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Mahindra Holidays & Resorts India Limited v/s George Kutty Lukose & Another

    First Appeal No. FA/58 of 2014
    Decided On, 30 January 2020
    At, Maharshtra State Consumer Disputes Redressal Commission Nagpur
    By, MEMBER
    For the Appellant: Jayesh A. Vora, Advocate. For the Respondents: ---------

Judgment Text

A.K. Zade, Member.

1. Appellant original opponent no.1. has filed this appeal against the order dated 31.10.2013 in consumer complaint No. CC/209/2011 passed by District Consumer Disputes Redressal Forum, Chandrapur , by which the consumer complaint filed by the complainant was partly allowed and opponents were held guilty of deficiency in service. It was further directed by the said order that opponent nos.1 and 2 will jointly and severally pay to complainant an amount of Rs.2,73,738/- alongwith interest @10% p.a. from the date of filing of complaint i.e. 19.12.2011 till realization. Opponents were also directed jointly and severally to pay an amount of Rs.5000/- towards mental and physical harassment and Rs.2000/- towards cost. It was further directed by the impugned order that opponent nos.1 and 2 shall comply the said order within a period of 30 days from receipt of the order failing which they will be liable to pay interest @13% on the amount of Rs.2,73,738/-.

2. As per complainant, facts of the case are as follows.

3. Complainant became a member of the opponent nos.1 company, which was providing the facilities of stay and other facilities in its resorts. Opponent no.2 is a branch office of opponent No.1. The membership period was from 1.3.2008 to 28.2.2033. Complainant paid an amount of Rs.38,922/- towards membership registration fees by cheque which was given by complainant in the name of opponent no.1 in the office of opponent no.2. The remaining amount of membership fee was paid in 12 monthly installments of Rs.18,380/- each during the period from 7.9.2007 to 12.7.2008 vide 12 cheques in the name of opponent no.1, on receipt of which complainant received the membership certificate from opponents. As per the said scheme of opponents, each member was to be provided a facility of 14 days stay in their resorts in a year. Complainant requested for availing the said service to opponents. However complainant did not receive the said facility/service from the opponents. On enquiry by complainant with opponents, he was told that the said facility was already provided to him. Complainant disputed the same and when enquired again with opponents, he was told that the said facility which was to be given to complainant was actually provided to the other member. The same false reports were given in annual report of opponents, in spite of the fact that opponents never gave any facility of the said stay to complainant even once. Even thereafter complainant paid Rs.7,038/- and 7,198/- through cheques to opponents towards membership fee in the year 2008 and 2009 respectively. Even then the complainant was not provided the said facility. Complainant therefore filed the subject consumer complaint before the learned district form praying for directions to provide facilities as per the amounts deposited by complainant or to refund the amount paid by complainant towards membership fee along with damages for the same and interest. Complainant also prayed for compensation of RS.50000/- towards mental and physical harassment and Rs.15000/- towards cost.

4. Opponents appeared before the learned District Consumer Forum and filed written statement denying the allegations and reliefs prayed by complainant. However subsequently opponent no.1 filed an application mentioning that the appearance given should be treated on behalf of opponent no.1 only and it was mistakenly given on behalf of both the opponents. Similarly the written statement filed should be treated as that of opponent no.1 only. However the said application was rejected by learned District Forum, which order is not under challenge before this commission.

5. As per the above said written statement, opponent no.1 has no branch in the city of Chandrapur as mentioned by complainant. Opponent no.1 also submitted that said opponent no.2 was a direct selling agent (D.S.A.) of opponent no.1 , which was actually in the name of M/s. Four Seasons Holidays and therefore address of opponent no. 2 should have been Four Seasons Holidays. The address shown as that of opponents no.2 in complaint infact was the address of said direct selling agent that Four Seasons Holidays. It is further submitted by opponent no.1 in written statement that said D.S.A. had misappropriated funds and has done wrong acts in its transactions and business and therefore the opponent no.1 had terminated its contract with said D.S.A. on 31.01.2011. As such opponent no.1 was not responsible for the acts of said D.S.A. and it was necessary for complainant to file complaint against the said D.S.A. only. Opponent no.1 therefore mentioned that complaint should be dismissed for misjoinder of party. Opponent no.1 denied all other averments, but submitted in written statement that admitting partial responsibility for the acts of said Ex-D.S.A. on its part, opponent no.1 was ready to compensate complainant by crediting the holidays back into complainant’s account, which were lost because of fraud/misdeeds of said Ex. D.S.A. and the complaint be disposed off accordingly.

6. On receiving the evidence affidavit, written arguments and after hearing arguments, the learned District Forum passed the impugned order.

7. Appellant filed this appeal on the ground that the learned District Forum erred in not appreciating that the appellant company was not having any branch office at Chandrapur and as such the district forum was not having jurisdiction to try the said complaint. Another aground for the complaint is that the complainant deliberately showed address of the said DSA M/s Four Seasons Holidays as that of opponent no.2 showing it as branch office and did not join the said DSA that Four Seasons Holidays as party, in spite of knowledge of the said fact. Also the opponent no.1 was not liable for the illegal acts of its agent and it was Principal to Principal relationship. It is also mentioned by the appellant that complainant did not join the co-applicant Mr. George Varghesh as a party although the membership was availed by both jointly and therefore it was a case of non joinder. Appellant therefore prayed for setting aside the impugned order with cost.

8. Perused record. Heard arguments on behalf of the parties.

9. The learned District Forum had observed that in the advertisement/brochure of the opponent no.1, the address for contact is shown as that of Chandrapur which is same as that of opponent no.2 and therefore it cannot be accepted that opponent no.1 has no branch office at Chandrapur. We agree with this observation of the learned District Forum. Learned District Forum also observed that all transactions had taken place at Chandrapur in respect of the said membership which show that opponent no.1 was having a branch office at Chandrapur. We also observe that all transactions giving rise to the cause of action had taken place at Chandrapur through opponent no.2 and therefore the contention of opponent no.2 that it does not have office at Chandrapur cannot be accepted. For the above said reason of cause of action, we also do not accept the objection of appellant on the point of territorial jurisdiction of the learned District Forum in dealing with the subject consumer complaint. The learned District Forum had observed that, the statement and the bank statement filed by complainant on record show that the amount of Rs.2,73,718/- had been paid by complainant to the opponents. We do not find anything wrong in the said finding of the learned District Forum in view of the details of the payments mentioned by complainant –all through cheques alongwith their details and all cheques being account payee and all in the name of opponent no.1. In spite of receiving the said amount, the opponents have failed to comply their part of the contract and provide the service of stay in its resorts to complainant which the learned District Forum had rightly held to

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be a deficiency in service. The learned District Forum had directed opponents jointly and severally to refund the amount of Rs.2,73,738/- received by them along with interest @10% p.a. for the period from filing of complaint till realization. We do not find anything wrong in the impugned order and in the directions given in the final operative part of the order. The impugned order is well discussed and well reasoned order. We therefore do not find any reason to intervene with the impugned order. We therefore pass the following order. ORDER I. Appeal No.FA/14/58 is hereby dismissed. II. The order passed by District Consumer Disputes Redressal Forum, Chandrapur dated 31.10.2013 in consumer complaint No.CC/209/2011 is herby confirmed. III. No order as to costs. Copy of this order be furnished to the parties, free of cost.