BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of July 2015
Filed on : 17/05/2012
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.297/2012 (one more ad. Manu)
Between
1. Dr. Louie Fischer, : Complainant
M.O.S.C. Medical College (By Adv. Reynold Fernandez N
Hospital, Kolencherry-682 311. Kolenchery, Ernakulam)
2. Dr. Elizabeth Fischer,
MOSC Medical College Hospital,
Kolenchery -682 311.
And
1. M/s. Mahindra Holidays & Resorts : Opposite parties
India Ltd., Mahindra Towers, (By Adv. P.J. Philip, High Court
2nd floor, 17/18, Patullos road, of Kerala, 57/1, Chilavannoor
Chennai-600 002. Road, Kochi-682 020)
2. M/s. Mahindra Holidays &
Resorts India Ltd., 7th floor,
K.G. Oxford Business Centre,
39/4609, Sree Kandath road,
Ravipuram, Cochin-682 016.
O R D E R
Cherian K. Kuriakose, President.
The complainants are doctors in a private Medical College in Ernakulam District. The complainant chose to take a club membership with the opposite party company during March 2011. An amount of Rs. 1,63,320/- was paid to the opposite parties on their demand towards membership in instalments. The complainant was allotted the membership No. 2261001. Thereafter the complainant requested for a holiday package to Ootty on 02-02-2012. However that was rejected by the opposite parties without showing adequate reasons. Thereafter also the complainant had contacted the opposite parties for other packages. But those requests are also rejected. Thoroughly dissatisfied with the services of the opposite parties the complainant contacted the opposite parties over telephone and expressed their intention to withdraw their membership. Email communication was also sent on the above subject. Instead of receiving the amount paid by the complainant the opposite parties sent a reply remanding further payment of Rs. 1,06,244/- to withdraw from the services which is arbitrary and clearly illegal. According to the opposite parties, the complainant was bound to comply with the one sided contracts sighed at the time of enrollment. The complainant has not even avail any services rendered by the opposite parties and still the opposite parties are not willing to refund the amount that they are holding and that is inequitable. The complainant was given a television as gift at the time of enrolment as member to the opposite parties. According to the opposite parties the gift was worth Rs. 22,500/-. The complainant is entitled to get refund of the entire amount paid to the opposite party. The complainant is ready and willing to return the gift given by the opposite parties or the value of the gift may be deducted from the amount to be refunded to the complainant. The complainant had issued a registered lawyer notice stated of these facts to the opposite parties which was received by them on 28-03-2012. The reply was sent on 04-04-2012 denying the allegations in the reply notice it was stated that since the complainant had signed the memberships application form on 14-03-2011. The complainant is not entitled to get any refund or the amount already paid by him as there are some clauses to that effect this is illegal and opposed to natural justice. According to the opposite parties the total membership fee was Rs. 3,67,788/- and the period of package commences only 01-07-2012. However, the opposite parties admitted that the complainant had so far not availed any of the services from them and they are holding Rs. 1,63,320/- already paid by the complainant. Therefore the complainant seeks refund of the entire amount paid by him with interest at the rate of 12% p.a. and to pay costs of the proceedings.
2. Notices were issued to the opposite parties accepted the notice, appeared and resisted the complaint by filing written version contending inter-alia as follows:
The complainant and opposite parties are governed by the terms and conditions of the agreement signed by the complainant. The complaint is frivolous and vexatious. There was no deficiency in service on the part of the opposite parties. The complainant has suppressed several facts from the Forum and therefore are not entitled to claim any relief. The subject matter of the case does not come within the purview of the Consumer disputes. The compensation under Section 14(1)(d) of the Consumer Protection Act can be awarded to the complainant only for loss or injury suffered by the complainant due to negligence of the opposite parties. The complainant has no locus-standi initiated the present proceedings and is liable to be dismissed under Section 26 of the Consumer Protection Act. As per clause 13.3 of the contract entered into between the complainant and the opposite parties, only Civil Court in Chennai shall have jurisdiction to the exclusion of all other courts. Since the parties have agreed to confirm jurisdiction on a particular court this Forum is not having any jurisdiction to entertain the complaint. There is an arbitration clause as clause 13 (1) and clause 13 (2) in the agreement which also does not take away jurisdiction of the Consumer Disputes Redressal Forum. The complaint can be avail only in the district forum at Chennai in order to become a member every individual has to execute a valid membership agreement on payment of the required membership fee. Privileges and enjoyments of the resorts of the opposite parties are strictly based on completing payment of the membership fee and other charges without any dues as on date availing the holidays. As per the agreement there are 3 seasons for the enjoyment vacations they are purple, read, blue and white. A member is entitled to the vacation at the resorts of the opposite party on the basis of the occasion regarding choice of the seasons exercised by only purple season member can enjoy holidays throughout the year. The complainant had approached the opposite parties becoming a member during month of March 2012 and member ship allotted to the complainant was 2261001. The complainant had approached the opposite parties in the Hyderabad Branch and had opted for the product red season with a total membership fee amounting to Rs. 3,67,788/-. The complainant had agreed to pay the agreement amount by way of EMI payable in 48 instalments with EMI amounting to Rs. 8,860/- per month. Later the complainant had requested the opposite parties to change the payment schedule from 48 instalments to 24 instalments by virtue of the clauses in processes in the agreement the complainant was entitled to have a holiday plan from 1st January 2012. The complainant had made a request to the opposite parties on 07-10-2011 for holidaying at the resorts of the opposite parties at Thekkady. As per the e-mail received by the opposite parties this was a period wherein the complainant was not entitled to make any reservation and it was not within the holiday commencement plan. Despite the above plan the opposite parties have responded to the member stating that which holiday eligibility commences from 01-07-2012 and opposite parties had provided two other options namely were 1. Club Mahindra Tusker Trails – Thekkady, 2. Club Mahindra Kodagu Valley- Coorg. The opposite parties had provided a check in and checkout to the complainants , however the complainant did not respond. The complainant did not make a request for holding at Ootty during 02-02-2012 as alleged. The refund of the amount paid by the complainant is subjected to membership rules signed by the complainant. The opposite parties had explained the salient features and benefits of the membership and also with regard to the obligation of the membership at the time of purchase of the membership. The complainant had signed the said membership application confirming that he had read the terms and conditions governing the members. The complainant cannot now feel ignorance as to the contents of the agreement signed by him. Clause 1.5 of the membership rules definite membership fee as the full fees payable towards club Mahindra membership and that the membership fee is a non-refundable one time admission fee for enrolling into the scheme. Any termination after the recession period deleted to be done as per clause 6 of the agreement. As per that clause the withdrawal application should have been submitted within the recession period of 10 days from the date of realization of 25% admission fee is provided such request was made in writing in by the member concerned. In the event of withdrawal of application by the complainant beyond 10 days from the date of application the applicant shall not be eligible for any refund of the amount paid by him. As per clause 6.2 upon termination there are provisions for deduction of certain amounts as well. Therefore the opposite parties submits that in the event of termination by the member as per clause 6.2 the opposite party was entitled to deduct the amount as per the clause. The complainant decided to terminate the membership only after the recession period such the terms mentioned in clause 6.2 would be applicable. Accordingly the 60% of the total admission fee of Rs. 3,67,788/- which is equal to 2,20,672/- would be appropriated towards admission fee and it is none refundable. The complainant had admittedly paid only Rs. 1,63,320/- which is far below the amount of Rs. 2,27,672/-. Therefore the complainant is not entitled to get any refund. There was no cause of action for the complainant as there has been no deficiency in service. In the above circumstances the complaint is sought to be dismissed.
3. On the above pleadings the following issues were settled for consideration.
i. Whether the complainant has proved that there was deficiency of service as alleged?
ii. Has the complainant proved that there was any unfair trade practice on the part of the opposite parties ?
iii. Reliefs and costs
4. The evidence in this case consisted of the oral evidence of PW1 And 2 and Exbs. A1 to A12 on the side of the complainant. The opposite parties did not adduce any evidence. However certain documents were seen produced by the opposite parties along with the written version. Those documents were produced also part of the enquiry, though marked as specific documents. Heard the learned counsel of both sides.
5. Issue Nos. i & ii. The complainant had joined in the scheme in the month of March 2011. The complainant had admittedly opted the option red season which was available at that time. That fact is also admitted. Even though the opposite parties in the version had stated that there are 4 seasons such as purple, red, white and blue. Exbt. A9 produced by the complainant would go to show that there are only 3 seasons such as red, white and blue. The price list Exbt. A9 shows a purple mark as well. However in that purple mark, it is a title which is printed and not the price. Therefore the contention that the opposite party had informed the complainant that there are four seasons they are purple, red, white and blue are factually incorrect and it is accordingly found. It is pertinent to note that in page 16 and 17 of the file containing version produced by the opposite parties would go to show that there were only 3 seasons offered to the complainant as wherein purple season is not to be seen. According to the opposite parties as shown in page 32 of the version which is an e-mail communication it is seen that “While we would have loved to confirm your special offer, the same is valid only in White and blue seasons, while the dates you have requested fall in Purple season. Even though the complainant was admittedly enrolled in the red seasons, as per page 33 of the version it is seen that the opposite party had wrongly informed the complainant that he was included in the purple seasons which was in fact a non-existed one. The case of the opposite parties that there were 4 seasons such as purple, red, white and blue have come up for the first time only in the version filed by them before this forum and nowhere else in any of the documents provided to the complainant. The learned counsel for the complainant argued that such mis-representation on the part of the opposite parties which was made to the complainant was an unfair trade practice warranting interference of the Forum.
6. Exbt. A2 is the letter issued by the complainant to the opposite parties requesting to cancel his Club Mahindra Membership No. 2261001 with effect from 5th March 2012. Exbt. A5 e-mail communication by the complainant to the opposite parties made on 09-10-2011 to get the service from the opposite parties would go to show that repeated request for services made by the complainant before the opposite parties fell on deaf ears. The learned counsel for the complainant argued that the opposite parties had not only committed unfair trade practice but also is guilty of grave deficiency in service.
7. The learned counsel for the opposite parties vehemently argued that the complainant, having signed contract between the opposite parties agreeing the terms and conditions laid down by the opposite parties are bound by the clauses contained therein. The learned counsel specifically point out our attention to clause 6.2 of the said agreement. We have gone through clause 6.2 with the help of magnifying eye glass and we are unable to decipher anything with regard to the abbreviations made therein such as “EF”, “ASF”, “MHRIL” “CMH Membership certificate etc. On going through the records made available to us we find that the appellant was made to shell out substantial amount of Rs. 1,63,360/- and all towards member ship fee. The opposite parties are airing under Rule 6.2 to evade the refund of the amount paid by the complainant towards part payment of the membership. In view of the various decisions of the Hon’ble Apex Court and decisions of the National Commission we find that the opposite parties should have been more careful in wrapping terms and conditions to make them more intelligently to the layman. As we have pointed out that there were so many abbreviations in clause 6.2 of the agreement and to understand each of such abbreviation the prospective member who were prompt to sign the agreement would have to grope elsewhere. In First Appeal No. A/11/364 before the Hon’ble State Consumer Disputes Redressal Commission Maharashtra, Mumbai in Mahindra Holidays & Resorts India Ltd. Vs. Mr. Hemantkumar M Wadekar). It was held that drafting the agreement in such a manner which would make them more intelligible to a layman would itself, in our view amounts to unfair trade practice.
8. It is admitted fact that the complainant did not utilize any of the facilities of the Club. The complainant was not shown as to what was the taxes paid by the opposite parties or what was the cost incurred by the opposite party in processing application of the complainant. The brochure which is marked in this case with Exbt. A6 would go to show that at the time of introducing the complainant to accept the membership the opposite parties had given all sorts of promises and then in fine print rules were prepared unilaterally and framed in such a way as to deprived the complainant all the facilities. The denial of the opposite parties to refund the amount paid by complainant in flimsy ground, is a height of unfairness. We find that the opposite parties have grafted the hard earned money of the complainant unmeritedly on the premise that the complainant had an unfortunate moment happened to sign an agreement, which could have been possible for him to understand with its full implications. Such practice of providing faulty information in disguise would definitely been an unfair trade practice curtailed. Further we hope that the government of India will give necessary instruction to get rid of unfair trade practice, if they care for welfare of the people letting the Corporates to impose such unfair trade condition on the pretext of their ignorance to understand and perceive meanings of such clauses has become the order of the day and we find it a grave situation wherein lot of innocent people are being suffered at the hand of the mighty and chin corporate with the inconveniences of the concerned who are keeping blind eye on such illegalities.
9. In the facts of the case, we have no hesitation to hold that the opposite parties have, by withholding the amount of the complainant in spite of the fact that he allows cancellation of his membership, even without obtaining any services from the opposite parties would amounts to gross violation of human right, unfair trade practice and highhanded deficiency in service. We find that the opposite parties have no right to hold the amount paid by the complainant unlawfully and unethically. In the above circumstances we find the issues in favour of the complainant.
10. It was brought to our notice that at the time of taking the membership on payment of the amount as aforesaid, the complainant was given a gift by the opposite parties as a token appreciation for joining in their travel. The learned counsel for the opposite parties have argued that if any order of refund is passed the cost of T.V. set, given as a gift to the complainant, is to be deducted in addition to the deductions which are shown in the argument. We find that the opposite parties as a part of their promotion of commercial interest has given the T.V. set to the complainant as a good gesture. A gift is invaluable portrait, we are not able to fix a price of it. The gift is always a gift it was give away a token of love and
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affection, as may be a part of business promotion. It would be unfair trade on our part to value a gift given by the opposite parties to the complainant. We therefore would reassure the complainant that he is entitled to give a gift as token of love and affection and magnanimity of the opposite parties done to him so far.
11. Having found issue number 1 and 2 to the fact that there was unfair trade practice and grave deficiency in service on the part of the opposite parties we pass the following orders.
i. The opposite parties are directed to repay Rs. 1,63,320/- with interest at the rate of 12% p.a. from the date of the complaint from 17-05-2012 till the date of realization.
ii. The opposite parties are directed to make payment by way of compensation to the 1st complainant to the tune of Rs. 1,00,000/- which amounts shall carry interest @ 18% from 30 days after this order that is with effect from 30-08-2015.
iii. We estimate the cost of the proceedings at Rs. 10,000/- and that amount is awarded in favour of the complainant to be paid by the opposite parties.
The above said order shall be complied with, within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the30th day of July 2015
Cherian K. Kuriakose, President.
Sheen Jose, Member.
Beena Kumari V.K., Member.
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Appendix
Complainant’s Exhibits:
Ext. A1 : Copy of letter dt. 29-09-2011
A2 : Copy of letter dt. 05-03-2012
A3 : Copy of lawyers notice
A4 : Copy of reply notice dt. 22-03-2012
A5 : Copy of letter dt. 09-10-2011
A6 : Copy of brochure
A7 : “ “
A8 : “ “
A9 : Copy of price list
A10 : Certificate of membership
A11 : I.D. Card
A12 : Copy of email dt. 05-03-2012
Opposite party’s Exhibits:
Ext. B1 : Nil
Depositions:
PW1 : Dr. Louie Fischer
PW2 : Dr. Elizebeth Fischer
