BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.347 of 2021
Date of Instt. 13.10.2021
Date of Decision: 20.12.2022
Mohit S/o Gurdas, Resident of Village & PO: Chhara, District Jhajjar, Haryana, at present resident of House No.689/01, Khem Karan Vihar, Jalandhar Cantt-144005.
..........Complainant
Versus
The Hilton Holiday International, Corporate Office: F-14, 2nd Floor, Kalkaji Main Road, New Delhi-110019, Through its MD/Principal Officer/Authorized Signatory.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Aditya Jain, Adv. Counsel for the Complainant.
OP exparte.
Order
Jyotsna (Member)
1. The instant complaint has been filed by the complainant, wherein it is alleged that on 16.07.2021, the representatives of the above said opposite party met complainant at Kings Hotel, GT Road, Jalandhar regarding the membership of ‘The Hilton Holiday International’ and allured the complainant to purchase the said membership and assured that they will provide best services and hospitality for holiday tours. The representatives of opposite party in order to allure the complainant told complainant that he and his family can avail total 7 nights every year for period of 10 years and moreover, complainant is in army and it's difficult to get holidays every year so complainant can also avail all nights in one year and he can book 5 to 6 rooms together in one single holiday booking of his choice anywhere in India. The said representatives got signed the member/owner declaration Srl. No. 1051 dated 16.07.2021 comprising of the terms and conditions of the membership and orally explained the complainant about the features of the membership. After reading the terms and conditions complainant told representatives of opposite party that it is not mentioned that all the nights can be availed in one year and complainant can book 5 to 6 rooms together in one holiday anywhere in India. The representatives of opposite party assured complainant that all the rooms can be availed together in one year. The complainant requested representatives of opposite party to give the same in writing, the representative of opposite party made complainant talk with his superior, who further assured complainant that complainant can avail all the rooms together in one year. The representatives of complainant having malafide intentions made false promises and told complainant that Head office will give the same in writing in two working days after the receipt of membership fees. The complainant fell into the trap and took the membership of the opposite party and paid a sum of Rs.1,25,000/- through SBI Credit Card bearing No. 6528897354642547 dated 16.07.2021, at Jalandhar Cantt. Before purchasing membership complainant specifically told representatives of opposite party that he is becoming the member only on the assurance of representatives of opposite party that they will give in writing that complainant can avail all the holidays together and can book 5 to 6 rooms in one holiday, and representatives of opposite party had assured complainant that they will give same in writing in two working days or refund the entire amount of complainant. When complainant did not received anything in writing in two working days he made telephonic calls to representatives of opposite party at customer care and also filed complaint in this regard on telephone but to no effect. The complainant was shocked when representative of opposite party told complainant that Head office has refused to give in writing nor complainant can avail all the nights or book 5 to 6 room in one holiday in single year. That the complainant immediately wrote an email on 20.07.2021 to the opposite party requesting the opposite party to close his membership and to refund the amount of Rs.1,25,000/-, but no response was received. After waiting for 2 days the complainant again sent 2nd reminder through e-mail on 22.07.2021 to close his membership, and in response, the opposite party acknowledged the request made by complainant vide email dated 22.07.2021 as under:- " Dear Mr. Mohit,
Greetings from The Hilton Holidays International!
Really sad to hear this and if there is any way we can change your decision, please feel free to share it! We are really sorry to hear this and I hope you can provide me some feedback on your cause?
It is in receipt of your concern raised by you, it is requested to kindly share your registered mobile number, member application form number, date of sign-up and registered email ID or any transaction ID (if available). We would love to assist you with the best possible regards to your concern. Also we need to check with our sales team". The complainant on same day vide email dated 22.07.2021 at 10:55 am provided all the information sought by opposite party and further requested for the refund of Rs.1,25,000/-. Despite of above emails, opposite party did not refunded the amount of Rs.1,25,000/- and left with no option, the complainant again send reminder on 26.07.2021 via email, and in response the opposite party through email dated 26.07.2021 gave the following reply:-
“Dear Member,
Greetings !!
We have received a cancellation request and the same has been forwarded to the concerned department they will keep in touch with you very shortly". The complainant again send email dated 28.07.2021 for cancellation of membership and refund of Rs.1,25,000/-, but no effect and till date opposite party has not refunded Rs.1,25,000/- to the complainant. Even as per the Terms and conditions and purchaser's declaration, the Clause No. 15 is relevant, which provides EXIT OPTION. The complainant immediately on 20.07.2021 requested opposite party was cancellation of membership and refund of Rs.1,25,000/- and even after that period of 30 days has lapsed, but till date opposite party failed to accede to the request made by complainant and failed to refund the membership amount which was requested immediately after signing the membership agreement as mentioned in Para No. 3 above. The opposite party is not entitled to deduct 30% as per exit clause because opposite party misrepresented complainant to purchase membership and have adopted unfair trade practices. The complainant then got issued a legal notice dated 04.08.2021 to the opposite party and requested them to refund the entire amount of membership as the said membership agreement was cancelled by the complainant but no effect. The opposite party have misrepresented and made false representations and false promises to complainant and allured him to part with his hard earned money of Rs.1,25,000/- as membership fees. Despite of emails and request for cancellation of membership and refund Rs.1,25,000/- the opposite party has failed to refund Rs.1,25,000 and dilly-delaying the matter in order to usurp the hard earned money of the complainant. It is apt to state here that after getting the membership, the complainant immediately on 20-07-2021 opted for the cancellation as opposite party failed to honour their commitment and assurances given by their sales executives. The representatives of opposite party even assured complainant that they will refund Rs.1,25,000/- in case they failed to provide in writing that complainant can avail all holidays together and book 5 to 6 rooms in one holiday but inspite of cancellation and request for refund of Rs.1,25,000/-, the opposite party till date has not refunded the amount. The act and conduct of opposite party amounts to deficiency in service and unfair trade practice and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of Rs.1,25,000/- alongwith interest @ 18% per annum from the date of payment i.e. 16.07.2021 till its realization. Further, OPs be directed to pay a sum of Rs.50,000/- as compensation for causing mental tension and harassment to the complainant and Rs.25,000/- as litigation expenses.
2. Notice of the complaint was given to the OP, but despite service none has appeared on behalf of the OP and ultimately OP was proceeded against exparte.
3. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-11.
4. We have heard the Ld. Counsel for the the complainant and have also gone through the case file very minutely.
5. From the scrutiny of the documents, it reveals that OPs met complainant at King Hotel regarding the membership of ‘The Hilton Holiday International’ and allured the complainant to purchase the said membership. The representative of the OPs party offered the complainant that he and his family can avail total seven nights every year for a period of 10 years. They also offered him that complainant being an army man can also avail all nights in one year and can book 5 to 6 rooms together in one single holiday booking of his choice in anywhere in India, but this condition was not mentioned in terms and conditions. The representative of the OPs promised and told complainant that Head Office of the complainant will give the same in writing in two working days after the receipt of the membership fee. Based upon this promise, complainant took the membership of OPs and paid a sum of Rs.1,25,000/- through credit card bearing No.XXXX XXXX XXXX XX47 dated 16.07.2021, vide Ex.C-3. When complainant did not receive anything in writing within two working days. He filed a complaint in this regard on telephone but to no effect. Then the complainant immediately sent an email on 20.07.2021 to the OPS requesting the OPs to close the membership and refund the amount of Rs.1,25,000/-, vide Ex.C-4. On July 26, 2021 complainant received an email Ex.C-7 from OPS stating that they have received a cancellation request and same has been forwarded to the concerned department. They will keep in touch very shortly, but thereafter no response was given by OP. Even clause no.15 of terms and conditions provides for Exit Option at the deduction of 30% but OPs are not entitled to deduct 30% as per exit clause because OPS mis-represented the complainant to purchase membership.
6. On the other hand, the OP has not come to contest the case. So, the version of the complainant remained un-rebutted and un- challenged, even then the same is required to glance very deeply. The allegation of the complainant is supported by his own affidavit Ex.CA and supported documents Ex.C-1 to Ex.C-11.
7. One of the vital conditions of the contract is that there must be free will of the parties and there must be meeting of minds on the terms and conditions of the contract in the similar way. Even in the Indian Contract Act, some of the contract is voidable when the same are based on or created by mis-representation. In the present complaint too, the complainant claimed that they were allured and explained about the different terms, benefits, facilities which were not available in the terms and conditions. We are of the opinion that complainant without any delay apprised OP that the terms and conditions and facilities as told by the OP was not inconsonance with the initial proposal or invitations offer made by the representative of the OPS. By not honoring the request of the complainant to cancel the contract and by not refunding the amount, the OP is found to be deficient in rendering service and indulging into unfair trade practice.
8. In view of the above detailed discussion, we are of the opinion that complaint deserves to be allowed and accordingly the complaint of the complainant is partly allowed and OP is directed to refund Rs.1,25,000/- to the complainant alongwith interest @ 6% per annum from the date of payment i.e. 16.07.2021 till realization. Further, OPs are directed to pay a compensation including litigation expenses of Rs.10,000/- for causing mental tension and harassment to the complainant. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
20.12.2022 Member Member President
