Henry Joseph, S/o Joseph Thomas, A-12, Chrysalis Villa, Puthalath Temple Road, North Kalamassery, Ernakulam.

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Complainant

(Rep. by Advs. C.V. Manuvilsan, Vidya Rajan vishnuraj, M/s. Lex Loci. Associates, High Court of Kerala, A.P.M. Building, North Railway Station Road, Kochi-18)

And

1.

M/s.Mahindra Holidays & Resorts India Limited, Registered Office at Mahindra Towers, 2^nd Floor, 17/18, Patullos Road, Mount Road,
Chennai- 600 002, Tamilnadu, India

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Opposite parties

(o.p. 1 to12 rep. by Adv.P.J.Philip, High Court of Kerala, 57/1, Chilavannoor Road, Kochi- 682 020

2

M/s.Mahindra Holidays & Resorts India Limited, Corporate Office at Mahindra Towers, 1^st Floor, “A”Wing, Dr. G M Bhosle Marg, P.K. Kurne Chowk, Worli, Mumbai- 400 18

3

M/s.Mahindra Holidays & Resorts India Limited, Marketing Office at 1^st Floor Emgee Square, Padma Junction, M.G. Road, Cochin- 682 035

4

Mr.Arun Nanda, the Chairman, Mahindra Holidays & Resorts India Limited, Mahindra Towers, 2^nd Floor, 17/18, Patullos Road, Mount Road, Chennai-600 002, Tamilnadu, India

5

Mr. Rajiv Sawhney, the Managing Director &CEO, Mahindra Holidays & Resorts India Limited, Mahindra Towers, 2^nd Floor, 17/18, Patullos Road, Mount Road, Chennai- 600 002, Tamilnadu, India

6

Mr.Cyrus J Guzde, Director, Mahindra Holidays & Resorts India Limited, Mahindra Towers, 2^nd Floor, 17/18, Patullos Road, Mount Road, Chennai- 600 002, Tamilnadu, India

7

Mr.Uday Y Phadke, Director, Mahindra Holidays & Resorts India Limited, Mahindra Towers, 2^nd Floor, 17/18, Patullos Road, Mount Road,
Chennai- 600 002

8

Mr.Vineet Nayyar, Director, Mahindra Holidays & Resorts India Limited, Mahindra Towers, 2^nd Floor, 17/18, Patullos Road, Mount Road, Chennai- 600 002, Tamilnadu, India

9

Mr. Rohit Khattar, Director, Mahindra Holidays & Resorts India Limited, Mahindra Towers, 2^nd floor, 17/18, Patullos Road, Mount Road,
Chennai- 600 002, Tamilnadu, India

10

Mr.Sridar A Iyengar, Director, Mahindra Holidays & Resorts India Limited, Mahindra Towers, 2^nd Floor, 17/18, Patullos Road, Mount Road, Chennai- 600 002, Tamilnadu, India.

11

Ms.Priya George, The Contact Person, Mahindra Holidays& Resorts India Limited, 1^st Floor, Emgee Square, Padma Junction, M.G. Road, Cochin- 682 035

12

Ms. Ramya, the Marketing staff, Mahindra Holidays & Resorts India Limited, 1^st Floor, Emgee Square, Padma Junction, M.G. Road,

Cochin- 682 035

O R D E R

Beena Kumari V.K. Member

1) A brief statement of facts of this complaint is as stated below:

The complainant Sri. Henry Joseph is the sole proprietor of M/s. ABC-Indo-US Academy which is doing Training and Recruitment business at several training centres in India. The 1^st opposite party- M/s. Mahindra Holidays & Resorts India Ltd. (Herein after referred to as MHRIL in short) is a leisure hospitality provider and the said company is having its registered office in Chennai and its corporate office in Mumbai (opposite party 2). The opposite parties 4 to 10 are the Directors of MHRIL and the opposite party 3 is the marketing office of MHRIL in Cochin, the opposite party 11 is the contact person and the opposite party 12 is the Marketing staff of MHRIL Cochin. Attracted by the promises and assurances of the representatives of MHRIL in Cochin, the complainant had taken up the membership of Club Mahindra and the complainant selected Munnar, from the location options offered by the opposite parties, as the place to stay. For the said stay the complainant and his wife attended the 2 hour orientation/information session at the 3^rd opposite party- Marketing Office at Padma junction, Ernakulam. During which session the 12^th opposite party, the contact person for and on behalf of MHRIL, informed the complainant that the complainant can always opt for holidays in peak purple season and in that case 2 days holiday will be deducted as penalty from the total entitlement of 7 days holiday in India every year and the complainant can avail another 7 days Holiday abroad every year for which the complainant has to pay an additional amount of Rs.14,000/- every time of availing such holiday. The opposite party company was also charging Rs. 13,500/- every year as maintenance charges in the name of ASF ie., Annual Subscription Fee. The complainant opted for 'Red' season which is just below the top peak season 'Purple' on an initial down payment of Rs.59,992/- for single bed room apartment for holiday enjoyment at the properties or Resorts of the opposite party -Company and agreed to pay Rs.399,948/- in EMIs of 8,725/- month which is inclusive of interest. It is contended by the complainant that none of the opposite parties bothered to explain their Rules and Regulations while taking the membership and demanded the complainant to pay ASF without explaining what 'ASF' means. The request of the complainant to arrange a meeting with any of the responsible officers of MRHIL to find solutions to the issues faced by the complainant was not considered by the staff of the opposite party company. Hence this complaint is filed seeking orders from this Forum to declare the act committed by the opposite party as deficiency in service, to direct the opposite party company to change the membership from Red season to Purple season without charging any additional amount, to direct the opposite party company to provide accommodation in any of the locations in Purple season, to direct the opposite party company to provide the promised services in its full extent without charging any additional amount, to direct the opposite party company to pay Rs 20 lakhs towards compensation for the negligent and deficient service and to pass such other orders as the Forum deems fit in the interest of justice.

2. Notices were issued to all the opposite parties from this Forum and the opposite party company filed their version for all the opposite parties No. 1 to 12.

3. Version of the opposite parties No. 1 to 12.

The complaint is liable to be set aside since the complainant failed to establish any case of deficient service and suppressed several facts from the Forum. There are no materials on record to substantiate the claim of the complainant, that as per Exclusion Clause No.13.3 of the contract between the complainant and the opposite party – Company provides that only the Civil Court in Chennai shall have jurisdiction to entertain this complaint, even if it is found that the arbitration clauses in 13.1 and 13.2 will not take away the jurisdiction of the redressal Forum, the complaint can be filed only before the concerned District Forum in Chennai. Hence, this complaint is not maintainable before this Forum without prejudice to the above contention, it is submitted that the opposite party company, a reputed leisure hospitality provider in India, offers quality family holidays primarily through vacation-ownership membership and in order to become a member every individual has to execute a valid membership agreement on payment of the required membership fee and the membership entitlements, privileges and enjoyment of holiday vacations at the properties or resorts of the opposite party company are strictly based on complete payment of membership fees or other charges without any dues on the date of availing the holidays. The membership entitlement is subject to the terms and conditions of the agreement executed between the complainant and the opposite party -company and the obligations of the opposite party company are governed by the said contract. It is submitted that there are 4 seasons namely, Purple, Red, Blue and White and a member is entitled to vacation at the resorts according to his option of the season. Only in purple season a member can enjoy holiday through out the year. The 1^st opposite party company -MHRIL denied the averment of the complainant that the opposite party company made the complainant a victim of the foul play of 1^st opposite party company, that a firm by name M/s. ABC Indo US Academy having its address at Jose building, Jose junction, M.G. Road, Ernakulam, Kerala represented by Mr.Henry Jose had become a member of the 1^st opposite party company after satisfying themselves the terms and conditions of the membership and thereafter a membership ID No.1389838 was allotted to the complainant that the complainant had on his own accord signed the Membership Application Form (MAT) along with membership Rules on 03.10.2008. The complainant was offered with the offers as follows:

a) 5 nights at any of the resorts of the 1^st opposite party (valid till
15-12-2009)

b) 1 week, Resort Condominium International (RCI) holiday (valid till 31.05.2010) :Terms subject to realisation of 15% of Membership fees.

c) Sony Bravia 32 LCDTV (valid till 29-09-2009): Terms : 45 days from

date of realization of Down Payment and first 2 EMIs.

500. Rs. 3000/- worth food vouchers (valid till 01.05.2011) Terms:

redeemable at Resort.

The complainant had admittedly availed clause (c) of the above and the said Sony Bravia LCD TV was dispatched to the complainant on 19.02.2009. It is submitted that the complainant had attended the orientation held by the 3^rd opposite party at Padma Junction, Cochin in order to avail 2 days free stay in one of the Resorts of the 1^st opposite party company, that the orientation/information was not a business tactics of the opposite party as alleged by the complainant, that the complainant was offered with 7, nights in Red season membership since 'purple' season was not offered at that particular point of time. All other averments of the complainant were denied by the opposite party- company. It is submitted that all bookings are done through online reservation system and the welcome call for the complainant was completed on 10.11.2008 and the complainant was required to make any booking of the holiday prior to 15 days of such requirement as per the terms of the contract signed with the 1^st opposite party company. The complainant had availed holidays against exchange with Resort condominium International (RCI) Awana Genting Heights and golf Resort, Malaysia for the period from 16.04.2010 to 23.04.2010 and the complainant was duly informed about the policy and procedures relating to exchange of holidays with RCI/about RCI associated facilities and about the Annual subscription Fees (ASF) which is payable for the upkeep and maintenance of Resorts. Accordingly ASF charges of Rs.41,313 for 3 years at the rate of Rs.13,431/- per year was demanded by the opposite party- company vide invoice dated 01.05.2012. The total membership price amounted to Rs.399,948/- and the complainant had opted to pay membership fee by way of Down payment of Rs.59,992/- along with 60 instalments totalling to Rs.5,83,492/-. Subsequently the complainant requested for 'purple' season but he was not ready to pay the difference in the product price of purple season and 'red' season. It is submitted that the 1^st opposite party- MHRIL has acted in accordance with the terms of the contract and has not committed any offence as alleged by the complainant and the demand of Rs.20 lakh by the complainant towards compensation only proves that the demand is with ulterior motive. The 1^st opposite party- MHRIL, for the reasons stated above, sought for the dismissal of the complaint.

4) The issues to be decided in this case are,

Issue No. (i) : Whether this complaint, is maintainable before this Forum?

Issue No. (ii) :If so, whether the complainant has proved deficiency in service or unfair trade practice, if any on the part of the opposite parties?

Issue No. (iii) : Whether the opposite parties are liable to offer peak season to the complainant in the circumstances of the case?

Issue No. (iv) : Whether the opposite parties are liable to pay compensation of Rs.20 lakhs to the complainant along with costs?

5. The evidence in this case consisted of the oral evidence adduced by the complainant as PW1 and the documentary evidences marked as Ext. A1, A2, A3 series, A4 and A5 on the side of the complainant. The opposite parties produced documentary evidences marked as Ext. B1 to B6. The opposite parties adduced no oral evidence.

6) Issue No. (i)

The complainant Sri. Henry Joseph is the proprietor of M/s. ABC Indo US Academy which is doing Training and recruitment business at several training centres in India. The complainant had taken up the membership of 1^st opposite party company M/s. Mahindra Holidays and Resorts India Ltd. (MHRIL in short) and Exbt. B1 is the Original Membership Application Form furnished by the opposite party company which shows that Membership of Club Mahindra Holidays was issued to M/s. ABC Indo Us Academy, a proprietory concern run by the complainant, on 03.10.2008 on down payment of Rs.59,992/- by the complainant. The name of the complainant is also shown as co-applicant in the above application Form and the complainant had opted 'red' season with 1 Bed room apartment and has declared that the details furnished therein are accurate and he had put his signature and affixed the stamp of the proprietorship in the Membership Application Form. The 1^st opposite party M/s. MHRIL contended that this Forum has no jurisdiction to entertain this complaint. Since as per clause No. 13.3 of the contract entered into between the complainant and the 1^st opposite party- M/s. MHRIL only the Civil Court in Chennai shall have jurisdiction to entertain this complaint and if the the arbitration clause will not take away the jurisdiction, the complaint can be filed only before the District Forum, Chennai. We are not inclined to accept the above contentions since Section 11 (ii) of the Consumer Protection Act, 1986 specifically states that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the opposite party or each of the opposite parties.........actually and voluntarily resides or carries on business or has a branch office or personally works for gain.... In the instant case, the 1^st opposite party – M/s. MHRIL has a branch office or Marketing Office in Ernakulam which office is arrayed as 3^rd opposite party. The complainant as a 'consumer' is therefore by specific provision in the Act entitled to file this complaint before this Forum and this Forum has ample jurisdiction to entertain this complaint. The 1^st issue is decided in favour of the complainant.

7) Issue No. (ii)

The complainant had made a down payment of Rs.59,992/- and agreed to pay further EMIs of Rs 8,725/- per month for 60 instalments. The complainant as PW1 deposed before the Forum that he had made 30 EMIs. But, through an additional affidavit dated 22.07.2015 the complainant stated that actually he had paid 36 instalments as evidenced by the Exbt. A2 Member Payment Statement dated 05.11.2012. Thus an amount of Rs.3,14,100/- was paid by the complainant in addition to the down payment of Rs. 59,992/-. The case of the complainant is that he had contacted the 3^rd opposite party – Marketing office of M/s. MHRIL Cochin on several occasions and informed them about the fraudulent information given by the 11^th and 12^th opposite parties that the complainant can opt for peak 'purple' season at any time and in that case, 2 days holiday will be deducted as penalty from the total entitlement of 7 days holiday and the request of the complainant to meet any of the responsible officers of M/s. MHRIL to find solutions to the issues faced by the complainant was denied. This amounted to deficiency in service on the part of the opposite parties. Another complaint raised by the complainant is that the opposite parties did not bother to explain their Rules and Regulations and the opposite party demanded payment of ASF without explaining what 'ASF' means. The complainant as PW1 deposed that the opposite party issued Exbt.A1 member invoice after getting the Legal Notice from the complainant. We have verified Exbt. B2 Membership Rules with the help of magnifying eye glass. We are unable to decipher anything with regard to the abbreviations made therein such as 'EF' ASF, CMH etc. Moreover the 11^th opposite party – contact person misrepresented that the complainant can always opt for holidays in purple season with total entitlement of 14 days, 7 days in India and 7 days abroad. We find that the opposite parties give all sorts of promises at the time of introducing the complainant to accept the membership in the opposite parties Club Mahindra and supply their Rules in fine print which were prepared unilaterally and the Rules are framed in such away as to deprive the complainant of facilities in accordance with the payment made. To understand each of the abbreviations in the Rules, a prospective member would have to grope else where. Drafting the agreement or Rules in such a manner would itself amounted to unfair trade practice on the part of the 1^st opposite party- MHRIL. Here the complainant had to shell out a large amount of money ie., Rs. 434012 (59992 + 374020) to avail the holiday facility in the resorts of the opposite party – company as evidenced by Exbt. B1 original Membership Application Form and Ext.A2 Member payment statement. It is contended by the complainant that he could not utilize or avail any of the facilities of Club Mahindra in India except RCI facilities abroad for 3 years on the basis of separate payments which even according to the 1^st opposite party is a separate agreement with Resort condominium International (RCI). Therefore the opposite party is justified in withholding only the down payment which was made by the complainant for taking membership of the 1^st opposite party – company and to avail facilities abroad. The decisions relied on by the opposite parties are found distinguishable with the facts of this case. Further the opposite parties failed to prove that they have provided any Holiday facilities in India for the payment of huge amount by the complainant. Therefore, we have no hesitation to hold that there is deficiency in service on the part of the opposite parties is proved by the complainant. The opposite parties are also guilty of committing unfair trade practice as stated above. We find that the opposite parties have no right to withhold the money of the complainant unlawfully and unethically except the down payment of Rs.59,992/- made by the complainant for taking the membership in the Club Mahindra.

Issue No. (iii)

The complainant has sought for a order of this Forum directing the 1^st opposite party to offer peak 'purple' season to the complainant free of charge. But, we are not inclined to give such a direction since the holiday facility in the resorts and hotels of the 1^st opposite party is subject to separate contact between the prospective applicant and the 1^st opposite party-company. We are only empowered to make good the loss suffered by the complainant for the deficiency in service or unfair trade practice.

8) Issue No. (iv)

The complainant sought for the order of this Forum to award compensation of Rs. 20 lakhs for the inconvenience caused to him. We find that the claim of compensation is definitely on a higher side. Considering the facts and circumstances of the case, we find that an award of compensation of Rs. 1,00,000/- is fair and reasonable for the deficient service and unfair trade practice committed by the opposite party company. Hence, ordered accordingly.

9. Having found unfair trade practice and deficiency in service on the part of the opposite parties, we partly allow this complainant and we pas the following orders.

1. The opposite parties are directed to refund an amount of
   Rs. 314,100/- with 12% interest p.a from the date of filing this

case ie., from 23.08.2013 till the date of realisation.

2. The opposite parties are directed to pay Rs.100,000/- towards

compensation to the complainant within 30 days of receipt of

this orders, failing which the amount shall carry interest @18% p.a from 31^st day after the receipt of a copy of this order.

3. The opposite parties shall also pay an amount of Rs.10,000/- to the complainant towards costs of the proceedings within 30 days from the date of receipt of copy of this order.

Pronounced in the open Forum on this the 13^th day of July 2016.

Sd/- Beena Kumari V.K., Member.

Sd/-Cherian K. Kuriakose, President.

Sd/-Sheen Jose, Member. Forwarded/By Order,

Senior Superintendent.

APPENDIX

Complainants Exhibits

Opposite party's Exhibits:

Depositions:

PW1 :: Henry Joseph

Date of Despatch of this Order ::

By Post ::

By Hand ::

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