COMPLAINT FILED: 17.09.2010

DISPOSED ON: 09.02.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

DATED THIS THE 9^TH FEBRUARY 2011

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER                        

       COMPLAINT NO.2149/2010

O R D E R

SRI. B.S. REDDY, PRESIDENT

The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P.) to refund the membership fee of Rs.29,000/- with interest and compensation towards mental agony and loss suffered along with litigation costs in all Rs.50,600/- on the allegations of deficiency in service on the part of the OP.

2.      The case of the complainant to be stated in brief is that:

          The complainant had taken a 3 years holiday membership from OP by paying an amount of Rs.29,000/- in June – 2009. As per the agreement complainant had to pay an amount of Rs.29,000/- towards membership which will entitle to get 6 Nights / 7 days holidays every year for 3 years in various hotels across India. The complainant approached OP in the month of October – 2009 for booking hotel in Goa in the month of December – 2009 as complainant planned for holiday with family there, however OP refused to provide accommodation citing reason that December is peak season for Goa even though the complainant was entitled for same and while taking membership OP told that it is very easy for them to provide accommodation in Goa as parent company casa retreat has its own resort in Goa. Since OP did not provide accommodation, complainant had to cancel his holiday plan for Goa.

On the second occasion in the month of June – 2010 complainant approached OP for extension of his first year vouchers as he had not availed the same since OP could not provide accommodation in Goa when complainant needed. OP refused to extend his vouchers fully citing reason that complainant need to approach them one month in advance for same and only extended half days (3 Nights). Complainant also instructed OP to provide hotel booking in Manali 21^st and 22^nd June for himself and his friends as complainant was planning for Kashmir and Himachal holidays on those days. OP first refused to provide accommodation on requested hotels (Honeymoon Inn or Snow Valley resorts) citing reason that the complainant is not entitled for these hotels even though these are 3 star hotels only and complainant was entitled for 3 star category of hotels. OP agreed to provide booking in decent hotel in Manali and complainant was told that vouchers will be e-mailed in one week time and complainant can go ahead with his holidays. As complainant had already his plan to reach Manali after covering Srinagar and Leh complainant went ahead with his plan however even after one week complainant did not get any mail from OP on his booking and when complainant tried to call given on telephone number no one picked up the phone. Since OP did not provide booking in Manali complainant has to cancel his plan and return from Leh itself and this costed them approximately Rs.48,000/- (12,000 X 4) on flight booking and changing dates from Leh to Bangalore which otherwise would have been very less if complainant had option to return from Manali which was originally planned. On return complainant asked OP to cancel his membership and refund his money as he is dissatisfied with its service. The complainant had sent the letter on 06.07.2010 in that regard to OP, but no reply was received from OP for nearly 2 months. Complainant approached personally OP office on 7^th September and met one Mr. Venkatesh who shown complete ignorance on the matter, but promised to look into it and revert in 2 – 3 days. Till today complainant has not received any reply. Thus the complainant is seeking necessary reliefs stated above.

3.      On appearance, OP filed version admitting that the complainant is member of OP from 13.06.2009 to 13.06.2012. It is stated that as per the agreement entered into on 13.06.2009 the complaint is not valid. As per clause – 18 of the agreement the membership agreement once entered upon cannot be cancelled or rescinded at any point of time. In case the member is unable to honour his balance commitment if any for total membership cost; he has to avail holiday equivalent amount paid him. OP is under no obligation to refund any money received towards membership purchase price. It is admitted that the complainant approached OP to avail facility to travel to Goa in the month of October – 2009, OP confirmed request of the complainant and directed to pay Rs.500/- as confirmation fee and obtain voucher as per clause – 5 of the agreement. As per agreement clause – 6 all destinations mentioned in VCC list of destinations have two different season bands peak and shoulder / regular season. A shoulder season member can travel only during shoulder season of each destination. However a shoulder season member can avail holiday period in peak season by paying a peak season charges of Rs.350/- per day. The complainant has not paid the charges as required mentioned in the agreement. The complainant approached in the month of June – 2010 for extention of his first year voucher as he had not availed the same. The complainant should have been approached for extention of time in the month of May – 2009 as required and as per clause – 9 of the agreement. The complainant has stated that he approached in the month of 22.06.2010 for booking to Manali, but he has not complied clause 5 and 6 of the agreement. The complainant has to obtain guest certificate for his friends as stated in clause – 7 of the agreement he has not complied the same. Hence it is prayed to dismiss the complaint with costs.  

4.      In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The Director of OP filed affidavit evidence.  

5.      Arguments on both sides heard. Points for consideration are:  

Point No.1:- Whether the complainant proved

                   deficiency in service on the part of

                    the OP?

Point No.2:- Whether the complainant is entitled for

                   the relief’s now claimed?

Point No.3:- To what Order?

6.      We record our findings on the above points:

Point No.1:- Affirmative.

Point No.2:- Affirmative in part. 

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not at dispute that the complainant became member of OP company by paying an amount of Rs.29,000/-. As per the agreement of membership with OP, the complainant is entitled to get 6 nights / 7 days holidays every year for 3 years in various hotels across India. The copy of the vacation credit card membership purchased agreement produced by the complainant provides the terms and conditions. The grievances of the complainant is in the month of October – 2009 he approached OP for booking of hotel in Goa for the month of December – 2009 as he had planned for holiday with family, but OP refused to provide accommodation citing reason that December is peak season for Goa. The defence of the OP is though the complainant approached OP to avail facility to travel to Goa in the month of October – 2009, but the complainant has not confirmed his travel and failed to pay Rs.500/- as a confirmation fee as per clause – 5 of the agreement. In our view there is no merit in this defence for the reason that OP has not produced any material to show that OP has confirmed the request of the complainant and directed to pay Rs.500/- as confirmation fee and obtain the voucher. From the affidavit evidence of the complainant it becomes clear that OP has refused to provide accommodation in Goa on the ground that the month of December is peak season for Goa. Thus it becomes clear that OP has failed to perform its obligations in providing accommodation at Goa as requested by the complainant. We are unable to accept that the complainant himself failed to pay Rs.500/- as confirmation fee as per clause – 5 of the agreement. Further OP also failed to provide hotel booking in Manali on 21^st and 22^nd June – 2010. The complainant requested to provide a hotel booking in Manali for himself and his friends as the complainant was planning for Kashmir and Himachal holidays on those days. Initially OP refused to provide the accommodation on the ground that the complainant is not entitled for those hotels (Honeymoon Inn or Snow Valley resorts). Though those hotels are 3 star hotels and complainant is entitled for 3 star category of hotels. OP later agreed to provide booking in decent hotels in Manali and assured that vouchers will be e-mailed within a week and complainant can go ahead with his holidays. The complainant with his friends planned to reach Manali on covering Srinagar and Leh, accordingly they went ahead with their plan, but the complainant could not get any mail from OP; with regard to booking of a hotel in Manali. Because of that the complainant with his friends have to return from Leh itself by changing the schedule of their return journey. After returning to Bangalore the complainant approached OP seeking to cancel his membership and refund the amount paid. Further letter dated 06.07.2010 was addressed to the OP to cancel the membership and refund the amount; OP has not replied for the said letter. If the lapses were on the part of the complainant in non complying the clauses of agreement, OP could have replied for the said letter. No reply to the said letter leads to draw adverse inference against OP to the effect that there was no lapses on the part of complainant and the lapses were on the part of OP. Therefore the complainant is justified in demanding the refund of the membership amount, as OP failed to provide accommodation at Goa and Manali. There is no merit in the contention that as per clause – 18 of the agreement, the membership fee is non-refundable. When OP failed to comply with the terms and conditions of the agreement by providing accommodation as requested by the complainant, it is not open to contend that as per clause – 18 of the agreement membership fee is non-refundable. OP has not produced any material to show that the booking of the hotel at Manali was confirmed and the complainant was intimated the same and the complainant failed to pay the season charge of Rs.350/- per day as mentioned in clause – 6 of the agreement deed and failed to obtain a guest certificate. Under these circumstances we are of the view that the complainant proved deficiency in service on the part of the OP in not providing accommodation at Goa and Manali. The complainant is entitled for refund of the membership amount of Rs.29,000/-. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant allowed in part. OP is directed to refund an amount of Rs.29,000/- and pay Rs.1,000/- towards litigation costs to the complainant.

This order is to be complied within four weeks from the date of this order.

Send the copy of this order to both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by  him, verified and corrected, and then pronounced in the Open Court by us on this the 9^th day of February – 2011.)

PRESIDENT

MEMBER                                                      MEMBER 

 Snm: