Per Hon’ble Mr. Justice R.C. Chavan – President:
This appeal is directed against the order passed by the Consumer Disputes Redressal Forum, Pune, allowing the Consumer Complaint No.105/2009.
2. Facts which are material in deciding this appeal are as under:
The Appellant – Mahindra Holidays & Resorts India Ltd., had a scheme of providing membership for enjoyment of holidays in their own resorts in India and in abroad. The Complainant deposited a sum of `73,304/- in cash with the Appellant Company for membership for a period 01.05.2007 to 30.04.2032. The Complainant had selected two bedrooms apartments in Red category. The Appellant admitted the Complainant to memberships by giving Membership no.255255 and also gave to the Complainant welcome kit and food vouchers worth `8,000/-. The Complainant thereafter paid further sums, in all totaling to `2,08,985/- with the Appellant. A friend of the Complainant was got married in February, 2007 and was to proceed abroad immediately. The Complainant therefore sought booking of a Resort at Mahabaleshwar for three days for the friend’s honeymoon. The Complainant confirmed this booking and in turn informed his friend accordingly. The Complainant was informed at the eleventh hour that the booking had to be enjoyed by the Complainant himself and could not be transferred to others, leading to cancellation of the said booking. In December, 2006, the Complainant sought booking of a Resort in Bali, Indonesia from 12.05.2007 to 19.05.2007. This was to be done by affiliate of the Appellant by named RCI. RCI confirmed this on 5th December, 2006. Complainant’s brother was to get married on 18.05.2007 and therefore, on 09.01.2007 i.e. more than four months in advance the Complainant sought rescheduling of the booking but the Appellant as well as the affiliate refused to reschedule the booking. Therefore, ultimately on 1st March, 2007, the Complainant requested for cancellation of the membership and sought refund. Ultimately, on 7th April, 2007 Appellant informed the Complainant that a sum of `1,25,391/- would be deducted towards charges for cancellation of membership, `7,500/- towards RCI enrollment charges, `8,000/- towards food vouchers, in all `1,40,891/- and offered to refund a sum of `68,094/- only. Aggrieved thereby the Complainant approached the Forum.
3. The Appellant contested the complaint claiming that the dispute be referred to arbitration in terms of membership rules. It was also stated that since the complaint was only for refund of money, the Complainant had to approach Civil Court rather than Consumer Forum. It was further stated that the rules provided for enjoyment of facilities at the Resorts by the members, but when friends of members were to enjoy such facilities some additional fees had to be paid. Since this additional fees were not paid by the Complainant booking at Mahabaleshwar had to be cancelled. As far as failure to reschedule the booking for Resort at Bali in Indonesia, it was stated that the booking had been confirmed by RCI. In the confirmation letter RCI clearly stated that booking would not be rescheduled. It is stated that since RCI had not been made party the complaint had to be dismissed. It is stated that as per Rule 6.2 the Complainant was entitled to an amount of `68,094/- which was offered to the Complainant and therefore, there was no force in the complaint.
4. After hearing the parties, the Forum came to pass the impugned order. Aggrieved thereby the Appellant is before us. We have heard Ld.Counsel for the Appellant and Ld.Counsel for the Respondent.
5. There is no dispute about deposit of sum of `2,08,985/- by the Complainant as also about the fact that the Complainant has in fact not enjoyed any of the facilities offered by the Appellant. Likewise it cannot be disputed that the Complainant did not in fact utilize the food coupons. In the background of these facts it will have to be found out whether the Complainant is entitled to refund as claimed by him. As to the first two contentions of the Appellant about existence of an arbitration clause or the Complainant being required to approach Civil Court, we may observe that the remedies available under the Consumer Protection Act are in addition to those under the other statutes and therefore, this remedy is not barred.
6. As far as claim being for only refund of the money, we may observe that the claim for refund arose in very peculiar circumstances where the Complainant could not avail all the facilities offered. As far as enjoyment of facilities at Mahabaleshwar is concerned there is nothing to show that the Complainant was made aware when he applied for membership that he had to pay some additional charges for gifting facility to a friend and therefore, the embarrassment which the Complainant suffered when his friend had to be told that he could not enjoy the facilities can well be imagined. As far as booking of resort at Bali in Indonesia is concerned, here too it is not that the Complainant had sought unreasonable rescheduling at the eleventh hour. Booking was made in the month of December, 2006 and rescheduling was sought on 9th January, 2007. The booking was for a period from 12.05.2007 till 19.05.2007. Therefore, we do not see as to how and as to why the rescheduling could not be reasonably done, may be at some cost, because there was sufficient time between the date of booking and the period for which the Resort was sought to be booked.
7. Ld.Counsel for the Respondent submitted that by his e-mail dated 14th April, 2007, the Respondent had in fact pointed out that the deduction sought to be made was on higher side and that he did not see logical basis of deduction. It is not that the Respondent was not amenable to a reasonable deduction. Ld.Counsel for the Appellant on the other hand submitted that the Respondent had confirmed having read the membership rules while applying for membership. Rules, 6.1 and 6.2 of the rules clearly provide for deductions. The clause 6.1 and 6.2 read as under:
Rule 6.1: In the event of termination/cancellation of CMHM, the following shall apply:
Recession Period Termination/Cancellatgion:
Withdrawal of application for CMHM shall be permitted within the Recession Period which is 10 day as from the date of application, provided such request for withdrawal is made in writing and signed (by both the Applicants/Members, in case of Joint Membership) and reaches MHRIL within 10 days from the date of application. In the event of such withdrawal, MHRIL shall refund the entire amount received from the Member towards Membership Fee within 30 days from the date of receipt of request for withdrawal. In the case of joint applications, refund shall be made to the first applicant only.
Post Recession period termination / cancellation (by Applicant/Member / MHRIL):
a) In the event of withdrawal of the application by an Applicant beyond 10 days from the date of application, the Applicant shall not be eligible for any refund of the amounts of the AF paid by him.
b) 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. The Member shall not be entitled to any refund of the AF. For the sake of clarity, the Member shall not be entitled to the refund of any service tax that may have been paid by MHRIL in connection with the CMHM.
c) MHRIL reserves the right to terminate the CMHM on occurrence of any of the following events:
· Default in payment of Membership Fee by the Member.
· Default in payment of ASF for two consecutive years by the Member.
· Breach of House Rules of CMR by the Member
· Breach of Contract by the Member.
· Any other action by the Member or occurrence of any event or situation giving MHRIL a right to cancel/terminate the Membership.
Rule 6.2: Upon termination the following deductions shall be made by MHRIL from the amounts paid by the Member towards the EF:
a) Pro rated EF for the period (in years) from the start of Membership Usage Period to the date of termination. Part of the year shall be treated as full year for the purpose of calculating the deductions.
b) Outstanding ASF together with interest if any.
c) Taxes due.
d) Cost of Holidays enjoyed by the Member in excess of entitlement;
e) Any other amount due to MHRIL
8. We have not been able to make out as to how the deduction of 60% of the amount deposit was justified. Further, we find that when the Appellant had taken hefty amount for its membership, it should have been more careful in drafting rules to make them more intelligible to a layman. In the rules quoted above, there are several abbreviations used like CMHM, MHRIL, AF, EF etc. for each of which abbreviation the member would have to grope elsewhere. Drafting the rule in such a manner which would not make them intelligible to a layman would itself, in our view, amount to unfairness. We find that the Complainant had in fact not utilized any of the facilities of the club. Appellant has not shown as to what were the taxes were paid by the Appellant or what were the costs incurred by the Appellant in processing the application of the Complainant. Had the Appellant given all these details, we could have permitted the Appellant to claim those deductions. In fact, the Complainant himself had clearly shown such a willingness in his e-mail dated 7th April, 2007 when he communicated that cancellation charges were apparently at a higher side.
9. We find that at the time of inducing people to accept membership appellant had given all sorts of promises and then in fine print rules are prepared and framed in such a way as to deprive members of the facilities.
10. On behalf of the original Complainant reliance was placed on the judgement of State Consumer Disputes Redressal Commission, Union Territory at Chandigarh in Appeal No.157/2010 filed by the Appellant – Mahindra Holidays and Resorts India Ltd., itself, holding that the Appellant was liable to compensate the Complainant. The Complainant had placed reliance on judgement of this Commission again of an appeal by the Appellant bearing Appeal No.986/2007, wherein this Commission too held that the Appellant is liable to compensate a member. The State Commission of Delhi also in Appeal No. 1286/2006 had held that the Appellant - Mahindra Holidays & Resorts India Ltd., responsible for deficiency in service.
11. In view of the fact that the Appellant chose to frame rules in an unintelligible manner and sought to make unreasonable deduction of charges, we find that the Forum was justified in granting the refund of the entire amount (which was deposited by the Complainant) with interest with compensation of `10,000/- and costs of `1,000/-.
12. In view of this, the appeal is dismissed with costs quantified at `5,000/-.
Pronounced on 12th December, 2013.
