Chandigarh

DF-II

CC/123/2015

Deepak Kumar Verma - Complainant(s)

Versus

The Manager Club Mahindra Holiday & Ors. - Opp.Party(s)

Meena Bansal, Adv

18 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

======

Consumer Complaint  No	:	123 0f 2015
Date  of  Institution	:	11/3/2015
Date   of   Decision	:	18/02/2016

 

 

 

 

 

Deepak Kumar Verma son of Sh. Sushli Kumar Verma resident of No.285 first floor, phase 3-A, mohali.

 

                …..Complainant

Versus

1. The Manager Club Mahindra Holiday, Mahindra Holidays & Resorts India Ltd. Mahindra Towers, Second floor, NO.17/18, Patullos Road, Chennai, Tamilnadu 600002.
2.  Mahindra Holidays & Resort India Ltd. suit No.504, Block A, Fifth Floor, Elante Office suites, Plot No.178-178/A, Industrial Area, Phase I Chandigarh 141001 through its Manager.
3. Mahindra Holidays and Resorts India Ltd. Suit No.504, Block A, Fifth Floor, Elante Office Suits, Plot No. 178-178/A, Industrial Area Phase I, Chandigarh 141001 through Bhupesh Sharma Direct Sales Manager.

 

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

For complainant(s)      :     Ms. Meena Bansal, Advocate

 

For Opposite Party(s)   :     Sh. J.S. Bhatia, Advocate.

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          As per the case, the complainant under the influence of Opposite Party No.3 purchased  Membership of Club Mahindra on 25.3.2014 vide membership No.2570272 from the OPs. The total membership price was Rs.4,99,000/- out of which the complainant had paid to the Opposite Parties Rs.1,04,725/-. The Membership commenced from 12/2014 to 11/2039. The complainant purchased a red studio category membership for which he was issued membership card.  As the total membership price was Rs.4,99,000/- and the OPs had offered an enrollment of 10% of down payment.  Therefore, the total amount of down payment was Rs.49,900/- out of which after deducting 10% of the down payment, complainant had paid an amount of Rs.39,400/- towards the down payment. Further the EMI plan was of 24 months and EMI amount was Rs.21775/-.  Thereafter on 6.6.2014 the complainant had paid an amount of Rs.65325/- to the OPs.

     It is alleged that when the  complainant for availing the services of the OPs opted for booking of firstly Udaipur resort then Goa Beach Resort and then Dubai Resorts and thereafter Mahindra Ashtamud Kerala of the OPs well in advance the same were back to back denied by the Opposite Parties on the ground of non-availability.  Ultimately being frustrated by the services of the OPs the complainant vide Annexure C-10 asked the OPs for cancellation of the membership and sought refund but to no effect. Hence this complaint has been filed alleging deficiency on the part of the OPs.  

 

2]      Opposite Parties in their reply while admitting the factual matrix of the case stated that the complainant after being satisfied with the rules and regulations of the membership purchased red studio membership and entered into a contract with Opposite Parties Company by signing the membership application form i.e. the membership contract on 25.3.2014. The complainant agreed to pay remaining amount of the membership fees in 24 equated monthly installments of Rs.21,725/- each and he paid Rs.1,4,725/- only and thereafter has become defaulter.  He also not paid the Annual Subscription Fee (ASF) for the year 2014 that amounting to Rs.12,569/-.  It is averred that the complainant was offered certain enrollment benefits i.e. (a) 10 nights club Mahindra Night Holiday (b) 2 years RCI enrolment (c) resort credit voucher worth Rs.10,000/- (d) Rs.10,500/- cash back discount after 3 EMI, which were subject to certain terms and conditions and explained to the complainant.  As per record benefit no.(a) was credited to the account of the complainant.  With regard to benefit (b) the complainant was enrolled under RCI membership. The other benefits (c) and (d) dispatched/released to the complainant as is apparent from Annexure R-5. It is averred that as per membership agreement RCI Exchange/Holiday is subject to availability of RCI destinations and is a matter purely between the member and RCI for which  OPs’ company is not liable.  It is denied that there is any  irregularity in the ledger account of the OPs.           It is averred that the allegation of the complainant that he was not provided booking due to non- availability is without any merit because as per membership rules the confirmation of booking of holiday is always subject eligibility and availability and on first come first serve basis only and the holiday can be booked 4 months in advance and also one day prior to holiday date subject to availability and eligibility.  The booking was also made for the complainant at Kumbhalgarh with check in date of 5.10.2014 and check out date of 10.10.2014, hence allegation of the complainant that he was not provided with the booking is without any substance.

3]       It has been admitted that the complainant in the letter dated 19.9.2014 applied for cancellation of membership and sought refund. However, the refund was sought beyond 10 days of rescission/free look period.  The complainant was very much aware of the cancellation norms that as per clause 6 of the membership rule he was not entitled for full refund in the event cancellation of membership after rescission period/free look period of 10 days.  The membership form itself contains extracts from Rules and the complainant duly signed Membership’ Review for  Confirmation of Understanding. It is averred that withdrawal of application is permitted only within rescission period, if request for cancellation is made in writing within 10 days from the date of application, and in that eventuality the entire amount was to be refunded within 30 days. However, in the case of post-rescission period cancellation is made,  only entitlement fees was to be refunded i.e. in the form of 40% of the total membership fees. Averred further that since in the instant case the complainant paid less than 60% of the membership cost which is payable towards non-refunable Admission fee, the entire money paid by the complainant stands forfeited. Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.

 

3]      The Complainant also filed rejoinder thereby reiterating the averments as made in complaint and controverting that of the Opposite Parties made in their reply.

 

4]       Parties led evidence in support of their contentions.

5]      We have heard the ld. Counsel for the parties and have also perused the record.

6]       Summarizing the facts, the counsel for the complainant submitted that being allured of the benefits of membership of Club Mahindra Club, explained by the representative of the OPs, the complainant purchased the Membership of Club Mahindra vide Membership No.2570272 from the OPs for an amount of Rs.4.99 lacs.  Out of Rs.4.99 lacs, the complainant paid an amount of Rs.1,04,725/- against Red Studio category membership. As the complainant was offered an enrollment offer of 10% of down payment, the complainant paid an amount of Rs.39,400/- towards the down payment and committed to pay an amount of Rs.21,775/- by way of equated monthly installments for the period of 24 months.  After that an amount of Rs.65,325/- was paid by the complainant to the OPs on 6.6.2014 against which three receipts were issued by the Opposite Parties.  It is submitted that the said amount paid by the complainant was broken down under many heads, as apparent from the ledger record of the OPs. 

 

7]       The cause of action, firstly accrued in favour of the complainant the day the complainant tried to avail the services of the Opposite Parties by opting for Udaipur Resort 17 days prior to his schedule, which could not be booked due to non-availability. It continued when again the complainant tried for the booking of Goa Beach Resort for 24^th Dec., 2014, 18 days prior to his schedule, the same was also not booked due to non-availability.  Counsel for the complainant claimed that the process of non-availability continued for the third time when the complainant tried for the booking of Dubai Resorts and for the fourth time when he tried for the Resort of Club Mahindra Ashtamudi Kerala and again the bookings of both these places were denied on account of non-availability.  Being frustrated by the services of the OPs, the complainant moved an application for the cancellation of the membership requesting the OPs to refund the amount paid to the OPs as well as the documents given at the time of signing of the membership agreement.  It is the main grouse of the complainant that the OPs failed to refund the amount as demanded, which was asked to repay, when the complainant found that the benefits exaggeratedly explained on behalf of the OPs, proved false. 

 

8]       The counsel for the OPs in defence of OPs pleaded that the complainant signed the membership contract with the Opposite Party Company out of his free will and volition, therefore, no question can arise about the misrepresentation and deficiency in service.  Further, submitted that the complainant duly signed the Membership Application Form, which explains about the cancellation norms wherein as per clause 6 of the membership rule, the complainant is not entitled for full refund in the event of cancellation after rescission period. They took the plea that the complainant has duly signed the Member’s Review for Confirmation of Understanding, which reads as under:-

    “I/We confirm having read the Membership Rules governing allotment of Club Mahindra Holiday Membership and the Terms and Conditions with regard to Resort Condominium International and agree to abide by the same.  All necessary clarifications and information on the Membership Rules have been provided to us.

    I/We understand that in the event of request for cancellation by me/us after the rescission period, Mahindra Holidays & Resorts India Limited shall not liable to refund the Admission Fee paid to us.”

             

           The ld. Counsel for the OPs submitted that the complainant made request for cancellation of membership and refund of money beyond the rescission period of 10 days where full refund is not applicable and in the event of cancellation after rescission period of 10 days, admission fees consisting of 60% of the total membership fees is non-refundable, only entitlement fees which forms 40% of the total membership fees is refundable.  Further claimed that as the complainant has paid even less than 60% of membership cost, which is payable towards non-refundable admission fee, the entire money paid by him stands forfeited and no question of refund is there.  

 

10]      The counsel for the Opposite Party submitted that the complainant had paid an amount of Rs.1,04,725/- only and had failed to pay the annual subscription fee for the year 2014 amounting to Rs.12,569/- which is required to be paid by the complainant towards the maintenance of the resorts in terms of the membership contract and for this reason of nonpayment the complainant was denied for the benefit of membership.  

11]      Justifying the allegations of the complainant regarding irregularity in the ledger account in regard to the amount of Rs.65,325/- paid by the complainant on 6.6.2014 as was broken down into small parts, counsel for the OPs explained that it was done so only with the consent of the complainant and was done only to maintain regularity in payment history of the complainant. 

        In regard to the allegations of non-availability of purposed bookings, the OPs took the plea that the confirmation of booking of holiday resort is always subject to eligibility and availability and on first-cum-first serve basis only and the holiday can be booked in 4 months in advance and also one day prior to holiday date. The counsel for the OPs further submitted that the holiday was booked for the complainant as per his request at Kuala Lumpur with check in date of 27.12.2014 and check out date of 2.1.2015 and check in date of 5.1.2014 and check out date of 5.1.2015 and the booking was also made for the complainant at Kumbhalgarh with check in date of 5.10.2014 & check out date of 10.10.2014.  Stating so, the ld.Counsel for the Opposite Parties tried to explain that the allegations of the complainant that he was no provided with the booking has not substance and bereft of any merit.

13]      After giving thoughtful consideration to the submissions made by the parties as well as thorough perusal of the record before us, without any doubt the complainant purchased the club Mahindra Membership No.2570272 from the OPs for an amount of Rs.4.99 lacs and out of Rs.4.99 lacs, the complainant in toto paid an amount of Rs.1,04,725/- against Red Studio category membership.

 

14]      It is the submission of the OPs that Opposite Party company is in the business of providing vacation ownership to its members (i.e. for a period of 25 years) who have purchased Club Mahindra Holidays Membership (CMHM), which entitles the members to avail 7 days of holidays every year, during the allotted season in the allotted apartment, in any of the resort of club Mahindra in India and abroad for a period of 25 years . The complainant in order to avail the aforesaid benefits of the membership availed by him, when tried bookings for various places at different time intervals, remained unsuccessful every time and could not get any benefit of the aforesaid membership due to non-availability.  There is no denial to the above fact that the complainant tried his luck for four times, but met with the same result, which certainly had caused frustration to the complainant as the very purpose of availing the membership got defeated.  In the absence of any transparency in the system of the Opposite Parties, it is hard to opine that why all the attempts of the complainant for the alleged bookings remained unsuccessful.  There is no record placed on the file by the OPs to justify the reason of non-availability. Further, the Opposite Parties have not placed on record any document showing the bookings made by other persons at the purposed resorts or any document showing that the benefit of bookings were actually availed. This act of omission not only proves the deficiency in service on the part of the OPs but also show their indulgence into unfair trade practice.

 

15]      The submission of the Opposite Parties that as the complainant failed to pay the annual subscription fee amounting to Rs.12,569/-, so he is not entitled to the benefit of membership, it became infructuous when the OPs took another plea that they make arrangements for the bookings at Kuala Lumpur as well as for Kumbhalgarh for the complainant.  In our opinion if the OPs had denied booking benefit to the complainant for non-payment of the subscription fee, then what is the fun for offering such bookings which the complainant not desired or opted for. Out of this, one thing is clear that the complainant was entitled to avail the benefits of the membership though he had not paid the full membership fee.

16]      In our opinion the complainant is right to ask for the refund of his amount, which he paid under the misrepresentation that he will enjoy the benefits of membership, explained by the representative of OPs and incorporated in the agreement, which in actual he could not.   OPs plea of rescission period of 10 days seems unjustified. In our opinion the free look period is a facility to the member to see if he wants to continue with the membership or wants to withdraw from the membership by asking refund of his amount deposited with the company. However, in our view until and unless the members utilizes the services of Opposite Party company he cannot come to his decision whether to continue with the membership or not.

         The person who has paid for the membership, can rethink only when he or she would opt for the facility of the OPs as promised and in case, the promises or allurements prove to be false, then he or she has right to withdraw from the membership. In the present case also admittedly the complainant being member of Opposite Party company tried the bookings for four times but remained unsuccessful. Thus he was not satisfied with the working of the OPs company and it is only thereafter he rightly exercised his option to withdraw from membership and thus rightly asked for the refund. In our opinion the complainant is not only entitled for refund of his hard earned money which OPs have wrongfully withheld; but OPs are also liable to compensate the complainant on account of deficiency in service as well for their indulgence into unfair trade practice. The OPs have no legal right to forfeit the hard earned money of the member to whom they have not given satisfactory services as promised or agreed for.  

         In view of the above, the demand of the complainant for refund is held to be fully justified.  Thus, the deficiency in service as well as indulgence into unfair trade practice, on the part of the Opposite Parties has been proved.

 

17]      In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed against Opposite Parties.  Accordingly, the complaint is allowed against Opposite Parties. The OPs are jointly & severally directed as under:-

1. To refund an amount of Rs.1,04,725/- to the complainant along with interest @9% p.a. from the date of deposit till actual payment;
2. To pay a sum of Rs.25,000/- as compensation to the complainant on account of mental tension, agony, harassment suffered on account of deficiency in service and for the unfair trade practice of OPs.
3. To pay Rs.5,000/- as litigation expenses.

 

         This order shall be complied with by Opposite Parties No.1 & 2 jointly & severally within 45 days from the date of receipt of its certified copy, failing which, they shall be liable to pay interest at the rate of 18% per annum on the amount as mentioned in sub-para (i) from the date of deposit and on the amount as mentioned in sub-para (ii) above, from the date of filing of this complaint, till realization, besides paying litigation expenses. 

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

18^th February, 2016                                                      Sd/-                                                                                   (RAJAN DEWAN)

PRESIDENT

 

 

                                                                                                    Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

 

 

Sd/-  

 (PRITI MALHOTRA)

MEMBER