JUDGMENT Per Justice Sham Sunder , President This appeal is directed against the order dated 15.2.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only),vide which it dismissed the complaint. 2. The complainant(now appellant) became a Member of Mahindra Holiday Club, OP (now respondent) and paid Rs.29,978/- in cash, on 31.5.2008. He also paid Rs.14156/-, as monthly subscription for the months of July, Aug., Sept. and Oct., 2008. Smt. Gurmeet Kaur, the wife of the complainant, was also made a co-member of the said Club. It was stated that the complainant, being a member of the OP Club, was entitled to a week of holiday every year in the apartment and season specified in the certificate of membership, in any of the Clubs of the OP, and was also entitled to get gifts. In November 2008, the OP declared a Split Air Conditioner as free gift to all its existing members and informed the complainant to collect it from their office, at Chandigarh. When the complainant visited the Office of the OP, at Chandigarh, to collect the said gift, he was told that his gift item was collected by Sh.Girish Makkar, through whom he had enrolled himself as a Club Member of the OP, though, he (complainant) had never authorized him (Girish Makkar) to collect the said gift, on his behalf. It was further stated that the complainant raised the objection, in that regard, but to no avail. He also approached Sh.Girish Makkar for handing over his gift item, but he refused to handover the same, to him. The complainant then lodged two complaints with the OP, and also sent two e-mails, to its head office, but nothing was done. It was further stated that the OP was deficient, in rendering service, and also indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no other alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only), was filed. 3. The OP, put in appearance, and filed written reply. It was admitted that the complainant, being its member, was entitled to avail of a few days of holidays every year, and receive some gift offered, as per promotional scheme. The deposit of the amount, as mentioned by the complainant, was also admitted by the OP. It was stated that as per the original scheme, the complainant was entitled to a split AC (as per special offer on enrolment). However, the complainant requested that a Video Camera be given in lieu thereof, to which the OP agreed. It was further stated that, accordingly, a Sony Handycam worth Rs.21,990/- was given to the complainant. It was further stated that this fact was deliberately concealed by the complainant. It was denied that there was any deficiency in service, on the part of the OP, or it indulged into unfair trade practice. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint, as stated above. 6. Feeling aggrieved, the instant appeal, was filed by the complainant/Appellant. 7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the appellant, submitted that, in November,2008, the appellant came to know that the respondent had given the split A.C. as gift, to all its members . He further submitted that when the complainant contacted the OP, it informed him to collect the same from its office, at Chandigarh. He further submitted that when he contacted the office of OP, at Chandigarh, he was told that Mr.Garish Makkar, through whom he had got membership of the OP club, had got the gift, on his behalf. He further submitted that the complainant never authorized Girish Makkar to receive the gift, on his behalf. When he contacted Girish Makkar, he failed to deliver the split A.C. He further submitted that despite many complaints, the complainant was not supplied the split A.C., as gift item, which was delivered to other members. He further submitted, that thus, there was deficiency in service, on the part of the OP, as it also indulged into unfair trade practice. He further submitted that the District Forum failed to appreciate the evidence, on record, in its proper perspective, as a result thereof, it fell into an error in dismissing the complaint. He further submitted that the order, being illegal, is liable to be set aside. 9. On the other hand, the Counsel for the respondent, submitted that, no doubt, the complainant became member of the OP Club, and also deposited the fee, and monthly installments, for a few months. He further submitted that the complainant instead of, getting Samsung A.C. of 1.5 Ton, as gift item, preferred Sony Handycam Camera and he was given the same. He further submitted that no new offer for delivering the split A.C. Samsung was, however, made by the OP, to the complainant. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld. 10. RW/A is a copy of the Membership Application Form. It is dated 11.5.2008. This form is earlier to the date, when the complainant became member of the said Club, on 31.5.2008. No doubt, in the annexures attached with this document, under the heading “other details” it was represented that the complainant was promised a Samsung split A.C. 1.5 ton, two weeks RCI International holiday and 4 nights Domestic holiday with Rs.5000/- food voucher. The application of the complainant was processed. He made the down payment. Thereafter he became the member. It is abundantly clear that he was offered a Samsung split A.C.1.5 ton, before he became the member of the said Club. Mr.Girish Makkar, admittedly an agent of the OP, at Panipat, filed his affidavit RW/B. It is proved that it was Girish Makkar who approached the complainant requesting him to become a member of the Club. In his affidavit Girish Makkar testified that an offer of the split A.C. was made to the complainant and this fact was clearly mentioned in RW/A. He further testified that the complainant requested him to provide a Sony Handycam Camera worth Rs.21990/-, in lieu of the split A.C. He further testified that on account of this reason, Sony handycam was delivered to the complainant and this offer was also mentioned in the Application Form, a copy whereof was attached by the complainant, at page 43, along with the complaint. There is no reason to disbelieve the affidavit of Girish Makkar. Once, on the request of the complainant, he was handed over Sony Handy cam by Girish Makkar, an agent of the OP, instead of the split A.C., which was originally offered to him, there was no question of offering the gift to the complainant, for the second time. It appears that the complainant became greedy and that was why he again approached the OP for the delivery of split A.C., as gift item. From the affidavit of Girish Makkar, it is also evident that the OP was ready to deliver a split A.C., to the complainant, on the condition, that he would return the Sony handycam. The complainant agreed to do so, but later on, he resiled from his promise. The complainant concealed the factum of supply of handycam camera to him, as a gift on his request, in the complaint. Under these circumstances, the complainant wanted to retain the Sony handycam which was delivered to him, as gift item, as a member of the Club, as also demanded a split A.C, the second gift item, which he was not entitled to get, from the OP. It could not be believed that the OP would be giving gift worth Rs.60,000/- to the complainant, for becoming its member. It is also evident that the complainant made down payment of Rs.29,978/- on 31.5.2008 and paid monthly installments of Rs.14156/- for the months of July,2008 to October,2008. Thereafter his intentions became dishonest and he failed to pay the remaining installments, but, on the other hand, started demanding the split A.C. The District Forum was, thus, right in holding that there was neither any deficiency in rendering service, on the part of the OP, nor it indulged into unfair trade practice. 11. The order passed by the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission. 12. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs quantified at Rs.3000/-. The order of the District Forum is upheld. 13. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
