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Col. (Retd) S.P. Putchala v/s Mahindra Holidays & Resorts India Ltd. & Another

    First Appeal No. 752 of 2012

    Decided On, 02 May 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT & THE HONOURABLE MRS. M. SHREESHA
    By, MEMBER

    For the Appellant: In person. For the Respondents: R1, Anand Chandvana, Advocate, R2, Nemo.



Judgment Text

M. Shreesha, Member

Aggrieved by the order dated 16.10.2012 in Consumer Complaint No. 14 of 2011 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, New Delhi (in short “the State Commission”), the first Opposite Party (hereinafter referred to as “Holiday Resorts”) and the Complainant preferred First Appeals No. 743 of 2012 and First Appeal No. 752 of 2012 respectively under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”). By the impugned order, the State Commission has allowed the Complaint in part directing the Holiday Resorts to pay Rs.2,00,000/- together with costs of Rs.5,000/- and the Complaint against the second Opposite Party was dismissed.

2. Briefly stated, the facts of the case as set out in the Complaint are that the Complainant became member of Holiday Resorts on 04.02.2006. Initially, the Complainant issued a cheque of Rs.1,49,730/-. However, later on, at the instance of the representative of Holiday Resorts, who lost the original cheque, a fresh cheque of the higher amount, to the tune of Rs.1,89,240/- was issued. The Complainant was offered several benefits of international or domestic holiday from Resort Condominium International (RCI) till 31.12.2007, two nights complimentary holiday in select club of Holiday Resorts, four one way air Deccan tickets, 9 bonus weeks through RCI. It is stated that the Complainant received a letter dated 20.02.2006 from RCI confirming the Complainant’s membership till February, 2019. Holiday Resorts issued a fresh offer letter reducing the amount towards membership fee from Rs.1,89,240/- to Rs.1,49,730/- and increasing the period of membership from 25 years to 33 years and offered to provide another one week international holiday through the second Opposite Party, co-membership to his son, compensatory two week international or domestic holiday through the second Opposite Party. The Holiday Resorts issued fresh offer letter dated 25.02.2006 without adding the increased duration of membership period and the other compensatory offers on the ground that it had already been recorded in their computers and if it is recorded in the offer letter it would lead to complications with other members. It is averred that Holiday Resorts asked the Complainant to pay the EMIs through phone calls despite the fact that he had already paid the entire amount; that the Complainant was not allotted holidays citing non-availability and he was informed that he cannot accumulate more than 21 holidays in his inventory. He was told that he had to deposit his holidays with RCI and accordingly the Complainant deposited three holiday weeks with RCI.

3. It is averred that out of the four one way Air Deccan ticket Coupons, the Complainant used only two coupons, i.e. one on 24.01.2007 from Hyderabad to Delhi and the second on 01.02.2007 from Delhi to Hyderabad. It is further averred that both the flights were cancelled and no alternative arrangement was made and Airline informed him that the flight charges would be refunded to Holiday Resorts.

4. It is stated that for becoming a platinum member, the first Complainant paid an amount of Rs.3,000/- to Holiday Resorts. Holiday Resorts confirmed three resorts, one in Egypt from 22.02.2008, second week in Zimbabwe during first week of May, 2008 and continuing third week in South Africa. On confirmation vouchers, the Complainant made all arrangements such as flights, transportation and hotels etc. On account of growing terrorism in African countries, their visa policy was tightened and the Authorities required Complainant to furnish confirmation of allotment from the the Opposite Parties. However, the Opposite Parties did not send confirmation of allotment to the concerned authorities. Resultantly, the Complainant was able to get Visa for Egypt and that too only for 15 days. He had to visit Mumbai for obtaining Visa of Egypt for 21 days. RCI offered two weeks anywhere in the world to the Complainant. Later, they had sent an e-mail dated 16.12.2008 to the Complainant informing him that one week accommodation from 19.12.2008 to 26.12.2008 has been confirmed. However, the Complainant informed the Opposite Parties that it was not possible to get Visa within such a short span of time. However, the officials of RCI informed him that the validity of the holidays is for the internal accountability of the Holiday Resorts and he could utilize the holidays irrespective of their validity. On such assurance, the Complainant confirmed for the package weeks and complimentary weeks and he paid Rs.13,000/-. However, as his wife’s health deteriorated, he returned to India from Australia and thus could not utilize that one week holiday.

5. It is stated that the Complainant booked online reservation for Coorg for 8 days for his son in the last week of May, 2010 but as the Opposite Parties did not issue confirmation voucher for Coorg, the Complainant had to make international calls to the Opposite Parties and he received a mail on 21.04.2010 that there was an overdue payment, therefore the reservation was not confirmed. It is averred that the Complainant paid Rs.7,948/- as Annual Subscription Fees (ASF) for the year 2009. Holiday Resorts asked for statement of the Bank Account of the Complainant, accordingly the Complainant furnished the statement to the Bangalore office of the Holiday Resorts but he was advised to contact to their office at Hyderabad. The payment details were furnished to Hyderabad office of Holiday Resorts. Due to tension caused by Holiday Resorts the Complainant developed syncope effect. Complainant’s son had to return to India without visiting the important tourist places as he had to render medical help to the Complainant.

6. It is averred that the Complainant was to join as Executive Director, Sweekar Rehabilitation Centre from 01.08.2010 with pay scale of Rs.60,000/- per month for three years but due to health problems caused by the prolonged harassment on the part of the Opposite Parties, the Complainant suffered from syncope effect and was forced to come to India for treatment. The Complainant’s life span was reduced and he is on life saving medicine and he was forced to give up his job due to act of the Opposite Parties.

7. The Complainant issued notice to the Opposite Parties claiming the amount as compensation for which there was no response. Vexed with the attitude of the Opposite Parties the Complainant preferred Consumer Complaint before the State Commission.

8. The first Opposite Party filed Written Version stating that the Complaint is not maintainable before this Commission in view of clause 13 of the membership rules, wherein it was mentioned that all the disputes being subjected to jurisdiction of Arbitrator and Civil Courts at Chennai. It is submitted that the Complainant cannot seek refund of the amount of Rs.1,89,240/- since as per clause 6.1 (a) of the Membership Rules, refund can be sought within 10 days of making the payment and admittedly the Complainant had sought for refund after utilizing several holidays. It is averred that the Complainant after being satisfied with the Membership Rules and terms and conditions of the scheme subscribed to ‘RED Seasons Studio Life Membership’ of Holiday Resorts and paid Rs.1,89,240/-; that membership period is for 25 years and not for 33 years as claimed by the Complainant; that Holiday Resorts provide services to its members through RCI as it had arrangement with it; that as per clause 3.6 of the Membership Rules the member is entitled to holiday subject to availability in all club Mahindra and its notified resorts; that the Complainant had wrongly stated that he had not utilized holiday between June 2006 to June 2010; that all facilities at Resorts are subject to clearance of all dues; that any deficiency in service on the part of Air Deccan cannot be attributed to them and that all disputes arising from the services of RCI are governed by the RCI Rules between RCI and the Complainant. It is denied that at any point of time they had made misrepresentation to the Complainant and sought dismissal of the Complaint qua them

9. RCI filed their Written Version stating that there is no contract between the Complainant and them; that they have not made any false representation; that the Complainant was enrolled with them as a member through Holiday Resorts initially for three years to enjoy holiday facilities as per Rules of RCI Membership; that the Complainant renewed its membership till 26.03.2019 and utilized their services; that they had not made any promise or compelled the Complainant to become a platinum member; that the Complainant had sent email dated 26.03.2008 expressing his satisfaction and that he enjoyed his trip to Egypt; that the responsibility of obtaining the Visa was of the Complainant; that they help their members and inform them about the expiry of week holidays; that the Complainant was informed of the availability of exchange weeks leaving it to the discretion of the Complainant to avail his exchange week and that there is no deficiency of service on their behalf.

10. Based on the evidence adduced i.e. Exhibits A1 to A95 and B1 to B8, the State Commission has allowed the Complaint directing the first Opposite Party to pay an amount of Rs.2,00,000/- together with costs of Rs.5,000/-. The case against RCI was dismissed without costs.

11. Aggrieved by the said order, the first Opposite Party and the Complainant preferred First Appeal Nos. 753 and 752 of 2012 seeking dismissal of the Complaint and enhancement of the amount awarded by the State Commission respectively.

12. Learned counsel appearing for the Appellant in First Appeal No. 743 of 2012 vehemently argued that the Complainant had seamlessly enjoyed the membership facilities provided by them from the year 2006 to 2010. It was only on 07.05.2010 that the Complainant had issued a legal notice against them alleging lack of adequate services. The personnel of Appellant Company met the Complainant on multiple occasions. Finally, the Complainant agreed and accepted the settlement offer vide letter dated 11.10.2010 in full and final settlement of all the claims. Despite having accepted the settlement offer, the Complainant choose to file Consumer Complaint No. 14 of 2011 before the State Commission seeking transportation charges of Rs.1,80,000/-, Rs.21,60,000/- towards loss of job offer, Rs.37,000/- towards international call charges, Rs.5,23,000/- towards flight charges from Melbourne to Hyderabad for his family and other compensation and costs. Having accepted the settlement offer on 11.10.2010, the Complainant is estopped from raising all these issues. The State Commission has erroneously awarded Rs.37,000/- towards international call charges, when the Complainant has not placed on record any proof/ bills/ invoices in support of his claims that he had actually spend Rs.37,000/- towards international calls. An amount of Rs.63,500/- was awarded by the State Commission towards compensation for advancement of his journey to India. It was vehemently argued that the Holiday Resorts Party have no role to play in any alternate plans made by the Complainant and therefore this amount ought not to have been awarded. Further, the amount of Rs.42,000/- awarded towards amount covered under Deccan Airline Coupons. The Complainant had admittedly used two Air Ticket Coupons out of the total four coupons and the Holiday Resorts could not be held responsible in casethat any flight cancellation by Airlines due to unavoidable reasons. Since the Complainant’s passport and also that of his wife was held up by the Consulate General of Arab Republic of Egypt at Mumbai, the State Commission has granted Rs.30,000/- towards expenses incurred for their tickets and stay at Mumbai. Learned counsel submitted that they cannot be held responsible for any delay in processing of Visa as it is beyond their control. The Complainant was also compensated by way of extra vouchers and other facilities and therefore awarding a sum of Rs.27,500/- towards inconvenience caused to the Complainant is erroneous.

13. It is the case of the Complainant that he and his wife attended a seminar in October 2005, induced by a representation of first Opposite Party took membership of Holiday Resorts by paying an amount of Rs.1,49,730/- for a life membership. The clause of annual maintenance fees was not incorporated in the Membership Rules, which was also counter signed by the Branch Manager. Thereafter, since the representative lost his cheque, the cheque for higher amount of Rs.1,85,140/- was handed over in his absence. It was also submitted that the first Opposite Party completely avoided offer letter dated 25.01.2006, in which there were additional offers were also made. After several telephone calls, Mr. P. Sudhakar, the head of the first Opposite Party as well as the relations officers mutually accepted the following and agreement was signed:

i. In lieu of the excess charges of Rs.39,510/- i.e. (1,89,240/- —1,49,730/-) towards the increase of membership fees O.P.1 offered an additional one week of international holidays to be availed through RCI the (O.P.2), without any exchange fees and without any deposit by me. For identification purpose o.P-1 termed this week as RCI special offer week. (Ex. A-28 at page 51)

ii. Assured for the 33 years membership period, but the membership card covering full 33 years be issued in the year 2011 after the expiry of the five years membership card which they already made and brought with a plea “to avoid possible problems with other members who joined during the year 2006”.

14. It was also mentioned by them that the annual subscription fees at Rs.5,369/- per year shall be paid after five years period of payment the annual subscription fee would be discontinued in lieu of this payment of Rs.5,369/- for five years i.e. Rs.26,845/-, the first Opposite Party offered to compensate with two more weeks of international/ domestic holidays to be availed through the second Opposite Party which will be given without any exchange fess or without deposition of the week. The first Opposite Party issued fresh offer letter dated 25.02.2006 without adding in it, the increase in duration of membership period and the compensatory week on the premise that it has already been recorded in their computers and if it is recorded in the offer letter, it would lead to complications with other members. The Complainant had paid the entire amount but no holiday stay was allotted to him stating non availability. As the Complainant cannot be allowed to accumulate more than 21 holidays in his inventory. he had deposited three weeks with the second Opposite Party. The Complainant booked online for reservation of Coorg for 8 days from the first week of May 2010 for his son who was attending a close friend’s marriage and as there was no confirmation for almost two days, the Complainant made an international call to the Opposite Parties Hyderabad and Chennai offices and after 40- minutes discussion he received a reply that they would look into the matter and report in three working days. On 24.01.2010 he received an email that there was an overdue payment and as such the reservation was not confirmed. Though the first Opposite Party received the amount they refused to issue the confirmation voucher for Coorg and another international call was made on 25.01.2006. It is the Complainant’s case that he furnished his Bank statement account details and also the copy of the cheque but the Holiday Resorts gave him so much stress that the Complainant suffered from Syncope effect for which he had to take medical help and return to India without seeing the places of tourist importance.

15. The material on record evidences that out of the four one way Air Deccan Ticket Coupons, the Complainant used two Coupons on 24.01.2007 from Hyderabad to Delhi and the second coupon on 01.02.2007 from Delhi to Hyderabad. On 24.01.2007, the flight from Hyderabad to Delhi was cancelled and no alternative arrangement was made as Deccan Airlines informed him that the flight charges would be refunded to Holiday Resorts. After waiting for four hours the Complainant left for Delhi in another flight in Delhi also while the Complainant was returning to Hyderabad the flight was cancelled and he had to take another flight by paying a heavy fare.

16. The Complainant was offered seven week international/ domestic holidays and while the first Opposite Party showed an online inventory of six weeks holidays but the second Opposite Party in their email showed that holidays were not available. Hence, we are of the view that the purpose of availing the services of Holiday Resorts is defeated. The Complainant deposited three weeks with the second Opposite Party for the purpose of availing the package weeks on a priority basis, the Complainant had to become a platinum member, for which purpose he paid an amount of Rs.3,000/- to the first Opposite Party.

17. The material on record shows that the first Opposite Party accepted and confirmed three resorts, one week in Egypt from 22.02.2008, second week in Zimbabwe during first week of May 2008 and continuing third week in South Africa. On receipt of confirmation, the Complainant made all arrangements such as flights, local tours and transportation as the first Opposite Party did not send information about the confirmation of allotment, within time, the Complainant could not get Visa for Egypt for 15 days and he could not utilize the seven days accommodation allotted by the second Opposite Party. The Complainant had his wife had to visit for obtaining Visa for 21 days to visit Egypt on account of which he suffered stress, strain and inconvenience. On 09.12.2009, the Complainant spoke to the second Opposite Party and he was assured that they will give package weeks pending during October 2010, December 2010 and April 2011, at least one week each at places of alternate choices in Australia and New Zeeland. The Complainant accepted the proposal and paid exchange fees of Rs.13,500/-. It is the Complainant’s case that any Members of the second Opposite Party was automatically entitled to any number of holiday weeks on payment of fees without any deposited week. The representative of the first Opposite Party had shown each bonus week for Rs.30,000/- to Rs.40,000/- as fees payableto the second Opposite Party between Rs.6,000/- to Rs.7,000/- and the benefit for the purchaser was between Rs.20,000/- to Rs.25,000/-. All the payment receipts establish that the Complainant wanted to avail the services of the Holiday Resorts, but was not granted what was promised to him and he had suffered mental agony and physical hardship on account of having made al

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l arrangements and not being able to enjoy the fruits of his membership, despite having made repeated requests with the Holiday Resorts. However, the contention of the Complainant that he suffered syncope effect only on account of the conduct of the Opposite Parties cannot be accepted in its totality. 18. In view of the afore-noted discussion we are of the considered opinion that Holiday Resorts was deficient in service towards the Complainant and State Commission has rightly awarded compensation to the Complainant. Hence the Appeal bearing No. 743 of 2012 preferred by Holiday Resorts is hereby dismissed. 19. First Appeal bearing No. 752 of 2012 has been filed by the Complainant seeking enhancement of compensation. We are of the considered opinion that the loss of job offer cannot be made attributable to the deficiency in service on the part of Holiday Resorts. The State Commission has rightly observed that the medical record of the Complainant proves that he had been a patient even before opting for membership of Holiday Resorts and Complainant failed to prove that he suffered from syncope effect due to negligence on the part of the Holiday Resorts. For the proven deficiency in service the State Commission has adequately compensated the Complainant. In view of the afore-noted discussion the First Appeal bearing No. 752/2012 is allowed in part by modifying the order of the State Commission qua costs as we find it a fit case to enhance the meagre costs of Rs.5000/- awarded by the State Commission to Rs.20,000/- as the Complainant was forced to appear before the State Commission to seek redressal. 20. Vide its Order dated 12.03.2013 this Commission had directed the Holiday Resorts to deposit 50% of the awarded amount with this Commission. Needless to add, the said deposited amount, along with accrued interest, if any, shall be released to the Complainant and shall be adjusted from the decretal amount. Additionally, the Statutory Deposit made by Holiday Resorts, at the time of filing of the First Appeal shall stand released to the Complainant.
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