Antony, an officer of the opposite party approached the complainant for selling their time share scheme. The officers of the opposite party stated that the opposite party is a company having hotels and resorts in various places in India and abroad. That they have a scheme of membership where in the complainant will be assured of 7 days stay in any of the hotels/resorts of the opposite party in a studio room during ‘white season’ of a year. It was assured that the complainant will have assured booking of the resort of his choice for 7 days during the time periods allotted to them.

It was further informed that the complainant will become a member of the scheme if he pays an amount of Rs.29,900/- initial payment and rest of the amount can be paid in equal EMIs of Rs.7,627/- for 48 months. The membership will be granted on initial payment. It was assured that there will not be any other payment till 25 years. Believing the promises made, the complainant decided to become a member of the scheme of opposite party. The signature of the complainant was obtained by the officers of the opposite party and the complainant did not have any opportunity of reading them thoroughly. But the officers of the opposite party assured that the forms contain only what the officers of opposite party have explained. The complainant paid the amounts in instalment and lump sum. The details of payment made are mentioned in the statement attached and also reflected in the passbook of Account No. 51032338679 of State Bank of Bikaner & Jaipur and Account No. 61043186183 of State Bank of Bikaner & Jaipur belonging to the complainant and his wife Santhy Menon. An amount of Rs.3,00,244/- was paid to the opposite party in total.

It was then informed to the complainant that due to the nature of onetime payment, the scheme is very cost-effective compared to renting a hotel room and the amount can be converted into saving when compared to the amount which the complainant would have to pay on hotel room for the 25 years. It was informed by the opposite party that there will not be any recurring payments or maintenance charge or anything of that sort. After completing payments, the opposite party issued membership certificate dated 01/08/2013 to the complainant. But during the time when the complainant tried to book room through the website, to the utter surprise and dismay of the complainant, the booking was denied stating that dues are pending towards ‘Annual Subscription Fee’. It is stated that the complainant should pay an amount of Rs.10,748/- annually for availing the facilities. The complainant immediately demanded explanation from the opposite party. There was no mention about any ‘Annual Subscription payment’ at the time of canvassing or while payment. The demand of the opposite party is highly illegal and unjustified. Under the circumstances, the complainant demanded to cancel the membership and refund all the amounts. Since the annual subscription fee is not paid, the opposite party is refusing to book rooms by the complainant since joining the scheme. The complainant states that the demand of the opposite party for payment of maintenance charges is illegal and unjustified. The complainant was made to believe at the time of enrolment into the scheme that there will not be any recurring payments if the complainant pays the amount in lump sum. It was stated by the officers of the opposite party that the scheme of time share or the opposite party doesn’t require any further payment once if the initial payment for the membership was paid.

Under the circumstances, the demand for maintenance charges is totally baseless and illegal. The complainant has already made payment for the service of providing room for 7 days for 25 years. Thus the additional payment for maintenance charges is illegal. It is the duty of the opposite party to provide the service for which the payment in received. The maintenance of the premises is the duty of the opposite party and the amount of Rs.3,00,244/- is received by the opposite party is in consideration of the entire service. Since the joining of the scheme of the opposite party, the complainant has not been able to avail of any of the facility entitled to him. The complainant issued several e-mails to the opposite party demanding to provide facilities. The complainant visited the office of the opposite party several times to demand the allotment of rooms. But the opposite party is evading stating unsustainable reasons. The complainant had to suffer mental agony due to the actions of the opposite party. The complainant and his wife had to approach the office of the opposite party several time to try for a booking. They were given false promises of comfortable stay without any hassle for 25 years which has proven to be false. Complainant states that the actions of the opposite party amount to unfair trade practice and also deficiency of service. Hence this complaint.

Upon notice from the Commission opposite party appeared and filed their version.

In the version opposite party contended that it is pertinent to understand that in order to become a Member every individual has to execute a valid Membership Agreement on payment of required membership fee. The membership entitlements, privileges and enjoyment of holidays/vacations at the properties/resorts of the opposite party are strictly based on complete payment of membership fees and other charges without any dues as on date of availing the holidays. The membership entitlement is subject to terms and conditions executed between the opposite party and complainant (contract). The obligations of opposite party are strictly governed by the said contract. It is submitted that relating to membership there are 4 seasons-Purple, Red, Blue and White. A member is entitled to vacation at the Resort of his option based on his choice of season for a period of 25/10 years from the date of his/her/its membership. Every member is explained thoroughly about the benefits and time period during which they can avail a particular resort. The complainant and the opposite party are governed by the terms and conditions of the contracts signed by the complainant. The membership rules are binding on the complainant and the opposite party and its terms have to be strictly interpreted and applied. It is submitted that with respect to the contentions in Para No. 1 that the opposite party is a vacation ownership company and owns, manages, operates resorts in India and abroad. The opposite party has around 1,70,000 members and has resorts in about 42 locations in India and abroad. The opposite party submitted that therefore any refund will be made as per the Clause 6 stated in the contract. Admittedly the complainant has made a request for refund beyond the rescission period of 10 days. Further as per Clause 6(1)b “in the event of termination of CMHM or the member, the member shall be entitled to a refund of the Entitlement Fee (EF) paid after deducting the amounts set out in Clause 6.2. The member shall not be entitled to any refund of Admission Fee (AF). For the sake of clarity, the member shall not be entitled to any service tax that may have been paid by MHRIL in connection with CMHM”. The opposite party would also like to draw reference to Clause 6.2 which specifically states that “Upon termination, the following deductions shall be made by MHRUL from the amounts paid by the member towards the EF:

1. Pro-rated EF for the period (in years) from the start of Membership Usage Period to the date of termination. Part of year shall be treated as full year for the purpose of calculating the deductions.
2. Outstanding ASF together with interest if any
3. Taxes due
4. Cost of holidays enjoyed by the member in excess of entitlement 
5. Any other amounts/due to MHRIL
6. Any premium/enrolment incentives

The complainant had produced proof affidavit and 8 documents which are marked as Exbt. A1 to A8.  The opposite party produced 3 documents which are marked as Exbt.B1 to B3

The points for consideration are:

1. Whether the complainant is sustained to any sort of deficiency of service, or unfair trade practice from the side of the opposite party?
2. Whether the complainant is eligible to get any relief from the opposite party?
3. Cost of the proceedings if any?

On going through the complaint, version and evidence produced from either side, it can be seen that the complainant had paid a total of Rs.3,00,244/- to the opposite party as is revealed from Exbt. A1 and A5. The opposite party had given gift vouchers to the complainant which also is evident from Exbt. A2 and A3. The complainant was offered an international package which also was refused to grant by the opposite party due to non-payment of annual subscription fee. This was an offer made by the opposite party to the complainant as a compliment for subscribing for joining into the scheme. The complainant was made to believe at the time of enrolment that there will not be any recurring amount if the amount is paid in lump sum. The opposite party’s contention is that the complainant had paid only six numbers of EMI and had foreclosed the membership fee by paying Rs.29,900/-. The complainant is fully bound by the terms and conditions and that the argument of the complainant that he was forced to sign on various forms in a hastily manner is denied by the opposite party. The opposite party had produced the citation of Apex Court reported in 2010(1) SSC83, Paragraph 6 at page 84 stating that “when a person signed a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon.” But in the instant case the total days of holidays availed by the complainant is only 3 nights and 4 days and subsequently even though the complainant had booked another trip to Thekkadi resort for 4 days he had cancelled it. As per Exbt. A7 the opposite party duly acknowledged the receipt of a total amount of Rs.3,07,870/- from the complainant

On verification of all documents produced by either side it can be seen that the opposite party had not provided sufficient service for Rs.3,00,244/- to the complainant and therefore there is deficiency of service and unfair trade practice from the side of opposite party towards the complainant. Hence Point No. (1) is found in favour of the complainant. Since Point No. (1) is found in favour of the complainant Point No. (2) and (3) decided accordingly. Hence the following orders are passed.

1. Opposite party shall pay Rs.3,00,244/- (Rupees three lakh two hundred forty four only) along with 7.25% interest per annum to the complainant.
2. Opposite party shall pay Rs.1,00,000/- (Rupees one lakh only) as compensation to the complainant.
3. Opposite party shall also pay Rs.20,000/- (Rupees twenty thousand only) as cost of the proceedings to the complainant.

The opposite parties shall jointly and severally liable to comply with the above order within 30 days from the date of receipt the copy of this order failing which the amount ordered vide (1) and (2) above shall attract interest @ 7.25% from the date of order till the date of realization.

.     

Pronounced in the Open Commission on this the 15^th day of December, 2023

V.Ramachandran, Member

Sd/-

D.B.Binu, President

Sd/-

Sreevidhia.T.N, Member

Forwarded/by Order

Assistant Registrar

Appendix

Complainant’s Evidence

Exbt. A1:    Copy of worksheet/brochure   

Exbt. A2:    Copy of gift voucher

Exbt. A3:    Copy of gift voucher

Exbt. A4:    Copy of passbook

Exbt. A5:    Copy of passbook

Exbt. A6:    Copy of Certificate of Membership

Exbt. A7:    Copy of no due certificate

Exbt. A8:    Copy of e-mail communications

Opposite party’s Exhibits

Exbt. B1:    Copy of e-mail communication

Exbt. B2:    Copy of Membership application form

Exbt. B3:    Copy of Holiday confirmation voucher

Despatch date:

By hand:     By post                                                  

kp/

CC No. 643/2014

Order Date: 15/12/2023