Delhi

StateCommission

FA/1149/2013

MAHINDRA HOLIDAYS & RESORTS INDIA LTD. - Complainant(s)

Versus

PRAVEEN LATA - Opp.Party(s)

26 Oct 2016

ORDER

IN THE STATE COMMISSION : DELHI

 

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision :26.10.2016

First Appeal No. 1149/2013

(Arising out of the order dated 13.9.13 passed in Execution Application No.338/13 in Complaint Case No.133/10 passed by the District Consumer Dispute Redressal Forum(East), Saini Enclave , Delhi.)

 

In the matter of

MAHINDRA HOLIDAYS & RESORTS INDIA LTD.

 

Having its Registered Office at :-

 

“MAHINDRA TOWERS”

17/18 PATULLAS ROAD

MOUNT ROAD

CHENNAI-600002

TAMILNADU

 

Branch Office At:-

 

“MAHINDRA TOWERS’

5^TH FLOOR, 2-a

BHIKAJI KAMA PLACE

NEW DELHI-110066

 

……Appellant/OP

 

Versus

PRAVEEN LATA

C/O G.D. Singla

R/o 147/10, Supreme Enclave

Mayur Vihar-I,

Delhi-110091.

…Respondent/Complainant

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

1.         Whether reporters of local newspaper be allowed to see the judgment?

2.         To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

1.             This is an appeal under section 15 of the Consumer Protection Act (in short, ‘the Act’) wherein challenge is made to order dated 13.9.13 passed by the Consumer Disputes Redressal Forum (in short, ‘the District Forum’), Saini Enclave, Delhi in execution application No.338/13 in CC No.133/2010 as well as corrigendum order dated 13.2.13 passed in CC No.133/2010.
2.             The facts relevant for disposal of the present appeal are as under:-

            The respondent herein i.e. complainant before the District Forum had filed a complaint case No.133/10 under section 12 of the Act wherein she had alleged that the appellant/OP had offered a membership package consisting of 25 years  membership, one Samsung Easy cam VPW97 worth Rs.26,000/- seven night’s additional complimentary holidays immediately and food vouchers of Rs.5,000/- in one of their resorts against the total consideration of Rs.1,69,500/- for category: Apartment – One Bedroom; Season Red. The offer was accepted by the respondent/complainant and an initial payment of Rs.16,950/- was given to appellant/OP and they issued a membership certificate. The balance payment was to be made by way of EMI’s of Rs.12,173/- each.  The respondent/complainant had alleged having made EMI payments regularly for six months, however, the appellant/OP failed to give the respondent/complainant easy cam which was to be delivered after initial payment and before the payment of second installment in Feb., 2005. It was alleged that she had taken up the matter with appellant/OP but of no result. Thereupon, respondent/complainant had withheld the payment of further EMIs. The appellant/OP had offered an alternate easy cam which was not acceptable to the respondent/complainant. The appellant/OP also assured to settle the grievances but nothing was done. It was further alleged that the category of accommodation was also downgraded as such she did not accept the offer and had filed a complaint for restoration of original membership of the respondent/complainant alongwith other benefits besides payment of Rs.1,00,000/- as compensation for the harassment caused and Rs.7,500/- as litigation charges.

3.             The complaint was opposed by the appellant/OP by filing written statement where appellant/OP had alleged that the respondent/complainant had applied for a “Red-Studio” Membership of their club having cost of Rs.1,69,500/-. The respondent/complainant had paid 6 EMI’s of Rs.12713/- each. However, appellant/OP inadvertently issued a certificate in a category of ‘Red-IBR’, the cost of which was Rs.2,23,500/- as against membership of Rs.1,69,500/- agreed by the complainant.  It was further alleged that they were willing to reinstate “Red-Studio” membership and willing to give benefits, the details of which are given in the written statement.  
4.             Both the parties filed evidence in the form  of affidavit.
5.             After hearing both the parties, the Ld. District Forum had allowed the complaint  vide order dated 23.11.12 wherein it was observed that the appellant/OP had no legal right to force the respondent/complainant to accept a downgraded accommodation and the respondent/complainant cannot be blamed for withholding payment of EMI’s and  directed as under:-

         “1.           OP shall forthwith reinstate the ‘Red Studio Membership’ of the                            complainant with prospective effect valid for 25 years with                                             following additional benefits.

1. One weeks free stay at club-Mahindra resort in white and blue season.
2. Food voucher worth Rs.8,000/-
3. Shall pay interest @9% over the amount of Rs.93,228/- from the date of deposit and upto date of restoration of membership.

                      2.           OP shall also pay the compensation of Rs.30,000/- to the complainant                   for the harassment caused including litigation charges.

                                    In compliance, within one month of restoration of membership                                          complainant shall pay OP Rs.56,272/- the balance payment after adjustment                        of Rs.20,000/- towards cost of easy cam as     confirmed by OP in their letter                        dated 17.1.2007.”
 

6.          The aforesaid order was not challenged by the parties and thus had attained finality. In fact during the pendency of present appeal the appellant/OP had complied with the direction (c). 
7.          On 13.2.13 the Ld. District Forum issued a ‘Corrigendum’ whereby the correction was made in the final order, which is as under:-
8.  

 

8.             On 23.4.13, the appellant/OP had filed an application under section 27 of the Act seeking execution of order dated 23.11.12. The same was registered as Execution Petition No.338/13. The respondent/complainant also moved an application dated 18.4.13 under section 27 of the Act stating therein that the appellant/OP was not complying with the directions given in the order dated 23.11.12 as corrected vide corrigendum dated 13.2.13.  The same was registered as Execution Petition No.333/2013.  The Execution Petition No.338/13 filed by the respondent/complainant was disposed of vide impugned order dated 13.9.13 wherein the direction was given to the appellant/OP to comply with the order dated 23.11.12 read with the corrigendum dated 13.2.13 by giving the respondent/complainant membership of “One Bed Room” Accommodation.
9.          Aggrieved with the aforesaid order present appeal is filed.
10.          Ld. Counsel for the appellant has contended that the appellant/OP was not heard before passing the corrigendum order dated 13.2.13. It is stated that the same is in violation of principle of natural justice. It is submitted that the said order changes the nature of relief granted to respondent/complainant and prejudicially affects the appellant/OP as such appellant/OP ought to have been heard before passing the same. It is contended that the Ld. District Forum ought not have directed the appellant/OP to comply with the directions in the order dated 13.2.13.
11.          On the other hand Sh. G.D. Singla, husband of the respondent/complainant has argued that the impugned order has been passed under section 27 of the Act and in that proceedings, the merits of the case can not be seen. It is contended that in execution proceedings appellant/JD is trying to challenge the findings dated 23.11.12 as well as corrigendum dated 13.2.13  when the said orders have attained finality. 
12.          We have considered the submissions made and perused the material on record.
13.          The corrigendum dated 13.2.13 in CC No.338/13 was issued by Ld. District Forum  has already been reproduced above. By the corrigendum only the typographic error was corrected by the Ld. District Forum which had occurred in the main order dated 23.11.12. Reading the main order dated 23.11.12 it is clear that Ld. District Forum after noting the contentions of the parties had come to the conclusion that appellant/P had allotted one bed room accommodation and respondent/complainant need not accept after the accommodation downgraded unilaterally, “studio” as appellant/OP had no legal right to force respondent/complainant to accept a downgraded accommodation. However, while issuing direction in the aforesaid order the Ld. District Forum ordered that appellant/OP shall reinstate the “Red Studio Membership” i.e. downgraded one instead of one Bed Room Membership. It is clear that due to typographical error the Red Studio Membership was typed which was corrected vide corrigendum dated 13.2.13 to One Bed Room. No material change has been done in the main order as  is alleged.
14.          If the appellant/OP had any grievance against the said order it ought to have challenged the same by filing an appeal alongwith main order dated 23.11.12.  As per appellant/OP own case it had come to know of the said order on 1.5.13. There is no explanation why the appellant/OP did not challenge the said order at earlier point of time and allowed the execution proceedings to go on. In execution proceedings the appellant/OP allowed, can’t challenge the validity of the said order.  In these circumstances, the Ld. District Forum has rightly observed that in the proceedings under Section 27 of Consumer Protection Act, the Forum cannot go into merits of the case.
15.          It may be mentioned that in the present appeal challenge is made to order passed in the execution proceedings i.e. order dated 13.9.13 as well as order dated 13.2.13 i.e. corrigendum order passed in CC No. 133/10. Both the orders cannot be challenged in one appeal. Further, the appeal filed against corrigendum order dated 13.2.13 is also time barring. In any event, as noted above appeal against said order has no merits also.
16.          In view of above discussions, there is no merits in the present appeal. Accordingly the same stands dismissed.
17.          A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the District Forum (East), Saini Enclave, Delhi alongwith record of the District Forum.

                     File be consigned to record room.

 

 (Justice Veena Birbal)

                               President

 

 

(Salma Noor)

Member