CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.

Present

Smt. Bindhu M.Thomas, Presidient(I/C)

Sri. K.N. Radhakrishnan, Member

                                            

CC No 116/10

                                                             Monday the 27^th day of August, 2012

 

Petitioner                                              : T.K.John,

                                                             Thekkadath House,

                                                             31^st Mile, N.H 220

                                                             Mundakayam, Kottayam Dist.

                                                             (Adv.Alexander.J.Arackal&

                                                                Adv.Jossy Bastian)

 

                                                            Vs.

 

Opposite party                                     : The Managing Director,

                                                                Club Mahindra Holidays

                                                                Mahindra Towers

                                                                2^nd Floor 17/18, Putullos Road,

                                                                Chennai, Tamil Nadu-600002.

                                                               (Adv.Sandhesh Raja.K)

                                                            2) Anilkumar,

                                                                 Chris Internation, Kalathil Building,

                                                                 K.K.Road, Kanjikuzhy, Kottayam.

 

 

 

            Complainant’s case is as follows.

            The 1^st opposite party is a pioneer holiday package club operating Package Holiday programmes for its members at various tourist places in India and abroad on purchase of the club Mahindra Membership by paying costs of membership fee and in whose favour the membership certificate is issued. The petitioner had joined with the 1^st opposite party in 2004 through the 2^nd opposite party working at Kottayam. The petitioner allotted with a membership certificate No.46101 and member No.34990 dtd 12/01/2005 by the 1^st opposite party. At the time of joiningthe 1^st opposite party gave membership rules which were contained in the certificate. At the time of joining the petitioner paid a sum of Rs.11,450/- and 12 post dated cheques for Rs.3,261/- to the 1^st opposite party and those cheques were later enchased by the opposite party. Thus the 1^st opposite party has received a total amount of Rs.50,582/- from the petitioner. The petitioner was made to believe by the 2^nd opposite party that the club Mahindra Holiday certificate is valid for 25 years from the date of issuing the certificate and is entitled to enjoy a week every year in the specified apartment in any of the Mahindra resorts during the membership period. In addition to that a special offer of free Sri Lankan Holidays for 2 adults and 2 children will be facilitated to its members on joining the opposite party club. The petitioner was eagerly waiting for free Sri Lankan trip offered by the 1^st opposite party. But the offer was never fulfilled despite several requests made by the petitioner to the opposite party. The petitioner alleged that the 1^st opposite party cheated him after accepting a big sum as membership fee. The petitioner was also not rewarded by the opposite party for introducing one of the friends, Mr. Monsi George who joined the opposite party club. Hence the complainant filed this complaint alleging deficiency in service and unfair trade practice on the part of the opposite parties.

            Notice was served to both opposite parties.   1^st opposite party entered appearance and filed version. 2^nd opposite party was called absent and was set expartee.

            First opposite party filed version with the following main contentions.

            1) Complaint filed by the complainant is not maintainable in law as well as on facts

            2) Complaint is bad for misjoinder of party and is liable to be dismissed.

            3) Complainant would require evidence to support the alleged case and the same is to be decided only be a Civil Court.

            4) There is no office of the opposite party at Kottayam. It is admitted that an amount of Rs.50,582/- has been paid by the complainant till 5/7/05. At the time of taking the membership, Rs.5000/- worth travel reimbursement voucher to be dispatched on utilization of holiday after realization of 50% of product price, 10000/- worth food vouchers to be issued at the time of confirmed holiday after realization of 50% of product price, and one week international or domestic holiday at any RCI affiliated resort after realization of 25% of product price special premium was offered and intimated.    

            5) These opposite parties strongly and vehemently deny that the petitioner was given a special offer of free Sri Lankan holidays for 2 adults and 2 children. Petitioner has not issued any letters or communications requesting for the Sri Lankan trip which shows that he is not entitled for the Sri Lankan trip. It was not a part of the special premium attached to the membership.

            6) Any complaint relating to free offers is not maintainable in the forum, the complainant does not fall under the definition of the word “consumer” as free gifts are not purchased for a consideration.

            7)The complainant is under some wrong notion that mere non replying of the notice amounts to admission whereas he is totally forgetting the fact that the person who approaches the court must prove every bit of his allegations contained in the complaint and the exclusive burden to prove the allegations is on the complainant.

            8) The complainant has made all the payments out of his own free will and without any force or pressure and if the complainant was not satisfied with the services of the opposite parties then he would not have made any payment thereafter.

            9) The present complaint has been filed way beyond limitation. The complainant had asked for cancellation of his membership on 10^th June 2008 then what prevented the complainant in filing this complaint which is ultimately filed only on 27^th March, 2010 which is much way beyond the prescribed period of limitation.

            The opposite party submitted that legally or even otherwise they are not liable to refund the said sum of Rs.50,582/- to the complainant and there is no deficiency in service on their part. Hence the opposite parties prayed to dismiss the complaint with costs to them.

i)                    Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?

ii)                   Reliefs and costs?

Evidence consists of affidavit filed by the petitioner and Exts.A1 to A4

            It is not in dispute that the complainant has paid Rs.50,582/- to the opposite parties. The complainant averred that the opposite parties issued a membership certificate to him which contained the rules and regulations of the opposite parties. The original certificate of membership is produced and it is marked as Ext.A1. As per Ext.A1 the membership period is from 4/5/05 to 3/2030. The petitioner next averred that he was made to believe by the opposite party that a member is entitled to enjoy a week every year in the specified apartment in any of the Mahindra Resorts during the membership period. The petitioner next averred that a special offer of free Sri Lankan holiday for 2 adults and 2 children was made to its members on joining the opposite party club. The petitioner submitted that lured by the aforementioned Sri Lankan trip, he took membership with the opposite party. Whereas the opposite party contented in their version that they had not given any special offer of free Sri Lankan holidays and the petitioner had not issued any letter or any communication requesting for the said Sri Lankan trip. According to the opposite party the absence of such demand letter or communication itself proves that the petitioner is not entitled for the said free trip. The petitioner produced office copy of advocate’s notice and original AD card and they are marked as Ext.A3 and A4 respectively. Ext.A3 and Ext.A4 clearly shows that the petitioner had made requests to the opposite party for the special offer of free Sri Lankan holidays. It is also evident from Ext.A3 that the petitioner had claimed for the refund of Rs.50,582/- and compensation. It is significant to note that the opposite parties had not replied in spite of the receipt of said advocate’s notice.

            Opposite parties further contented that the petition relating to free offers is not maintainable before the forum and the complainant does not fall under the definition of the word “consumer” as per the Consumer Protection Act.   On scanning the entire evidence placed on record it is seen that petitioner had paid Rs.50,582/- to the opposite parties as consideration and no service was received by the petitioner including the free offer of Sri Lankan trip. The opposite parties have not adduced any evidence to prove that they have not made any offer of free of Sri Lankan trip and has not committed any deficiency in service. As the opposite parties chose not to contest the allegations of the complainant against the opposite parties remain unchallenged. From the evidence placed on record we feel that the opposite parties are deficient in their service. Point no.1 is found accordingly.

            In view of the findings in point no.1 the complaint is to be allowed. The complaint is ordered as follows.

The first and second opposite parties will jointly and severally refund Rs.50,582/- to the complainant with interest @ 10% per annum from the date of complaint till realisation. As interest is allowed no compensation is ordered. The first and second opposite parties are also ordered to pay litigation cost of Rs.2000/- to the complainant.

            This order will be complied with within one month of receipt of the copy of this order.

Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the27th day of August., 2012.

 

Smt. Bindhu M.Thomas, Presidient(I/C)                        Sd/-

Sri. K.N. Radhakrishnan, Member                                Sd/-

Ext.A1-Original certificate of membership

Ext.A2-Newspaper cutting

Ext.A3-Office copy of advocate’s notice

Ext.A4-Original AD card.

Nil

By Order,

 

Senior Superintendent.