MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the appellants/OPs against the order, dated 4.3.2010 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum) in complaint case No. 1442 of 2009 vide which, it allowed the complaint and directed the OP 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 were further directed to pay interest @ 9% p.a. on the said amount from the date of deposit till its payment to the complainant. The OPs were further directed to pay Rs.50,000/- as compensation for mental and physical harassment and Rs.5,000/- as costs of litigation. The entire amount was directed to be paid  within 30 days, failing which, to pay the same along with penal interest @ 12% p.a. since the filing of the complaint i.e. 26.10.2009, till the payment is actually made to the complainant.

2.         Briefly stated, the facts of the case are, that the complainant became a member of Club Mahindra by invitation on 24.8.2007 for 25 years. It was stated that the OPs not only failed to provide the complainant four one way free air tickets and full compliment of Rs.3,000/- worth 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. It was further stated that despite not having been able to provide the free gifts to the complainant, the OPs sent to the complainant invoice for Rs.7,333/- and another invoice of Rs.7948/- on 2.9.2009 as Annual Subscription Fee on 4.9.2008, which he refused to pay unless he was allowed to avail his freebies. It was further stated that the OPs, on the other hand, took the stand that they will process the request of the complainant for booking under complimentary holidays only if he paid the ASF and for the same reason, he could not avail of the one week complimentary holiday with RCI, which was also part of the freebies promised by Club Mahindra. It was stated that in August, 2008, he wrote to the OPs and sought refund and, thereafter, he received response from them 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.  It was further submitted that while the vouchers were finally delivered, it was later  on transpired that the complainant had to first confirm his four nights complimentary booking in a Club Mahindra Resort before making the flight bookings.  The complainant tried his level best to get the reservation through the online reservation system, but these were not available for months.  It was further stated that in the month of October, 2008, the complainant wrote to his Credit Card Manager (HDFC Credit Cards) to stop all further payment of installments to the OPs but they expressed their inability saying that it could be done only if Club Mahindra was to cancel his membership. It was further stated that the aforesaid acts of OPs amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by the OP wherein they admitted that the complainant got himself enrolled after understanding the membership scheme and he deposited the down payment of Rs.29,161/-.  It was stated that he was not entitled to the offers if he did not pay the ASF to the OPs in full which, he did not pay, despite receipt of two invoices for the years 2008 and 2009.  It was further stated that the OPs sent emails dated 17.9.2008 & 18.9.2008 to the complainant, to clear his ASF dues but he did not pay the same. Thus, his reservation request could not be processed.  It was denied that the OPs did not provide the food vouchers. It was further stated that since the resort was already booked from 8.10.2008 to 12.10.2008, the complainant’s booking could not be confirmed. It was further stated that the OPs offered alternative dates of booking from 12.10.2008 to 22.10.2008 vide email dated 17.9.2008.  It was denied that the complainant ever wrote to the OPs to stop realization of the EMIs or that they (OPs) failed to honour their commitments. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of OPs nor they indulged into unfair trade practice. 

4.         The parties led evidence, in support of their case.

5.       The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of the judgment.  

6.            Aggrieved by the order, passed by the learned District Forum, the appellants/OPs filed an appeal. 

7.         We have heard Sh.Ashim Aggarwal, Advocate for the appellants/OPs, Sh.Sanjeev Kochhar, respondent/complainant in person and, have perused the record, carefully.

8.       The learned Counsel for the appellants/OPs submitted that the learned District Forum erred in allowing the complaint because the complainant was at fault as he did not deposit the Annual Subscription Fee (ASF) for 2008 and 2009. It was stated that, thus, he could not avail of the free offers given by the OPs. It was further stated that the complainant became a member of the OPs on 24.8.2007 and the OPs provided these special offers to the complainant i.e.

1.       4 Air tickets (one way)

2.       4 nights holiday in Club Mahindra resort.

3.       1 week RCI holiday.

4.          Rs.3,000/- worth of food vouchers.

It was further stated that the complainant himself admitted that the invoices dated 1.9.2008 for Rs.7,333/- and 1.9.2009 for Rs.7,948/- towards ASF were duly received by him, which he refused to pay, unless he was allowed to avail the freebies. It was further submitted that the complainant received the balance food voucher, and travel format, for flight booking. It was further submitted that the complainant’s holiday starting date was 1.9.2008 because though initially, he opted for 12 months EMI plan but later on he switched over to 36 months EMI plan. As per 36 months EMI Plan, the holiday starting date was 12 months from the end of the month after admission as member.  However, the learned District Forum erroneously held that he was entitled for the holidays from 1.4.2008, whereas the complainant was entitled to the holidays from 1.9.2008. It was further submitted that the remarks given in para No.6 in the impugned order, against the OPs, be expunged.   It was further submitted that the complainant asked for reservation for the complimentary stay, in a resort, at Naukuchiatal. However, due to the non-availability of accommodation in the resort, on the specific dates, as asked for by him, the OPs were not able to book the same. Due to this reason, the complainant wrote to his Credit Card Company to stop payment of all installments. It was further submitted that the complainant did not write to the OPs to stop EMIs realization or cancel his membership.  However, the OPs offered him to get the confirmation on other dates, but the complainant instead of accepting this offer, stopped the installments of ASF. It was further submitted that as per membership rules,  “a member cannot avail his/her holiday entitlements unless the ASF is paid in full.”  It was further submitted that the complainant is not a consumer, because he has not paid any consideration, as these were complimentary offers. In support of its contention, the appellants/OPs placed reliance on the order passed by the Hon’ble National Commission in case titled as Usha Shriram (Manali) Hotel Pvt. Ltd. Vs. Sri K.S.Santosh, on 29.1.2010. 

9.         The respondent/complainant submitted that on 24.8.2007, he became a member of Club Mahindra for 25 years and the OPs failed to provide what they promised to him. The OPs neither provided four one way free air tickets, and remaining food vouchers worth Rs.1,500/-, nor they facilitated the booking of four nights of complimentary holidays at any of their resorts, as promised. Due to this reason, he did not deposit the amount of remaining installments, which the OPs asked him to deposit vide invoice dated 4.9.2008 for Rs.7,333/- and invoice dated 2.9.2009 for Rs.7,948/-. He further submitted that he asked the OPs to cancel his membership and refund the amount alongwith interest, which he had already deposited with them. It was further submitted that finally when he threatened to cancel his membership then the OPs sent him a travel booking format, and also promised to send the remaining food vouchers worth Rs.1500/-, which were delivered later on.  It was further submitted that the learned District Forum wrongly came to the conclusion that the complainant was entitled to these holidays from 1.4.2008, whereas, in fact he was entitled to holidays from 1.9.2008, as he had opted for 36 months EMI plan and according to that he was entitled to avail of the same after 12 months from the end of the month, after admission.  It was further submitted that, he requested the OPs to book a resort at Naukuchiatal but the OPs refused to book the resort, due to non-availability. He further submitted that he requested the OPs for the booking many times. Rather than booking the resort, on those dates, the OPs suggested him some other dates, which did not suit him. He, thus, ultimately wrote his Credit Card Manager (HDFC Credit Cards) to stop all further payments of installments to the OPs in the month of October, 2008 but they expressed their inability by saying that it could be done only, if Club Mahindra was to cancel his membership.

10.       It is an admitted fact that the complainant became a member of the Club Mahindra for 25 years, after depositing the membership fee. The OPs made a special offer to the complainant i.e. 4 free air tickets (one side), food vouchers worth Rs.3,000/-, and 4 nights complimentary holidays. The OPs failed to provide the same. So far as, the food vouchers worth Rs.3,000/- were concerned,  the OPs handed over the same worth Rs.1500/- in time but the remaining food vouchers worth Rs.1500/- were provided later on to the complainant on his insistence. 

11.     As regards the offer for 4 free air tickets one side, it has been established on record that the complainant became entitled for booking on 1.9.2008 because there is, no doubt, that initially, the complainant opted for 12 months EMI plan but, later on, he switched over to 36 months EMI Plan and, as per this plan, he was entitled to holidays w.e.f. 1.9.2008 and the learned District Forum wrongly held that the complainant was entitled for the holidays w.e.f. 1.4.2008 and the adverse remarks in para No.6 against the OPs are, thus, expunged. It is an admitted fact that the OPs have sent a format for booking of 4 free air tickets one side to the complainant and asked him to mention the name of the destination. In order to get the air tickets booked, the complainant asked the OPs for booking of the resort in Naukuchiatal for specific dates, which they refused because of non-availability of the accommodation on these days.  From the record, it is clear, that the complainant had time and again requested the OPs for the booking but every time, the OPs refused to do so, on one pretext or the other. The OPs failed to convince the District Forum by not showing the document/proof that, on these days, the resort was fully booked. Due to the non-booking of the resort, even after repeated requests, the complainant could neither get his air tickets booked, nor he was able to use the food vouchers. Due to this reason, the complainant got frustrated and did not deposit his ASF. He requested the OPs to refund the amount, which he had already deposited with the OPs. The District Forum was right in holding that the complainant was entitled to refund.

12.     The objection taken by the OPs, at the time of filing the appeal, that the complainant is not a consumer, is baseless because, firstly, the compact package taken by the complainant had to be seen in totality. Had the complainant not paid the consideration, for becoming member, the OPs would not have given these special offers. So, in our opinion, the price of these offers are in-built in the compact package. Secondly, while filing the written statement, before the learned District Forum, the OPs did not take this objection that the complainant was not a consumer. Rather the stand of the OPs, before the District Forum, was that the complainant was not entitled to the relief which he prayed for because he had not paid the ASF. As such, this objection taken by the complainant at this stage, cannot be entertained. 

13.     From the above discussion, we have come to the conclusion that there was deficiency, in service, on the part of OPs, and they also indulged into unfair trade practice. The complainant has every right to ask for the refund of the amount, which he has already deposited with the OPs alongwith interest. Hence, the appeal, being devoid of merit, is dismissed with costs of Rs.3,000/-, and the order passed by the learned District Forum is upheld.

14.          Copies of this order be sent to the parties, free of charge.   

Pronounced.                                                                        

11^th May, 2011.