Kerala

StateCommission

A/15/298

the manager club mahindra - Complainant(s)

Versus

n vijayan - Opp.Party(s)

p rajmohan

21 Jun 2018

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO.298/15

 

JUDGMENT DATED:21.6.2018

 

PRESENT : 

SHRI. T.S.P MOOSATH                                             : JUDICIAL MEMBER

SHRI. RANJIT. R                                                                   : MEMBER

 

1. The Manager,

Club Mahindra Back Water /Retreat,

Ashtamudi, Chavara South,

Kollam-691 584.

                                                                                                            : APPELLANTS

2. M/s Mahindra Holidays and Resorts India Limited,

Mahindra Towers, 2^nd floor, 17/18, Patullos Road,

Chennai-600 002.

 

(By Adv: Sri. R. Rammohan)

 

            Vs.

 

N. Vijayan,

Managing Director,

M/s Hotel Sea Bee,

Cee Bee Hotels Private Limited,                                     : RESPONDENT

Jetty Road, Kollam-691 001.

 

(By Adv: Sri. Pazhania Pillai)

 

JUDGMENT

 

SHRI. RANJIT.R : MEMBER

The appeal has been filed by the opposite parties against the impugned order dated, 18.3.2015  passed by CDRF, Kollam (for short the District Forum) in CC.41/2012.  By the said order the District Forum directed the 2^nd opposite party to relinquish their demand of Annual Subscription Fees and not to claim any amount as Future Annual Subscription Fees from the complainant; in the alternative if 2^nd opposite party is not willing to relinquish the Annual Subscription Fees, the 2^nd opposite party is directed to repay Rs.2,51,955/- collected from the complainant together with interest at 18% per annum to the complainant.  Second opposite party is also directed to pay compensation of Rs.10,000/- and Rs.2500/- towards cost of the proceedings.

2.      The case of the complainant is that, he joined as a member of the 2^nd opposite party/Club Mahindra Holidays on 27.2.1998.  He acquired ‘Two bed room apartment type’ membership by paying Rs.2,05,516/- to the 2^nd opposite party in instalments.  According to him as per rules of 2^nd opposite party, 40% of total cost of membership is for accommodation and 60% is towards advance payment facilities and the same shall be apportioned equally every year during the Club Mahindra Holidays Unlimited membership period.  As per the terms of the membership, members are liable to pay annual maintenance charge (AMC) for the upkeep of the resort as may be fixed by the 2^nd opposite party from time to time.  The members are also liable to pay utility charge on per day/night basis as may be levied by the 2^nd opposite party from time to time towards the utilities provided in the resort.  The complainant further contended that the 2^nd opposite party demanded Annual Subscription Fee, which is against the terms and conditions of the membership.  The 2^nd opposite party demanded Rs.92,027.11/- as arrears of Annual Subscription Fee for the period from 1999-2011 from the complainant.  Even though complainant is not liable to pay the Annual Subscription Fee, complainant paid Rs.46,439/- as membership fee in instalments.  The complainant has send letters requesting the 2^nd opposite party to reduce the Annual Subscription Fee but the 2^nd opposite party was not willing to relinquish the said amount and so the complainant requested the opposite party to cancel his membership and demanded for refund of the amount collected from the complainant.  But the opposite parties did not consider his request.  According to the complainant the acts and deeds of the opposite parties amounts to deficiency of service and unfair trade practice and therefore prayed to pass an order declaring the complainant not liable to pay any amount as Annual Subscription Fee and for directing the 2^nd opposite party to relinquish the demand for Annual Subscription Fee and in the alternative 2^nd opposite party to be directed to repay Rs.2,51,955/- and also compensation and cost.  2^nd Opposite party resisted the claim of the complainant by filing version, contended therein that the complaint is not maintainable and that the complainant is not a consumer and the complaint is barred by limitation.  They also contended that the Annual Maintenance Charge and Annual Subscription Fee are payable by all the members at the rate specified, despite the fact, whether they have utilized the resort or not, and that AMC and utility charges are payable by the members even if the members does not enjoy his/her holidays during the particular year and prayed for dismissal of the complaint.

3.      Evidence consisted of testimony of complainant as PW1 and Exts.P1 to P10 on the side of the complainant.  On the side of the opposite party their Manager was examined as DW1 and Exts.D1 was marked.

4.      Forum below on consideration of  entire evidences concluded that the unilateral decision of imposing Annual Subscription Fee by which Annual Maintenance Fee and utility charges were clubbed together, is against the terms and conditions of Membership Rules and issued the impugned order.

5.      Aggrieved by this order 2^nd opposite party has filed the present appeal.

6.      Heard both parties and peruse the records.

7.      Learned counsel for the appellant contended that the rules governing the members of the 2^nd opposite party, shall be subject to modification charges, examined in accordance with the wholesale price index and consumer price index.  Complainant was also informed about change in structure of plan clubbing the utility fees and Annual Maintenance charge into the single payment called Annual Subscription Fee through Ext.D1.  The conditions in Membership Rules (Ext.P1) are subject to modifications and members are bound to accept the said modification for continuing the membership with the opposite parties.  Opposite parties are spending huge amount of money for the purpose of periodical maintenance of all his resorts and the utilities provided therein with intention of providing world class competitive service to its members like the complainant.  Irrespective of the fact that the member is not enjoying his holidays, all the members have to pay the maintenance charge and for the utilities provided in the resorts, as per clause 5.2 of Membership Rules.

8.      On perusal of Membership Rules (Ext.P1) it is noted, that as per clause 5.2, the AMC is payable even if the members does not enjoys his or her holidays during a particular year.  Non-payment of AMC will make the members disentitled to enjoy the holidays.  This indicate that the payment of AMC is mandatory, if a member wants to enjoy the benefits of the membership.  Whereas in clause 5.3 it is stated that “a member shall pay utility charges for a per day/night basis as may be levied by MHRIL from time to time, utilities includes electricity charges, water charges, central air conditioning charges, heating charges etc. provided in the Mahindra Resort/Mahindra Holidays Resort.  These invariably mean that the utility charge need be paid by member only if he uses these facilities.  Payment of utility charge is not mandatory and there is no mention in clause 5.3 that this payment of utility charge is mandatory.  Whereas in clause 5.2 it is clearly stated that the Annual Maintenance Charge is mandatory.  Hence a member need pay utility charges only if he enjoys the holidays during a particular year.  Admittedly the complainant has not occupied any of the resorts or enjoyed any of the facilities of the resort.  Hence the complainant is not liable to pay the utility charges.  It is to be noted that as per price list (Ext.P2) the annual maintenance charge payable for financial years 1999-2000, 2000-2001, 2001-2002, was fixed at Rs.2500/- for  two bed room apartments.  AMC after the financial years of 2002 is not mentioned in any of the documents produced.  The amount specified in Ext.D1 is derived by clubbing annual maintenance charge and utility charge.  No separate AMC is made mentioned either in Ext.D1 document or Ext.P3 and P3(a) demand notice.  In the demand notice what is mentioned is Annual Subscription Fee.  In Ext.D1, it is noted that for the financial year 2002 there is change of structure of the plan and there is clubbing of utility fees and annual maintenance charge into a single payment called Annual Subscription Fee.  This change in structure of plan is made by the opposite party unilaterally.  The change in plan, clubbing the utility charges and annual maintenance charges into a single payment as Annual Subscription Fee is against the terms and conditions mentioned in the Membership Rules.  Complainant is not liable to pay the Annual Subscription Fee, unilaterally fixed by the 2^nd opposite party.  The complainant is liable to pay only the AMC.  The AMC for the years from 1999-2002 is fixed at the rate of Rs.2500/- per years.  As per the membership rules the AMC need not be paid by the members in 12 months period following the expiry of waiting period.  Hence the complainant who took the membership in 1998 need pay the AMC only from 1999.  There is no dispute as regard to AMC from 1999-2002.  As per Ext.P2, it is fixed at Rs.2500/- per year.  No doubt the appellant/2^nd opposite party can enhance AMF in accordance with wholesale price index and consumer price index.  In the Ext.D1 notice is noted that there is minimum increase in amount of Annual Subscription Fee.  The new ASF is noted to be calculated by adding seven days utility fees also which comes to Rs.9715/- per year.  It is stated therein that an increase of ASF is with effect from May 2002.  What is surprising is that the 2^nd opposite party has calculated the AMC along with utility charges even prior to 2002.  As per Ext.P2, price list, the AMC payable is only Rs.2500/-.  But what is stated in Ext.D1 is Rs.5665/-.  The appellant/opposite party instead of increasing the AMC amount, on the basis of wholesale price and consumer price index, has clubbed the utility charge to the AMC and changed the structure of AMC to that of ASF.  This has been done unilaterally.  The opposite party in Ext.P3 demand notice has demanded the complainant to pay Rs.92,027/- as arrears of annual subscription fee for the period 1999-2011 and in Ext.P3(a) demand notice they have enhanced  to Rs.1,57,555/- till 2014.  These amounts are derived clubbing Annual Maintenance Fee with that of utility charges.

9.      As aforesaid, the complainant did not use any facilities and hence he is bound to pay only the maintenance charges.  Admittedly the complainant had paid Rs.46,439/- as maintenance charge.  This amount will substantially cover maintenance charges up to the financial year 2015 even if there is increase in AMC, after the financial year 2002.  Obligation of both the parties has to be strictly governed, as per the Membership Rules.

10.    On the basis of foregoing discussions it is clear that the complainant is not liable to pay the Annual Subscription Fee as demanded by 2^nd opposite party in Ext.P3 and P3(a).  The act/omission on the part of the opposite party by unilaterally clubbing the AMC and utility charges into annual subscription fee is unfair trade practice and deficiency of service on the part of the complainant.  Admittedly the complainant is liable to pay annual maintenance fee even if he does not enjoy the holidays during the particular year.  Complainant is liable to pay utility charge only if he uses the facility.  The District Forum as directed the 2^nd opposite party to relinquish from demands of ASF and not to claim any amount as future annual subscription fee from the complainant.  Though we do not find any infirmity in this finding of the District Forum, the right of the opposite party in claiming the future Annual Maintenance Fee and future utility charges, if the complainant chooses to use the facilities, in future, cannot be ignored.  Hence we hold that the part of the impugned order is to be modified, reserving the right of the opposite party to claim future Annual Maintenance Fee as well as future utility fee in case the complainant uses the facilities/Holidays, in future.

11.    Regarding the other part of the order, directing the 2^nd opposite party to repay Rs.2,51,955/- collected from the complainant together with interest at the rate of 18% per annum to the complainant and direction to pay compensation of Rs.10,000/- and Rs.2,500/- as cost, is concerned, it is noted that the complainant as per letter dated:29.11.2011 (Ext.P7) and Advocate notice dated:23.12.2011 (Ext.P8) has unequivocally  has requested the 2^nd opposite party to refund the Membership Fee by cancelling his membership.  But the opposite party did not take any step to cancel the membership nor did they refund the membership fee.  As per clause 6.3, of Membership Rule, they are bound to cancel the membership and refunded the membership fee after deducting the cancellation fee and other charges, if any, as stated under clause 6.3 of Membership Rules.  Instead of doing so the 2^nd opposite party has insisted the complainant to pay Annual Subscription Fee, which is against the Membership Rules.  Opposite parties has thus, committed unfair trade practice and deficiency of service.  Under these circumstances, the Forum has rightly ordered to refund the entire membership fee with compensation.  We do not find any illegality or infirmity in this finding of the Lower Forum.

In the result the appeal is partly allowed.  The part of order of Lower Forum directing the 2^nd opposite party to relinquish their demand of Annual Subscription Fees and not to claim any amount as Future Annual Subscription Fees from the complainant, is modified, reserving the right of the 2^nd opposite party to claim future maintenance fee till the existence of the membership and the future periodic utility changes, on the basis of the usage of the facilities by the complainant as offered by the 2^nd opposite party.  The other part of the order is maintained.  Both parties are directed to suffer their respective costs.

 

T.S.P MOOSATH : JUDICIAL MEMBER

 

RANJIT. R : MEMBER

 

 

VL.