IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 157/08 DATED 17-10-2008<br /> ORDER<br /> <br /> Complainants 1. Shivaram, S/opposite parties Chikka Devegowda, <br /> 2. Smt.Sujatha Shivaram, W/opposite parties Shivaram, Both are R/at No.5258, 9th Cross, 3rd Main Road, Vijayanagar 2nd Stage, Mysore-570008.<br /> (By Sri.Sridhar Chakke, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Managing Director, M/s Usha Shriram (Manali) Hotels Private Limited, R/at No.10, Adithya Commercial Complex, Nagarlaya, New Delhi-110046.<br /> 2. Neetha Ganapathy, M/s Delite Vacations, Hotel Southern Star, R/at No.461, 10th Main, Mahadeshwara Extension, Mysore.<br /> (By Smt. S.Anuradha, Advocate for O.P.1)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 29.05.2008<br /> Date of appearance of O.P. : 23.06.2008<br /> Date of order : 17.10.2008<br /> Duration of Proceeding : 3 MONTHS 24 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The complainants have come up with this complaint against the opposite parties with their grievance that the first and the second opposite parties are working jointly and selling vacation hotel accommodation and that second opposite party is an agent of first opposite party. That they were approached by the opposite parties for availing hotel accommodation and that they being impressed by the representation of the opposite parties, they entered into an agreement with the first opposite party on 30.10.2002 and paid Rs.49,125/- towards payment. At that time, the second opposite party assured them of providing special holiday scheme and complimentary trip to their family members and therefore they agreed for the same. But, when they approached the second opposite party subsequently regarding complimentary trip, the second opposite party had closed its establishment and that first opposite party was not responding to several contacts and requests made by them. Then they sent a communication to first opposite party on 08.12.2007. The first opposite party who received the communication did not respond, thus the first opposite party has failed to honour the terms of the agreement by extending service to them from the year 2002, then they have also got issued a legal notice on 24.12.2007. Therefore the opposite parties have failed to meet their legal obligations and therefore have prayed for a direction to the opposite parties to refund Rs.49,125/- paid by them with interest at 12% p.a. and cost of Rs.5,000/- alleging that the opposite parties have caused deficiency in their service.<br /> 2. The second opposite party was duly served has remained absent is set exparte. The first opposite party entered appearance through his advocate and filed version contending that complaint is not maintainable, it is barred by limitation, that this Forum has no jurisdiction to entertain the complaint, as both parties have entered into an agreement which is legally binding on them, which cannot be reversed and therefore if the complainant for any remedy, he has to approach the Civil Court. Denying that they have caused any deficiency in their service have contended that the complainants have only paid Rs.49,125/- in small installments from October 2002 to July 2004 as a part payment and the complainants were liable to pay for Rs.1,500/- p.a. towards maintenance and Rs.100/- per day towards utility charges has not been paid. Referring to clause 23 of the terms and conditions annexed to the agreement contended that any dispute arising has to be referred to arbitration and subject to Delhi jurisdiction only. That first opposite party is a group of hotels having hotels at different places all over India and abroad and that second opposite party was an agent of them. Denying that the complainants had approached them for availing vacation accommodation facility has stated that the complainants did not approach them for availing the facility and that legal notice has been suitably replied and further denying any deficiency in their service have stated that contractual period is 5 years and after becoming a member, the complainant was bound to pay Rs.1,500/- p.a as per the agreement, has prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the complaint, the first complainant and on behalf of first opposite party one N.Prasad an authorized representative have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. The first opposite party have given interrogatories, which are replied by the complainant. The complainant has produced copies of the receipts of the amounts they have paid to the opposite parties with a copy of the agreement entered into between them. Heard the counsel for the complainant and counsel for the first opposite party and perused the records.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the opposite parties have caused deficiency in their service in not providing the benefits of special holiday scheme as agreed?<br /> 2. To what relief the complainant is entitled to? <br /> <br /> 5. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- As found from the grievance of the complainants and the version of the first opposite party, there is no dispute with regard to the fact that first opposite party has engaged in providing special holiday scheme with hotel facilities under the caption Usha Shriram (Manali) Hotel Pvt.Ltd., special holiday scheme membership and that the complainants agreed to avail that facility of opposite party No.1 through the second opposite party who was admittedly an agent of first opposite party and paid a sum of Rs.49,125/-. There is also no dispute that the first opposite party and the first complainant have entered into an agreement in this regard, which of course reveal that membership fee was Rs.90,500/- and it is for a period of 5 years from 30.10.2002 on which date the agreement was entered into. As against the total amount of Rs.90,500/- the complainants admittedly paid a partial amount of Rs.49,125/-. It is the case of the complainants that after payment of that amount and becoming member or members, the opposite party did not provide them the holiday home scheme facility and when they contacted the first opposite party in this regard through phone they did not respond and when they tried to contact the second opposite party they found that the second opposite party is establishment had been closed and was not available and thereby the complainants attributed deficiency in the service of the opposite parties. The second opposite party as already stated by us has remained absent and is placed exparte. Whereas the first opposite party has contended that the complaint is not maintainable before this Forum as the contract entered into to between them and the complainant is a final one cannot be rescinded and the complainants can exhaust their remedy in a Civil Court and that the complainants have also not paid the full membership fee and that the complainants did not also approached them for availing holiday hotel facility and therefore denied any sort of negligence at their end.<br /> 7. As could be seen from the contents of the agreement, the agreement was entered into on 30.10.2002 and it was for a period of 5 years from that date. The complainant it appears had facility of paying the membership fee in installments, accordingly from 30.10.2002 upto 13.07.2004 through installments have paid Rs.49,500/- as against Rs.90,500/- the full membership fee. The allegations of the first opposite party that the complainants did not themselves approach him to avail the facility has been controverted by the complainant by categorically stating in the complaint and the affidavit evidence that despite approaching first opposite party, they did not make any gesture of extending facility and stated that second opposite party. The agent of first opposite party has closed down his established by leaving them in lurch. The first opposite party it is found even through their letter dated 29.12.2007 offered to extend leave hotel facility to the complainants. But, this offer is in our view found to be not honest, because the opposite parties after receipt of Rs.49,500/- did not pursue further to receive balance amount from the complainant and the fact that second opposite party has closed down his establishment has also not been controverted by the first opposite party. On the contrary, the first opposite party has contended as if the complainants have filed this complaint in collusion with the second opposite party and in their letter dated 29.12.2007 the first opposite party had told the complainant to contact two persons at Mysore with regard to any information that the complainant needed. Here, the first opposite party has not made clear as to when the second opposite party ceased to be their agent and since when the other two persons came to be appointed as his agents. This is evident of the fact that the person who was representing them at Mysore earlier has either closed down their establishment or was not available for giving any information to the complainants till 2007. Even if the first opposite party was seriously pursuing the contractual obligations, they could have in pursuance of the agreement entered into contacted the complainants to pay the balance membership fee and other maintenance charges. But, they found to had kept quite for all these years without a word with the received money. This inaction of the first opposite party strengthens the stand of the complainant that they when tried to contact the second opposite party that opposite party was not available had closed down the establishment, therefore they were left with no option, but to issue a notice and legal notice to first opposite party. Therefore, it is found that the first opposite party who had entered into an agreement of providing facility did not evince any sincerity in keeping with the terms of the contract and that the complainants who had paid a substantial amount were left in helpless condition. As the agreement period of 5 years since has also expired and that the opposite parties since have not extended any agreed facility and the complainants had no opportunity to avail any facility, the complainants are entitled for refund of the amount they had paid. Therefore, the fact that the first opposite party did not further pursue the terms of the agreement after receipt of the partial amount and exhibited silence for all these about six years is indicative of the fact of deficiency in their service and as no communication was sent to the complainants from either of the opposite parties. The complainants that had no option but to approach this Forum with this compliant. Hence on perusal of the materials placed on record we are inclined to hold that that the opposite parties are deficient in their service and therefore are liable to compensate the complainants. As the result, we answer point no.1 in the affirmative and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The first opposite party is directed to refund a sum of Rs.49,125/- to the first complainant within 60 days from the date of this order with interest at 12% p.a. from the date of respective deposits till the date of payment.<br /> 3. The first opposite party is also directed to pay a sum of Rs.5,000/- to the complainant for mental agony and hardship.<br /> 4. The first opposite party shall also pay Rs.1,000/- towards the cost of this complaint.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 17th October 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />