State Consumer Disputes Redressal Commission
Mahindra Holidays And Resorts India ... vs Radhika Aggarwal on 15 October, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 327 of 2014 Date of Institution : 10.10.2014 Date of Decision : 15.10.2014 Mahindra Holidays and Resorts India Limited, SCO 411-412, 1st Floor, Sector 35-C, Chandigarh (now shifted to No.-504, Block A, 5th Floor, Elante Office Suits, Plot No.178-178/A, Industrial Area, Phase-1, Chandigarh 160001) through its Authorized Signatory, Mahindra Holidays & Resorts India Limited. Appellant/Opposite Party. Versus Radhika Aggarwal W/o Sh. Hargobind Aggarwal R/o Flat No.204, Tower No.9, Royal Estate, Zirakpur, District Mohali (Punjab). .Respondent/Complainant. Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. J. S. Bhatia, Advocate for the appellant. Sh. Gaurav Bhardwaj, Advocate for the respondent. First Appeal No. : 325 of 2014 Date of Institution : 10.10.2014 Date of Decision : 15.10.2014 Radhika Aggarwal W/o Sh. Hargobind Aggarwal R/o Flat No.204, Tower-9, Royal Estate, Zirakpur, District Mohali (Punjab). Appellant/Complainant. Versus Mahindra Holidays and Resorts India Ltd., through its Manager, SCO 411-412, 1st Floor, Sector 35-C, Chandigarh. .Respondent/Opposite Party. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh. Gaurav Bhardwaj, Advocate Proxy for Sh. Paras Money Goyal, Advocate for the appellant.
Sh. J. S. Bhatia, Advocate for the respondent.
PER DEV RAJ, MEMBER.
This order shall dispose of two appeals bearing Nos.327 of 2014 filed by the appellant/Opposite Party and 325 of 2014 filed by the appellant/complainant, against the order dated 03.09.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly allowed the complaint bearing No.231 of 2014, filed by the complainant, qua the Opposite Party, and directed it as under: -
14] In view of the foregoings and entirety of the case, we are of the opinion that the complaint deserves to be partly allowed.
Accordingly, the complaint stands allowed partly. The OP is directed to refund an amount of Rs.24,400/- to the complainant as per terms and conditions of the membership which it is ready and willing to pay. The OP is also directed to pay a compensation amount of Rs.40,000/- for causing the complainant mental & physical harassment due to its deficient act, apart from paying litigation expenses of Rs.10,000/-.
This order be complied with by the OP within a period of 30 days from the date of receipt of copy of this order, failing which it shall be liable to pay the awarded amount i.e. total Rs.64,400/- (Rs.24,400/- + Rs.40,000/-) along with interest @ 12% p.a. from the date of filing of this complaint i.e. 07.04.2014 till realization, besides paying litigation expenses as aforesaid.
2. The facts, in brief, are that on 4.3.2011, the complainant was coerced by the sales representative of the Opposite Party, to subscribe to the White Studio scheme offered by it, by coming to its office at Chandigarh, on the pretext of a family presentation of 1 hour duration. It was stated that, in the said scheme, any person on becoming a member, was alleged to be entitled for one week of family holidays every year for a period of 25 years at the destination of his/her choice from the list as given by the Opposite Party. It was further stated that the complainant was to pay a total sum of Rs.2,65,702/- to the Opposite Party, for subscribing to White Studio scheme and, accordingly, the Membership ID C80124211 was issued to her. It was further stated that from 4.3.2011 till date, the complainant had paid a total sum of Rs.1,82,666/- to the Opposite Party out of the total membership cost of Rs.2,65,702/- (Copies of receipt dated 4.3.2011 and account statement dated 5.7.2013 were annexed as Annexures C-2 & C-3 respectively).
3. It was further stated that the complainant though became a member of the Opposite Party under White Studio scheme, yet the Opposite Party never gave the facilities to her as promised. It was further stated that whenever the complainant requested the Opposite Party for making booking at a specific resort/destination for spending her holidays under the White Studio scheme, it (Opposite Party) always expressed inability to make the booking on the ground that the rooms were not available there (Annexure C-4). It was further stated that this had happened not once, but many times, and this was totally contrary to the assurances given to the complainant by the Opposite Party, at the time of getting membership for White Studio. It was further stated that the complainant was not provided any services by the Opposite Party, despite a number of visits. It was further stated that, ultimately, a legal notice dated 25.1.2014 (Annexure C-5) was served by the complainant upon, the Opposite Party, seeking refund of the deposited amount, but to no avail.
4. It was further stated that the act and conduct of the Opposite Party, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed, directing the Opposite Party, to refund the entire amount of Rs.1,82,666/- alongwith interest @12% per annum from the date of payment till actual realization; Rs.1,00,000/- as compensation for mental agony and physical harassment besides Rs.25,000/- as costs of litigation and to grant any other relief which the District Forum deemed fit in the facts and circumstances of the case.
5. The Opposite Party, in its written version, stated that Mahindra Holidays and Resorts India Limited is a part of Mahindra Group having its Registered office at Mahindra Towers, 2nd Floor, 17/18, Patullos Road, Chennai 600 002 and it is engaged in the business of providing time share holidays to its members, who have purchased Club Mahindra Holidays Membership (CMHM), a product, which entitled the members to avail 7 days of holidays every year during the allotted season, in the allotted apartment, in any of the resorts of Club Mahindra in India and abroad for a period of 25 years, subject to the terms and conditions mentioned, in the Membership Rules. It was stated that after going through the Rules, Regulations, terms, conditions and payment schedule of different schemes/membership and after being satisfied, the complainant opted to purchase the membership of the Opposite Party and, as such, entered into a contract with it (Opposite Party) on 4.3.2011, when she signed the application form for membership. It was further stated that the complainant subscribed to White Studio category membership of the Opposite Party and paid a total sum of Rs.1,82,666/- only whereas the total cost of White Studio category membership subscribed by her was Rs.2,65,702/-. The factum of issuance of membership card to the complainant was admitted by the Opposite Party.
6. It was further stated that the complainant was given the benefits viz. (i) Panasonic LCD 32 Inches, (ii) Resort Credit Vouchers worth Rs.3,000/-, (iii) 3 Night Holiday at Club Mahindra Resort and (iv) one week holiday with RCI; upon subscription of membership. It was further stated that Benefit No.(i) was dispatched through Gati Courier on 7.5.2011 and Benefit No.(ii) was dispatched with Membership Kit on 26.4.2011. With regard to Benefit No.(iii), it was stated that the same could be availed of in blue and white season only and subject to availability in the resort. It was denied that the Opposite Party never provided the booking of holiday to the complainant, as alleged. It was further stated that from the statement maintained, in an electronic form, by the Opposite Party, in normal course of business, it was clear that the complainant except on one occasion, did not inquire for booking any holiday and, as such, the question of not providing any holiday did not arise. It was further stated that all the holiday reservations were to be done on first come first served basis and, consequently, subject to eligibility and availability, as mentioned in Rule 3 of the Membership Rules issued to the complainant at the time of subscription. It was further stated that on 9.5.2012, when the complainant inquired about the reservation, the same could not be confirmed as she was in arrears in respect of dues. As regards Benefit No.(iv), it was stated that the complainant was enrolled for RCI Membership valid for two years i.e. from 16.5.2011 to 16.5.2013. It was further stated that RCI exchanges were enjoyed by a member subject to terms & conditions mentioned in the membership agreement as well as availability of RCI destinations.
7. It was further stated that the complainant was not eligible for full refund, as the cancellation request was raised after rescission period, as mentioned in the terms & conditions of the membership, which were binding on the complainant. It was further stated that the cancellation of membership was governed by Rule 6 of the Membership Rules, signed by the complainant with her free consent. It was further stated that in the membership form itself, the complainant had signed the Members Review for Conformation of Understanding, which stated I/We understand that the amount paid towards Admission Fee (AF) is non-refundable. The complainant was only entitled to an amount of Rs.24,400/- as per terms and conditions of the membership, which the Opposite Party was ready and willing to pay. It was further stated that since the cancellation request was raised beyond rescission period, hence, the complainant was not entitled to full refund. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of the Opposite Party, nor did it indulge into unfair trade practice. The remaining allegations, contained in the complaint were denied.
8. The parties led evidence, in support of their case.
9. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, vide the impugned order, as sated above.
10. Feeling aggrieved, both the complainant, as well as the Opposite Party, filed the instant appeals.
11. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
12. The Counsel for the appellant/Opposite Party submitted that the District Forum while partly allowing the complaint, overlooked the fact that the complainant never requested for a holiday under the membership of the appellant/Opposite Party. It was further submitted that in the complaint, no specific allegation was averred by the complainant. It was further submitted that the complainant had once approached the appellant/Opposite Party on 9.5.2012 for enquiring about the procedure of booking, which was duly explained to her and, therefore, the finding of the District Forum that the complainant approached the appellant/Opposite Party for booking on 9.5.2012 was factually incorrect. It was further submitted that the District Forum, on the one hand, while relying upon the Rules (Annexure R-1) held that the complainant was not entitled to full refund and, on the other hand, ignored the Rules, specifically Rule 5, which entailed that the member could not avail of the holiday, in case, the ASF was not cleared upto date. It was further submitted that Rule 5 of the Rules clearly stipulated that in the event of non-payment of ASF, the member was not entitled to any holiday. It was further submitted that the District Forum wrongly held that Rule 8 of the membership Rules did not provide that default in payment of instalment would disentitle the member. It was further submitted that the District Forum failed to appreciate that the complainant was bound by the Membership Rules, as applicable, which were expressly made known and agreed upon by her. It was further submitted that the complainant had duly signed the Members Review for Confirmation of Understanding, according to which, she confirmed having read the Membership Rules governing allotment of Club Mahindra Holiday Membership, the RCI Terms and Conditions, and agreed to abide by the same. He also certified of having received all the necessary clarifications and information of the Membership Rules. It was further stated that as per Para 2 of the said Understanding, the complainant understood that the amount paid towards Admission Fee (AF) was non-refundable. It was further submitted that the District Forum, while acknowledging Rule 6.1 and Rule 6.2, totally ignored Rule 5.2 and 5.7, which admittedly were the terms and conditions of the contract between the parties. It was further submitted that admittedly, the complainant failed to clear the ASF charges of the years 2012, 2013 and 2014 amounting to Rs.32,029/-. It was further submitted that the complainant had paid an amount of Rs.1,82,666/- only against Rs.2,65,702/- and the appellant/Opposite Party very fairly stated in the written statement that Rs.24,400/- were payable to the complainant. It was further submitted that in view of the arbitration clause, existing in the membership agreement, the Consumer Complaint was not maintainable. It was further submitted that the order passed by the District Forum, granting Rs.40,000/- as compensation for mental agony and physical harassment besides Rs.10,000/- as cost of litigation, was liable to be set aside.
13. The Counsel for the respondent/complainant (appellant in First Appeal bearing No.325 of 2014), submitted that the complainant became member of the Opposite Party under the White Studio Scheme but the Opposite Party never gave facilities to her as promised. It was further submitted that the complainant requested the Opposite Party to book a specific resort/destination, for spending her holidays, to which she was entitled to as per her membership, but the Opposite Party always expressed its inability on the ground that the rooms were not available. It was further submitted that the complainant was not provided any services by the Opposite Party, despite her numerous requests. It was further submitted that the District Forum, in a haste manner, without considering the facts of the case, awarded only an amount of Rs.24,400/- alongwith compensation and cost of litigation. It was further submitted that the District Forum did not consider the fact that inspite of payment of Rs.1,82,666/- by the complainant, to the Opposite Party, the latter neither provided any holiday booking under the said Scheme nor refunded the money. It was further submitted that apart from compensation and costs of litigation, awarded by the District Forum, the complainant is entitled to the refund of full amount of Rs.1,82,666/-.
14. The basic fact regarding the enrolment of complainant as member vide Membership ID C80124211 for White Studio Category Membership, at the total cost of Rs.2,65,702/- for a period of 25 years is admitted. There is also no dispute with regard to the fact that the complainant paid a sum of Rs.1,32,851/- as down payment towards the membership fee and, thereafter, paid a sum of Rs.49,815/- towards nine EMIs of Rs.5,535/- each. Thus, in all, a sum of Rs.1,82,666/-, against the total cost of Rs.2,65,702/-, was paid. It is also evident that upon subscription of membership, the complainant was provided the following benefits:-
(i) Panasonic LCD 32 Inches.
(ii) Resort Credit Vouchers worth Rs.3,000/-. (iii) 3 Night Holiday at Club Mahindra Resort.
(iv) one week holiday with RCI.
15. No doubt arbitration clause 13 exists in the Membership Rules (Rule No.102/07-09). Mere existence of arbitration clause in the Membership Rules was not sufficient to hold that the complaint was not maintainable. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under;
3. Act not in derogation of any other law.
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs. N.K.Modi (1996)6 SCC 385 and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. In this view of the matter, this objection of the Opposite Party, being devoid of merit, must fail, and the same stands rejected.
16. The next question, which falls for consideration, is, as to whether, there was any deficiency, in rendering service, on the part of the appellant/Opposite Party, in not providing the benefits under the White Studio scheme, subscribed by the complainant. The appellant/Opposite Party has specifically stated that the complainant made a request for booking a holiday only once. However, since, the complainant had not cleared her ASF dues amounting to Rs.32,029/- pertaining to the years 2012, 2013 and 2014, she was not entitled to avail of the holiday as per the Membership Rules. Rule 5.7 of the Membership Rules, being relevant, is extracted hereunder:-
5.7. In the event of non-payment of ASF including arrears if any within the stipulated period inspite of intimation in this regard from MHRIL to the address provided by the Member, the following shall apply:
a) Member shall not be entitled to avail holidays till the payment of ASF together with interest, if any, that may be charged by MHRIL in accordance with clause (b) below.
b) MHRIL reserves the right to charge interest on monthly basis for the outstanding ASF payable by the Member.
c) In the event of non-payment of ASF and/or Interest by member for two consecutive years at any point of time, MHRIL reserves the right to terminate the CMHM as set out in Clause 6.1(c). In the event of termination, the deductions and conditions mentioned in Clause 6.2 below shall apply.
d) No transfer of Membership shall be given effect to by MHRIL until ASF together with interest, if any, are paid in full by the Member.
17. Since the complainant was defaulter, due to non payment of ASF for three consecutive years, she was not entitled to any benefit.
18. The next question, which falls for consideration, is, as to whether, the complainant was entitled to refund, and if Yes, to what extent. The appellant/Opposite Party in Para 7 of its written statement, referring to Rule 6.2, stated that the complainant was only entitled to a sum of Rs.24,400/- as per the terms and conditions of the Membership Rules, which the appellant/Opposite Party was ready and willing to pay. Rule 6.1 (c) and 6.2 of the Membership Rules, being relevant, is extracted hereunder:-
6.1(c) MHRIL reserves the right to terminate the CMHM on occurrence of any of the following events.
Default in payment of Membership Fee by the Member.
Default in payment of ASF in full or in part for two consecutive years by the Member.
Breach of House Rules of CMNR/CMAR by the Member.
Breach of Contract by the Member.
Any other action by the Member or occurrence of any event or situation giving MHRIL a right to cancel/terminate the Membership.
6.2. Upon termination, the following deduction shall be made by MHRIL from the amounts paid by the Member towards the EF
(a) pro rated EF for the period (in years) from the start of Membership Usage Period to the date of termination. Part of the year shall be treated as full year for the purpose of calculating the deductions.
(b) Outstanding ASF together with interest if any.
(c) Taxes due.
(d) Cost of Holidays enjoyed by the Member in excess of entitlement;
Any other amount/s due to MHRIL.
Any premium/enrolment incentives.
It is very clear from Rule 6.1 (c), extracted above, that default in payment of ASF in full or in part for two consecutive years by the member entitled the appellant/Opposite Party to terminate the CMHM. Rule 5.7 also clearly specified that members who defaulted in paying ASF were not entitled to any holiday.
19. The District Forum despite taking note of the fact that payment of ASF for three years, was not made by the complainant, wrongly held in Para 13 of its order that Membership Rules did not provide that default in payment of installment would disentitle the member to avail of facility of holiday and finding deficiency on the part of the appellant/Opposite Party held that the complainant was entitled to compensation. The District Forum, thus, erred in not appreciating the factum of the case properly. Rule 5.7(a) clearly states that in the event of non-payment of ASF, member shall not be entitled to avail of holidays.
20. Undoubtedly, the refund, if any, is to be governed as per Rule 6.2 of Membership Rules, extracted above. It is, thus, very clear that after the rescission period, the complainant was not entitled to full refund and refundable amount was to be calculated in accordance with the procedure prescribed in Rule 6.2. While the complainant has submitted that she was entitled to full amount of Rs.1,82,666/-, she (complainant) nowhere stated, as to whether the amount of Rs.24,400/- admitted to be refundable by the Opposite Party, was on the lower side and the complainant was entitled to higher amount.
21. In the face of facts and circumstances of the case, it has to be assumed that refundable amount of Rs.24,400/- was correctly assessed by the appellant/Opposite Party. The amount of Rs.24,400/- was, however, admitted to be refundable only when the complainant filed the Consumer Complaint. The Opposite Party was required to refund the due amount, when request for the same was made. The Opposite Party, however, failed to refund the amount due immediately on receipt of request for cancellation. By not refunding the amount due immediately on receipt of request of refund, the Opposite Party was deficient in rendering service. For such deficiency, in rendering service, compensation of Rs.40,000/- granted by the District Forum can be said to be on the higher side. Compensation if reduced to Rs.20,000/- would serve the ends of justice. The impugned order, thus, needs to be modified to the extent indicated above.
22. No other point, was urged, by the Counsel for the parties.
23. For the reasons recorded above, First Appeal bearing No.327 of 2014 filed by the appellant/Opposite Party, is partly allowed with no order as to costs. The impugned order, passed by the District Forum, is modified as under:
(i) The appellant/Opposite Party, is directed to refund an amount of Rs.24,400/- to the complainant, as per the terms and conditions of the membership, which it is ready and willing to pay, as directed by the District Forum.
(ii) The appellant/Opposite Party shall pay Rs.20,000/- as compensation to the complainant, as indicated above, instead of Rs.40,000/- awarded by the District Forum.
(iii) The appellant/Opposite Party is directed to pay an amount of Rs.10,000/- to the complainant as cost of litigation, as awarded by the District Forum.
(iv) The aforesaid amounts mentioned in Clauses (i) to (iii) shall be paid by the appellant/Opposite Party, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the appellant/Opposite Party, shall pay the aforesaid amounts mentioned in Clauses No.(i) and (ii) alongwith interest @12% per annum, from the date of filing the complaint i.e. 07.04.2014, till realization, besides payment of costs of litigation.
(v) All other directions, given and reliefs granted by the District Forum, in the impugned order, subject to the modification, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.
24. In view of the decision rendered in First Appeal No.327 of 2014, First Appeal No.325 of 2014 is dismissed with no order as to costs, as having been rendered infructuous.
25. Certified copy of this order be placed in First Appeal No.325 of 2014.
26. Certified Copies of this order be sent to the parties, free of charge.
27. The file be consigned to Record Room, after completion.
Pronounced.
October 15, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad STATE COMMISSION (First Appeal No.327 of 2014) Argued by: Sh. J. S. Bhatia, Advocate for the appellant.
Sh. Gaurav Bhardwaj, Advocate for the respondent.
Dated the 15th day of October 2014.
ORDER Vide our detailed order of even date, recorded separately, this appeal filed by the appellant/Opposite Party has been partly accepted with no order as to costs and the impugned order passed by the District Forum has been modified.
In view of the decision rendered in First Appeal No.327 of 2014, First Appeal No.325 of 2014 has been dismissed with no order as to costs, as having been rendered infructuous.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER(RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Ad STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. :
325 of 2014 Date of Institution :
10.10.2014 Date of Decision :
15.10.2014 Radhika Aggarwal W/o Sh. Hargobind Aggarwal R/o Flat No.204, Tower-9, Royal Estate, Zirakpur, District Mohali (Punjab).
Appellant/Complainant.
Versus Mahindra Holidays and Resorts India Ltd., through its Manager, SCO 411-412, 1st Floor, Sector 35-C, Chandigarh.
.Respondent/Opposite Party.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh. Gaurav Bhardwaj, Advocate Proxy for Sh. Paras Money Goyal, Advocate for the appellant.
Sh. J. S. Bhatia, Advocate for the respondent.
PER DEV RAJ, MEMBER.
Vide our separate order, of the even date, recorded in First Appeal No.327 of 2014 titled Mahindra Holidays and Resorts India Limited Vs. Radhika Aggarwal, this appeal has been dismissed with no order as to costs.
2. Copies of this order be sent to the parties free of charge.
Pronounced.
October 15, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad