BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

C.C. No. 286/2014 Filed on 23/07/2014

ORDER DATED:  29/03/2023

ORDER

SRI. VIJU V.R : MEMBER

           The complainant has presented this complaint before this Commission under section 12 of the Consumer Protection Act 1986.  The brief facts of the case is that the complainant purchased a membership of Club Mahindra Holidays by paying the requisite cost of membership for Red Studio Apartment and he was issued with membership certificate.  The membership is valid from 04/2002 to 03/2035.  The complainant had been paying the annual subscription free applicable for his membership.  In the year 2010 one of the marketing executives of the opposite parties 1 to 3 approached the complainant and introduced the added advantages of Red One Bed Room membership, if the complainant upgrade to that category by paying an additional amount of Rs.1,13,830/- in EMIs.  The complainant has paid the first instalment of Rs.11,383/- on 30/04/2010 and the balance was payable in 6 EMIs.  On payment of first EMI, the opposite parties 1 to 3 informed the complainant that his membership was upgraded to one bed room category and that he can avail the benefits attached to the said membership category.  However the opposite parties 1 to 3 did not demand the balance EMIs for one bed room scheme and hence the complainant could not pay the same as he has forgotten to pay the balance.  In November 2011 one of the executive of the opposite parties 1 to 3 introduced another scheme named as purple scheme to the complainant, for getting more benefits by paying an additional amount of Rs.2,95,699/- in EMIs. Assuring that the complainant can book rooms and have holidays at any time without any waiting period.  Trusting the assurances the complainant has paid an amount of Rs.45,727/- as first EMI for the up gradation to scheme.  For the balance EMIs complainant has issued 11 cheques each for Rs.20,831/- as demanded by the opposite parties 1 to 3.  The opposite parties 1 to 3 have encashed all those cheques.  Complainant was under the firm and genuine belief that the membership might have been upgraded to ‘Purple’ as assured by the opposite parties 1 to 3.  The complainant on 27/03/2014 send a mail to the opposite parties 1 to 3  for booking room for having a pleasure vacation with his family in the month of April 2014.  But he was shocked to receive a reply notice from the opposite parties 1 to 3 stating that his membership was cancelled and they are not able to book holidays for the complainant.  The reason for cancellation of the membership was due to the dishonour of one of the cheques issued by the complainant.  On enquiry with the bankers, complainant came to know that the last EMI cheque dated 07/12/2011 for an amount of Rs.20,831/- was dishonoured.  Bu the opposite parties 1 to 3 neither informed the complainant regarding such dishonour nor demanded for any such payment.  The opposite parties 1 to 3 have collected a total sum of Rs.2,74,868/- from the complainant by cash and cheque payment under the guise of upgrading membership to purple scheme.  If the opposite parties 1 to 3 could have informed the complainant regarding the dishonour cheque, he could have paid the same.  So also if the last EMI for up-gradation was not paid by the complainant then also it can be said that the up-gradation of his membership to purple scheme was not completed or at the most the up-gradation was cancelled.  The complainant issued a lawyer’s notice to the opposite parties 1 to 3 stating all these facts.  The opposite parties 1 to 3 issued a reply notice denying the allegations raised by the complainant.  The opposite parties 1 to 3 have utilized the amount received from the complainant for their business purpose and has been earning profit with the money of the complainant.  Now the opposite parties 1 to 3 are saying that the original membership of the complainant which has validity up to 03/2035 was also stands cancelled.  As per the scheme of the opposite parties 1 to 3, the complainant can avail altogether 7 days holidays in a year.  If the facility is not availed for the current year the same will be carried forward to the next year.  The complainant has not availed the holiday facility for the year 2013 and hence he could avail 14 days of holidays in 2014.  But the complainant has to spend Rs.1,50,000/- for the vacation due to the denial service for the year 2014.  The act of the opposite parties 1 to 3 amounts to deficiency in service and unfair trade practice. 

The opposite parties 1 to 3 entered appearance and jointly filed version.  The opposite parties 1 to 3 have averred that the complaint is not maintainable either in law or on facts.    The complainant who has been convinced on the salient features of the membership has agreed to become a member & was allotted membership under the season-Red and had opted for apartment – studio.  Complainant had accordingly singed membership application form along with membership rules on 31/10/2001.  The complainant was fully award contract.  The period of the membership was 33 years commencing from 01/04/2002 to 01/04/2035. As per the terms and conditions of membership, a member is required to pay the required membership fee as per the season opted by the complainant.  The complainant was fully aware of the membership rules and he had acknowledged the terms and conditions governing the membership as well.  The complainant had opted for season ‘Red Studio’.  The total membership price of the product was Rs.1,59,000/-.  The complainant had agreed to pay the said amount by equal monthly instalments.  He had paid a down payment of Rs.15,900/-.  The complainant had agreed to pay the balance amount in 12 instalments @ Rs.11,925/- by way of equated Monthly Instalments.  The said amounts were paid by the complainant.  The averment that the certificate of membership is valid from 04/2002 to 03/2005 is not correct and hence denied.  Subsequently, complainant on his own accord and volition had agreed to upgrade his apartment type from STUDIO to RED 1 Bedroom in the year 2010.  Subsequently, the complainant during the year 2012, had upgraded the season from ‘Red 1 Bedroom’ to ‘Purple’ season, the apartment type being ‘one Bedroom’ as per his earlier request to upgradation.  The complainant opted to upgrade his membership from Red Studio to Red One Bed Room membership out of his own volition and interest.  For the said upgradation, he had agreed to pay down payment of Rs.11,383/- along with 12 EMIs amounting to Rs.8,253/- per month totalling to Rs.1,10,419/-.  The complainant had honoured only the down payment of Rs.11,383/-.  The remaining 12 EMIs amounts to Rs.99,036/- were not paid.  The allegation that on payment of Rs.11,383/- on 30/04/2010, that the membership of the complainant was upgraded to one bed room category is false.  Thereafter the complainant demanded to upgrade to higher season.  Being the member of opposite parties 1 to 3 they have agreed to upgrade for the same to a higher season by paying a differential amount of Rs. 45,727/- and the remaining sum to be paid by way of 12 EMIs amounting to Rs.20,823/- per month.  But the complainant had honoured only 11 EMIs and he committed default in making the payment of one EMI of Rs.20,831/-.  Thus the complainant had paid only a sum of Rs.4,45,251/- out of the total of Rs.5,65,119/- payable by him.  The complainant had deliberately suppressed the material fact that the he had enjoyed many numbers of holidays at opposite parties 1 to 3 resorts.  The opposite parties 1 to 3 made repeated remainders to the complainant regarding the non payment of EMIs.  The complainant was fully aware of the dishonour of the last EMI cheque.  As per clause 5.5 of the membership rules, if any dues happened to the payment of any instalment the opposite parties 1 to 3 shall have the right to cancel the membership without any notice what so ever.  The complainant has a outstanding balance of Rs.1,19,864/- payable to the opposite parties 1 to 3.  The allegation that the opposite parties 1 to 3 have utilized the amount received from the complainant for business purpose and for earning profit is absolutely false.  The averment that the due to the alleged deficiency in service of the opposite parties 1 to 3 the complainant and his family could not enjoy the vacation and they had suffered a loss of Rs.1,50,000/- are absolutely false.  There is no deficiency in service from the part of the opposite parties 1 to 3, hence the complaint may be dismissed with cost to the opposite parties 1 to 3. 

   Issues to be ascertained:

(i). Whether the complaint is maintainable or not?

(ii). Whether there is any unfair trade practice or deficiency in service

from the side of opposite parties 1 to 3?

(ii). Whether the complainant is entitled to get the reliefs?

Issues No.(i):- The question of maintainability has already been adjudicated by this Commission in IA.98(A)/2017. 

Issues (ii) & (iii):- Both these issues are considered together for the sake of convenience.  The complainant has filed Proof affidavit and has produced 3 documents which were marked as Exts.A1 to A3 (series).   Opposite parties 1 to 3 also filed proof affidavit and has produced 4 documents, which were marked as Exts.B1 to B4.  Both parties filled argument note.

                              It is admitted by the opposite parties 1 to 3 that the complainant was one of their member.  It can be seen from Ext.A1 that the period of validity of membership of the complainant is from 04/2002 to 03/2035.  It is contended by the opposite parties 1 to 3 that the membership of the complainant was cancelled due to the non payment of one EMI.  The complainant has first opted for season Red Studio and has made the payment in 12 installments as admitted by the opposite parties 1 to 3. After that the season was upgraded to Red 1 bed room in the year 2010 by the opposite parties 1 to 3 with the consent of the complainant.  The amount for the upgradation of the was Rs.1,10,419/-, but the complainant has paid only Rs.11,383/- and the balance amount of Rs.99,036/- was due to the opposite parties 1 to 3. During this due period the opposite parties 1 to 3 again upgraded the season from Red 1 bed room to Purple season by collecting a differential amount of Rs.45,727/- from the complainant &  the remaining amount was Rs.20,823/- by way of 12 EMI’s.  The complainant has paid 11 EMI’s, but made default in paying one EMI.  As per Exts.A1, B1 & B3 if a member makes any default in paying the instalments the opposite parties 1 to 3 will have the right to cancel their membership.  The allegation of the complainant that Ext.B1 was not given to him cannot be taken into consideration as it can be seen from Ext.A1 that the rules were attached with Ext.A1.

            Even though the complainant had not made the full payment required to upgrade to Season Red 1bed room the opposite parties 1 to 3 had not cancelled the membership but upgraded again to purple.  So it clear that the opposite parties 1 to 3  have not acted as per Exts.A1,B1 & B3 and hence they have no right to cancel the membership of the complainant for the default one EMI.  It is contended by the opposite parties 1 to 3 that they have given repeated remainders to the complainant regarding the default committed by the complainant in paying one EMI, but they have not produced any evidence to prove the same. The opposite parties 1 to 3 cannot act according to their whims and fancies in interpreting the contract entered between them and the complainant.   Hence we find that the cancellation of membership of the complainant by the opposite parties 1 to 3 in an unilateral way amounts to deficiency in service.

                    In the result, the complaint is partly allowed. The  Opposite parties 1 to 3 are jointly & severally  directed to upgrade the membership of the complainant to purple scheme by receiving the defaulted EMI of Rs.2,0831/- with 6% interest from the date of dishonour of the cheque and pay Rs.15,000/- (Rupees Fifteen Thousand Only) as compensation to the complainant for the mental agony suffered by the complainant and pay Rs.2,500/-  (Rupees Two Thousand Five Hundred Only) towards the cost of the proceedings within one month from the date of receipt of this order failing which the entire amount except cost carries interest @ 9% per annum from the date of order till realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 29^th  day of March,  2023.

             Sd/-

P.V.JAYARAJAN                 : PRESIDENT 

          Sd/-

PREETHA G. NAIR              : MEMBER    

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                                                                 VIJU V.R                          : MEMBER

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C.C. No. 286/2014

APPENDIX

  I         COMPLAINANT’S WITNESS:

II          COMPLAINANT’S DOCUMENTS:

III         OPPOSITE PARTY’S WITNESS:

IV        OPPOSITE PARTY’S DOCUMENTS:

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PRESIDENT

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