Haryana

Ambala

CC/25/2022

Devinder Kumar Verma - Complainant(s)

Versus

Trends Holidays & Rsorts - Opp.Party(s)

Akhil Gupta

12 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	25 of 2022
Date of Institution	:	03.02.2022
Date of decision	:	12.01.2024

Devinder Kumar Verma aged about 46years s/o Shri Girdhari Lal, R/o H. No. 506, Prabhu Prem Puram, Post Office-Industrial Area, Opposite Bank of Baroda, Ambala Cantt.

……. Complainant.

Versus

1. Trends Holidays & Resorts India Private Limited, Suite No.403, 4th Floor, Sector-17C, Chandigarh-160 017, through its' Authorized Signatory;
2. Shri Amarjot Singh-Territory Head (Senior Executive), C/o Trends Holidays & Resorts India Private Limited, Suite No.403, 4th Floor, Sector-17C, Chandigarh-160 017;
3. Shri Ajay Kumar-Relationship Manager (Assistant), C/o Trends Holidays & Resorts India Private Limited, Suite No.403, 4th Floor, Sector-17C, Chandigarh-160 017.

….…. Opposite Parties.

 Before:       Smt. Neena Sandhu, President.

                     Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Akhil Chopra, Advocate, counsel for the complainant

                     Shri Gaurav Rajput, Advocate counsel for the OP No.1 and 3.

                   OP No.2 already ex parte.                

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund the amount of Rs.45,000/- alongwith up to date interest @18% p.a.
2. To pay compensation to the tune of Rs.2 lacs for mental agony and harassment
3. To pay Rs.55000/- as cost of litigation.OR

Grant any relief which this Hon’ble Commission may deems fit.

 

3.             Brief facts of this case are that OPs No.2 and 3 represented to be Territory Head (Senior Executive) and Relationship Manager (Assistant), for the OP No.1, respectively and called the complainant and his wife on 18.11.2021 in the Amarpali Hotel, GT Road, Ambala City on the pretext that they are entitled for Gift Package for two nights three days in the hotel as per their choice. The abovesaid officials further assured that whether the complainant obtained the membership of the OPs or not; but they are entitled for the above-mentioned package. Not only this, the above officials further allured the complainant and his wife to become members of the Ops. Upon this, the complainant and his wife agreed to become member of the  OPs on the request and proposal of the  OPs No.2 and 3 namely Shri Amarjot Singh and Shri Ajay Kumar. Thereafter, the complainant alongwith his wife namely Smt.Anju Verma have obtained the membership of the  OPs on the proposal and request vide Membership ID Number MTCSEP202021116 dated 18.11.2021 for the period of three years (18 nights). At that time, the complainant had paid a sum of Rs.20,000/-on 18.11.2021 as part payment through Paytm out of Rs.45,000/-. Thereafter the complainant paid Rs.1,000/-again on 20.11.2021 and the remaining amount of Rs. 24,000/- was paid to the  OPs on 21.11.2021 by way of net transferring from the account of the complainant bearing No.25621530001690 to the Account of  OPs bearing No.50200059600980 maintained in HDFC Bank Limited. In this regard, the OPs had also issued a Membership Letter on 18.11.2021. As per the terms and conditions of the membership, the complainant approached and requested the  OPs for booking any of the three hotels namely JW Marriott, Hyatt and Lalit at Chandigarh for 27.11.2021 to 29.11.2021 and in order to confirm the booking at any hotel, the complainant again requested through mail, which was told OK, sir on 22.11.2021; however, the  OPs requested for sending agreement to them and accordingly the complainant sent the Agreement and the  OPs assured and wrote a mail, "ABHI IS DATES MAIN TIME HAI BOOKING KRVA DUNGA MAIN DEFINETELY"; at which the complainant said O.K.. Thereafter the OPs kept lingering on for the booking of the hotel and on 25.11.2021, the OPs said that Hyatt Hotel, Chandigarh will be provided to the complainant only for one day; at which the complainant requested to confirm the booking of the said hotel even for one day; but the OPs did not confirm the bookings of hotel for one day. When the complainant requested the OPs to book any of the aforesaid three hotels for one day alteast, they frankly told in the evening of 26.11.2021 at 05.32 p.m., that there is no booking in these hotels and further disclosed that the rooms are sold out. However, when the complainant checked online, the said hotels were taking booking and as such the complainant called the OPs many times on 25.11.2021 to 26.11.2021 in the matter but to no avail. Feeling aggrieved, the complainant has demanded back his money from the OPs but they failed to do so.  Hence, the present complaint.
4.           Upon notice, OP No.1 appeared and filed written version wherein it raised preliminary objections to the effect that because there was a clause in the contract regarding settlement of disputes between the parties through arbitration therefore this Commission cannot decide this complaint the present complaint of the complainant is not maintainable; the complainant has not approached this Commission with clean hand; there is no cause of action; the complaint of the complainant is liable to be dismissed only on ground that the complainant concealed the true and material facts from this Commission etc. On merits, it has been stated that as per clause 4 of Member's Review for Confirmation of understanding the request of cancelation of membership only can be done within 10 days from the date of membership through registered Mobile or Email ID to the OP No.1 on email id www.trendsholidays.com or through registered post within 10 days. The para no. 4 reproduced as under ;- "4. I/We understand that in the event of request for cancellation of membership by me /us after the cooling period of 10 days Trends Holidays and resorts India Private Limited (Trends Club) shall not be liable to refund the Membership fees paid to us". Whereas in the present case the complainant not approached to OP No.1 who is Director of Trends Holidays & Resorts India Private Limited and is competent to solve the grievance if any within 10 days from the date of taking membership. OP No.2 has left the job from the company of OP No.1 and OP No.3 is still working with the OP No.1. The complainant approached OPs No.2 and 3 for booking of three hotels namely JW Marriott, Hyatt and Lalit at Chandigarh for 27-11-2021 to 29-11-2021. These hotels namely JW Marriott, Hyatt and Lalit at Chandigarh are Five Star(*****) Hotels and cost of only one night is approximately Rs.15000 to Rs.20,000/- and there is no contract of the OP No.1 to provide five star hotels to the complainant. The membership fee of 3 years i.e. 18 nights is Rs.45,000/- and the complainant is demanding above said hotels namely JW Marriott, Hyatt and Lalit at Chandigarh hotels which are five stars. OP No.1 offered the complainant the hotels i.e. Hotel Coral Star, Hotel Sun Park, Hotel KLG Starlight, Hotel Turquoise, Hotel Oyster, Royal Park Resort, Hotel Vintage but the complainant was not interested in those hotels. For the sake of argument if it is admitted that the complainant approached OPs No.2 and 3 for the grievance, yet, they were not competent cancel the membership of the complainant as only OP No.1, who is the Director of the company is competent to see the grievance within 10 days from the date of membership, but till date the complainant even not communicated with OP No.1.  Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with special costs.
5.           Upon notice, none appeared on behalf of the OP No.2, before this Commission, therefore, it was proceeded against ex-parte vide order dated 24.03.2022.
6.           Upon notice, OP No.3 appeared and filed written version wherein it raised preliminary objections to the effect that because there was a clause in the contract regarding settlement of disputes between the parties through arbitration therefore this Commission cannot decide this complaint the present complaint of the complainant is not maintainable; the complainant has not approached this Commission with clean hand; there is no cause of action; the complaint of the complainant is liable to be dismissed only on ground that the complainant concealed the true and material facts from this Commission etc. On merits, it has been stated that as per clause 4 of Member's Review for Confirmation of understanding the request of cancelation of membership only can be done within 10 days from the date of membership through registered Mobile or Email ID to the OP No.1 on email id www.trendsholidays.com or through registered post within 10 days. The para no.4 reproduced as under ;- "4. I/We understand that in the event of request for cancellation of membership by me /us after the cooling period of 10 days Trends Holidays and resorts India Private Limited (Trends Club) shall not be liable to refund the Membership fees paid to us". Whereas in the present case the complainant not approached to OP No.1 who is Director of Trends Holidays & Resorts India Private Limited and is competent to solve the grievance if any within 10 days from the date of taking membership. OP No.2 has left the job from the company of  OP No.1 and  OP No.3 is still working with the  OP No.1.   The complainant approached OPs No.2 and 3 for booking of three hotels namely JW Marriott, Hyatt and Lalit at Chandigarh for 27-11-2021 to 29-11-2021. These hotels namely JW Marriott, Hyatt and Lalit at Chandigarh are Five Star(*****) Hotels and cost of only one night is approximately Rs.15000 to Rs. 20,000/- and there is no contract of the OP No.1 to provide five star hotels to the complainant. The membership fee of 3 years i.e. 18 nights is Rs.45,000/- and the complainant is demanding above said hotels namely JW Marriott, Hyatt and Lalit at Chandigarh hotels which are five stars. OP No.1 offered the complainant the hotels i.e. Hotel Coral Star, Hotel Sun Park, Hotel KLG Starlight, Hotel Turquoise, Hotel Oyster, Royal Park Resort, Hotel Vintage but the complainant was not interested in those hotels. For the sake of argument if it is admitted that the complainant approached OPs No.2 and 3 for the grievance, yet, they were not competent cancel the membership of the complainant as only OP No.1, who is the Director of the company is competent to see the grievance within 10 days from the date of membership, but till date the complainant even not communicated with OP No.1.  Rest of the averments of the complainant were denied by OP No.3 and prayed for dismissal of the present complaint with special costs.
7.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure C-A alongwith documents as Annexures C-1 to C-27 and closed the evidence on behalf of the complainant.  On the other hand, learned counsel for the OPs No.1 and 3 tendered affidavit of Gurpreet Singh, Director of OP No.1-M/s Trend Holidays and Resorts India Private Limited, Suite No.403, 4^th Floor, Sector-17-C Chandigarh 160017, through its Authorized signatory as Annexure RW1/A alongwith documents as Annexures R-1 to R-14 and closed the evidence on behalf of the OPs No.1 and 3.
8.            We have heard the learned counsel for the complainant and learned counsel for the OPs No.1 & 3 and carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OPs No.1 and 3.
9.           Learned counsel for the complainant submitted that by not refunding the amount paid by the complainant despite the fact that he requested for cancellation of the membership aforesaid because the OPs failed to provide the services which were promised i.e. the Hotels chosen by them, the OPs are deficient in providing service and also adopted unfair trade practice.
10.           On the contrary, the learned counsel for the OPs No.1 and 3 while reiterating the objections taken in the written version submitted that the complainant had approached OPs No.2 and 3 for booking of three hotels namely JW Marriott, Hyatt and Lalit at Chandigarh for 27-11-2021 to 29-11-2021, which are Five Star(*****) Hotels and cost of only one night is approximately Rs.15000 to Rs.20,000/- and there is no contract of the OP No.1 to provide five star hotels to the complainant. He further submitted that OP No.1 offered the complainant the hotels i.e. Hotel Coral Star, Hotel Sun Park, Hotel KLG Starlight, Hotel Turquoise, Hotel Oyster, Royal Park Resort, Hotel Vintage but the complainant was not interested in those hotels. He further submitted that if it is admitted that the complainant approached OPs No.2 and 3 for the grievance, yet, they were not competent to cancel the membership of the complainant as only Director of OP No.1, Shri Gurpreet Singh, whose affidavit has been tendered as Annexure RW1/A, is competent to do so. He further submitted that because the complainant failed to approach OP No.1 for refund within 10 days of becoming members, now they cannot seek refund of the amount paid, as per contract.  
11.           First coming to objection taken with regard to Arbitration is concerned, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/contracts cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. Therefore, objection taken in this regard stands rejected.
12.           Now the moot question which falls for consideration is, as to whether, the complainant is entitled to any relief in this complaint or not? It may be stated here that it is clearly coming out from terms and conditions especially condition no.1 of the package/Membership Form-Annexure C-3 that it has been candidly agreed by the OPs that “A Member is entitled to a 6 nights and 7 days holiday every year in the furnished apartment/ Cottage/Room in any of the THRIPL associate or Network Hotel/Resorts during the Membership usage period, provided the Member is not breach of any of his obligations set out in the rules. Member agrees to comply with the rules governing THRIPL network resorts in which Member may choose to avail holidays…”. A plain reading of this condition establishes that the complainant was entitled to get a 6 nights and 7 days holiday every year in the furnished apartment/ Cottage/Room in any of the THRIPL associate or Network Hotel/Resorts. As such, there was no specific bar qua entitlement of any three hotel including JW Marriott, Hyatt, Lalit etc. However, despite that, when the complainant requested for booking in JW Marriott, Hyatt and Lalit at Chandigarh for 27-11-2021 to 29-11-2021, though, in the first instance, it was promised by the OPs through whatsapp message, Annexure C-15 committed by the OPs, yet, thereafter, it is the admitted case that booking for the said hotels- JW Marriott, Hyatt and Lalit at Chandigarh for 27-11-2021 to 29-11-2021 were not provided to the complainant. To evade their liability, OPs No.1 and 3 are now taking a flimsy ground that because there is no contract of the OP No.1 to provide five star hotels to the complainant i.e. JW Marriott, Hyatt and Lalit, as such, the OPs were not liable to provide booking of the same to the complainant. It is significant to mention here that it is not the definite and proven case of the OPs that the said hotels were not in their panel, whereas, on the other hand, they were disputing only qua booking of rooms by the complainant in the said hotels, on the ground that the said hotels are costlier. In our considered opinion, once it had been candidly agreed by the OPs vide condition no.1 referred to above, that the complainant was entitled to get a 6 nights and 7 days holiday every year in the furnished apartment/ Cottage/Room in any of the THRIPL associate or Network Hotel/Resorts, later on they cannot wriggle out of the same by taking such the plea that the said hotels are very costly.  In this view of the matter, we do not hesitate to conclude that the complainant is entitled for refund of the amount, paid by him. From the perusal of Annexure C-7, C-11 and C-13, it is evident the complainant paid Rs.20,000/-, on 18.11.2021, Rs.1,000/- on 20.11.2021 and Rs.24,000/- on 21.11.2021, respective, in total Rs.45,000/-. He is thus entitled to get refund of the said amount of Rs.45,000/-, alongwith interest. He is also entitled to get compensation for the mental agony and physical harassment suffered by the complainant alongwith litigation expenses. 
13.           It is significant to mention here that because it has been candidly admitted by OP No.1 that it was the Director of OP No.1 only, who is competent to cancel the membership of the complainant, therefore the present complaint filed by the complainant against OPs No.2 and 3 is liable to be dismissed.
14.           In view of aforesaid discussion, we hereby dismiss the present complaint against OPs No.2 and 3 and allow the same against OP No.1 through Director and its Director-Gurpreet Singh son of Sh.Mohinder Singh, is directed as under:-
    1. To refund the amount of Rs.45,000/-, to the complainant alongwith interest @6% p.a. from the respective date(s) of its receipt, till its realization.
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/- as litigation expenses.  

                    The director of the OP No.1 is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the aforesaid amount shall entail interest @8% p.a. from the date of default till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

   Announced:- 12.01.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President