Punjab

Ludhiana

CC/15/546

Dr.Harmit Singh - Complainant(s)

Versus

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

compl.in person

09 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.546 of 16.09.2015

Date of Decision            :  09.04.2018

 

Dr Harmit Singh Muker, resident of 296-I, Bhai Randhir Singh Nagar, Ludhiana, Punjab-141012.

….. Complainant

Versus 

 

1.Mahindra Holidays & Resorts India Limited, No.504, Block A, 5^th Floor, Elante Office Suits, Plot No.178-178/A, Industrial Area Phase-I, Chandigarh-160001.

2.Club Mahindra Holidays World, Showroom No.32, First Floor, Western Mall, Ferozepur Road, Ludhiana-141001.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT

SH.VINOD GULATI, MEMBER                           

 

COUNSEL FOR THE PARTIES:

For complainant                      :         In person

For OPs                         :         Sh.Raman Kumar, Advocate 

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant took membership of Club Mahindra Holidays w.e.f.August 2012 vide Membership ID 2428618. Type of membership was white, but type of apartment was Studio. That membership was valid for period from 1.11.2013 to 31.11.2038 i.e. for 25 years. Seven holidays per year could have been availed by the complainant on payment of 42 EMI of Rs.7626/- per month. Rs.25,415/- was paid on the spot and as such, an amount of Rs.3,91,048/- was paid. First EMI was deducted from the account of complainant in August 2012 and thereafter, complainant had been paying the EMI regularly till August 2015. So, through 37 EMIs, an amount of Rs.2,82,162/- has been paid by the complainant. Annual maintenance fees of Rs.11,600/- paid for 2013-2014 on 1.11.2013, but of Rs.12,569/- paid for 2014-2015. So, total amount of Rs.3,31,331/- has been paid by the complainant to OPs. Annual maintenance fee is charged by OPs at its own level every year and the same is increasing every year at very high rates. In the white season type membership, booking does not    become available in peak season and that is why Ops called upon the complainant to take    Red season type facility by paying more. Food and other things even are costly. Complainant claims to have availed 7 days holidays for 2013-14, but 4.8 holidays in 2014-    15,by leaving the current balance of holidays as 9.2. Complainant claims to be not interested in membership with OPs and that is why, he asked for stoppage of EMI payment w.e.f. September 2015. On asking for refund of money, Ops first claimed as if complainant will get Rs.1 lac, but later on they claimed as if Rs.40,000/- alone will be paid. Later on Ops claimed that there is no refund in case of cancellation of policy and as such, advice was tendered to the complainant not to cancel the membership. Terms and conditions are mentioned in small letters, which are not legible and moreover, abbreviations used are not known to the common person. It is claimed that now a days, hotels are available in range of Rs.2500/- to Rs.3000/- per day. Prayer therefore made for directing Ops to refund the received amount of Rs.3,31,331/- with interest @12% per annum. Compensation for mental harassment and agony of Rs.50,000/- and legal fee expenses of Rs.20,000/- more claimed.

2.                          In written statement submitted by Ops, it is pleaded interalia as if complaint is filed for abusing the process of law; complainant has not approached this Forum with clean hands because he has mis-represented the material facts; no cause of action has accrued in favour of the complainant, more so when the complaint has been filed after duly utilizing the benefits/holidays. The present complaint has been filed just for stacking claim for recovery of money and as  such the same is not maintainable, more so when contents of complaint are vague and unfounded. Complainant took the membership of OPs at his own will and volition and thereafter, he had been paying the membership fee and annual subscription fee as per rules and regulations of the company. Complainant duly accepted those rules and regulations by putting his signatures. No deficiency or negligence on the part of OPs alleged in the complaint. Copy of membership application form along with relevant membership rules are alleged to be annexed with the reply. Factum regarding knowing of terms and conditions with regard to Resort Condominium International was submitted by the complainant after getting the necessary clarifications and information regarding the membership rules. Admittedly, the complainant subscribed to white studio category membership by signing the membership application form along with rules on 10.6.2012. Down payment of Rs.25,415/- was made by the complainant after getting discount of Rs.4485/-. It is on account of this that membership payment reflected in the statement of account as 29,900/-. Complainant himself opted for 48 EMIs of Rs.7626/- each against the membership cost of Rs.2,99,000/-. An enrollment membership card was issued to the complainant. Complainant stopped paying EMI w.e.f. September 2015 and even he committed default of annual subscription fee (ASF) of Rs.13,185/- for the year 2015. ASF is payable every year towards upkeep and maintenance of the resorts. Besides, availing cash back discount of Rs.4485/- at the time of down payment, complainant availed RCV of worth of Rs.3000/-, which was dispatched with the membership kit on 7.7.2012; shopping vouchers of worth of Rs.11000/- of Life Style and discount of worth of Rs.4480/- on white studio even availed by complainant. Even three nights at Club Mahindra Resort was credited to the account of the complainant. Facility of week(s) international holidays through Dial and Exchange (DAE) was availed by complainant by way of credit to his account. Welcome letter dated 3.7.2012 was sent to the complainant. A screen short confirming down payment discount also is annexed with the reply. Benefit of three nights at Club Mahindra Resort credited in the account of the complainant was availed by him at Safari Resort Corbett, Uttarakhand from 1.10.2012 to 4.10.2012. List of holiday usage statement confirming holidays availed by the complainant also attached with the reply. OP Company offers to its members a membership for 25 years, due to which, member is entitled to a week of holiday every year in the apartment. Season is specified in the certificate of membership, for availing of this facility. In case breach of any obligations not committed by the member, then he can opt for exchange of season by way of upgrading and downgrading the same facility as per rules. A calendar year is divided into 4 seasons namely purple, red, white and blue. Purple season signifies the super premium season. Apartments are classified into furnished studio, one bedroom and two bedroom apartments. A member is entitled to enjoy a minimum stay of 3 days(3 nights and 4 days) and a maximum stay of 14 days (14 nights and 15 days) in a season. A member can avail holiday by giving a request for reservation in the prescribed form. In case of joint applicants, request for availing holidays will be entertained from the principal member only. All holiday reservations will be done on first-come-first-served basis, but of course subject to eligibility or availability. Request for reservation can be submitted from upto 4 months to 1 day prior to the commencement of the holiday. On confirmation of the availability of the holiday period requested for by the member, the OP company issues a confirmation voucher specifying the reservation details including check-in and check-out time to the member for enjoyment of the holiday. A member has to pay the membership fee as per the season and the apartment type opted for by him. Annual subscription fee has to be paid every year and in case, the same is not paid, then holiday accommodation benefits cannot be availed. Annual subscription fee (ASF) cannot be the same for the entire membership period because the same keeps varying every year. As per rule 5 of Membership Rules, ASF has to be paid in advance for the year within such time as stipulated by MHRIL from time to time. No member can avail facility of holiday accommodation unless the entire ASF due is paid in full. Revision in ASF shall be effected by MHRIL based on the Consumer Price Index numbers for urban non-manual employees as per rule 5.3. Further as per rule 5.6, ASF is non refundable and non-payment of the same amounts to breach of contract. In the event of non-payment of ASF including arrears if any; MHRIL reserves the right to charge interest on the monthly basis for the outstanding payable ASF. In case, ASF or the interest thereon not paid by member for two consecutive years at any point of time, then MHRIL reserves its right to terminate the CMHM as per clause 6.1(c), in which case clause 6.2 will apply. Complainant cannot take U-turn of the terms and conditions because he signed the documents after going through the same. Complainant has not claimed about the playing of any fraud by Ops and nor he claims that he was not aware of the rules. Complainant is an educated person. Complainant has been using the membership benefits since from 2012 and paying the charges regularly till 2014 and as such, now he cannot raise objections regarding the increase of ASF or the price of food and other things. Complainant himself admitted having availed 7 days holidays in 2013-14, but 4.8 holidays in 2014-15. These holidays were availed at different locations like Kandghat, Mussooriem & Corbett etc. Cancellation of membership or the refund of membership fee is governed by the membership rules because of binding contract arrived at between the parties. In the event of cancellation after rescission period of 10 days, admission fees consisting of 60% of the total membership fees is non-refundable. So, entitlement for refund is to the extent of 40% of the total membership fees only, but subject to the other applicable deductions. Rules 6.1 and 6.2 are quoted in the written statement for claiming that interest on EMI of Rs.86,144/- liable to be deducted from the principal amount of membership costs/product costs of Rs.2,21,433/-. Besides, applicable deductions are alleged to be 60%, cancellation charges of membership costs, amounting to Rs.1,79,400/-. Cost of holidays availed by the complainant at Club Mahindra Resort is Rs.21,600/-, but cost of resort credit vouchers is Rs.3000/-, whereas cost of DAE week is of Rs.6000/-, but of RCI enrolment is Rs.2500/- and that of cost of gift dispatched to the complainant is Rs.11000/-. Besides, cash back discount of Rs.8960/- even was availed by the complainant and all these amounts liable to be deducted. So, total deductions assessed at Rs.2,32,460/- against the actual  payment of Rs.2,21,433/-but against the membership/product cost of Rs.2,99,000/-. Admittedly, as per the produced documents, complainant paid Rs.3,07,577/- including the principal amount of membership cost of the product as Rs.2,21,433/- but of interest amount of Rs.86,144/-. In view of these applicable deductions, nothing is refundable to the complainant and that is why, email was sent to the complainant in that regard. Rules of OP Company have been under the lens of various Hon’ble State Consumer Disputes Redressal Commissions and as such, by claiming that refund, if any, is governed by Rule 6.2 of Membership Rules, nothing is payable to the complainant. As complainant did not pay ASF as per the Membership Rules and as such, he was not entitled for the use of any holiday. No notice for fixing ASF is required to be given to the member and as such, allegations of fraud and cheating alleged to be baseless one. Complainant cannot be permitted to approbate and reprobate and as such, by denying each and every other allegations, prayer made for dismissal of complaint.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C6 and thereafter, closed the evidence.

4.                       It may be mentioned here that vide order dated 23.2.2016 passed in Miscellaneous application No.3432 of 2015 in First Appeal No.1291 of 2015, the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh had set-aside the order dated 30.10.2015 passed by this Forum for proceeding Ops as ex-parte and allowed Ops to file the written statement, subject to payment of Rs.5000/- as costs. These costs were accepted by the complainant and thereafter, Ops permitted to bring on record the written reply.

5.                Counsel for OPs closed evidence after tendering written statement alone.

6.                          Written arguments not submitted by any of the parties. Oral arguments by counsel for parties alone addressed and those were heard. Records gone through minutely. 

7.                Perusal of judgments relied upon by the Ops dated 4.10.2013(annexure-R/9) passed in First appeal No.269 of 2013 titled as Suresh Bansal and others vs. M/s Club Mahindra Holidays and others and dated 6.7.2015(Annexure-R1/9) passed in First Appeal No.105 of 2015 titled as M/s Mahindra Holidays & Resorts India Limited and others vs. Charanjit Singh reveals that a person availing facility of holiday enjoyment in the Resort of OPs after becoming member, on payment of admission fee and membership charges becomes a consumer. So, certainly consumer complaint is maintainable. Both above referred unreported cases were decided by the Hon’ble State Consumer Disputes Redressal Commission, U.T.Chandigarh.

8.                Counsel for Ops vehemently contends that complainant is not entitled to refund of any amount, even though there is no dispute regarding the fact that he has paid Rs.3,07,577/- in all plus annual maintenance charges of Rs.11,600/- for period of 2013-14 and Rs.12,569/- for period of 2014-15. Undisputedly, complainant availed seven days holiday accommodation benefits for period of 2013-14 and of 4.8 days of holiday accommodation in 2014-15 with left out balance of 9.2 holidays. Undisputedly, the membership was purchased by the complainant in June 2012 and thereafter, membership card was issued with Welcome letter kit on 3.7.2012. As complainant availed the holidays referred above and as such, certainly complainant is bound by the membership rules of OPs. So, certainly submission advanced by counsel for Ops has force that refund, if any, can be ordered only as per rules of Ops.

9.                Ex.C1 is a screen shot showing as if complainant on becoming member of OPs availed white type of membership with type of apartment in Studio. Undisputedly, complainant paid 37 EMIs of Rs.7626/- upto August 2015 because even OPs in the written statement claimed that these EMIs from  September 2015 onwards not paid by the complainant. So, certainly complainant paid the amount of Rs.2,82,162/- through 37 EMIs of Rs.7626/- each. Details of payment history produced on record as Ex.C2. Ex.C3 is  the  document showing as if initial payment of Rs.25,415/- even was made by the complainant to Ops as advance payment on 10.6.2012 through HDFC account. Complainant is seeking refund of paid amounts by claiming that he is not satisfied with the services provided by Ops. Email Ex.C4 dated 6.9.2015 in this respect was sent by the complainant to OPs for seeking refund of paid amount of Rs.2.75 lac. However, Ops vide email Ex.C5 dated 5.9.2015 called upon the complainant not to cancel the membership, but to continue the same because no refund is permissible as per applicable rules. Through Ex.C5 itself, regret was expressed qua the inconvenience caused to the complainant pertaining to his membership. So, it is obvious that virtually request for cancellation of membership submitted by the complainant for first time through email dated 6.9.2015, copy of which is placed on record as Ex.C4. It is on account of submission of this request for cancellation that complainant stopped paying the EMI w.e.f. September 2015. As Ops themselves through email Ex.C5 admitted about the inconvenience suffered by the complainant pertaining to the membership services and as such, case of complainant is believable that he sought refund of paid amounts by not satisfying with the services rendered by Ops to him. Even if request for cancellation is genuine, despite that on cancellation only those amounts liable to be refunded, as are found refundable as per rules and regulations.

10.              Annual subscription fee or annual charges liable to be fixed by MHRIL by keeping in view the Consumer Price Index Numbers and as such  revision in ASF is contemplated by Rule 5.3 of Rules. Further as per                  rule 5.6, ASF is not refundable and as such, certainly amounts of Rs.11,600/- of ASF for year 2013-14 and of Rs.12,569/- for year 2014-15 paid by the complainant to Ops are non refundable. Rather, this amount of ASF claimed for maintenance of holiday homes and as such, rule 5.6 specifically framed for non refunding ASF. Moreover, as per case of complainant himself he availed seven days holiday accommodation for 2013-14, but of 4.8 days in 2014-15 and as such, complainant availed services of OPs for these two years on payment of non-refundable ASF. As per rule 5.7 of Membership Rule, the ASF is payable even for the lapsed holiday entitlement because this amount required to be paid for maintaining the CMNR and CMAR properties.                                                    So, the above referred two amounts of ASF are non-refundable and complainant cannot claim the refund of the same.

11.              As the complainant availed the holiday accommodation for 7 days during 2013-14, but of 4.8 days in 2014-15 and as such, worth of these availed holiday needs be taken in  consideration for determining the applicable deductions. Cost of these holidays taken at Club Mahindra Resort mentioned as Rs.21,600/- in column of applicable deductions and there is nothing on record to suggest that these costs are exorbitant, more so when the complainant himself claims that hotel rooms are available now a days in the range of Rs.2500/- to Rs.3000/-. Complainant availed 11.8 days of holiday accommodation during period from 2013 to 2015 and as such, the assessed costs of holidays as Rs.21,600/- is appropriate. So, this amount of Rs.21,600/- liable to be deducted for the services availed by the complainant from Ops. Besides, Resort Credit Vouchers of worth of Rs.3000/-; cost of gift vouchers of Rs.11000/- even were availed by the complainant after becoming member and as such Ops borne the costs of these vouchers/gifts, due to which, they are entitled to deduct these amounts   of Rs.3000/- and of Rs.11000/- respectively from the payable refund amount. Cost of DAE week and of RCI enrolment of Rs.6000/- and of Rs.2500/-were also borne by the OPs for providing these benefits to the complainant and as such, an amount of Rs.8500/- more liable to be deducted from the claimable refund amount.     White studio 3 EMI discount of Rs.4480/- even was given in the first instance at the time of down payment and as such, said amount also liable to be counted for in the applicable deductions.So, total deduction comes to Rs.3000/-(on account of Resort Credit vouchers); Rs.11000/-(shopping gift vouchers); Rs.21,600/- (cost of accommodation availed during holidays); Rs.4480/- (on account of discount on white studio type accommodation); Rs.6000/- (on account of cost of DAE week) and Rs.2500/- (on account of RCI enrolment). So, total amount of Rs.48,580/- spent by the OPs for providing gifts/benefits to the complainant on becoming member, liable to be deducted from the amounts payable to complainant by way of refund on cancellation of membership.

12.              It is the case of OPs themselves that even on termination of membership, the deductions referred in rule 6.2 are applicable. In case of cancellation, the full advance amount or the admission fee is non-refundable as per case of Suresh Bansal and others (Ibid). In para no.11 of cited case, it is mentioned that admission fee of Rs.1,20,123/- is non-refundable and as such, the paid admission fee of Rs.25,415/- by the complainant to Ops certainly is non-refundable. So, the refundable amount remains at the most of paid 37 EMIs of Rs.2,82,162/-. However, deduction of Rs.48,580/- referred above to be           made from this amount because complainant has already availed benefits equivalent to this amount. So, balance amount at the most remains of Rs.2,33,582/-, but the same amount to be refunded only by keeping in view rule 6.2 of membership rule.

13.              Rule 6.2(a) of membership rule provides that deductions shall be made by MHRIL from the amounts paid by the member towards the 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. As complainant became member in 2012 and enjoyed the benefits upto 2015 and as such, virtually  for calculating the                        deductions, period of three years to be taken into consideration. Period of membership is of 25 years, out of which, the complainant availed benefits for three completed years and as such, on pro rata basis, it has to be held that deductions @12% are permissible. Though, deduction on account of tax dues also permissible as per rule 6.2(c), but amount of taxes due not at all mentioned by OPs and as such certainly the estimated assessment of tax dues alone liable to be taken into consideration. That estimated assessment taken at 8% and as such by adding this 8% to figure of 12% worked out as per rule 6.2(a) of Rules of Membership, it is made out that 20% of deductions at least should be made from the amount liable to be refunded. Clause 6.2(d) of rules specifically provides that cost of holidays enjoyed by the member in excess of enrollment liable to be deducted. As complainant seeking cancellation and as such cost of holidays enjoyed by him of amount of Rs.21,600/- liable to be deducted as per rule 6.2(d) of rules. Though any other amount due to the MHRIL also liable to be deducted, but those amounts not mentioned at all except the cash back discount of Rs.8960/- in clause-g of applicable deductions worked out in the written statement. 20% of amount of Rs.2,33,582/-, comes to Rs.46,600/- and as such, balance refundable remains of amount of Rs.1,86,982/-. As discount of Rs.4485/- even was given at the time of initial paid amount and as such, that amount of Rs.4485/- also liable to be deducted from the above calculated amount of Rs.1,86,982/-. So, entitlement of the complainant remains for refund of amount of Rs.1,82,497/-.

14.              It is vehemently contended by counsel for Ops that interest component of Rs.86,144/- also liable to be taken as applicable deduction, but that submission has no force because on payment of 37 EMI by the complainant to Ops, out of the 48 stipulated as per contract, OPs enjoyed that amount by way of investment or carrying on development works. As OPs enjoyed the deposited amount of Rs.2,82,162/- and as such, deduction on account of interest components certainly should not be allowed, more so, when the same not permissible as per rule 6.2. Though rule 6.2(b) provides for deduction on account of outstanding ASF together with interest, if any, but no mention in the same made  that deduction is permissible on account of interest component on EMIs. Even the deductions on account of interest component of Rs.86,144/-  is               inequitable because the complainant was divested of amount of Rs.2,82,162/-, but OPs enjoyed the same amount. So, claimed deduction of Rs.86,144/- on account of interest component cannot be permitted.

15.              After going through the above referred unreported cited cases, it is made out that decision in those cases was given by invoking rule 6.1(a) of Membership Rules. That rule applicable when withdrawal of application sought within 10 days from the date of realization of initial membership amount. However, rule 6.2 is applicable, as and when termination of policy takes place either at the instance of MHIRL or at the asking of member himself.

16.              Rule 6.1(b) provides that in the event of termination of CMHM by MHRIL or the member, the member shall be entitled to a refund of the EF paid after deducting the amounts set out in clause 6.2 of membership rules, but the admission fee shall not be refunded. So, this rule 6.1(b) not only provides for the termination of membership by MHRIL, but even by member himself. As request by the complainant for cancellation submitted on 6.9.2015                                    by way of seeking of refund of paid amount and as such, entitlement of complainant remains for refund as per rules 6.2 of Membership Rules. In the written statement, it is mentioned as if 60% of cancellation charges of membership costs are claimable, but rule 6.2 of Service Rule do not provides so at all and as such, certainly claim for 60% cancellation charges of membership costs is an exorbitant claim put forth against the rules of membership.

17.              Annexure-R/5 annexed with the written reply shows that RCI membership entitlement is a complimentary for two years. As that RCI membership is complimentary and as such on seeking of pre voluntarily cancellation by the complainant, certainly he is liable for refund of RCI Membership benefits to OPs. Besides, special offers produced along with the written statement shows that White studio 3 EMI discount is of Rs.4480/-. That was  granted owing to availing of facility till 31.12.2012 and that benefit was also granted to the complainant at the time of making him member and as such, complainant liable to refund this discounted amount of Rs.4480/- also, reference of which is made above. Special offers also include the Resort Credit Voucher of worth of Rs.3000/- and shopping voucher of Life Style and as such, on cancellation of policy sought by the complainant voluntarily, he is liable to refund of these special offer benefits and that is why, discounts for the same worked out while assessing the liability of OPs to refund the amount of Rs.1,82,497/- worked out in detail above. In both unreported cited cases, question involved was regarding interpretation of clause 6.1(a) and not of clause 6.1(b), but here in case in hand, question involved is as to interpretation of rule 6.1(b) R.W.Rule 6.2 because the complainant himself sought cancellation of membership by sending email on 6.9.2015. It is on account of this that entitlement  of complainant worked out as per rule 6.2 of Service Rule. As complainant had to suffer a lot due to non-refund of the due amount and as such, fitness of things warrants that Ops should be rendered liable for paying the due amount of Rs.1,82,497/- within 40 days from the date of receipt of copy of order, failing which, they will be liable to pay interest @9% per annum w.e.f. today till                      

payment. Complainant also entitled to compensation for mental harassment and agony and also to litigation expenses.

18.              Therefore, as a sequel of the above discussion, complaint partly allowed in terms that OPs will refund the amount of Rs.1,82,497/- to complainant by treating the club membership as cancelled. Payment of this amount of Rs.1,82,497/- be made within 40 days from date of receipt of copy of order, failing which complainant will be entitled to interest @9% per annum w.e.f. today till payment. Compensation for mental harassment and agony of Rs.5,000/- (Rupees Five Thousand only) and litigation expenses of Rs.5,000/- (Rupees Five Thousand only) more allowed in favour of complainant and against OPs. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of copy of order. Liability of OPs held as joint and several. Copies of order be supplied to parties free of costs as per rules.

19.                        File be indexed and consigned to record room.

 

 

                     (Vinod Gulati)                               (G.K. Dhir)

               Member                                        President

Announced in Open Forum

Dated:09.04.2018

Gurpreet Sharma.