State Consumer Disputes Redressal Commission
Forest Fern Hospitality Ltd vs Madan Lal Sharma on 24 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2012/2621 (Arisen out of Order Dated in Case No. of District State Commission) 1. Forest Fern Hospitality Ltd B-204 Ansal Chamber Bhikaji Cama Palace New Delhi ...........Appellant(s) Versus 1. Madan Lal Sharma Near Ram Mandir Gola Gokara Nath Lakhimpur Khiri ...........Respondent(s) BEFORE: HON'BLE MR. Udai Shanker Awasthi PRESIDING MEMBER For the Appellant: For the Respondent: Dated : 24 Jul 2017 Final Order / Judgement RESERVED State Consumer Dispute Redressal Commission, Uttar Pradesh Lucknow Appeal No. 2621 of 2012 Forest Fern Hospitality (P) Ltd. & Ors, .......Appellants Versus Madan Lal Sharma & Ors. ......Respondent Present:- Hon'ble Sri Raj Kamal Gupta, Presiding Member.
Hon'ble Sri Mahesh Chand, Member.
Sri Vinod Singh & Vir Raghav Chobe, Advocate for the Appellants.
Sri S.K.Sharma for the Respondent.
Date: 15.9-2017 Judgment Sri Mahesh Chand,Member-This Appeal has been filed by the Appellants, against the order dated 14.9.2012, passed by learned District Consumer Dispute Redressal Forum-I, Lucknow, in complaint case No 641/2008, Madan Lal Sharma & Others, vs Forest Fern Hospitality (P) Ltd. & Others.
In brief the complainant's case is that the Complainants/Respondents and the Appellants entered into a written agreement on dated 7.1.2007, called as Vacation Resort Membership Agreement where in it was provided that on payment of membership fee of Rs 112,695 and administration fee of Rs 9,000/-, total amount being Rs 121,695/-, the respondents will become the Vacation Resort Members. It was also provided in the agreement that the Vacation Resort Member is entitled to the right to use the apartment at Bhimtal, District Nainital for one week every year as mentioned in the membership certificate. As per term and condition No 6 of the agreement, the appellant will issue the membership certificate within 45 days of the receipt of the total membership fee. In the instant case the payment of membership fee Rs118695/- vide bank draft No 598994 dated was 8.1.2007 made on dated 8.1.2007 and an amount of Rs 3000/- was also paid on dated 7.1.2007 but the appellant did not issue the membership certificate till the date of filing the complaint. The complainant reached out to the appellants several times at their Lucknow office of the appellants but to no avail. The vacation resort unit was also not provided to the respondent-complainant anywhere as mentioned in the terms and conditions of the agreement. This breach of the terms and conditions of the said agreement and deficiency in service on the part of the appellant caused a mental agony and financial loss to the respondent-complainant. Being aggrieved with this the respondent-complainant filed the above mentioned complaint before the District Consumer Dispute Redressal Forum, Lucknow-I, Lucknow. The contents of complainant's main prayer in his complaint were as follows:-
Refund of Rs 121,695/- with 18% interest.
The payment of Rs. 100,000/- for breach of agreement.
The payment of Rs 50,000/- for mental and physical agony.
The complaint was contested by the appellants before District Forum. The Learned District Forum after perusing the evidences of both the parties and listening their arguments passed the following order on dated 14.9.2012:-
" This complaint is partly allowed. The OPs are directed to refund the Rs 121,695/-( Rupees one lac twenty one thousand six hundred ninety five only) with interest @ 9% from 8.1.2007 till the payment is made. The OPs are also directed to pay compensation of Rs 3,000/- ( Rupees three thousand only) as compensation for mental harassment and Rs 1000/- ( Rupees one thousand) as the cost of litigation to the complainants. The entire amount will be paid within a month by the OPs."
Being aggrieved with the above impugned order, the appellants have filed this appeal. The main grounds of the appeal are that there was no deficiency in service or unfair trade practice on the part of the appellants. The learned District Forum failed to appreciate that the respondents have entered into timeshare agreement. The respondents never approached the appellants for the allotment of his time share week. They never made any request as per terms of the agreement. The appellants assailed the impugned order on the ground that the learned District Forum has unjustifiably drawn the conclusion that the non-availability of the certificate was the main cause of non-availing the membership week. The appellants have alleged that the impugned order is mechanical and without application of mind. With these grounds the appellants have prayed to set aside the impugned order and allow the appeal.
The respondents also filed their objections and vehemently contested the appeal. The appeal was put up before this bench for hearing. We have heard the arguments of the learned counsels of the parties and perused the record on file. There is no dispute regarding the fact that the respondent-complainant paid the required fee of Rs 121,695/- to the appellants to become the Vacation Resort Member of the scheme launched by the appellants. The appellants and the respondents executed an agreement wherein the terms and conditions are mentioned. The respondents became member of the scheme to enjoy the vacation week at the place as mentioned in the scheme. After getting the entire prescribed fee, the appellants were bound to provide the membership certificate within 45 days after the receipt of the membership fee. The respondents approached several times to get the mandatory membership certificate from the appellants who never provided to the respondents. Without having membership certificate, it is useless exercise to approach the Vacation Resort of the appellants as no care taker at the resort would recognize the member and would not provide accommodation at all. It is just like boarding the train without ticket where by the TTE would detrain the passenger. The appellant's learned counsel in their written submissions has stated in their written arguments that the membership certificate was dispatched on 30thJanuary, 2007 at the address near Ram Mandir Lakhimpur Road, Gola but no such evidence was placed before the forum below to prove that it was actually dispatched. The production of the copy of the said membership certificate before the learned District Forum does not mean that it was actually given to the complainant. The learned District Forum has discussed in detail that no such evidence was placed before them which could prove that the Membership Certificate was provided to the complainants. It has also been alleged in the written submissions that the respondent-complainant did not deposit the annual maintenance fee of Rs 3900/- as per terms and conditions 12 & 13 of the agreement hence the agreement was not complete and referred to the case CEO Country Club (India) Pvt., Ltd & Ors. Vs Mrs. Pamela Vishwanath in Appeal No A/12/636 which decided by State Consumer Commission, Mumbai, (Maharashtra) vide order dated 17.3.2012. In the said case the following observation was made:-
"Thus the claim of the complainant arose out of an unconcluded contract and it has nothing to do with any element of hiring of service and therefore, basically it is not a consumer dispute. Complainant has a remedy to recover the amount but not under the Consumer Protection Act, 1986. We have already taken such a view in First Appeal No. 313 of 2011, The Branch In-charge, Country Vacations and Another vs Mukesh Kumar decided o12.10.2011."
In the above referred case the facts are different from the facts of the instant case. In the above referred case the contract was not concluded but in the instant case the contract is concluded between the parties and both the parties are bound with the terms and conditions of the agreement and in the referred case, the complainant was not treated as consumer under the provisions of Consumer Protection Act, 1986. But in the instant case the agreement is executed between the parties and concluded. Hence the complainant herein is a consumer as per section 2(1)(d) of Consumer Protection Act, 1986. So far as the payment of Rs 3900/- as maintenance fee it concerned, it could have become due only in the subsequent year while the appellants have breached the terms at the very beginning of the first year of the agreement. The respondents have not breached any term and condition of the agreement. The learned District Forum has discussed the evidences of the parties in detail and arrived at the right conclusion. There is no error in the impugned judgement and order. We are also of the view that the appellants have not only committed deficiency in service but also adopted unfair trade practice. The instant case falls under the category of unfair trade practice as provided in section 2(1) ( r ) of the Consumer Protection Act 1986. In view of the above discussion we are of the view that there is no need to interfere in the impugned judgement. The appeal does not carry any force and deserves to be dismissed.
Order Appeal is dismissed and the impugned order is confirmed.The parties will bear their costs. Let the copies of the judgement be made available to the parties as per rules.
(Raj Kamal Gupta) (Mahesh Chand) Presiding Member Member S.k. st. ct-5 [HON'BLE MR. Udai Shanker Awasthi] PRESIDING MEMBER