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

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Sanjeev Kochhar, Flat No.417, L.B. Enclave, Sector 49-A, Chandigarh 160047. M: 098156-17676

….…Complainant

                           V E R S U S

(i)     Managing Director, Mahindra Holidays and Resorts India Ltd., Mahindra Towers, 2^nd & 3^rd Floor, 17/18, Pattullos Road, Chennai-600002.

(ii)   Branch Head, Mahindra Holidays and Resorts India Ltd., SCO 188-189, Sector 8-C, Madhya Marg, Chandigarh 160019.

                                  ..…Opposite Parties

CORAM:  SH.JAGROOP SINGH MAHAL PRESIDENT

              DR.(MRS) MADHU BEHL       MEMBER

              SH.RAJINDER SINGH GILL    MEMBER

Argued by: Complainant in person.

Sh. Ashim Aggarwal, Adv. for OPs.

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

             Succinctly put, on 24.8.2007 the complainant became a member by invitation of the OPs for 25 years.  However, the OPs not only failed to provide him the one way free air tickets and full compliment of Rs.3,000/- worth of free food vouchers but also did not facilitate the booking of four nights of complimentary holidays at any of their resorts as promised at the time of booking for nearly a year and instead sent him invoice for Rs.7,333/- on 4.9.2008 and another invoice for Rs.7,948/- on 2.9.2009 as annual subscription fee (ASF) which he did not pay.  In August 2008 he wrote to the OPs and sought refund. Thereafter, he received response from the OPs asking him to fill the attached travel format for his flight bookings and further promising to send the remaining Rs.1,500/- worth of free vouchers which were finally delivered.  However, later it transpired that he had to first confirm his four nights complimentary booking in a Club Mahindra Resort before making the flight bookings.  He tried his level best to get the reservation through the online reservation system but these were not available for months.  In October 2008 he wrote to his credit card manager (HDFC Credit Cards) to stop all further payment of instalment to the OPs but they expressed their inability saying that it could be done by Club Mahindra only which caused tremendous mental and physical harassment to him.  Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2.             In their written reply the OPs submitted that the complainant got himself enrolled after going through and understanding the membership scheme and deposited Rs.29,161/- as down payment.  It has been pleaded that the complainant was not entitled to the offers if the ASF was not paid in full which he did not pay despite receipt of invoices for the years 2008 and 2009.  He was requested through emails dated 17.9.2008 and 18.9.2008 to clear the ASF dues but he remained in default as a result of which his reservation request could not be processed.  It has been denied that the OPs did not provide the food vouchers.  It has been submitted that the complainant’s booking could not be confirmed due to the resort being booked from 8^th-12^th October, 2008 for which the OPs offered alternative dates of booking from 12^th-22^nd October, 2008 vide email dated 17.9.2008.  It has been denied that the complainant ever wrote to the answering OPs to stop realization of the EMIs or that the answering OPs failed to honour their commitments. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part, prayer for dismissal of the complaint has been made. 

3.             Parties led evidence in support of their contentions.

4.             We have heard the complainant in person and Learned Counsel for the OPs and have also perused the record. 

5.             The complainant became a member of club Mahindra regarding which the OPs sent him a congratulatory letter Annexure P-8.  It is mentioned in the letter that the details of the membership and special offers to which the complainant was entitled were enclosed with the said letter.  Annexure P-9 is the letter showing special offers i.e. one week international holidays, four nights holidays in club Mahindra resort, food vouchers worth Rs.3000/- and four Indian air tickets one way.  It was made clear that he was admitted as a member upon realization of 15% of the member ship cost. The membership price money is mentioned as Rs.1,94,409/- and 15% thereof comes out to Rs.29,161/-.  The said amount was paid by the complainant as down payment before this membership was issued to him. It is therefore clear that the complainant become entitled to the special offer immediately on his admission as a member of Mahindra club.

6.             As regards the other holidays the complainant became entitled to avail the same 6 months from the end  of the month after admission as member which when calculated from 14.09.2007 would come out to 1.04.2008, subsequently the OPs tried to tamper with this date, when they sent a certificate of membership Annexure P-1 in which the holiday start date was mentioned as 1.09.2008.  It runs contrary to the holiday start date mentioned in Annexure P-9.  They cannot unilaterally change the holiday start date and this mischief in doing so cannot be permitted. The holiday start date would therefore remain the same i.e. 1.04.2008. However the dispute is not regarding holiday start date but it is regarding special offers as mentioned in Annexure P-2 and Annexure P-9.

7.             The contention of the complainant is that he has paid a sum of Rs.1,66,608/- till the filing of the complaint on 27.10.2009 which has not been disputed by the OPs.  However when the complainant asked for the special offers to which he became entitled on 14.09.2007, when he became a member of the club to which he was entitled as per Annexure P-2 and Annexure P-9, it was not allowed to him and rather the OPs sent him a letter Annexure P-15 on 19.11.2007, giving lip sympathy, telling to him that the point raised was being looked into in detail and may take little time, so he should rest assured that it was only because it was an endeavor to assist him with a correct and deserving redressal. Subsequently the OPs sent letter Annexure P-16 on 21.11.2007 again telling the complainant that the holiday start date was 1.09.2008, which as mentioned earlier was wrong and was a device to delay the said facility, so as to extract more money from the complainant before the special offer as mentioned in Annexure P-2 and Annexure P-9 was granted to him. The complainant objected to the same and on 28.11.2007 vide Annexure P-17 informed the OPs that Mr. Sarvesh whom they referred in Annexure P-16 was not available nor any of his questions has been answered. Annexure P-19 was written by the complainant on 6.08.2008 regarding the unsatisfactory service and he requested for refund of the membership fee.  However the complainant was informed on 5.09.2008 vide Annexure P-23 that the food vouchers worth Rs.3,000/- and  four Indian air tickets had already been sent to him along with membership kit on 14.09.2007. This information was obviously wrong because the letter Annexure P-8 does not mention if the same was enclosed with it. Rather the complainant sent to the OP, a copy of the email received from the Member Relations Department on 21.11.2007 vide which the complainant had been informed that they had not received any food vouchers and air tickets which could be sent to him and the person who was alleged to have sent the food vouchers and air tickets was not even available, emails were sent to that person but there was no response from him as mentioned in Annexure P-29 and the entire story concocted by the OP proved to be a ploy. The complainant therefore sent another letter Annexure P-25 on 6.09.2008 in this respect and Sarvesh Kumar, the Member Relations of the OP sent the letter Annexure P-27 on that very date sending for the first time travel format for his flight bookings and forwarded the request for Rs.1500/-, food vouchers, which would be dispatched.  The complainant was informed vide Annexure P-29 that the food vouchers have been sent through Blue Dart Courier and the OP apologized for the inconvenience caused to him in this respect.

8.             The complainant on 16.09.2008 requested the OP through Annexure P-30 for the availability of studio apartment for three adults and one child at Naukuchiatal resort and requested for booking the same on the dates mentioned therein.  No booking was done by the OP and they informed the complainant on 17.09.2008 vide Annexure P-31 that the reservation could not be done due to non-availability of rooms and that he would be given alternative dates but the same were not acceptable to the complainant and he requested for booking from 8.10.2008 to 12.10.2008 through his email Annexure P-32. Needless to mention that booking was not confirmed even for those dates and rather he was offered the resort from 12.10.2008 to 22.10.2008 and was also asked to deposit Rs.7,333/- as ASF.  When the complainant informed the OP vide Annexure P-34 on 17.09.2008 that the request for complementary four nights holiday was not linked with the regular holiday package and that he could not avail all the complimentaries because he was not offered the complementary air tickets and food vouchers for almost a year, in reply to which the OPs refused to confirm the reservation in the absence of the payment of Annual Subscription Fee regarding which the complainant was informed vide Annexure P-35.  The complainant has not so far been able to avail the four air tickets one way and food vouchers worth Rs.3,000/- nor the four nights holidays which were to be granted by RCI as promised in the approval form Annexure P-2 and the letter Annexure P-9. These were complimentaries and had no connection with the Annual Subscription Fee and the same should have been provided to the complainant on the date he became a member of the OP. The contention of the Learned Counsel for the complainant is that infact complimentaries were delayed not only to cause harassment to the complainant but also with a view that he does not avail any benefit from the OPs and on the other hand he has been compelled to shed out the monthly EMIs and Annual Subscription Fee, which was payable after the end of the year during which the complainant would have been permitted to avail complimentaries. This by itself is an unfair trade practice where the OPs gave assurance for providing air tickets and food vouchers with the intention never to allow the same.

9.             The contention of the OP is that rooms in Naukuchiatal resort were not available during the period asked by the complainant but non-availability of rooms is not proved by any evidence.  The OPs have not produced the record pertaining to the said resort to show as to how many rooms are in that resort, when the booking of those rooms was made, for what period those rooms remained occupied and by which of the members.  In the absence of this information we cannot believe the contention of the OPs that the rooms were not available. On the other hand we find sufficient merit in the contention of the complainant that it was a false reply which is not based on facts and was intended to deprive the complainant benefit of the complimentaries, so that he continues asking for the same under the hope of getting benefit thereof and in the meantime, the period of one year is over, so that they can ask for the Annual Subscription Fee of Rs.7,333/- also.  Needless to mention that this amounts not only to deficiency in service on the part of the OPs but also to an unfair trade practice. 

10.           It is therefore a clear example wherein the OPs trapped the complainant on the assurance of giving him some complimentaries, which were not provided promptly.  The complimentaries had no nexus with the Annual Subscription Fee because the complainant was entitled to avail the same immediately on his becoming a member. The dispatch of the air tickets and food vouchers was delayed by the OPs without any justification which shows that they never had the intention to comply with this part of their promise. If this is the attitude of the OPs, the entire agreement between the parties fails and the OPs have no right to retain the amount which they have extracted from the complainant.  It was therefore necessary for the OPs to have refunded the amount there and then, when they were at fault but they did not refund. It would be necessary to order the refund of the amount, so that the OPs do not play cat and mouse with any other member in this manner and the promises made by them are promptly fulfilled. The complaint therefore succeeds.  The same is accordingly allowed. The OPs are directed to refund Rs.1,66,608/- or the total amount received by them from the complainant and stop realizing any further amount from him.  The OPs shall pay interest @9% p.a. on the said amount from the date of deposit till the amount is paid to the complainant.  The OPs have considerably harassed the complainant and are therefore directed to pay him Rs.50,000/- as compensation for mental and physical harassment as well as Rs.5,000/- as costs of litigation.  The entire amount shall be paid/refunded by the OPs within 30 days from the date of receipt of the copy of this order failing which they would be liable to pay the same alongwith penal interest @12% p.a. since the filing of the present complaint i.e. 26.10.2009, till the payment is actually made to the complainant.

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

                                                         Sd/-                                                 Sd/-                                             Sd/-        04.03.2010