DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.
Complaint No: 675 dated 19.11.2015.
Date of decision: 12.11.2018.
Chetan Kumar son of Sh. Ram Pal, R/o. H. No.1138/7, St. No.1, G.T.B. Nagar, Chandigarh Road, Ludhiana.
.…Complainant
Versus
- The Mahindra Holidays & Resorts India Ltd., Having its registered office at Mahindra Towers, 2nd & 3rd Floor, 17/18, Patullos Road, Chennai, through its Director/M.D.
- The Mahindra Holidays & Resorts India Ltd., Having its Branch office at West End Mall, Ferozepur Road, Ludhiana through its Director/M.D./Authorized representative.
- The Mahindra Holidays & Resorts India Ltd., Having its office at Block-A, 5th Floor, Elante Office Suits, Plot No.178-178-A, Industrial Area, Phase-I, Chandigarh through its Director/M.D.
- The Mahindra Holidays & Resorts India Ltd., Having its Corporate office at Mahindra Towers, Ist Floor, A.Wing, Dr. G.M. Bhosle Marg, P.K. Kurne Chowk, Worli, Mumbai-400018 through its Director/MD/Authorized representative.
…..Opposite parties
Complaint under Section 12 of Consumer Protection Act.
QUORUM:
SH. G.K. DHIR, PRESIDENT
SH. VINOD GULATI, MEMBER
COUNSEL FOR THE COMPLAINANT:
For complainant : Sh. Balraj Singh, Advocate.
For OPs : Sh. Som Parkash, Advocate.
ORDER
PER G.K. Dhir, PRESIDENT
1. Complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) filed by complainant by pleading that OP2 contacted him for inducing him to become member of Club Mahindra. Assurance was given to complainant regarding providing of best tour packages with Five Star amenities/facilities throughout India as per schedule of OPs. Complainant was to pay Rs.3,25,000/- for availing said services. It was disclosed to complainant that in case he does not like the provided services of OPs, then he (complainant) will have right to get refund back of the total paid amount after submission of application within 10 days from the date of becoming member. On inducement of OPs, complainant became ready to avail services and paid Rs.50,000/- in cash on 19.08.2015, but Rs.1,06,500/- more through cheque bearing No.050314 dated 19.08.2015. That cheque was got duly encashed by the OPs on 20.08.2015. Thereafter, membership ID No.2648729 was issued to complainant on 01.10.2015 with validity of same up till 30.09.2040. OP2 took post dated cheques from the complainant for remaining payments. On 02.10.2015, complainant went to Manali (H.P.) for family tour by availing benefit of said scheme of OPs. One accommodation known as “Snow Peak Resorts” for two nights and three days was provided by Club Mahindra to complainant, but the complainant was shocked to see the poor quality of rendered services. There was no water facility in the said accommodation and even there was no proper cleaning work done by the staff in the room. Washroom provided to the complainant was stinking like a public toilet. It was very difficult for the complainant and his family to live for a while in that third class accommodation and as such, the complainant left the accommodation on the very next date i.e. on 03.10.2015 instead of scheduled time of 04.10.2015. After reaching Ludhiana, complainant sent email to OPs on 04.10.2015 regarding the inferior quality of facilities provided to him. Request for refund of the membership fee even was submitted. Complainant has not used the gift coupon and holiday package/special offers. Email was received from OPs by the complainant to the effect that OPs are working on the request of complainant and will update the status on or before 12.10.2015, but thereafter no reply received despite contact by complainant on many times for seeking refund of the amount by way of cancellation of membership. By claiming deficiency in service on the part of OPs, prayer made for directing OPs to refund the amount of Rs.1,56,500/- and even return back the cheques given by complainant to OPs. Compensation of amount of Rs.2,00,000/- for financial loss and mental harassment even claimed.
2. In joint reply submitted by OPs, it is pleaded, interalia, as if Mr. Jaiminikumar Shah, Divisional Manager-Legal being authorized representative and attorney holder of OPs is competent to submit the reply. It is pleaded, interalia, as if complaint is baseless and filed for grossly abusing the process of law; complaint is vague and unfounded; complaint is not maintainable because the claim staked for recovery of money simpliciter. It is further claimed that baseless allegations are leveled about the quality of the rooms at “Snow Peak Resort” without any documentary proof in that respect. Allegations regarding undue cleaning of the provided room and of stinking of washroom are denied one by one each, but by claiming that the “Snow Peak Resort” of OPs is one of the finest property in the entire Himachal Pradesh. This resort alleged to be rated as one of the most premium resorts in Manali. Complaint alleged to be filed for wriggling out of the contractual obligations. This complaint has been filed after enjoying facility of the OPs and the complaint alleged to be false and vague one. Admittedly, complainant subscribed to “White Studio Category Membership” of OPs at his own. No inducement for such subscription was made to complainant at all. Only presentation was given to complainant by the representative of OP company for disclosing the benefits of membership. Complainant being fully satisfied with such benefits became member of OP company by signing the member application form on 11.08.2015. Admittedly, the membership ID was issued in favour of complainant on complainant willingly agreeing to make payment through EMIs option. Complainant admittedly made down payment of Rs.1,56,500/- as referred above under 24 EMI plan of Rs.7021/- each. Total membership cost was Rs.3,37,000/-. Complainant was supposed to pay Rs.1,68,500/- as down payment, being 50% of the membership cost. A discount of Rs.12,000/- was provided to complainant and that is why he paid Rs.1,56,500/- towards down payment of membership fee for EMIs referred above. Admittedly, OPs realized the amount of Rs.1,56,500/- from complainant. Complainant after signing the membership application form on 11.08.2015 expressed desire for cancelling the membership on 04.10.2015, apparently beyond the free look period of 10 days stipulated by the terms of the agreement. In view of this, complainant is not entitled for full refund of the paid amount because he was made aware of the refund rules as contained in the contract arrived at between the parties. Complainant is not eligible for any refund amount at all. Allegations regarding providing of poor quality of services to complainant in Snow Peak Resorts denied one by one each by claiming that photographs of the resort rooms and washroom attached with the reply shows the high quality of the modern facilities provided in the said resort to the visiting members. OP company always believes in providing best class services to the members/guests and as such, allegations of providing third class facility vehemently denied in the reply. Moreover as per records of OP company, complainant enjoyed holiday facility with check in date as 02.10.2015, but check out date as 04.10.2015. Registration in the holiday usage statement in this respect is incorporated. Receipt of email dated 04.10.2015 from the complainant by OP company is admitted. It is also admitted that representative of OP company personally met the complainant for resolving the grievance projected through this email. Admittedly call was made to complainant for redressal of these grievances on 02.11.2015. Complainant remained adamant in seeking refund of membership fee, on which OP company wrote back on 18.11.2015 expressing the process for cancellation and refund. Due reply was sent by OP company to complainant. Membership form submitted by the complainant itself contains extracts from the rules. Complainant duly signed Member’s Review for confirmation of Understanding, which provides specifically that in the event of request for cancellation by member after Rescision period, OP shall not be liable to refund the admission fee paid to it. Matter regarding cancellation of the membership or refund of the fee is governed by the membership rules because they are binding on the parties. As per those rules, in the event of cancellation after Rescision period of 10 days, admission fees consisting of 60% of total membership fee is non refundable. So entitlement of refund remains of 40% of the total membership fee, but same refund is subject to other applicable deductions. As per rule 8.1 and 8.2 of the membership rules, withdrawal of the application for full refund can be submitted within period of 10 calendar days from the date of realization of down payment from the members by MHRIL. In case such an application is not submitted within 10 calendar days, then the right of the member to claim full refund lapses. Rule 8.2 quoted for claiming that member can terminate the membership during membership usage period by tendering a request in writing duly signed by the applicant and co-applicant. Further as per this rule, on receipt of such application beyond 10 days period referred above, the said request will be treated as request for cancellation and rules for cancellation will apply. It is claimed that as per clause 1.5 of the contract agreement, admission fee amounting to 60% of the membership price is non refundable, but only 40% of the membership price is refundable. Further rule 8.4 quoted for claiming that deduction of outstanding annual subscription fee together with interest, if any; taxes due; costs of holidays enjoyed by the member in excess of entitlement; or any other amount due to MHRIL etc. has to be made from the amount regarding which entitlement for refund as per rules may be there. In view of this, it is claimed that against membership cost of Rs.3,37,000/-, amount of Rs.2,02,200/-, being 60% of the membership fee, is non refundable. An amount of Rs.1,34,800/- after applicable deduction as such alone is refundable. However, OP company to charge Rs.2,14,685/- from the complainant i.e. Rs.1,80,500/- towards remaining costs of membership + Rs.13,185/- as annual services fund over due for the year 2015 and Rs.21,000/- more as costs of 3 nights stay by the complainant. So the amount recoverable by the OP company is more than what the complainant has paid. Being so, it is claimed that nothing remains refundable to complainant. Rather it is claimed that complainant is under obligation to pay back the balance amount to OP company. Each and every other allegation of complaint denied by praying for dismissal of complaint with exemplary costs.
3. Complainant to prove his case tendered in evidence his affidavit Ex. CA along with documents Ex. C1 to Ex. C27 and thereafter, his counsel closed evidence.
4. On the other hand, counsel for OPs tendered in evidence affidavit Ex. RA of Mr. Jaiminikumar Shah along with documents Ex. R1/1 to Ex. R1/7 and thereafter, closed evidence.
5. Written arguments submitted by complainant only. Oral arguments heard and records gone through carefully.
6. From the contents of the complaint and written reply as well as submitted affidavit Ex. CA and Ex. RA, it is made out that complainant became member of Mahindra Holidays and Resorts India Limited (MHRIL) Club Mahindra scheme of OP on agreeing to pay the amounts as per terms of contract agreement Ex. C1. Details as registered with OPs by complainant are contained in Ex. C9 and copy of the welcome letter sent by the OPs to complainant is produced on record as Ex. C10. After going through these documents Ex. C9 and Ex. C10, it is made out that on complainant along with co-applicant Tanu Marwaha becoming members of holiday facility scheme, down payment of Rs.1,68,500/- was made by the complainant to OPs, out of which Rs.12,000/- was given as rebate to complainant and that is why complainant paid Rs.1,56,500/- to OPs regarding which admission on the part of OPs is there. Holiday start date regarding the facility to be availed by the complainant is mentioned as 01.10.2015 in Ex. C9 as well as in membership detail card Ex. C14. Form submitted by the complainant is produced as Ex. C15. So it is obvious from this documentary evidence that complainant became entitled to avail holiday with OPs w.e.f 01.10.2015 because down payment of Rs.1,56,500/- made by the complainant was accepted for notifying the holiday start date as 01.10.2015 through above referred documents. After going through Ex. C9, it is made out that annual subscription fee payable by the complainant was fixed as Rs.12,996/-. Due date of payment of this ASF is mentioned in Ex. C9 as the date for the same month as holiday start date. This ASF is payable at the same time every year (annually) irrespective of the holiday utilization. Relevant clause regarding payment of annual subscription fee is 1.12 of Ex. C1. After going through this clause 1.12 of Ex. C1, it is made out that ASF is payable by a member towards utilities, upkeep, upgrade and maintenance of CMNR/CMAR membership and reservation services as well as other services provided by MHRIL in connection with Club Mahindra Holiday membership facilities. As per clause 7.1 of Ex. C1, ASF is payable in advance to MHRIL from time to time. So from these clauses of Ex. C1, it is made out that ASF is to be paid by complainant as member of MHRIL in advance. As this amount of Rs.12,996/- payable in advance is due from the month, from which holiday date starts as per contents of Ex. C9 as referred above and as such, keeping in view facts that holiday start date is 01.10.2015 in this case, it has to be held that ASF of Rs.12,996/- is payable by complainant before 01.10.2015, even though he may not have availed the holiday utilization scheme facility. As ASF is payable for maintenance and upkeep of the resorts and that is why this ASF is made non refundable as per clause 7.5 of Ex. C1. Further as per clause 7.5 of Ex. C1 in the event of nonpayment of ASF, it will be deemed that member has committed breach of contract. So certainly submission advanced by the OPs has force that amount of Rs.12,966/- chargeable as ASF by OPs from complainant is non refundable, more so when complainant availed holiday package facility w.e.f. 02.10.2015 to 04.10.2015 by applying for registration and availing the hotel rooms in one of the resorts of OPs at Manali w.e.f 02.10.2015. As the interest of this ASF amount even is claimable and as such, ASF overdue amount of Rs.13,185/- for the year 2015 calculated by the OPs through their own written reply as well as through submitted affidavit Ex. RA is correct. So virtually ASF with accrued interest of Rs.13,185/-is nonrefundable and complainant cannot stake claim with respect to the same as per terms and conditions of the contract because though he made down payment of Rs.1,56,500/-, but he has not paid ASF with accrued interest in advance before availing accommodation in Snow Peak Resort at Manali.
7. It is admitted by the complainant himself that he stayed in the rooms of the above said resort for one day only and as such, the amount proportionate to the demanded amount of Rs.21,000/- for 3 nights stay also liable to be paid by the complainant to OPs. So OPs entitled to recover Rs.7,000/- as costs of holidays enjoyed as per clause 8.4(d) of Ex. C1. However, it is vehemently contended by counsel for OPs that as availing of the facility by the member was subject to registration and as such, OPs entitled to recover the full amount of Rs.21,000/- as costs of holiday enjoyment. That submission of counsel for OPs has no force because it is the case of OPs themselves put forth through written reply as well as affidavit Ex. RA that the rooms in Snow Peak Resort are of best quality rooms and as such, from these assertions of OPs, it is obvious that virtually complainant was made known as if rooms provided in Snow Peak Resort are of best quality and with this hope complainant availed facility in one of the rooms in this Snow Peak Resort. However, complainant was dissatisfied by the third class facilities provided in these rooms and that is why he has to leave the accommodation on next day i.e. 03.10.2015 itself as per contents of complaint and submitted affidavit Ex. CA. So the present is not a case in which complainant had to leave the room in Snow Peak Resort after availing promised/assured first class services.
8. Complainant claims through complaint and submitted affidavit Ex. CA that water facility in the provided accommodation was not available and no proper cleaning work done by the staff provided in the room to him. Another grievance of the complainant is that the washroom provided in that accommodation was stinking like a public toilet. It is on account of these third class facilities that complainant had to leave the accommodation and as such, enjoyment of the complainant for the room was for one day only and not more than that. Case of the complainant is that he after reaching at Ludhiana on 04.10.2015, sent email for refund of membership fee because of the third class facilities provided in the above referred accommodation availed by him at Manali. Copy of the email Ex. C11 dated 04.10.2015 in support of this claim is produced on record. Through this email Ex. C11, it is clarified by the complainant that he has not used the gift voucher and holiday package, but he used one free night facility in Manali at Snow Peak Resort. In response to that email, reply Ex. C12 was sent to the complainant for informing him that work on his request for refund is going on and he will get back the update status on or before 12.10.2015. So present is a case in which complainant immediately after return back from Manali applied for refund after finding third class facility in provided accommodation.
9. Counsel for OPs placed reliance on photographs Ex. R1/4 (numbering 15) for arguing that first class facility with due cleanliness and room toilet facility was provided to each and every customer and same was provided to complainant. This photographic depiction not enough to prove that at the time of availing of room accommodation facility by the complainant due cleaning services were provided or that the toilet was not stinking. Affidavits of the persons who provided cleaning services or who cleaned toilet before providing accommodation to the complainant could have proved that due first class facilities were provided to the complainant by OPs. No such affidavit or affidavits produced and as such, allegations leveled by the complainant regarding third class facilities has to be accepted as correct, more so when the complainant at the earliest through Ex. C11 projected those grievances for leaving the room. This evidence available regarding providing of first class facility qua cleanliness etc. was available with OPs, but same has been withheld and as such, case of the complainant has to be believed in view of Ex. C11 that actually third class facility was provided to complainant, due to which he had to leave the hotel room after enjoying it for one day only.
10. If OPs have produced on record reviews of Face Book Ex. R1/5 for proving that first class facilities are provided by OPs in excellent properties, then to the contrary complainant has also produced on record the Face Book reviews of others for showing the fraudulence of Club Mahindra. These comments on Face Book or You Tube by others as proof of fraudulence are produced as Ex. C16 to Ex. C27. It is not the projection through reviews on Face Book or You Tube that will be enough for proving that due cleanliness services to complainant on 02.10.2015 were provided and as such, contents of Ex. C16 to Ex. C27 or of Ex. R1/5 not of much relevance for determining the criteria as to whether first class facilities were provided to complainant regarding cleanliness on 02.10.2015 or the third class services were provided to him on 02.10.2015. No one after paying hefty amount of Rs.1,56,500/- will opt for being out of the membership in case the excellent facilities are provided and as such, in view of communication Ex. C11 sent by complainant to OPs, it has to be held that promise of providing excellent services not kept by OPs and that is why he has to leave the hotel accommodation room after availing it for one day only. Non providing of promised excellent services in the holiday packaging rooms to complainant by the OPs itself is an act of adoption of unfair trade practice by OPs and as such, liability of complainant to pay for the availed hotel facility room is for one day only. Even if contents of Ex. R1/5 may be establishing that complainant got registered the packaging facility for period from 02.10.2015 to 04.10.2015 by getting reservation registered, but it is not the registration of reservation for accommodation for specific period that matters, but it matters as to whether the due promised excellent services provided to a member from whom hefty amount as down payment collected. Despite receipt of email Ex. C11 dated 04.10.2015 and despite assurance conveyed through Ex. C12 dated 12.10.2015, OPs have not sent any communication to complainant for confirming about the status of his membership until sending of reply Ex.R1/7 dated 18.11.2015 for informing that nothing is payable on cancellation of the membership opted by the complainant. Reason of deduction and of non refund of 60% as admission fee out of the paid total membership fee is mentioned in Ex. R1/7. However the reasons of these deductions is altogether improper, more so when complainant able to prove that OPs adopted unfair trade practice by not providing the assured excellent holiday packing services on 02.10.2015 as discussed above.
11. It is vehemently contended by the counsel for OPs that as complainant did not opt for cancellation of membership within free look period of 10 days as stipulated by rule 1.22 of Ex. C1 and as such, complainant is not entitled for refund of membership fee. Even if rule 1.22 may be providing for withdrawal from membership within 10 days of the date of receipt of down payment by MHRIL, despite that after going through contract as a whole, it is made out that no penalty envisaged by OPs for rendering deficient services or for adoption of unfair trade practice by not providing assured excellent services. So the contract is unconscionable to that effect because he who seeks equality for enforcement of the terms of contract must do equality to the person against him such enforcement is sought. Section 51 of Indian Contract Act provides that when a contract consists of reciprocal promises to be simultaneously performed, no promisor need to perform his promise unless the promisee is ready and willing to perform his reciprocal promise. Burden of performing of reciprocal promise in this case is envisaged by terms of Ex. C1, in pursuance of which complainant made down payment of Rs.1,56,500/- admittedly before issue of ID membership by OPs. After receipt of that down payment by the OPs, it was obligatory on OPs to provide the promised excellent tour package services/facilities and only on doing so, OPs can seek performance of the remaining part of the contract from the complainant, of paying balance costs of membership fee, which is Rs.3,37,000/-. However, OPs themselves failed to provide promised excellent services to complainant on 02.10.2015 and as such, complainant not bound to perform his part of the contract of paying balance amount of membership fee, more so when he projected his grievance through Ex. C1 as discussed in detailed above and more so when OPs did not bother to redress the grievance conveyed through Ex. C11 despite assurance conveyed through Ex. C12 as discussed above. In such circumstances, fault lays with OPs in not abiding by the terms of the contract. As the reciprocal promise undertaken by OPs of providing first class cleanliness facility in the accommodation to be provided to the complainant was breached by the OPs on 02.10.2015 and as such, in view of option exercised by the complainant through Ex. C11 on 04.10.2015 of leaving the membership of OPs, complainant is not bound to pay ASF and other charges except for the period of one year up to 2015. In view of non performance of reciprocal promise by the OPs, complainant was compelled to leave the membership and as such, OPs cannot enforce the unconscionable terms of agreement Ex. C1 of retaining 60% of the membership fee. Unconscionable terms or the adoption of unfair trade practice referred above was not the subject matter of cited cases by the OPs titled as MHRIL Vs Radhika Aggarwal bearing First Appeal No.327 of 2014 decided on 15.10.2014 or of First Appeal No.325 of 2014 titled as Radhika Aggarwal Vs MHRIL or of First Appeal No.358 of 2014 titled as MHRIL Vs Rajni Saini decided on 29.12.2014 or of First Appeal No.105 of 2015 titled as MHRIL Vs Charanjit Singh decided on 06.07.2015 each by Hon’ble State Consumer Disputes Redressal Commission, U.T., Chandigarh and as such, benefit from ratio of these cases cannot be gained by OPs. Rather terms and conditions of Ex. C1 is enforceable to the extent they are conscionable only. The unconscionablity of these terms and conditions of Ex. C1 found to the extent of non refund of 60% of membership fee because OPs committed fault in rendering the promised excellent holiday resort facilities/services as per assurance, which amounts to unfair trade practice. So complainant entitled for refund of the paid amount of Rs.1,56,500/- minus the amount of Rs.13,185/- (ASF with accrued interest) and Rs.7,000/- (availed facility for one night in room at Manali). In view of adoption of unfair trade practice by OPs, they are bound to refund Rs.1,36,315/- out of down payment amount of Rs.1,56,500/-.
12. Submission advanced by counsel for complainant has no force that on Ex. R1/6 signatures of complainant are not there and as such, contents of the same cannot be used against complainant. That submission of counsel for complainant has no force because it is the case of complainant himself that he opted for availing tour package services in hotel resort of OPs w.e.f. 02.10.2015 to 04.10.2015. Admission binds a party and as such, non appearance of signatures of complainant on Ex. R1/6 has no relevancy because contents of Ex. R1/6 regarding registration for reservation are admitted by the complainant himself in the complaint. Date on which membership card received by the complainant is not much material because the Consumer Forum to assume jurisdiction only in case the deficient services provided or service provider adopted unfair trade practice. Non mention of name of hotel in photographs Ex. R1/4 is not much material because of the above discussion. The proof regarding leaving of room by the complainant on 03.10.2015 bound to be with OPs and as such, non production of that record by OPs enough to draw adverse inference against OPs for finding that plea taken by the complainant is correct that he has to leave the provided accommodation at Manali on 03.10.2015 owing to the third class cleaning facilities provided in the accommodation allotted to him for three nights. In such circumstances, benefit of rule 8.4 or of rule 8.1 or of 8.5 not available to OPs except to the extent indicated above. It is not disputed through written arguments submitted by the complainant that total membership fee was Rs.3,25,004/- and as such, it is obvious that virtually total membership fee has not been paid by the complainant to OPs, but only down payment of Rs.1,56,500/- made by the complainant. Number of the post dated cheques handed over by the complainant to OPs not mentioned in the complaint or the submitted affidavit and as such, pleading in that respect remains vague. As refund of Rs.1,36,315/- is ordered through this order and as such, OPs will not be entitled to use the post dated cheques received from the complainant in future and nor complainant will be entitled to use free gift vouchers or the holiday package special offer in future unless a separate contract arrived at or that may be arrived at in future. Complainant sent legal notice Ex. C8 through postal receipts Ex. C4 to Ex. C7 to OPs, but that notice has not been replied. The payment acknowledgement Ex. C13 fortifies the written submission of complainant that total membership fee amount payable was Rs.3,25,004/. No other worth mentioning point argued.
13. As a sequel of above discussion, complaint allowed with direction to OPs to refund Rs.1,36,315/- with interest @9% per annum from the date of complaint namely 19.11.2015 till payment. Compensation for mental harassment and agony of Rs.10,000/- (Rupees Ten Thousand only) and litigation expenses of Rs.5,000/- (Rupees Five Thousand only) more allowed in favour of complainant and against all Ops, whose liability for paying these amounts held as joint and several. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Vinod Gulati) (G.K. Dhir)
Member President
Announced in Open Forum.
Dated:12.11.2018.
Gobind Ram.
