……Appellants/Opposite Parties.

 

 

 

 

Argued by: Sh. Nitesh Singhi, Advocate for the appellants.

 

“10]             Resultantly, judged from every angle and entirety of the case, we are of the opinion that the deficiency in service and unfair trade practice on the part of OPs is writ large. Thus, the complaint having lot of merit, weight and substance must succeed. The same is accordingly allowed. The OPs are directed to refund a sum of Rs.2,01,723/- along with interest @10% p.a. from the date of respective deposits till its actual payment to the complainants, besides paying litigation cost of Rs.10,000/-.

2.                The facts, in brief, are that the complainants by submitting an application form (Annexure C-2), enrolled themselves with the Opposite Parties, as a Member in the Scheme namely “Club Mahindra Holidays” and deposited Rs.25,426/- initially, as booking amount on 15.6.2009 being 10% of the total Membership amount of Rs.2,54,260/-. The complainants also paid ECS of Rs.5,687/- per month to the Opposite Parties. It was stated that on 03.7.2009, the Opposite Parties sent a Certificate of Membership (Annexure C-1) to the complainants and also issued a Holiday Package, valid for six months, to them on 5th June, 2009, but the same was not availed. It was further stated that, at the time of issuing the Certificate of Membership, the Opposite Parties, promised the complainants to give some other benefits like free voucher of Rs.3000/-, 3 night holiday package and another 7 night holiday package, but the said benefits were not given to them. It was further stated that numerous letters were sent to the Opposite Parties, to cancel the Membership, and refund the amount of Rs.2,01,723/- paid to them (AnnexureC-3) by the complainants, but to no avail. It was further stated that legal notices were also sent to the Opposite Parties (Annexure C-4), but the same were not replied to by them. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for directing the Opposite Parties to refund Rs.2,01,723/- alongwith interest @18% per annum, Rs.2,50,000/- as compensation for harassment and mental agony besides costs of litigation, was filed.

3.                The Opposite Parties, in their written version, admitted the factum that the complainants became their Member on 15.6.2009. They also admitted that a total sum of Rs.2,01,723/- against the agreed payment of Rs.2,54,260/- was received from them. It was stated that the complainants, of their own free will, chose not to avail of the holiday package, valid for six months only. It was further stated that the Food Vouchers were sent alongwith the Membership Kit to the members. The benefits of 1 week complimentary stay at International destination with RCI valid till 31.12.2010, and 3 nights complimentary stay, at a Club Mahindra Holiday Resort valid till 31.12.2010 were credited to the complainant’s membership account upon realization of 15% of the Membership Fee. It was further stated that the complainants, at no point of time, made any request for bookings either with the Opposite Parties or with RCI, so their enrollment benefits lapsed with the passage of time, as per the date of validity given in the Welcome letter. It was further stated that the e-welcome letter was sent to the complainants through e-mail on 16.6.2009 detailing therein the benefits and their validity etc. It was further stated that no letter for cancellation of membership and refund of amount of Rs.2,01,723/-was received from the complainants. It was further stated that the complainants neither requested for the booking nor had they ever got services on their membership due to apparent apathy on their part to avail of these benefits. It was further stated that there was neither any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. 

8.                The Counsel for the appellants, submitted that the District Forum erroneously held that the appellants were deficient in rendering service and indulged into unfair trade practice, making the appellants-OPs liable to refund Rs.2,01,723/- together with interest @ 10% p.a. and litigation expenses of Rs.10,000/-. It was further submitted that the appellants are engaged in the business of providing Holidays to their members who have purchased CMHM, which is a Holiday Product, which entitles their members benefits subject to terms and conditions in the Membership Rules. It was further submitted that it was well within the knowledge of the respondents once the amount was paid towards the admission fee, that the same was not refundable and only entitlement fee was refundable subject to other applicable deductions. It was further submitted that as per RW-2, the complainant was not entitled to seek refund of admission fee in the light of the terms governing the membership contract between the parties. It was further submitted that the appellants promised complimentary benefits viz :-

i)        A free food voucher of Rs.3000/-.

ii)       3 nights holidays package.

iii)      7 nights holidays package.

 

It was further submitted that benefit No.1 was sent to the respondent alongwith membership kit, the other two benefits were credited to the respondent/complainant’s account upon realization of 15% of the membership fee. The validity date of benefits was clearly mentioned in the welcome letter. An e-mail letter on 16.06.2009 detailing validity was sent. It was further submitted that the respondents-complainants filed complaint for refund of deposited amount of Rs.2,01,723/- contrary to the membership Rules governing the contract. It was further submitted that the appellants/Opposite Parties provided all the benefits to the respondent-complainant and evidence by way of RW-1 was adduced. It was further submitted that the complainants failed to avail of the benefits of their own. It was further submitted that the impugned order was passed without application of mind.

9.                The Counsel for respondents, submitted that the document dated 10^th July,2009 now produced before the Commission, claiming that the complainants were informed about the benefits, was a manipulated one and the same was not brought in evidence before the District Forum. It was further submitted that   a legal notice dated 30.04.2012 (Ann.C-4) was sent to the Opposite Parties, which was not replied to. It was further submitted that the Opposite Parties were deficient, in rendering service, on account of which the complainants were not provided the benefits despite the fact that they had paid a total sum of Rs.2,01,723/- and they also underwent mental agony and harassment. 

10.               Undisputedly, the complainants became members of Club Mahindra for 25 years after initially depositing an amount of Rs.25,486/-. In total, an amount of Rs.2,01,723/- was paid by the complainants, as is evident from Annexure C-3, copy of member payment statement. The core question that falls for our consideration, is, as to whether the Opposite Parties, extended the benefits viz.

to the complainants/respondents or not, as promised by them. The appellants, no doubt, claimed to have sent benefit No.(i) alongwith the Membership Kit through welcome letter dated 16.6.2009            (Exhibit RW-1) through e-mail. They also claimed that benefits (ii) and (iii) were credited to the complainants membership account on realization of 15% of membership fees. No cogent and convincing evidence was produced by the Opposite Parties that the email    (Exhibit RW-1) and the Welcome Kit containing the documents, was sent to the complainants. On the other hand, the complainants categorically asserted that despite various letters and legal notices to the appellants/Opposite Parties, the appellants neither responded nor did they send such benefits. Since, the Opposite Parties, miserably failed to prove that Annexure RW-1 alongwith the documents, showing the grant of benefits aforesaid were sent to the complainants, the latter were deprived of availing of the same. Even the Rules of Membership were not supplied to the complainants. Thus, they were not bound by the same.

12.               No documentary evidence, whatsoever, was led to prove that benefits (ii) and (iii) aforesaid were credited to the account of the complainants. Under these circumstances, the claim of the Opposite Parties, that the aforesaid benefits were granted to the complainants, is nothing but a concoction of lies.

13.              The Opposite Parties, thus, failed to provide the benefits promised by them to the complainants, despite charging hefty membership fee and other charges to the tune of Rs.2,01,273/-. The Opposite Parties, thus, were completely deficient, in rendering service, to the complainants. Under these circumstances, by retaining the amount deposited by the complainants, without rendering any service to them, they also indulged into unfair trade practice. The District Forum was also right in holding so. The findings of the District Forum, in this regard being correct are affirmed.

14.              No other point, was urged, by the Counsel for the parties.

Argued by: Sh. Nitesh Singhi, Advocate for the appellants.