Date of Filing:14.01.2008<br /> Date of Order:14.08.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 14TH DAY OF AUGUST 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 143 OF 2008<br /> <br /> <br /> Group Captain Sudhanshu,<br /> I/C PC, HQTC, IAF,<br /> J.C. Nagar Post,<br /> Bangalore-560 006. Complainant<br /> <br /> <br /> V/S<br /> <br /> Mahindra Holidays & Resorts India Ltd.,<br /> No.18/A, I Floor, Saleh Center Annexe,<br /> Cunningham Road, <br /> Bangalore-560 052. Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> <br /> This is a complaint filed by the complainant seeking refund of investment amount of Rs.92,974/- after deduction of reasonable and justified amount. The complainant states that he had applied for the membership based on the approach made by one of the Customer Care Executive. He opted for 25 years Holidays Scheme on payment of Rs.92,974/-. The company representative never clarified that besides this one time payment. The complainant has to pay additional annual charges which would keep increasing every year. He has paid an amount of Rs.4,500/- in the first year. The complainant has sent written representative to the opposite party. He is not in a position to continue the membership. He requested for refund of his investment. The company failed to respond to his letter. Hence, the complaint.<br /> 2. Notice was issued to opposite party. Opposite party has put in appearance through advocate. A detailed version filed contesting the claim. It is submitted that complaint is not tenable. The Forum has no jurisdiction. Complainant seeking relief must file before the competent authority i.e., arbitrator. It is no doubt true that complainant has applied for membership based on the approach made by one of the Customer Care Executive. Complainant opted for 25 years Holiday scheme on payment of Rs.92,974/- for a studio apartment. In the event of termination the member is entitled to withdraw membership within 10 days from the date of application. In that case entire amount will be refunded. The member is entitled to cancel membership only after 6 months from the date of application. In that event the cancellation costs in clause 5.3 are recoverable from the member. The complainant is not entitled for refund. Therefore, the opposite party has prayed to dismiss the complaint.<br /> 3. The complainant has submitted Para-wise reply to the defence version of the opposite party. Arguments are heard. <br /> 4. The point for consideration is:-<br /> Whether the opposite party can be ordered to refund the investment made by the complainant after deducting reasonable and justified amount towards the cancellation of membership? <br /> REASONS<br /> 5. I have gone through the complaint, defence version and various correspondence and e-mail letters exchanged between the parties. Complainant herein is serving in Indian Air force. He is a Group Captain at HQ Training Command, IAF, Bangalore. It is an admitted fact that he has become member of Mahindra Holidays and Resorts India Limited. His membership number is 37409. It is an admitted fact that complainant had opted for the 25 years Holiday scheme on payment of lump sum amount of Rs.92,974/- for a studio apartment. As per the case of complainant he has availed holiday at Manali. He has given the details of charges towards holiday at Manali. It works out to Rs.13,600/-. The complainant fairly submitted that during the course of his submission that, the said amount may be deducted out of his investment. The complainant being an Army man is supposed to be a man of discipline, sincerity and honesty. He is serving for the nation. He is personally argued the case and fairly submitted that a reasonable and justifiable amount be deducted for cancellation of membership. The complainant submitted that in addition to the one time investment the members have to pay additional annual charges it would keep increasing every year and he has paid approximately Rs.4,500/- in the first year. Thereafter, in the subsequent years the charges were enhanced to Rs.5,660/- and Rs.7,050/- which he did not pay. He has sent e-mail to the opposite party and also sent two reminders. He submitted that in view of totally unjustified annual subscription charges he is not in a position to continue the membership and he finally explained in his e-mail sent to the opposite party that finally he cannot afford increasing charges and he requested for refund of his investment after deduction of service rendered to him during his complementary holiday at Manali availed in October-2005. The opposite party cannot make rules and regulations unilaterally at their whims and fancy. Law does not bar refund of investment made. But opposite party would be justified in deducting some reasonable and justifiable amount for cancellation of membership. The opposite party has mentioned some restrictions and rules and regulations applicable for termination/cancellation of membership. The member is entitled to withdraw the membership the rules of the scheme. Therefore, there is no bar in law to cancel or withdraw from the membership of the Mahindra Holidays and Resorts India Limited. If the opposite party is directed to refund the amount paid by the complainant no injustice would be caused to the opposite party. The opposite party will be refunding the amount received from the complainant. If complainant is denied the option of cancellation/termination of his membership it will works out hardship and financial loss to the complainant. The opposite party will be enriched without there being any corresponding obligation and service. The complainant herein submitted that he cannot afford to become the member of the opposite party. Therefore, his only request is to direct the opposite party to refund the investment after reasonable deduction for cancellation. This request of the complainant is quite fair, reasonable and just. Therefore, it would be proper to direct the opposite party to refund the investment. Consumer Protection Act is enacted to safeguard the better interest of the consumers. It is a social and benevolent legislation. Even if there is arbitration clause in the agreement that will not bar the Consumer Forum to entertain the complainant and grant relief to the parties. The complainant submitted that he has availed service of Rs.13,600/- and that amount shall be deducted from his investment amount. After deducting this amount balance amount comes to Rs.79,374/-. The complainant fairly submitted during the course of argument that a reasonable amount can also be deducted towards cancellation of the membership. I feel it would be just and reasonable to deduct lump sum amount of Rs.8,000/- out of above said amount. The net refundable amount comes to Rs.71,374/-. I feel it would be proper to direct the opposite party to refund this amount to the complainant. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 6. The complaint is partly allowed. The opposite party is directed to refund Rs.71,374/- to the complainant within 30 days from the date of this order. In the event of non compliance of the order within 30 days the above amount carries interest at 12% p.a from the date of this order till payment/realization.<br /> <br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 8. Pronounced in the Open Forum on this 14TH DAY OF AUGUST 2008. <br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> Rhr.<br />