CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/444/12

          Date of Institution:-    23.11.2012  

      Order Reserved on:-   07.02.2024

                   Date of Decision:-      24.10.2024

IN THE MATTER OF:

Shri Atul Gupta

Son of Shri D.P. Gupta

Resident of: A-748, First Floor,

Shastri Nagar, Delhi - 110052

                                                                        .….. Complainant

VERSUS

The Mahindra Holidays &Resorts India Ltd.

Service Effected through its:-

Chairman/Managing Director,

Branch office situated at Mahindra Towers,

5^th Floor, 2A, BhikajiCama Place,

New Delhi

Head office situated at:- 17/18, Patullos Road,

Chennai - 600002

                                  .…..Opposite Party

Per Dr. Harshali Kaur, Member

1. The Complainant alleges that the OP's executive allured him to become a member of their OP club/resort scheme for a period of 25 years for a total sum of Rs.3,19,443/-. He was assured that the Red Season Membership of the OP club/resort would entitle him to benefits like one room set in the OP complaint's Hotels/Resorts in India and abroad for 7 days/year on advance booking/notice of 2 days for himself and his family members.

2. Believing the assurances of the OP's officials, the Complainant opted for the OP Club Membership. He paid Rs.34,543/- in cash towards the membership in the OP club to the AR/Executive officer of the OP on 10.12.2009, and the balance payment left out of Rs.3,19,443/- was paid through post-dated cheques. The Complainant was issued a permanent membership no.1634701. The Complainant has annexed a copy of the receipt dated 10.12.2009 and a statement of his bank account regarding the payments made as Annexure-A-1, along with a copy of the membership application Form as Annexure-A-2.

3. The Complainant admits that though the membership came with several benefits like cash vouchers, Food vouchers, gift vouchers, holiday vouchers, etc.(Annexure-C), the OP did not fulfil the promise made to the Complainant to provide the accommodationfacilities in their resorts and instead kept avoiding his requests for booking of rooms in their hotels/resorts as per their own Red Colour classification chart despite seeking booking three months prior on one false pretest or another alleging that the rooms were not available. The Complainant further states that he had also referred a friend to join the OP club as the OP executives pressured him to do so.

4. The Complainant sought a booking in the OP complainant's Corbett hotel/resort on 21.09.2011 for 2 nightsand 3 days from 25.12.2011 to 27.12.2011 through email. However, the OP refused to book the accommodation even though the Complainant had sent the request three months beforethe booking dates. The Complainant contacted the Branch Manager at the OP office, who claimed that the rooms were unavailable.

5. Aggrieved, the Complainant issued a legal notice dated 06.08.2012 to the OP (Annexure-D-II), claiming a refund of his paid amount and damages, to no avail. Hence, he filed the present complaint alleging deficiency in service under Section 12 of the Consumer Protection Act, 1986, praying for directions to the OP to pay a sum of Rs.5,19,443/- inclusive of damages along with interest @18% p.a. and Rs.1,10,000/- towards the cost of litigation.

6. On notice, the OP filed the reply stating that the present complaint is barred by limitation as the Complainant took the membership on 10.12.2009 and filed the complaint before this Forum on 24.12.2012.

7. Further, the Complainant defaulted in paying the ASF (Annual Subscription Fee) to the tune of Rs.8,994/- after making the initial payment for 2010, nor did he pay any ASF from 2011 to 2013. Hence, he was not entitled to any services without clearing his dues as per membership rules.

8. As per the terms binding on the Complainant and the OP, in case of any disputes, only the courts of Chennai have exclusive jurisdiction to adjudicate the same as per the provision of the Arbitration and Conciliation Act 1996. The OP has annexed the membership rules as Annexure-1. The OP alleges that the Complainant was aware of the cancellation norms per clause 6 of the membership rule (Annexure-2) and that he was not entitled to a full refund.

9. The Complainant utilised the special benefits offered at the time of membership, likethe 32" Sony Bravia LCD TV, which was dispatched to the Complainant on 26.05.2010. Annexure- 4 is a copy of the letter sent to the complaint confirming the same. Similarly, the Complainant utilised the 10/11 days free holidays in different places given to him. Annexure-5 is a copy of the system-generated holiday usage statement. He also used Rs.7,000/- worth of food vouchers(Annexure-6). A detailed letter was sent to the Complainant regarding the aforementioned benefits which he used.

10. The Complainant was aware that all bookings could be made subject to availability only since he had enjoyed holidays in various resorts of the OP at Pattaya, Goa, Shimla, Binsar and Dharamshala Resorts, which the Complainant has concealed from this Forum.

11. So far as the Complainant's claim that he recommended his friend to take membership of the OP, the Complainant was given a cheque of Rs.5,000/- dated 29.05.2010 towards this recommendation as a referral benefit (Annexure-7).

12. Admittedly, on 21.09.2011, the Complainant requested a reservation at the Corbett Resort for vacation between 25.12.2011 to 27.12.2011. Due to it being peak season, the resort was not available on his desired dates. Hence, the Complainant's request was put on the waiting list of Corbett Resort and not refused, as alleged by the Complainant.In emails dated 22.09.2011 and 24.11.2011, the Complainant was assured that his request would be confirmed and that accommodation would be provided to him in case of cancellation from other members. Annexure-8 (Colly) are copies of the emails.

13. The Complainant was also suggested to consider another resort in Naukuchiatal via email dated 22.09.2011, which he refused. Annexure-9 is a copy of the conversation between the customer care executive of the OP and the Complainant.

14. The OP further stated that the Complainant's request was kept on the waiting list until 07.12.2011 to be confirmed in case of any cancellation. However the Complainant asked the OP to withdraw his reservation request vide letter dated 07.12.2011 (Annexure-10). The Complainant was called immediately to explain that cancellations happen at the last hours, but the Complainant was unavailable. Hence, a letter dated 09.12.2011 seeking a convenient time was sent to the Complainant(Annexure-11) on 12.12.2011. Another letter was sent to the Complainant clarifying the situation of peak season and reservations during that time available six monthsbefore holidays (Annexure-12). Hence, the OP was not deficient in service, and the case therefore deserves dismissal.

15. The Complainant filed rejoinder and affidavit in evidence reiterating the averments made in the complaint and exhibiting the documents. The OP filed the affidavit of Sh. Jaimini Kumar, corporate manager legal to be read as evidence echoing the statements as made in their reply. Both parties filed their written arguments, and we have heard the arguments from the contesting parties before reserving the order.

16. We have carefully gone through the facts and circumstances of the present complaint and have also perused the documents placed on record by the contesting parties. We find that the Complainant took the permanent Red Studio Category Membershipof the OP Club and Resorts on 10.12.2009. He paid a total consideration amount of Rs.3,19,443/- and received several benefits like 32" Sony Bravia LED TV, Free holidays, vouchers, etc., along with the said membership. The Complainant took several trips and utilised the OP's services on several occasions. He also referred and convinced his friend to join the OP club.

17. However, when the Complainant requested to book the Corbett resort of the OP on 21.09.2011, his request was denied even though he had sent the booking request for 25.12.2011 to 27.12.2011, three months prior to his vacation dates. Aggrieved, the Complainant sought a refund of his consideration amount along with damages vide legal notice dated 06.08.2012 and thenfiled this complaint.

18. The OP raised several preliminary objections in their reply. We feel it prudent to first decide on the preliminary objections raised by them. The OP claims that the present complaint is not maintainable as the complaint was filed on 24.12.2012 after the membership was taken on 10.12.2009 and hence is barred by limitation.

19. The Consumer Protection Act, 1986,in Section 24 (A), has clarified the limitation.

2[24A. Limitation period (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

In light of the provisions provided in the Act, the cause of action for this complaint occurred on 21.09.2011 when the Complainant sought the booking in the resort in Corbett. He filed the present complaint on 23.11.2012, i.e. within the two-year period specified in the Act. Hence, the Complainant's claim is within time and not barred by limitation.

20. The OP hasfurther alleged that the Complainant defaulted in his payments of the ASF (Annual Subscription Fee) after making the initial payment of Rs.8994/- for 2010. He thereafter did not pay the ASF in 2011, 2012 till 2013, amounting to Rs.32,029/-.

21. However, the OP still provided the room/hotel/resort to the Complainant despite the Complainant not paying the pending dues, which is clarified by their own document(Annexure-5), which is a system-generated holiday detail availed by the Complainant in 2011 and 2012. This document is sufficient to falsify the OP's statement that, as per terms,the complaint should be rejected/dismissed as the Complainant did not make the payment of their dues in light of the fact that the OP themselves extended their service to the Complainant despite not receiving the ASF due to them.

22. The OP hasalso challenged the jurisdiction of the Forum to adjudicate the present complaint in light of the terms and conditions agreed to between the Complainant and the OP, which grants jurisdiction only to Chennai for the resolution of any disputes between the parties.

23. In this case, we refer to Section 11(2)(a)of the Consumer Protection Act, 1986 which states as below:-

11. Jurisdiction of the District Forum

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction-

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or 1[carries on business, or has a branch office or] personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 1[carries on business or has a branch office, or personally works for gain: PROVIDED that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 1[carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Hence, under the provisions of the Act, the Complainant is well within his right to file the complaint before this Forum as the OP has a Branch office at BikajiCama Place, which falls under the Territorial Jurisdiction of this Forum.

24.  So far as the OP's objection regarding the grievances of their clients to be resolved as per the provisions of the Arbitrationand Conciliation Act, 1996, it is well-settled law that the Consumer Protection Act is in addition to and not in derogation of the provisions of any other law as clarified in a catena of judgments by the Hon'ble Apex Court as given below:

1. Secretary, Thirumurugan Coo-operative Agricultural Credit Society Vs. M, Lalitha (Dead) through LRS and Ors. Civil Appeal No. 92 of 1998 decided on 11.12.2003.

10. " In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to andnot in derogation of the provisions of any other law for the time being in force.

From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide better protection of the interest of the consumer and for that purpose to provide better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve purpose of the Act, various quasi judicial forums are set up at the district, State and National level wide range of powers vested in them. These quasi-judicial forums, observing the principle of a specific nature and to award, whenever appropriate compensation to the consumers and to impose penalties for non-compliance of their orders.

2. Fair Air Engineers Pvt. Ltd. and Anr. Vs. NK. Modi, 1996 (6) scc 385.

"It would, therefore be clear that the legislature intended to provide a remedy in addition to the consequent Arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure.

In view of the object of the Act and by operation of section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceeding. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case come to the conclusion that the appropriate Forum of adjudication of the disputes would be otherwise those given in the Act."

3. Smt. Kalawati and others Vs. M/s United Vaish Co- operative Thrift and Credit Society Ltd. RP No. 823 to 826 of 2001, SC & NC Consumer Law Cases 2005) 275, wherein the Hon'ble Commission observed that:

"4. Section 3 is worded in the widest terms and leaves no one in doubt that the provisions of CPA shall be in addition to and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to litigant for redressal by that remedy a litigant can go to Dist. Forum if he is a 'Consumer' under CPA. That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction."

In light of the law laid down by the Apex Court in its various landmark judgements (supra), we, therefore, do not find the OP's preliminary objections tenable in law.

25. Now, coming to the merits of the case.A bare perusal of Annexure-5 clarifies that after taking the Red Studio Membership of the OP club associated on 10.12.2009, the Complainant received all the membership benefits from the OP, which he utilised.

26. Thereafter, he booked the OP resort for different vacation destinations in India and abroad, as clarified in the copy of the Holiday Usage Statement (Annexure-5) of the complaint annexed by the OP with his reply and exhibited as Ex.OW1/6 with the affidavit of Sh. Jaimini Kumar, corporate manager legal, filed to be read as evidence. This document clearly shows that the Complainant took vacation under special offer on 13.06.2010, 18.06.2010 to Binsar, 23.12.2009 to Dharamshala, 08.06.2010 to Binsar, 26.06.2010 to Shimla, 08.08.2010, 21.09.2010 and 20.01.2011 to Pattaya, 25.05.2011 to Goa and 10.03.2012 again to Pattaya.

27. It was on 21.09.2011 that the Complainant wished to book the Corbett resort during the month of December. Due to the non-availability of rooms on his desired dates, his request was put on hold, and he was added to the waiting list as per Annexure-8, which is the email dated 22.09.2011 wherein the OP executive has clarified that the Complainant's reservation was kept on priority for the "Nature Trails Corbett" resort for his requested dated (25.12.2011 – 27.12.2011) and if there was any cancellation then OP would get back to the Complainant. The Complainant was also given an optional reservation at the OP resort in Naukuchiatal for the same dates, which the Complainant refused as per Annexure-9.

28. Thereafter, via email dated 07.12.2011, the Complainant cancelled his requested vacation dates and sought legal action. The OP tried to contact the Complainant but failed and thus wrote to the Complainant (Annexure-12) explaining their inability to confirm the Complainant's booking due to peak season and other logistic issues.

29. TheHoliday Usage Statement (Annexure-5) shows that the Complainant availed a holiday at the OP resort in Pattaya from 10.03.2012 till 13.03.2012. He cancelled his booking with the OP for the Corbett resort on 07.12.2011. Afteravailing the holiday at the Pattaya Resort, he filed the present complaint on 23.11.2012. This act of the Complainantleads us to draw the conclusion that the Complainant, who has not whispered a word regarding his vacations taken or benefits enjoyed by him for reasons best known to him, came to the Forum intending to get his money refunded despite utilising the services of the OP to its full extent and beyond.

30. The Complainant has further stated in his complaint that he introduced his friend Sh. VisheshwarAggarwaljoined the OP club and became a member of the OP club at his behest. We feel that only if the Complainant was satisfied with the OP's services would he have suggested that his friend also take the OP club membership to avail himself of the services and benefits.

31. Further, clause 7 of the "Members Review of confirmation of understanding", which is part of the Membership Application Form annexed by the Complainant as Annexure-A-II of the complaint, clarifies as below:-

"7. I/We understand that confirmation of reservation on bonus/regular holiday is subject to eligibility and availability."

Under these clauses, the Complainant has duly signed the document, and therefore, the Complainant cannot hide behind the fact that he was unaware of such a condition.

32. In light of the discussion above, we do not find any merit in the present complaint and, therefore, dismiss the same, leaving the parties to bear their own costs.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 24.10.2024.