Shri Rajeshwar Lal Sood son of late Shri N.R. Sood, 73/6, Ram Bazar, Shimla.
… Complainant.
Versus

1. M/S Shilong Resorts

through its Manager,

Shilon Bagh, P.O. Mundaghat,

District Shimla, H.P.-171012.

2. Managing Director, U.G. Hotels &

Resorts Ltd. M-10 (Market) Greater Kailash-II,

New Delhi-110048.
…Opposite Parties
O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant, avers that, he, is a retired government officer, and joined Holiday Package Scheme launched by the OPs and signed application form to this effect on 22.07.2002 and paid a sum of Rs.15,000/- vide receipt No.9291 and another sum of Rs.64,500/- vide receipt No.9333 dated 20.08.2002, and obtained the Holiday Package for 16 years and hotel accommodation in any of the Hotel/Resort affiliated to RCI for three weeks was to be made available to him. It is averred that he was allotted RCI membership vide No.690900009 dated 20.02.2003 which was valid upto 29.02.2008.

Thereafter, the complainant visited the office of the OP No.1, to chalk out his holiday schedule and it was agreed that holidays wee to commence on 11.01.2004 from Ram Haveli, Haridwar and terminate at Glardges, Snow View Resort, Almorah on 24.01.2004. It is averred that the OPs did not confirm the reservation and as such, he was deprived of the holiday package. It is, averred that the OPs were also requested to refund the amount of Rs.79,500/-, but the request had gone unheeded. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs filed reply to the complaint and raised preliminary objections vis-à-vis maintainability of the complaint, jurisdiction of this Forum to entertain and try the present complaint, status of the complainant as a consumer and estoppel. On merits, it is admitted that the complainant was offered holiday package, and the offer was only in its resort at Shilonbagh and not within and outside the country.

It is admitted that an amount of Rs.15,000/- and Rs.64,500/- was deposited with them. It is denied that the complainant was assured to provide accommodation for his stay in any of the RCI Hotels/Resorts. Since, the complainant had got RCI membership, and, as such, it was for the RCI to provide accommodation for his stay outside the resort. It is denied that the complainant had chalked out holiday schedule in the month of August, 2003 and as per the terms and conditions of the agreement entered into between the parties, the complainant was required to submit holiday schedule 45 days in advance in writing.

It is contended that the complainant is guilty of breach of contract and has also failed to fulfill his part of agreement, whereas, he was never refused for availing one week’s stay in its resort every year during the subsistence period of agreement. It is denied that there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter the parties adduced evidence, by way of affidavits, and documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case meticulously.

5. The OPs do not contest the fact of the complainant having deposited sums of money as detailed in Annexure C-1 to C-4 which had come to be deposited by him before the OPs for obtaining RCI membership with the concomitant facility to, its, member to avail of staying, at, resorts affiliated to RCI. The complainant has depended upon Annexures C-5 to C-9 to bolster his assertion, in, the complaint that, despite, his timely intimation to the OPs, to, arrange for his stay at hotels having affiliation with RCI, located at, Ramnagar and Almora, which fact of communication addressed with a request as contained, in, Annexure C-VI portraying the desire of the complainant seeking reservation, at, the, aforesaid places which desired facility promised, in, Annexure C-V purportedly was, to, be provided to a RCI member, as the complainant was, at, resort/hotels affiliated to it. The OPs do not contest the fact of their having received the aforesaid communications, nor do they deny the fact of the contents reflected in them, which, detail, as well as reveal the apathy, as well as, inability of the OPs, to accede to his request, for, one or the other reason. Hence, while not taking to deny the aforesaid attributions by the complainant, to, inertia, as well as, various omissions as well as, commissions on the part of the OPs, they are construable to have been admitted by them.

Therefore, when the complainant had been prompted, by, the promise contained in Annexure C-V, assuring him that on his becoming a member of RCI, he, could assert a right of enjoying facilities for stay at Hotels/Resorts affiliated to RCI, did, the complainant proceed to call upon the OPs, to, make arrangements for his stay at places mentioned in various annexures and that, too, well in time so as to enable, the, OPs to make necessary reservation for the complainant’s stay their.

The OP also does not deny the fact that at Almora and Rampur no RCI affiliate hotels or resorts were located. His request having come to be for one excuse or other not acceded to, had, compelled the complainant to plan a holiday, elsewhere, where ultimately he had proceeded to in, proof whereof is annexed Annexure C-1. His being, hence, constrained to after his claim as promised, handed over to him, in, Annexure C-IV being breached, by the OPs, to, proceed to stations elsewhere, is, strenuously urged to be an unfair trade practice, as also, a deficiency in service on the part of the OPs. As such, he, is, seeking refund of the amount deposited before the OPs by him.

6. The resistance on the part of the OPs to the claim asserted against them by the complainant, is, anvilled, on, the condition that the promise contained, in, Annexure C-4 entitled the complainant to stay, in its, resort situated, at, Shilonbagh and not in other stations. However, resistance to the complainant’s claim, in, seeking reservation, at, places other than Shilonbagh, where, hotel/resorts affiliated to RCI are, located, appears to be, not, tenable in the light of the fact as divulged, by, a reading of Annexure C-5, highlighting the fact that the complainant shall, on, his obtaining RCI membership, shall, be vested with the right to seek reservation, in, resorts other than at Shilonbagh also , which are affiliated with RCI on the OPs having received money from him by the OPs, as, detailed in various receipts, which have, not, been disputed, Therefore the OPs were obliged to comply with the terms were contained in Annexure C-V of the complainant. However, despite, various annexures disclosing the fact of timely intimation by the complainant to the OPs to make reservation, for, his stay at places detailed in them, which reservation, he, sought for, his having been prompted to do so on the strength of a promise contained in Annexure C-5, it, appears that the OPs miserably have come to dash the hopes and aspirations of the complainant.

With the a flimsiness ingrained in the contention of the OPs, to, not accede to the request of the complainant, despite, a categorical promise contained, in, Annexure C-V, to, make reservation for his stay, at, resorts, elsewhere, than at Shilonbagh, on its own, comprises, not, only a breach of the condition under which the complainant was prompted to purchase membership of RCI under Annexure C-V, as also, they constitute omissions on the part of the OPs, to, provide services as sought for, by the complainant from the OPs, as also, they, comprise an unfair trade practice, besides comprising deficiency in service.

7. The OPs have also depended upon Annexure A-X, which is a letter addressed to the complainant by the OPs whose perusal bring to the fore the fact that the request as made by the complainant to the OPs for refund of his money, is, not capable of being acceded as their exists, no provision for refund, rather, there is provision for sale of the membership, purchased, by, the complainant, for which, they had requested the complainant to send letter of authorization.

However, despite the complainant receiving letter Annexure A-10, he persisted before them and requested that the money as deposited by him before the OPs, be, refunded to him. Since, the complainant, is, a signatory to Annexure C-V, its terms and conditions are binding upon him also. He has been unable to show that the condition under which he purchased the RCI membership from the OPs does bind the OPs, to, refund the money as deposited by the complainant nor, he, has been able to impeach the legality of the said agreement. Since, the conclusions, as, arrived at above, that, the OPs has committed deficiency in service, in, dashing the hopes and aspiration of the complainant and, also, bearing in mind Annexure A-X, the, limited relief which can be made available to the complainant and which would come to be awarded in favour of the complainant in the operative part, is, of the complainant being directed to authorize the OPs to sell his membership the proceed of whose sale shall be defrayed to the complainant.

8. The agreement which was arrived at between the parties at contest and, is, contained in Annexure C-V, though, does contain an arbitration clause, yet, when, the, OPs for reasons aforesaid, have, committed breach of terms and conditions of Annexure A-IV, in, not making arrangements for the stay of the complainant at places which he has under various letters desired them to be made in his favour, hence, given the fact, that the, OPs in their various acts of omissions and commissions, despite, the complainant calling upon them to obey or comply with the terms and conditions contained in Annexure A-V, have, shown apathy to his request, the said apathy obviously, will, compromise deficiency in service, hence, jurisdiction of this Forum, to, decide the grievance of the complainant detailed in the complaint, despite existence of an arbitration clause, in the legally binding agreement between them, whose breach has constituted deficiency in service, would not oust the jurisdiction of this Forum, as in the act of the OPs, in, indulging in an unfair trade practice as well, as, committing deficiency in service, hence, having inflicted upon him loss and injury and that ,too, in his old age, therefore, even if, breach of contract have been occasioned, for the aforesaid reason, even for such breach, the Forum would enjoy jurisdiction in the matter.

9. When, also, the acts and omissions of the OPs have resulted in deficiency in service, as well, as, has been construed to be an unfair trade practice, however, while assessing damages, the singular fact of, the, complainant having been driven as well as compelled, by, the apathy of the OPs, to concede to his request as reflected in various annexure, to, plan his holiday elsewhere, and that, too, in the remote South, with, a, burdening of exhaustion accruing to him with his being compelled by their omission to take a distant journey, whereas, a nearer journey to closer places to his home town would have lessoned enervation engendered by a distant journey, and that too, in, his old age, hence, in the totality of the facts and circumstances of the case, damages of Rs.15,0000/-, would be just, reasonable, and fair amount of compensation.

10. Accordingly, the complaint is allowed. The complainant is directed to give authorization letter to the OPs enabling them to sell the membership within a period of forty five days after the date of receipt of copy of this order and thereafter the OPs shall sell the holiday membership of the complainant within three weeks and refund the sale proceeds to the complainant within one week, thereafter, along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 25.05.2005, till the entire amount is defrayed to the complainant. In addition to this, the OPs shall also pay Rs.15,000/- as compensation/damages, as assessed aforesaid, besides litigation cost of Rs.3,000/- to the complainant.