Haryana

Karnal

CC/379/2017

Sewa Ram Saini - Complainant(s)

Versus

Mahindra Holidays & Resorts India Limited - Opp.Party(s)

Mohinder Singh

18 Dec 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.379 of 2017

                                                         Date of instt. 14.11.2017

                                                         Date of decision:18.12.2018

 

1. Sewa Ram Saini s/o Shri Rahtu Ram Saini aged about 74 years.

2. Amit Saini son of Shri Sewa Ram Saini both resident of House no.50, Sajjan Singh Bagh, Model Town Enclave, Model Town, Panipat, District Panipat.

                                                                   …….Complainant    

                                        Versus

 

1. Mahindra Holidays & Resorts India Limited, registered office: Mahindra Towers, 2^nd & 3^rd floor, 17/18, Patullos Road, Chennai-600002 through its MD/Authorized Signatory.

2. Mahindra Holiday & Resorts India Limited, Regional Office: # 504, Block-A, 5^th floor, Elante office Suits, Plot no.178-179A, Industrial Area, Phase-1, Chandigarh-160001 through its Regional Manager/Authorized signatory.

3. Mahindra Holidays & Resorts India Limited, Branch office: # 220, Urban Estate, Saini Colony, Sector-13, Karnal-132001, Haryana through its Branch Manager/Authorized Signatory.

                                       

                                                                …..Opposite Parties

 

           Complaint u/s 12 of the Consumer Protection Act.    

 

Before   Sh. Jaswant Singh……President.       

              Dr. Rekha Chaudhary………Member

 

 Present  Shri N.K.Sukhan Advocate for complainant.

               Shri Naveen Khaterpal Advocate for OPs.

               

                (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainants u/s 12 of the Consumer Protection Act 1986 on the averments that the OPs lured the complainants to take the membership of OP no.1, thereby making tall false claim/benefits for obtaining the memberships of OP no.1. The complainants relying upon the tall claims of the representative of the OPs agreed to take the membership of white season in the year 2015 and paid down payment of Rs.26,700/-. The OPs gave contract no.314652 dated 27.02.2015 for product white studio. The complainants made a payment of Rs.1,26,300/-, vide cheque no.0026741 dated 23.3.2015 to the OP no.1. Thereafter, the OPs made 24 Emi each of Rs.7184/- per month starting w.e.f.7.4.2015 upto March, 2017. The complainants paid the amount of all the EMIs of White seasons. In between complainants planned a holiday and approached the OPs for booking holiday tour, but the OPs expressed their inability to book a holiday on the pretext that there is no availability of accommodation. The complainants tried many times to book holiday tour of the OPs, but always failed to get positive response from the OPs. Then complainants went to OP no.2 on 13.05.2017 and met Mr. Varun Deep and Mr. Amarpreet Singh the officials of the OPs there. The complainants explained their grievances to Mr. Varun Deep and Mr. Amarpreet Singh and requested them to cancel their membership and to refund the complainants amount. On this both persons felt sorry on behalf of OPs and induced the complainants to upgrade their seasons from white to Red and on upgrading the white seasons to Red seasons by the complainants, the complainants will not face any problem and complainants will book their holiday tour as and when they like. The officials of the OPs agreed to book a holiday tour in June, 2017 for three nights on the condition of upgrading white season to Red season by the complainants. The complainant finding no other alternate, upgraded their white season to Red season. The OPs demanded Rs.1,47,807/- for going to Red season from white season. The complainant made down payment of Rs.14,781/- in favour of the OPs. The OPs made 12 EMIs of the remaining amount each of Rs.11,086/- per month starting w.e.f. June 2017. The complainant paid monthly EMIs June, 2017 to September, 2017 for Red season. Thus, the complainants made the total payment of Rs.59,125/- of Red season. Besides this the complainants have also paid the amount of Annual Subscription Funds for 2015-2016 amounting to Rs.12,996/-, 2016-2017 amounting to Rs.13,652/-, 2017-2018 amounting to Rs.14,337/-. Thus, the complainants have paid a total sum of Rs.40,985/- against annual subscription funds w.e.f.2015-2016 to 2017-2018. In this way complainants have made a total payment of Rs.4,25,598/- against White season and Red season + annual subscription funds. It is further alleged that complainants after upgrading white season to Red season approached the OPs to book a holiday tour for Kerla and Goa in the month of September, 2017 but OPs refused to book a holiday tour for the complainants for Kerla and Goa for the months of December, 2017 on the pretext that there is no availability of accommodation. Besides this the OPs also promised to prove a free foreign trip at the time of giving book of white season but OPs failed to do so. Due to this negligent act of OPs, complainants decided to cancelled the membership and to refund the amount deposited by them with the OPs but OPs gave no satisfactory reply of the mails of the complainants. In this way there was deficiency in service on the part of the OPs. Hence complainants filed the present complaint.

2.             Notice of the complaint was given to the OPs, who appeared and filed written version stating therein that complainants’ main grievance is that for not providing the booking of holidays for the month of December, 2017 at Kerala and Goa as allegedly requested by them in the month of September, 2017, which were not available for the particular dates which the complainant wanted. It is further stated that non-availability of booking on one occasion cannot be indicative of deficiency in services. Since all the holiday reservations are to be done on a first come first reserved basis and are consequently subject to eligibility and availability. Request for reservation can be done from upto 4 months to 1 days prior to  the commencement of the holiday. In the present case complainant was provided holiday at Jaisalmer, Rajasthan from 18.02.2016 to 20.02.2016, at Safari Resort Corbett, Uttarakhand from 19.06.2017 to 21.06.2017 & at Nuakuchiatal, Uttarakhand from 21.6.2017 to 22.06.2017 of OP company and there was no complaint from his side qua the services at all. It is further stated that the membership contract containing binding contractual stipulations between the parties, refund is permissible in terms of membership contract only and not otherwise. It is further stated that the complainant is not entitled to full refund of his membership fees as all refund is governed by the membership rules. The complainant was well aware that cancellation of membership and refund arising there from has to be within rescission period only i.e. 10 days from the date of realization of down payment and not thereafter. The complainant made request for cancellation of membership on 18.10.2017 whereas the membership contract i.e. membership application form was signed on 23.02.2015, which was beyond the freelook period of 10 days where the complainants could have got 100% refund. It is further stated that decision of the upgradation the category from white studio to Red studio was only the choice of the complainants, no ill inference in this regard on the part of the OPs. It is further stated that complainant has paid only Rs.3,84,613/- towards membership cost and has paid Rs.40,895/- towards Annual Subscription. It is stated that the payment towards Annual Subscription Fees is independent of membership fee and this fees is mandatorily required to be paid by every member annually towards upkeep, maintenance of resorts and for adding up new facilities for the members. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence affidavits Ex.CW1/A, Ex.CW2/A and documents Ex.C1 to Ex.C21 and closed the evidence on 4.5.2018.

4.             On the other hand, OPs tendered into evidence affidavit of Jaiminikumar Shah Ex.RW1/A and documents Ex. R1 to Ex.R10 and closed the evidence on 19.11.2018.

5.             We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.             The case of the complainants is that the OPs lured the complainants to take the membership of OP no.1, thereby making tall false claim/benefits for obtaining the membership of the OP no.1. The complainants relying upon the tall claims of the OPs, agreed to take membership of white season in the year 2015. The OPs gave contract no.314652 dated 27.02.2015 for product white studio. Membership card no.2619685 was issued by the OPs to the complainants. The complainants have made the payment of white season upto March, 2017. Complainants planned many times for holiday and approach the OPs for booking holiday tour, but OPs always express their inability to book a holiday on the one pretext or the other that there is no availability of accommodation. On 13.05.2017, on the assurance of officers of the OPs, complainants upgrade their seasons from white to Red and paid the charges of Red season. The OPs agreed to book a holiday tour in June, 2017 for three nights, as complainants have upgrade white to Red season. The complainants have made a total payment of Rs.4,25,598/- against white season and red season plus annual subscription funds.

7.             That at the time of booking of white season, OPs also gave membership of RCI with RCI membership no.C80184890 valid up to 30.04.2017. The complainants requested the OPs for renewing the RCI membership with effect from 1.5.2017 but OPs failed to get the RCI membership of the complainants renewed. The complainants stop making payments of EMI’s for Red season on account of negligent and deficient service provided by the OPs. In the month of September, 2017 complainants approached OPs to book a holiday tour for Kerela and Goa but OPs refused to book the Holiday tour on the protest that there is no availability of accommodation. As such the complainants fed up with the negligent and deficient service provided by the OPs and requested the OPs to get their membership cancelled and refund the paid amounts to the complainants. But OPs did not refund the paid amount to the complainant. The counsel for the complainants relied upon the following case laws cited in IV (2011) CPJ 142 (UT Chandigarh) case titled as Mahindra Holidays and Resorts India Ltd. & Another Versus Sanjeev Kochhar, IV( 2011) CPJ 146 (Himachal Pradesh) case titled as Sunjay Biotech Solution Private Limited Vs. Navdeep Bioceuticals, Mahindra Holidays & Resoorts India Vs. Hemantkumar M. Wadekar in First appeal no.A/11/365  of Pune decided on 12.12.2013 and Mahindra Holidays & Resorts Versus Deepak Kumar Verma in appeal no.130 of 2016 decided on 2.9.2016 of Hyderabad State Commission.

8.             On the other hand, the case of the OPs is that Mahindra Holidays and Resorts India Ltd. (OP company) is a company engaged in the business of providing holidays to their members through vacation owner ship membership who have purchased (Club Mahindra holidays membership). The OP company offers to their members for a membership of 25 years (Membership usage period). A members is entitled to a week of holiday every year in the apartment and season specified in the certificate of membership in any of the notify resort during the membership Usage Period, provided that member is not in breach of any obligations set out in the rules and regulations of the membership. The complainants signed the membership application only after understanding the membership rules contained in the membership application form.

9.             That the complainants themselves wanted to upgrade their membership from white studio category to Red studio category in the month of May, 2017 for the purpose of enjoying more benefits with larger option of holidaying which was also readily done. The complainant has availed holidays at Jaisalmer Resort from 18.02.2016 to 20.02.2016, at Safari Resort Corbett from 19.06.2017 to 21.06.2017 and at Nuakuchiatal from 21.6.2017 to 22.06.2017 and there was no complaint against the OP by the complainants. The request of the complainants for booking of holiday at Kerala and Goa for the month of December, 2017 not accepted for non-availability for the accommodation. The OP company has provided an honour on all the special benefits/enrolment benefits as offered to the complainants at the time of subscription/purchase of membership. The complainants are not eligible for full refund of membership. The complainants made request for cancellation of membership on 18.10.2017 whereas the membership contract was signed on 23.02.2015 which was much beyond the rescission period/freelook period of 10 days. After adjusting all the remaining amount, and other charges, the complainants is entitled for refund of Rs.49,132/- only and nothing else. Learned counsel for the OPs relied upon the authorities of Hon’ble U.T. Chandigarh in First Appeal no.327 of 2014, decided on 15.10.2014 case titled as Mahindra Holidays and Resorts India Ltd. Versus Radhika Aggarwal, in First Appeal no.358 of 2014, decided on 29.12.20-14 case titled as M/s Mahindra Holidays & Resorts India Pvt. Ltd. Versus Rajni Saini and in First Appeal no.105 of 2015, decided on 6.7.2015 case titled as M/s Mahindra Holidays & Resorts India Ltd. Versus Charanjit Singh.

10.           Admittedly, the OPs company offers to the complainants a membership for 25 years (“Membership Usage Period”). The complainants purchased white studio category membership on 23.02.2015. The complainants made a down payment of Rs.26,700/- to the OP. Thereafter, the complainants opted for initially 36 EMI and lateron opted 24 EMI plan. The complainants upgraded their membership from white studio to Red studio in the month of May, 2017 because OP company did not provide the propr facility in white studio. The complainants also agreed to pay the differential amount. The complainants stopped making payment of EMI w.e.f. October, 2017. As per the complainants have made total payment of Rs.4,25,598/- against White Season and Red Season plus Annual Subscription Funds. But on the other hand, as per OP, the complainants had paid only Rs.3,84,613/- towards membership cost and had paid Rs.40,895/- towards Annual Subscription Fees (ASF).

11.           RCI membership of the complainants was valid till 30.04.2017. Thereafter, the complainants requested OP to renew their RCI membership. The complainants approached to the OP company to book a holiday tour for Keral and Goa in the month of September, 2017 but OP company refused to book a holiday tour for the complainant for Kerala and Goa for the month of December, 2017 with the pretext that there is no availability accommodation. The complainants was provided holiday only at Jaisalmer, Rajasthan from 18.02.2016 to 20.02.201 and Uttarakhand from 19.06.2017 to 22.06.2017. Both the complainants are a senior citizens.

12.           The payment deposited by the complainants are not denied. The complainants changed their season from White to Red for availing the best facility. As complainants are practicing Advocate in District Court, Panipat. Due to winter vacations, they wanted to go Kerela and Goa in the month of December, 2017 for spending their holidays. But OP company did not provide the holiday tour facility in those days. Due to this reason the complainant requested to cancel their membership because they were not provided any kind of facilities when they desire to go for holiday and the complainants got fed-up by such treatment.

13.           OP company refused to refund the total amount to the complainants that complainants applied for cancellation of their membership beyond the rescission period/freelook period of 10 days. A short period of 10 days is not much enough to judge for a customer that the services provided by the company are as per the contract agreement or not. If there is any type of condition in a contract agreement, same is not bind upon the customer, without assessing the services of the company. The complainants had taken membership on 27.02.2015 and Holiday on 18.02.2016 for the first time i.e. near about a year. In these circumstances, how can complainants assess the service of the company within rescission period/freelook period of 10 days? OP cannot take the shelter such type of condition. As per the OP, the complainants is entitled for refund of Rs.49,132/- only. We find that the complainants had infact not utilized the facilities of the Holiday tour. The complainants stopped the EMI’s when they got fed up by the act and conduct of the OP. The OP is trying to feather its own nest, that is to make profit for itself at the cost of others. It will be travesty, if the complainants are made to suffer for the deliberate in action and negligence of the OPs. It is established on the record that OPs are deficient in service for not providing the proper services to the complainants. The authority produced by the complainant is fully applicable to the facts of the present case and the authority produced by the OPs is not applicable to the case in hand.

14.           As per the OPs, complainants had availed the holiday at Jaisalmer and Uttrakhand. And cost of these destinations was assessed by the OPs as Rs.35,000/- only. Thus, OPs are entitled to deduct only the said amount from the amount paid i.e. Rs.4,25,598/- by the complainants to the OPs.

15.           Thus, as a sequel to above discussion, we allow the present complaint and direct the OPs to pay Rs.3,90,598/- (Rs.4,25,598/-35,000/-) to the complainants with interest @ 12% per annum from the date of respective deposit and till the date of realization. We further direct the OPs to pay Rs.25,000/- to the complainants on account of mental agony and harassment suffered by them and for the litigation expense. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced:

Dated:18.12.2018

                                                                        President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

               

   (Dr. Rekha Chaudhary)

            Member