COMPLAINT NO.1009/09

DATED THIS THE 17TH NOVEMBER 2009

PRESENT

SRI.D. KRISHNAPPA, PRESIDENT
SRI. GANGANARASAIAH, MEMBER
SMT. ANITA SHIVAKUMAR. K, MEMBER

Complainant:

Mrs. Jaba M. Roy

4/13, Mantri Residency

Bannerghatta Road

Nr. Meenakshi Temple

Bangalore-560 076

V/s
Opposite Parties:

1. Mahindra Holidays & Resorts India Ltd.,

Mahindra Towers, 2nd Floor

17/18 Patullos Road

Mount Road

Chennai-600 002

2. Mahindra Holidays & Resorts India Ltd.,

No.641, 2nd Floor, Pushpanjali

80 feet Road, Koramangala

4th Block Near Maharaja Hotel

Bangalore-560 045

O R D E R

SRI.D. KRISHNAPPA, PRESIDENT:

The grievance of the complaint against Ops in brief is, that she believing the Ops on her investing a fair amount would get holiday packages as offered by the Ops once in a year, she became a member by paying Rs.1,81,691/-. That she is dissatisfied with Ops that the service offered by the Ops is of poor level and now the Ops are not taking appropriate action in this regard despite making several communications. Whenever she wanted to opt for any package to any destination the slots were unavailable and the baseless excuses were offered regularly. That she made several requests to Ops to refund her money she paid but she did get any response. The Ops except a welcome letter given to her, have not given so far copy of agreement as stated by the Ops. That she is not aware of the pros and cons, except having had signed at the bottom of certain pages. Her Bangkok travel, the Ops offered was availed by her. The Ops may deduct that expenditure from her money and therefore has prayed for direction to the Ops to refund Rs.1,50,000/-.



Ops have appeared through their advocate and filed common version contending that the complaint is not maintainable before this forum. That there is an arbitration clause in the agreement, accordingly all the difference should be settled as per provisions of arbitration and conciliation act. It is further stated that venue of such arbitration shall be in Chennai City only. It is the Civil Courts of Chennai have jurisdiction to entertain the disputes. This Forum having no jurisdiction shall relegate the parties to Civil Courts. That the complainant by entering into the agreement with them has expressly excluded the jurisdiction of this forum and as such the complaint is not sustainable before this forum. The Ops denying the allegations of deficiency in their service denied the jurisdiction of all other courts except Court at Chennai. That the complainant was granted membership on 22/05/2007 and the complainant applied for cancellation of her membership on 12/01/2009 through a legal notice under the membership rules no refund is permissible. The Ops have stated that the complainant has not paid them Rs.1,49,773/- and have stated that the complainant was enrolled for RCI which cost Rs.4,000/- and a complimentary week cost Rs.5,000/-, the cost of Bangkok package were Rs.36,000/-. Therefore they have already incurred Rs.61,476/- expenditure, membership scheme is for the next 25 years and the complainant who opted voluntary for such membership cannot ask for refund of that amount. The amount they have received is not refundable and thereby have prayed for the dismissal of the complaint.



In the course of enquiry into the complaint, the complainant and one Sumathi Mohan for Ops have filed their affidavit evidence reasserting what they have stated in the complaint and version. The complainant along with complaint has produced Xerox copies of amount received by the Ops from her. She also produced copy of representations she made to the Ops for refund of her money. Ops have produced copy of membership rules and few other papers regarding Bangkok package that the complainant availed. We have heard the complainant who is in person, counsel for the Ops and the written arguments he has filed.



On the above contentions and materials placed before us following points for determination arise.



1. Whether the complainant proves that the Ops have caused deficiency in their service by way of affording holiday package.



2. To what relief the complainant is entitled to?
Point No.1 :In the Affirmative

Point No.2: To see the final order.


REASONS:



Answer on point No.1 :



The complainant became member of Ops for availing holiday packages by paying certain amounts is not in controversy. It is also not in dispute Ops allowed her a membership after receipt of certain amounts and promised package facilities once in a year. But the complainant claim to have paid Rs.1,81,691/- in anticipation of package facility to go to certain places as offered by the Ops. The Ops have disputed the amount paid by the complainant and have contended that the complainant has only paid them Rs.1,49,773/-. But on perusal of copy of the statement of receipts issued by the Ops, the opponents found to have received Rs.1,93,015/-. In this chart except a cheque for Rs.27,254/- all payments are made through ECS, that Rs.27,254/- is paid through cheque. The opponents have not denied the issue of this letter and payments made as detailed in this letter and also not stated that one cheque given by the complainant is not encashed. This chart discloses total payment of Rs.1,93,015/- but the complainant herself has stated that she has paid Rs.1,81,691/-.



The Ops have denied the allegations of the complainant that they have caused deficiency in their service by not affording holding package. The counsel appearing for Ops inviting our attention to membership rules particularly Rule No.3.6 in which it is stated as under.



“All holiday reservation shall be done on a first-come-first-served basis and are consequently subject to eligibility and availability. Request for reservation can be done from up to 6 months to 1 day prior to the commencement of the holiday”.



The counsel for Ops relying upon this clause submitted that the package facility is subject to such factors. The complainant allegations that whenever she wanted to opt for any package to any destination, the slots were unavailable and baseless excuses were regularly given. The Ops have not denied this allegation of the complainant that Op was pleading many inability in providing facilities of package. 0P has relied on Rule No.3.6. If these were to be the stand of the Ops then we find that there is no meaning and honesty in having had promised tour package once in every year. Considering the objective and purpose of introducing holiday package the opponents cannot put conditions to its member that the package facility is subject to availability or other reasons. Once the Ops have offered package tour to the complainant by receiving amount is for them to see that the members are provided holiday package every year as promised and cannot raise excuses and to defeat the object. The Ops by introducing this scheme when received monies it is for them to manage and to regulate themselves and to extend facilities every year without fail. As alleged by the complainant the opponents impliedly have pleaded their inability by relying on Rule no. 3.6 and denied such facilities to the complainant. Thus the allegations of the complainant that she had suffered heavily by not getting facilities as desired by her has remained uncontroverted.



It is not in dispute that the complainant has availed Bangkok holiday package, the complainant claimed it as complimentary package. But the counsel for Op argued when the complainant opts to go out of the scheme by availing the facility given to her to go to Bangkok cannot avail a complimentary facility and thereby submitted that the Bangkok trip availed by the complainant cost them Rs.36,000/-. Ops in their version have further stated that out of Rs.1,49,773/-, they received out of which they have paid Rs.69,476/- towards service tax. They have also stated that the complainant was enrolled as a member for RCI which cost Rs.4,000/-, a complimentary week costing Rs.5,000/- and added that they have already incurred expenditure of Rs.61,476/-. But the Ops have not produced any documents to prove that they have paid service tax so much. Cost of enrolling as member Rs.4,000/- and complimentary week cost Rs.5,000/- seems to be on higher side and in support of these expenditure have not produced any piece of evidence. The complainant herself in the complaint has agreed for deduction of Bangkok trip expenditure incurred by the Op.



The complainant became a member of Ops on 24/05/2007 thereafter she got issued a legal notice on 26/12/2008 seeking cancellation of her membership and to refund her money. But the Ops have not yielded to it. Considering these un-impeached facts, when the complainant at the early stage itself moved the Ops for cancellation of her membership and refund of the money, the opponents should not have refused and honour her claim to repay by deducting certain expenditure. This scheme is being for 25 years, the members including the complainant for their own reasons is they do not want to continue cannot be compelled to continue for such a long years. As contended by the Ops they have only incurred some expenditure from out of the complainant’s money. Of course, they working out the charges regarding expenditure ought to have refunded and that they cannot retain the balance money paid by the complainant. Counsel for opponents though argued that the money paid by the complainant is not refundable that cannot be accepted because of the fact that the Ops are having same complainant’s money which is remained unspent. The Ops have not produced any documents under which the complainant had agreed to the conditions of non-refundability of advance money. Thus the unilateral imposition of conditions cannot be held as binding on the other party.



The counsel for the Op in the course of arguments submitted that there is an arbitration clause under in the agreement therefore complainant must unnecessarily get her dispute resolved through an arbitrator. The learned counsel also submitted that the parties have agreed between them that any dispute arises out of these transactions should be filed before the Chennai Courts and not before this forum. In support of this arguments, the counsel for Ops have relied on three decisions of Hon’ble Supreme Court reported in AIR 1995 Page 766, AIR 2004 Page 2432 and AIR 1982 Page 121. In these reported decisions of the Hon’ble Supreme Court, we find that whenever a dispute arises between the parties for resolving those disputes when several courts having jurisdiction to entertain the proceedings in such a situation the parties can choose one of those courts by agreement for resolving the disputes. Therefore, it is not that the judgment of the Hon’ble Supreme Court empowering the parties to choose a Court of their choice and confirm jurisdiction through an agreement. Therefore, the decisions relied on by the counsel for Ops in our view are not applicable to the facts of the case. Further, in view of section 3 of the Consumer Protection Act not necessarily the parties should exhaust their remedies before the arbitrators. With this, we hold that the complaint deserves to be allowed in part.



Opponents since have not disputed the letter they had issued to the complainant acknowledging the receipt of certain amounts. We will accept the statement of the complainant regarding total amount she paid as Rs.1,81,691/- out of which the Bangkok expenditure of Rs.36,000/-. As contended by the Ops to be deducted and we also allow deduction of Rs.8,000/- towards membership fee and complimentary facilities and hold that the balance amount of Rs.1,37,691/- is to be refund to the complainant. With this, we pass the following order.



O R D E R



Complaint is allowed in part. Ops 1 and 2 are held jointly and severally liable to refund Rs.1,37,691/- to the complainant within 60 days from the date of this order failing which, they shall pay interest @ 12% p.a on that amount until it is paid



Ops shall also pay cost of Rs.500/- to the complainant.