BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 30/04/2013

Date of Order : 28/11/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beenakumari, Member.

C.C. No. 322/2013

Between

And

O R D E R

V.K. Beenakumari, Member.

1. The facts of the case leading to this complaint are as follows :-

On 01-02-2012, a representative of the opposite parties met the complainant at his membership for the 'PRIORITY PLUS' programme which cost Rs. 5,000/- and the complainant filled up the form for the membership and paid the membership fee of Rs. 5,000/- by cheque No. 509882 dated 01-02-2012 drawn on South Indian Bank. The membership fee was encashed on 31-01-2012. But till 9^th October 3012, the opposite parties did not provide the membership card or their brochure. The non-issuance of the membership card and the failure to extend, the facilities amounted to deficiency in service on the part of the opposite parties. The complainant issued a lawyer notice dated 09-10-2012 to the opposite parties and the 1^st opposite party replied to the said notice stating that no representative of the 1^st opposite party was sent to the complainant and that the Priority Club Programme is marketed and controlled by the 2^nd opposite party and the 1^st opposite party is obliged only to provide services to the members of the scheme. The 2^nd opposite party in response to the lawyer notice replied that they had not sent any representative of the complainant that the complainant was enrolled in the programme on 31-01-2012, that the membership card was ready for delivery. The complainant submitted that the 2^nd opposite party had neither contacted him, nor enrolled him in the 'priority plus'. This amounts to deficiency in service on the part of the opposite parties. Hence, the complainant approached this Forum seeking direction against the opposite parties to refund the membership fee collected of Rs. 5,000/- and to pay Rs. 1 lakh towards compensation on account of the unfair trade practice and Rs. 1 lakh for the mental agony and inconveniences caused to the complainant along with costs of the proceedings.

2. The version filed by the 1^st opposite party is as follows :-

The 1^st opposite party submitted that the 1^st opposite party has not interacted with the complainant at any point of time, that the 1^st opposite party's liability is limited to rendering services to a member, when such a member comes to the hotel with the membership card that even according to the complainant, he has not yet received the priority plus card, hence there is no question of the complainant availing any services under the card from the 1^st opposite party arises that there is no averment in the complaint that the complainant had approached the 1^st opposite party for availing the services of the 1^st opposite party. The 1^st opposite party also submitted that the complainant has wrongly made Holiday Inn as a party, which is only a hotel Inn by Ind Royal Hotels Private Ltd. and the 2^nd opposite party is a consultant appointed under the terms of agreement entered into between the Ind Royal Hotels Pvt. Ltd and the 2^nd opposite party markets the priority club membership to the customers, provides membership cards either permanent or temporary cards to the interested customers, provides the services and privileges and benefits to the customers under the programme mentioned in the clause 8.5 of the agreement between the 2^nd opposite party and the Ind Royal Hotels Pvt. Ltd. It is submitted that the 1^st opposite party do not have any duty to provide services to the complainant who is not holding Priority Club membership card. The 1^st opposite party prayed that the complaint may be dismissed with heavy costs to the 1^st opposite party.

3. The version filed by the 2^nd opposite party is as follows :-

The 2^nd opposite party denied the averments made by the complainant in paragraph 5 of the complaint that there was failure in the issuance of the membership card to the complainant. The 2^nd opposite party admitted that the membership fee of Rs. 5,000/- was received from the complainant. The 2^nd opposite party also admits that Priority Plus Membership was given to the complainant that a temporary card was handed over to the complainant and that the complainant was informed over phone on 15-02-2012 that the permanent card was ready for delivery and the complainant himself had suggested that the card can be kept in the hotel lobby and the permanent card was left in the lobby. There was no response from the complainant till the 2^nd opposite party received the legal notice from the complainant and the 2^nd opposite party was under the impression that the same would have been collected by the complainant from the hotel lobby. It is submitted that in reply to the legal notice, the 2^nd opposite party stated that keeping in view of the inconvenience, if any, caused to the complainant a new membership card was offered to the complainant for one year from the date of offer and that the 2^nd opposite party was also willing to refund the membership fee. But the complainant never responded to the office till date or intimated his intention. It is submitted that the company is still ready to refund the amount or to give membership for the next one year. It is further pointed out that the temporary card is very well sufficient to avail the benefits covered under the membership. The damages if any suffered by the complainant is on account of the non-usage of the temporary card and non-collection of permanent card from the lobby. Therefore, it is prayed that the complaint may be dismissed with heavy costs to the 2^nd opposite party.

4. No oral evidence adduced either by the complainant or by the opposite parties. The documentary evidences produced by the complainant and the opposite parties were marked as Exts. A1 to A5 and Exts. B1 and B2 respectively. Heard the counsel for the contesting parties.

5. The issues raised in this complaint are as follows :-

1. Whether the complainant is entitled to get refund of the membership fee of the priority club with interest?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

3. Whether the opposite parties are entitled to get costs of the proceedings?

6. Point No. i. :- There is no dispute with regard to the payment of Priority Club membership fee of Rs. 5,000/- to the 2^nd opposite party and the acceptance of the membership fee by the 2^nd opposite party. The case of the complainant is that he was not supplied with the membership card in the 'priority plus' programme, so as to enable him to avail the facilities and benefits offered under the scheme. The complainant had paid the membership fee of Rs. 5,000/- as evidenced by Ext. A2 receipt dated 31-01-2012 issued by Holiday Inn Cochin for and on behalf of A4A Hospitality Services Pvt. Ltd. The 1^st opposite party cannot claim that they are not involved in the transaction. The 2^nd opposite party submitted that they have issued a temporary membership card to the complainant on the very same day, when they received the membership fee on 01-02-2012 and that the complainant was a regular visitor to the Holiday Inn Hotel. But no evidence whatsoever furnished by the 2^nd opposite party to substantiate the above submission. Another submission made by the 2^nd opposite party is that the permanent membership card to the “Priority Plus” programme was kept in the hotel lobby as directed by the complainant. But there is no evidence to show that the 2^nd opposite party had contacted the complainant intimating the issuance of permanent membership card to the complainant. Subsequently, the complainant caused to issue a lawyer notice to the opposite parties vide Ext. A3 dated 09-10-2012 claiming refund of the membership fee with 24% interest thereon and compensation of Rs. 1,05,000/- with interest @ 24% to the complainant within 15 days of the receipt of the said notice. In reply to the notice, the 1^st opposite party denied all allegations in the notice and categorically stated that the 1^st opposite party is not bound to compensate the complainant. Instead, asked the complainant to withdraw the notice as evidenced by Ext. A4. The 2^nd opposite party in the reply to the lawyer notice, they are not bound to compensate the complainant, since the complainant had not suffered any loss as alleged in the complaint and the permanent membership card was issued to the address stated by the complainant. We are not in a position to accept the above contention, since the 2^nd opposite party issued the membership card to the hotel lobby of the 1^st opposite party, which cannot be treated as service of the membership card to the complainant. Moreover, in the reply to the lawyer notice, the 2^nd opposite party expressed their willingness to issue fresh membership card to the complainant to which the complainant disagreed. Therefore, we are of the firm opinion that the complainant is entitled to get refund of the membership fee of Rs. 5,000/- with interest @ 12% p.a. to the complainant from 31-01-2012, the date of receipt of the said amount vide Ext. A2.

7. Point Nos. ii. and iii. :- Admittedly, the complainant had suffered a lot of inconveniences in view of the non-issuance of the membership to the priority plus programme, even after payment of the required membership fee. We find that there is deficiency in service on the part of the opposite parties. Therefore, the complainant is entitled to get compensation for the same. The complainant claimed Rs. 1 lakh towards compensation for the mental agony and another Rs. 1 lakh for the unfair trade practice made by the opposite parties. We find that the compensation claimed is exaggerated considering the facts and circumstances of the case. We award no costs to the opposite parties. We find that an amount of Rs. 10,000/- is sufficient to console all the grievances of the complainant.

8. In the result, the complaint is partly allowed and we direct as follows :-

1. The opposite parties shall jointly and severally refund the membership fee of Rs. 5,000/- (Rupees Five thousand only) with interest at the rate of 12% p.a. from the date of receipt of the said amount ie. from on 31-01-2012 till realisation.

2. The opposite parties shall jointly and severally also pay Rs. 10,000/- (Rupees Ten thousand only) towards compensation and costs of the proceedings to the complainant.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 28^th day of November 2014.

Sd/- V.K. Beenakumari, Member.

Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

=========