BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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1]  Surinder Singh Mander;

2]  Gurjeet Kaur Mander,

Residents of H.No.2312, Sector 35-C, Chandigarh

 …..Complainants

                 V E R S U S

1]  Mahindra Holidays & Resorts India Limited,  Mahindra Towers, 2^nd floor, 17/18, Patullos Road, Chennai – 600 002 through its Managing Director

2]  Club Mahindra Holidays, SCO No.188-189, Second Floor, Sector 8-C, Madhya Marg, Chandigarh through its Branch Manager.

                      ……Opposite Parties

CORAM:   P.L. AHUJA                    PRESIDENT

RAJINDER  SINGH  GILL            MEMBER

         DR.(MRS) MADANJIT KAUR SAHOTA    MEMBER

Argued by:    None for the complainants

Sh.Nitesh Singhi, Counsel for the OPs No.1 & 2.

PER DR.(MRS) MADANJIT KAUR SAHOTA, MEMBER

         As averred, the complainants have enrolled with OPs as Member in Scheme namely “Club Mahindra Holidays” and deposited Rs.25,426/- initially as booking amount on 15.6.2009 being 10% of total Membership Amount of Rs.2,54,260/-.  Besides that, ECS of Rs.5,687/- per month were also paid to the OPs.  The Membership number allotted by the OP was 1491847.  On 03.7.2009, the OP sent a Certificate of Membership (Ann.C-1).  They also issued a Holiday Package to the complainants on 5^th June, 2009, which was valid for six months, but the complainants did not avail the said Holiday Package.

         It is averred that at the time of issuing the Membership, the OPs have also promised to the complainants to give some other benefits like free voucher of Rs.3000/-, 3 night holiday package and another 7 night holiday package.  The copy of the Membership application has been annexed as Ann.C-2.  It is also averred that till date the OPs have not given the said benefits to the complainants. As such, complainants sent numerous letters to the OPs to cancel their Membership and to refund the amount of Rs.2,01,723/- paid to them (Ann.C-3), but they did not give any response.  Ultimately, a legal notice was sent to the OPs through post (Ann.C-4 to C-6), but it was not replied. Hence, this complaint has been filed alleging the said act of the OPs as gross deficiency in service.

2]       OPs filed joint reply and admitted the factual matrix of the case.  It is stated that that the complainants became Member of OP Club on 15.6.2009 and paid a total sum of Rs.2,01,723/- against the agreed payment of Rs.2,54,260/-. It is also stated that the complainants at their own free will did not avail the holiday package, valid for a period of six months only, which is also admitted by the complainants.

         It is submitted that the benefit of Food Vouchers were sent along with the Membership Kit to the member; the benefit of 1 week complimentary stay at International destination with RCI valid till 31.12.2010 and 3 nights complimentary stay at a Club Mahindra Holiday Resort valid till 31.12.2010 were credited to the complainant’s membership account upon the realization of 15% of the Membership Fee.  It is also submitted that the complainants have, at no point of time, made any request for bookings either with the OPs or with RCI, so his enrollment benefits had lapsed with time, as per the date of validity, which was mentioned in the Welcome letter.  The e-welcome letter was sent to the complainants through e-mail on 16.6.2009 detailing the benefits & their validity etc.  It is denied that complainants issued a number of letters to OPs to cancel the membership and to refund the amount of Rs.2,01,723/-.  However, he said payment (Ann.C-3) is admitted.

         It is asserted that the complainants never requested for the booking of holiday nor had he ever got services on his membership due to apparent apathy on his part to avail these benefits.  Thus, non-utilization of benefits by the complainants cannot be categorized as amounting to deficiency in service on the part of OPs.  All other allegations have been denied with a prayer to dismiss the complaint.

3]       Parties led evidence in support of their contentions.

4]       We have heard the ld.Counsel for the OPs and have perused the record as well as written arguments of complainants.

5]       The main contention of the complainants is that the OPs failed to provide them the benefits till date, as promised vide Ann.C-2, at the time of taking their Membership.  Even the notice sent to them seeking cancellation of Membership and refund of amount remained unanswered by the OPs.

6]       Contrary to the allegations of the complainants, the OPs contended that the benefit of Food Vouchers was sent along with the Membership Kit to the Members. The benefit of 1 week complimentary stay at International destination with RCI valid till 31.12.2010 and 3 nights complimentary stay at a Club Mahindra Holiday Resort valid till 31.12.2010 were credited to the complainant’s membership account upon the realization of 15% of the Membership Fee. It is also contended that the complainants have not made any request for bookings either with OPs or with RCI, so his enrollment benefits had lapsed as per the date of validity, which was mentioned in the Welcome Letter.  It is denied that complainants made any request for cancellation of membership and refund of the deposited amount.

7]       After going through the facts & circumstances of the case, hearing the parties and perusing the documents, it is an admitted case of the parties that the complainants became Member of OP Club and paid a total sum of Rs.2,01,723/-. It is also admitted that the complainants did not avail any facility/benefit of OP Club.  The OPs took defence that the complainants themselves failed to utilize the said benefits and the same were lapsed with time, as per the date of validity.

8]       In our opinion, in the prevailing situation, now the onus is shifted on the OPs to prove that they have provided the benefits to the complainants, as promised by them i.e. Food Vouchers worth Rs.3000/-, 1 Week International Holidays and 3 Nights Holiday in Club Mahindra Resort.  However, the they have not been able to prove & justify by way of placing on record any cogent & authentic document, that they have credited the said benefits into the account of the complainants.  Mere verbal assertion of the OPs, in this regard that they have credited the said benefits in the account of the complainants, in absence of any documentary proof, cannot be believed.  Thus, the non-providing of service inspite of receiving hefty amount from the complainants, proves gross deficiency in service on the part of OPs.

9]       Even otherwise also, when the OPs failed to render any service to the complainants against the consideration, they are not entitled to retain the amount of the complainants and should have returned it, but they did not do so.  A bald assertion of the OPs that the validity of the said benefits had expired cannot be relied upon in the absence of any document/material on record. Such act & conduct of the OPs clearly proves their indulgence into unfair trade practice.

10]      Resultantly, judged from every angle and entirety of the case, we are of the opinion that the deficiency in service and unfair trade practice on the part of OPs is writ large.  Thus, the complaint having lot of merit, weight and substance must succeed.  The same is accordingly allowed. The OPs are directed to refund a sum of Rs.2,01,723/- along with interest @10% p.a. from the date of respective deposits till its actual payment to the complainants, besides paying litigation cost of Rs.10,000/-.

         This order be complied with by the OPs within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to refund the above said amount of Rs.2,01,723/- along with interest @18% p.a. from the date of respective till its actual payment to the complainants apart from paying litigation costs as aforesaid.

         Certified copies of this order be sent to the parties free of charges.  The file be consigned.