Delhi

StateCommission

A/768/2014

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

Versus

SH. J.P. DWIVEDI - Opp.Party(s)

22 Dec 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

Date of Decision:29.11.2018

 

First Appeal-768/2014

 (Arising out of the order dated 10.06.2014 passed in Complainant Case No. 594/2010 by the District Consumer Disputes Redressal Forum (II), Qutub Institutional Area, New Delhi)

 

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

 

Versus

Col. (Dr.) J.P. Dwivedi,

ENT, Surgeon,

Command Hospital (WC),

Chandimandir Cantt.,

Panchkula-134107.

.….Respondent

 

 

 

CORAM

 

Justice Veena Birbal, President

 

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, 1986 (in short, the “Act”) wherein challenge is made to order dated 10.6.14 passed by the Consumer Disputes Redressal Forum (II), Qutub Institutional Area, New Delhi (in short, the “District Forum”) in Complaint Case No.594/2010 whereby the aforesaid complaint has been allowed.

 

2.  Briefly the facts are that a complaint under Section 12 of the Act was filed by the respondent herein i.e. complainant before the District Forum stating therein in order to have membership of appellant/OP, respondent/complainant had signed an approval form on 25.3.09 which was also duly signed by the Manager of the appellant/OP.  Respondent/complainant was allured with the special offer of HCL Laptop, 6 nights/7 days at Club Mahindra Resorts plus Rs.4,000/- food vouchers on down payment of Rs.33,134/- and two EMIs of Rs.7,411/- each as such a written contract was signed between the parties. Respondent/complainant had paid Rs.47,956/-. He was given a certificate of membership dated 21.4.09. On the said date, respondent/complainant was also informed to collect the gift from appellant/OP within 15 days from date of signing of approval form by both the parties i.e. 25.3.09. After about 10 days, respondent/complainant had gone to collect the gift but was told that his gift had not come and was told to collect the gift latest by 30.6.09.  Thereafter he had gone number of times to collect the gift but the same was not given.  It was alleged that in July, 2009 respondent/complainant was told by appellant/OP that his 3^rd EMI was due and the gift could be considered on payment of said amount.  It was alleged that the special gift was not provided to him by appellant/OP. It was alleged that respondent/complainant was not given Laptop even after lapse of more than 3 years nor was he provided with any accommodation by the appellant/OP at their resort on demand made by him. Alleging breach of written contract dated 25.3.09 by appellant/OP, respondent/complainant had filed a complaint before the District Forum for refund of the amount paid to appellant/OP and for award of Rs.3 lacs for causing harassment and mental agony and Rs.5 lacs for various expenses incurred by him. 

 

3. Appellant/OP had opposed the complaint by filing written statement wherein it was alleged that Membership Rules form binding contract between the parties and only courts at Chennai had the jurisdiction to deal with the dispute between the parties.  Further objection raised was that the Membership Rules contain an ‘Arbitration Clause’ as such the respondent/complainant had to seek redressal of grievance before the appropriate forum.  On merits, it was denied that there was deficiency in service on their part as was alleged.  It was admitted that the respondent/ complainant had sought membership on 25.3.09 and the amount paid by him was also admitted.  It was stated that respondent/complainant had applied for and membership granted was a White 1 BR product.  The price of product was Rs.3,31,338/-.  The down payment was Rs.33,134/- which was realised by appellant/OP.  Thereafter the cheque towards first EMI was given by respondent/complainant which was dishonoured and subsequently respondent/complainant had paid second and third EMIs.  It was alleged that respondent/complainant was entitled to HCL Laptop in terms of offer made to him on the realisation of down payment and first two EMIs. The respondent/complainant could not pick and chose which EMI he wanted to pay and then claim benefit under the strict terms of Membership. It was alleged that there was no deficiency in service and complaint was liable to be dismissed.

 

4. Respondent/complainant had filed rejoinder and reiterated the contents of complaint case. 

 

5. Parties filed evidence by way of affidavits and also filed written arguments.

 

6. After hearing the parties, Ld. District Forum allowed the complaint and directed appellant/OP to refund the deposited amount of Rs.47,956/- to respondent/complainant along with interest @ 12% p.a. from the date of deposit till it was paid within one month failing which it was ordered that the interest @ 18% p.a. was to be paid on the aforesaid amount.  Besides aforesaid amount, appellant/OP was also directed to pay compensation of Rs.1 lac to the respondent/complainant for causing mental torture and agony and Rs.25,000/- towards litigation cost.

 

7.       Aggrieved with the above said order, present appeal is filed.

 

8.       Ld. Counsel for the appellant/OP has contended that respondent/complainant was entitled to get the benefit of HCL Laptop forming part of the “free special offers” under certain terms and conditions i.e. within 45 days from the date of realization of 15% down payment and two EMIs.  It is contended that respondent/complainant was clearly explained about the terms and conditions for redeeming the free gift offered i.e. HCL Laptop. It is contended that respondent/complainant had made payment even less than 15% of the total cost of the membership as such was not entitled for special offers.  It is contended that for redeeming the Laptop, the respondent/complainant was required to pay Rs.49,700/- (i.e. 15% of the membership cost) + 2 EMIs consecutively without any default whereas the total amount paid by the respondent/complainant was Rs.47,956/- only.       

 

9.       On the other hand, respondent/complainant has contended that no such stand as is taken in the grounds of appeal was taken before the District Forum.   It is also contended that respondent/complainant was entitled to the special offer of HCL Laptop, 6 nights/7 days at Club Mahindra Resorts plus Rs.4,000/- food vouchers on payment of 10% of amount of membership cost and two EMIs.  It is contended that membership price was Rs.3,31,338/- and down payment was 10% which he had paid.  Even two EMIs were also paid.

 

10.     We have heard the submission of the parties and perused the material on record.

 

11.     There is an approval form dated 25.3.09 on record which is signed by both the parties wherein membership price mentioned is Rs.3,31,338/- and down payment is 10%. The aforesaid document constitutes contract between the parties. In the approval form, special offer of HCL Laptop, 6 nights/7 days in Club Mahindra Resort and Rs.4,000/- food vouchers are also mentioned. There is also a letter on record of appellant/OP dated 11.6.09 which shows that respondent/complainant was admitted as member upon payment of 10% of membership fee.  In the aforesaid document, it is stated that he is entitle to avail special offers on the realisation of minimum 10% of his membership fees. Admittedly the respondent/complainant had paid 10% of down payment and had also paid two EMIs.  There is no evidence on record that cheque of first EMI was dishonoured as is alleged. Two EMIs were paid by him when he was claiming benefits.  Even the approval form dated 25.3.09 which is signed by both the parties, all the special offers are mentioned.  The stand now taken by appellant/OP that 15% of membership cost is down payment, was not taken before the District Forum. The same is an afterthought. No such plea is taken in written statement.  The contention of appellant/OP that respondent/complainant was not entitled for special offer of HCL Laptop has no force. There is a violation of written contract dated 25.3.09 by appellant/OP. Appellant/OP is guilty of deficiency in service in not providing said gift to respondent/complainant. Since the requisite payment was made, respondent/complainant was entitled for special offer as agreed between the parties.  There is an application on record showing that respondent/complainant had made a request for availing special offer of holidays for 6 nights but the same was also not given. The evidence on record clearly establishes that there is deficiency in service on the part of the appellant/OP in not delivering Laptop as promised by it nor offering the six nights/7 days holidays in Club Mahindra Resorts sought to be availed by respondent/complainant.

 

12.     In view of above discussion, the District Forum has rightly held appellant/OP guilty of deficiency in service and indulging in unfair trade practice and directed it to refund the amount along with interest. We find no illegality or infirmity in the same.  The findings are based on material on record.  The directions given by Ld. District Forum to appellant/OP for refund of amount of Rs.47,956/- with interest as awarded by Ld. District Forum are upheld.

 

13.     As regards award of Rs.1 lac towards compensation, the stand of appellant/OP is that the same is on higher side. The stand of respondent/complainant is that he had been coming from Ranchi to conduct his case and mostly had travelled by Air. Few tickets are also annexed in the record of District Forum. The submissions of both the parties are considered. There was no need for respondent/complainant to have personally attended the matter.  He could have conducted the case through AR also. Since District Forum has directed refund of deposited amount with interest of 12% p.a. from date of deposit till realization, compensation of Rs.1 lac is on higher side.  No reasoning is also given for awarding such a high compensation specially when interest has already been awarded.  The compensation stands reduced from Rs.1 lac to Rs.50,000/-. The direction for award of litigation expenses is not interfered with.

 

14.     With the above modification in the impugned order, appeal stands dismissed.

 

15.     A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information.  The record of the District Forum be also sent back forthwith. Thereafter the file be consigned to record room.    

 

 

 

 (Justice Veena Birbal)​

Presidint