| SooperKanoon Citation | sooperkanoon.com/1107883 |
| Court | Andhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad |
| Decided On | Oct-16-2012 |
| Case Number | C.C.NO.14 OF 2011 |
| Judge | MR. R. LAKSHMINARASIMHA RAO, HONOURABLE MEMBER & MR. T. ASHOK KUMAR, HONOURABLE MEMBER |
| Appellant | Col.(Retd) S.P. Putchala B.E., Mba |
| Respondent | Mahindra Holidays and Resorts India Ltd., Rep. by the Branch Manager and Another |
Oral Order (Sri R.Lakshminarasimha Rao, Honble Member)
1. The complaint is filed seeking transportation charges of `1,80,000/-, `21,60,000/- towards loss of job offer, `37,000/- towards international call charges, `63,500/- towards compensation for advancement of his journey to India and for loss of opportunity to utilize the holiday resort, `42,000/- towards Deccan airline coupons, `5,23,600/- towards the flight charges from Melbourne to Hyderabad for his son, daughter and granddaughter, for direction to the first opposite party to issue membership card to him and co-membership card to his son, to co-ordinate with the second opposite party to get his six week package international weeks, to direct the first opposite party to pay an amount of `2,00,000/-towards his medical expenses, `30,000/- towards the expenses for air tickets and the stay of the complainant and his wife in Mumbai, to direct the second opposite party to pay `2,00,000/- towards damages for loss of opportunity to visit Zimbabwe and South Africa, to pay `8,750/- and for deposit of his deposited week, refund of `3,720/- collected by the second opposite party from him towards platinum membership charges, direct the second opposite party to allot 6 weeks of package international holidays and direct the opposite parties to pay the costs of `3,000/- each besides compensation for permanent medication and loss of opportunity to do social service.
2. The averments of the complaint are that the complainant is retired army officer and a trustee of social organization, âSweekar Rehabilitation for Handicapped, Secunderabadâ .The complainant became member of the first opposite party-company on 4.02.2006 and paid consideration of `1,89,240/- through cheque and he was offered the benefits of international or domestic holiday from the second opposite party till 31.12.2007, two nights complimentary holiday in select club of the first opposite party, 4 one way air Deccan tickets, 9 bonus weeks through the second opposite party. The second opposite party issued letter dated 20.02.2006 confirming the complainants membership till Febryuray,2019.
3. The opposite party no.1 issued fresh offer letter reducing the amount towards membership fee from `1,89,240/- to `1,49,730/-, and increasing the period of membership from 25 years to 33 years as per its earlier offer made in the month of October,2005 and offered to provide another one week international holiday through the second opposite party, co-membership to his son, compensatory 2 week international /domestic holiday through the second opposite party. 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 weeks etc on the premise 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. The opposite party no.1 had provided holidays even before the date mentioned in the holiday confirmation voucher and membership card.
4. The first opposite party made several phone calls to the complainant demanding for EMIs though the complainant paid the entire amount and the complainant appraised the branch manager of the first opposite party about the payment of the amount. The first opposite party had not allotted holidays to the complainant citing non-availability as the cause and informed the complainant that he cannot allow more than 21 holidays to accumulate in his inventory which in such event would lapse and requested the complainant to deposit his holidays with the second opposite party and he deposited 3 holiday weeks with the second opposite party.
5. The complainant booked online reservation of Coorg for 8 days to his son(co-member) during the last week of May,2010 and as there was no response, the complainant had made international call and he received a mail on 24.01.2010 that there was an overdue payment and as such the reservation was not confirmed. The complainant paid the ASF amount for the year 2009, `7,948/- on 2.06.2009. The first opposite party received the amount and refused to issue confirmation voucher for Coorg and the complainant on 25.01.2006 made an international call from Australia and the first opposite party blocked his account. The first opposite party asked for statement of bank account of the complainant.
6. The complainant furnished the payment details to the first opposite party and the Bangalore office of the first opposite party through reply mail informed him of the overdue amount and advised the complainant to contact their office at Hyderabad. The complainant furnished his bank statement account and copy of the cheque as also the encashment details of the cheque to the first opposite party. The tension caused by the first opposite party made the complainant to suffer from âsyncope effect. The complainant was advised not to drive vehicle and he had to depend on others and on medicine for lifetime. The complainants son had to take him for several times for medical help and he along with his wife had to return to India without seeing the places of tourism importance.
7. Of the 4 One Way Air Deccan Ticket Coupons , the complainant used 2 coupons, one on 24.01.2007 from Hyderabad to Delhi and the second coupon from Delhi to Hyderabad on 1.02.2007. On 24.01.2007 the flight from Hyderabad to Delhi was cancelled and no alternative arrangement was made as also the Deccan Airlines informed him the flight charges would be refunded to the first opposite party and not to him. The complainant after waiting for four hours, left for Delhi in another flight. In Delhi also, while the complainant was returning to Hyderabad, the flight was cancelled and he had to come in another airlines by paying heavy fare.
8. The first opposite party offered 7 weeks international/domestic weeks holidays to be availed through the second opposite party and the first opposite party had shown in the online inventory of the complainant 6 week holidays and the second opposite party in its mail had shown that the holidays are not available. The second opposite party asked the complainant to deposit week and then they would allot package weeks to the complainant. The complainant deposited 3 weeks with the second opposite party. For the purpose of availing the package weeks on priority the complainant had to become platinum member for which purpose he paid an amount of `3,000/- to the first opposite party. The first opposite party accepted and confirmed three resorts, one week in Egypt from 22nd February,2008, second week in Zimbabwe during first week of May,2008 and continuing third week in South Africa.
9. On receipt of the confirmation vouchers, the complainant made for him and his wife all arrangements such as flights, local tours. Transportation and hotels etc., On account of growing terrorism in African Countries, the visa policy was tightened in those countries and as per requirement by the authorities concerned, the complainant had to furnish confirmation of allotment through the opposite parties and the opposite parties or their branch offices concerned have not sent confirmation of allotment to the High Commission/Embassy as a result of which the complainant could get visa for Egypt for 15 days and he could not utilize the 7 days accommodation allotted by the second opposite party. The complainant and his wife had to visit Mumbai for obtaining visa for 21 days to visit Egypt. Even during the complainants stay in the aforementioned countries, the opposite parties had not sent confirmation of allotment to the respective embassies in those countries. The complainant suffered stress, strain, unaccountable and unexplainable embarrassment from his friends and relatives and ultimately the second opposite party agreed to allot 2 weeks anywhere in the world of the complainants choice.
10. The toll free number of the second opposite party is not in operation and the second opposite party insisted to opt for rented accommodation on payment in spite of having many package weeks to the credit of the complainants inventory account and they informed the complainant that the week holidays are likely to expire . Both opposite parties had sent email on 16.07.2008 jointly giving details as how to book the package holiday weeks . They had sent mail on 16.12.2008 allotting the complainant confirmed accommodation for one week from 19.12.2009 to 26.12.2008 and the complainant informed them that it was not possible to get visa within such short time. The official of the second opposite party informed the complainant that the validity of the holidays is for the internal accountability of the first opposite party and the second opposite party and the complainant could utilize the holidays irrespective of their validity.
11. On assurance from the employee of the second opposite party, the complainant confirmed for the package weeks and complimentary weeks and he paid `13,000/- without utilizing his deposit weeks. The opposite epartyno.2 took undue advantage of the complainants presence in Australia. Due to the controversy of non-receipt of cheque, the health of the complainants wife deteriorated and they were compelled to return to India on 4.4.2010 and they could not utilize one week holiday resulting in loss of the deposited week international holidays to the tune of `50,000/-.
12. On 9.12.2009 the opposite partyno.2 made international call to the complainant to avail against his exchange week claiming 11th hour deal and online booking concessions are for the USA members and not for Indian members and assured the complainant that they will give all package weeks pending during October 2010 and December 2010 and April 2011 at least one week each at place of alternate choices given by the complainant in Australia and New Zealand. The complainant accepted the proposal and paid exchange fees of `13,500/-.
13. The first opposite party offered nine bonus weeks to be availed from second opposite party and without knowing the system the complainant accepted the same . Any member of the second opposite party is automatically entitled to any number of holiday weeks on payment of fees without any deposit week âgetaway specialsâ and â not bonus weeksâ as written by the opposite parties in their letter. The representative of the opposite party no.1 had shown each bonus week for `30,000/- to `40,000/- and fees payable to the second opposite party in between `6,000/- to `7000/- and the benefit for the purchaser in between `20,000/- to `25,000/-.
14. The first opposite party would book the resorts as if booked by its members and avoid providing resorts to the members like complainant. The complainant was to join as Executive Director, Sweekar Rehabilitation Centre from 1.8.2010 with a pay scale of `60,000/- per month o contract basis for three years and due to the health hazard which was result of prolonged harassment, emails, telephonic calls and unwarranted tension created by the first opposite party the complainant suffered syncope effect with no option left he was forced to come to India for treatment by making advance journey on 4.4.2010 and after returning to India he had to consult ECHS Polyclinic. The complainant suffered the syncope effect in Australia and he was referred to military hospital and he developed continuous high blood pressure and he is on life saving medicine to use them for complete life and he has to report to the hospital once in a month and also that he was not advised to drive any vehicle nor undertake any employment that result in stress and strain.
15. The life span of the complainant was reduced which cannot be measured monetarily and the complainant was forced to give up his job and he faced health hazard due to the act of the opposite party no.1. The complainant got issued notice to the opposite parties no.1 and 2 claiming the amount as compensation for which there was no response from them. On 6.7.2010 the staff of the opposite party no.1 visited the complainant and went back because of his health conditions and thereafter for about four times they visited him with a new proposal and they disturbed him during 14:30 to 16:00 hours in the day during which period he is supposed to sleep without any disturbance. The complainant can avail three weeks of initial seven package week in addition to the added two weeks against bonus weeks totaling nine weeks of the international holidays through the opposite party no.2 and the complimentary and terminology of the opposite party no.2 created confusion between the opposite parties no.1 and 2 as regards to the validity period of the week holidays.
16. The first opposite party has filed written version contending that the complaint is not maintainable before this Commission in view of clause 13 of the membership rules with regard to settlement of all disputes, differences, questions arising out of the transaction being subjected to jurisdiction of arbitrator and civil courts at Chennai. It is submitted that the complainant cannot seek for refund of the amount of `1,89,240/- as per clause 6.1(a) of the Membership Rules since he had not sought for refund of the amount within 10 days of making down payment as also that as per the averments of the complaint, he had sought for refund of the amount only after utilizing several holidays. The complainant submitted application form admitting that no statement or promise had been made by the first opposite party except those mentioned in the application form.
17. The first opposite party submits that the military back ground of the complainant has no relevance to the facts of the case and that the complainant after being satisfied with applicability of membership rules and various benefits of subscribing to holiday plan, subscribed to âRed Seasons Studio Life Membershipâ and issued cheque for `1,49,730/- towards membership fees. The complainant issued cheque to the first opposite party for `1,89,240/- towards Red Season Membership Fees in lieu of the previous cheque for `1,49,730/- and no insinuation of malafide could be attributed to the first opposite party as the complainant issued cheque with knowledge of the terms and conditions of the scheme. The total cost of the plot at the time of the purchase was `1,89,240/- against the initial cost of `1,49,730/-.
18. The first opposite party offers product to its members which entitle them to avail several days of holidays every year during the allotted season in the allotted apartment, in any of its resorts in India and abroad for a period of 25 years, subject to terms and conditions of membership rules. The member is required to pay annual maintenance fee towards maintenance and upkeep of facilities at the resorts. No promise was made to the complainant to waive annual maintenance fees after expiry of five years term. The first opposite party had to concede to the complainants demand for additional one week international holiday through second opposite party, without collecting exchange fees and two week is complimentary international/domestic holiday through the opposite party no.2 and four nights complimentary holiday of the first opposite party in blue and white seasons.
19. It is submitted that the membership period is for 25 years and no representation was made to the complainant that he would be provided the membership period for 33 years. The letter of offer under Ex.A5 is in regard to bargain done by the first opposite party. As a goodwill gesture the opposite partyno.1 allotted resort to the complainant even before the holidays period and the complainant having enjoyed the benefit, cannot use it as a tool against the opposite party no.1. the first opposite party facilitates service to its members through the second opposite party as it had tie up with the second opposite party. Any letter inadvertently issued by the first opposite party cannot be termed as an act of victimization and harassment by it.
20. The first opposite party submitted that the complainant has wrongly stated that he had not utilized holiday between June 2006 to June 2010. As per clause 3.6 of the Membership Rules the member is entitled to holidays, subject to availability in all club Mahindra and its notified resorts. As an additional facility, subject to availability, the member are entitled to avail holidays abroad and other resorts in India by virtue of its affiliation with the opposite partyno.2. As per clause 3.1 of the Membership Rules, all facilities at resorts could be availed by the members subject to clearance of all pending dues if any at the time of confirmation of booking.
21. The opposite party no.1 submitted that it keeps its members in high esteem and in seeking for bank statement of the complainant for cross checking the record in respect of payment cannot be termed a harassment or deficiency in service on its part. The complainant got into the habit of indulging in unfair bargaining with the opposite party no.1 against the terms and conditions of membership rules. The opposite party acknowledged receipt of cheque for `7,948/- towards complainants annual subscription for the year, 2009. The opposite partyno.1 could not process the order of the complainant due to reasons beyond its control. The delayed submission of bank statement by the complainant caused delay in processing the complainants reservation.
22. It is submitted that the complainants developing heart problem is too remote to be attributed to the alleged indiscreet attitude of the first opposite party. The coupons were provided to the complainant and other members of the opposite party no.1 in arrangement with Air Deccan after monetarily compensating them for the same. Any deficiency in service on the part of the Air Deccan cannot be attributed to the opposite party no.1. All disputes arising from the service of the second opposite party is governed by RCI Rules existing in operation between the second opposite party and the complainant.
23. The opposite party no.1 submits that at no point of time it had made any misrepresentation to the complainant and the complainant being satisfied with the membership rules, subscribed for the product. The opposite party no.1 not informed at any time that no booking was available within six months from the date of availing the holiday. It is submitted that the complainant has not complained with regard to the service provided by the opposite party no.1 when he enjoyed the holiday with the opposite partyno.1.
24. The first opposite party has submitted that decision as regards to personal travel plan of the complainant is his individual decision and the first opposite party has no concern with it. The oppositepartyno.1 has not caused the complainant to return from Australia and spend summer at Hyderabad. It is submitted that the complaint is no more than a suit for recovery of money and the CP Act cannot be used as substitute for suit for recovery of money. The complainant made exasperated attempt at maligned the stature of the first opposite party.
25. It is submitted that there was no deficiency in service on the part of the first opposite party and cancellation of CMHF can be made only in terms of clause 6.1 of the rules and in the event of withdrawal of application beyond 10 days from the date of submission of the application, the applicant is not eligible for any refund of the amount of the AFC paid by him. Hence, prayed for dismissal of the complaint against it.
26. The second opposite party resisted the claim on the premise that there is no privity of contract between the complainant and it and that the second opposite party provides time share exchange facility to the members of the resorts affiliated to the opposite party no.2. a member of the affiliated resort can avail the service of the opposite party no.2 subject to terms of RCI membership which provides for independent status of resorts and sales persons from that of the opposite party no.2.
27. It is submitted that the second opposite party is engaged in the business of providing of facility for exchange of time share week to its members and the complainant is aware of time share exchange including the RCI terms of the membership which lays down the conditions, procedure and modalities for exchange of time share week through the second opposite party. The complaint is barred by limitation since he got issued notice on 30.11.2008 and cause of action for filing the complaint has to be reckoned from the date of issue of the notice and not from the date of issue of second notice. The second opposite party has not made any misleading or false information relating to the service provided by it. The complainant has accepted the terms and conditions of time share exchange at the time of applying for membership of the second opposite party.
28. The second opposite party submits that it has made no warranty of the facilities to be provided by affiliated resort i.e., the opposite partyno.1. the complainant was enrolled with the second opposite party as a member through the first opposite party initially for three years to enjoy the holiday facility provided exclusively by the second opposite party as per the rules and regulations. The complainant renewed his membership till 26.3.2019 and he utilized the service of the second opposite party. The second opposite party reserves the right to use the weeks to conduct exchanges, inspection visits promotions and other purposes in RCIs description.
29. The second opposite party submits that it is a holiday exchange club and facilitates its members of the affiliated resorts only in the holiday exchange system and it provides for exchange mechanism with its network to exchange time share weeks owned by its members with affiliated resorts. The second opposite partys ability to confirm a request is dependent upon the availability of holiday ownership rights deposited by others in the RCI Pool.
30. It is submitted that the second opposite party has not compelled nor made any promise to the complainant to become its platinum member. The holiday, one week at Egypt, second week at Zimbabwe in May 2008 and continuing the third week at South Africa were confirmed by sending confirmation vouchers. The complainant had sent mail dated 26.3.2008 expressing his satisfaction and that he enjoyed his trip to Hurghada (Egypt). Obtaining Visa is the sole responsibility of the complainant and the second opposite party being a purely a time share exchange provider does not take the responsibility of obtaining visa to its members.
31. The second opposite party submits that its role upon request, is to inform members about accommodation/holidays that are presently available in the time share exchange system and also if those holidays available on rental basis and it is upto the complainant to choose which accommodation which is best suited to him. The second opposite party had not opted at any time to opt for rented accommodation. The second opposite party helps its members and would send mail informing the expiry of week holidays.
32. The second opposite party has submitted that he had sent a email dated 26.7.2008 to the complainant as to how to exchange the time share week for a holiday at 4000 RCI affiliated resorts round the world to avail holidays. The second opposite party cannot be held responsible for deteriorating health of the complainants wife. It informed the complainant of the availability of exchange weeks leaving it to the discretion of the complainant to avail his exchange week. It is submitted that there was no deficiency in service on the part of the second opposite party and prayed for dismissal of the complaint against it.
33. In support of his case, the complainant has filed his affidavit and the documents Exs.A1 to A94. On behalf of the opposite parties, the Branch In-charge of the first opposite party Kasarla Sunil and authorized signatory of the second opposite party B.S.Ranganatha filed their affidavits and the documents Exs.B1 to B8.
34. The points for consideration are:
1. Whether there has been any deficiency in service on the part of the opposite parties?
2. To what relief?
35. POINT NO.1: The complainant claims that the first opposite party had induced him to join it as member and at misrepresented the amount and number of holidays and he further claims that the first opposite party had not confirmed holiday when he requested for.
36. The complainant has stated that the representatives of the first opposite party collected from him an amount of `1,49,730/- in the month of October ,2005 on the premise that the membership charges are going to be increased from 1st January,2006 and he was away for a tour of three months and on returning home he enquired the first opposite party about his membership. On being requested to submit fresh letter of offer and fresh cheque, he submitted fresh letter of offer and his son issued fresh cheque for `1,89,240/-. The complainant has questioned variation in amounts as the first opposite party collected the cheque for `1,49,730/- in the month of October,2005 towards membership charges and it had collected the amount of `1,89,240/- in the month of January,2006 for the same membership charges. The first opposite party refuted the charge of unfair deal and contended that by the time the fresh offer letter was submitted, the cost of the product was enhanced.
37. The complainant condoned the action of the first opposite party in collecting the amount under the cheque subsequently issued by him and he had received the receipt dated 4.02.2006 confirming the amount paid by him. The complainant had paid the amount of `15,750/- under two cheques towards renewal of the membership with the second opposite party no.2.
38. The first opposite party promised to provide the following facilities to the complainant under the letter dated 18.01.2006:
1.4 weeks international or domestic holiday from the second opposite party (valid till l31.12.2007) .
2. 2Â nights complimentary holiday in select club of Mahindra resorts in blue and white seasons valid till 31.12.2007.
3.4 One way Air Deccan Tickets valid till December,2006.
4.  Rs.10,000/- worth food coupons valid till December,2007.
5. 9bonus weeks through RCI to be availed in any of the RCI affiliate resorts on payment of applicable membership fee during the RCI membership period and subject to availability.
6.  Eligibility of the special offer is subjected to realization of 15% of cost of membership.
7. Â For continuance of service, the members are required to
     pay ASF charges every year.
8. Â Participation in HFRP scheme.
39. The first opposite party had sent membership payment details to the complainant on 4.02.2006 showing realization of the amount of `1,89,240/- covered under the cheque dated 19.01.2006. The first opposite party had sent reminder dated 4.02.2006 informing the complainant of the amount of `15,900/- by him for renewal of his membership fee and the complainant paid the amount. The second opposite party through letter dated 20.02.2006 informed him that his membership is renewed and the membership card was enclosed thereto.
40. The first opposite party addressed letter dated 25.02.2006 informing the complainant that the following points are agreeable to it in the light of discussion held with the complainant;
i) Two additional complementary weeks of international/domestic holidays through RCI valid till 31.12.2007.ii) 4 weeks international/domestic holidays through RCI valid till 31.12.2007
4 Air Deccan Coupons valid till 31.12.2006; Rs.10,000/- food vouchers valid till 31.12.2006 It is mentioned in the letter that the other options in the previous letter would remain the same.
41. The complainant accepted the modified items of the offer. However, he contends that he questioned the employee of the first opposite party-company, Laxmi Venugopal about the membership period of 33 years and payment of five years ASF charges for which she said to have replied that they need not be mentioned in the letter dated 25.02.2006 as they have been recorded in their computer and if they record them in the letter, it would lead to complications in the form of claims from other members. A perusal of the letter dated 25.02.2006 would show that there has been an endorsement made to the effect.
42. The first opposite party denied any offer to the complainant for membership period of 33 years and discontinuance of collection of ASF charges. The branch-in-charge of the first opposite party in his affidavit has stated as under:
â when a person applies to become a member of the Holiday Scheme of my Company-Opposite Party No.1, we have to undertake a huge amount of investment etc., to ensure that the member is given the facilities under the membership scheme for the next 25 years. Hence, when the complainant opted, voluntarily and deliberately, for such membership, the complainant and my Company-Opposite Party have entered into a binding contractual relationship and it does not lie in the mouth of the complainant to now try to resile from such contract obligation and seek a refund contrary to the membership rulesâ.
43. The complainant accepts ExA5 and disowns ExA6 on the premise that ExA5 is an agreement entered into between the first opposite party and himself and the first opposite party equally disputed the document ExA5 and contended that ExA6 would be the criterion for concluded contract and not the letter ExA5. The complainant has not substantiated the plea that the
44. The case of the complainant and the first opposite party can be seen from four documents which play vital role in progressive extension of offer and acceptance thereto or counter offer from the complainant. The application form ,ExB1 which is the first document executed between the complainant and the first opposite party upon which the first opposite party heavily relies upon contains terms and conditions governing the rights and liabilities of the members of the first opposite party and the relevant terms and conditions are mentioned hereunder:
3.  I/We understand that I/we shall be admitted as Member to CMHM only upon realization of 25% of AF and entitled to the benefits of CMHM only during the membership Usage Period.
5.  I/We understand that the renting of the week/days is my/our responsibility and in this regard MHRIL does not undertake any responsibility or liability.
6.  I/We understand that I/We can make my/our own arrangements to sell my/our Membership and that MHRIL shall not buy it back from me us.
7.  I/We understand that confirmation for reservation is subject to eligibility and availability and bonus holiday, if applicable shall be subject to availability.
8.  I/We understand that MHRIL needs to maintain the resort towards which/We confirm having agreed to pay Annual Subscription Fees (ASF) whether/We avail of holiday in a particular year or not and non-payment of the same shall result in my/our disentitlement from the use of and/or cancellation of CMHM.
11. I/We also understand that applicable exchange fees is payable to RCI for availing the RCI exchange.
45. In view of discrepancy in the amount agreed to be paid by the complainant in the month of October,2005 and the amount paid by him in the month of January,2006, the dispute has been in alive between the complainant and the first opposite party till issuing of letter dated 1.10.2010, ExA54. The complainant has stated that what the first opposite party has promised him in October,2005 was not reflected in ExA1. According to him, there was increase in the membership fee; reduction in the duration of the membership period from 33 years to 25 years and the addition of ASF charges.
46. The letter of offer dated 18.01.2006 was issued by the first opposite party provides the following facilities to the complainant.
1. 4 weeks International/Domestic holiday from RCI (valid till 31st Dec 2007 and A week cannot be split)
2. 2 Nights complimentary holiday in select Club Mahindra Resorts in Blue and white seasons. Can be availed upto 31st Dec2007.
3. 4 One way Air Deccan tickets (valid till 31st Dec2007)
4. Rs.10,000/- Worth food coupons. (Valid upto 31st Dec2007)
5. 9 Bonus weeks through RCI. These weeks can be availed in any of the RCI affiliate resorts as per availability by paying the applicable exchange fees during the RCI membership period.
6. Eligibility of the Special offer is subjected to realization of 15 of cost of the membership.
7. In order to continue the impeccable service standard and maintenance all our members have to pay ASF** âevery yearâ
8. Participation in HFRP scheme and get attractive benefits time to time by members signing up with MHRIL from your reference. Current month HFRP*** Scheme, Frist referral that converts will get One Air Deccan Coupon, Two Air Deccan Coupons for second referral.
47. The complainant being dissatisfied with variation in the facilities promised to be provided in the month of October,2005 and those mentioned in ExA1, appears to have requested the first opposite party to return the amount collected from him and the first opposite party acceded to his request to amend the items mentioned in ExA1and the next document that can be considered as extension of ExA1, offer letter is the letter dated 25.02.2006, ExA5 which contains the amended terms of ExA1 stated to have been agreed by the first opposite party in pursuance of discussion held by its employee, Sudarshan with the complainant. The points which are agreed to, by the first opposite party and mentioned in ExA5 read as under:
1.  Complimentary Weeks: - We are happy to give you two Complimentary Weeks of International/Domestic holidays through RCI with validity till 31st December 2007. 8 nights complimentary holidays given, (2 Nights as part of the regular sign up offer and 6 Nights of complimentary coupons issued to you and towards adjustment of HFRP benefit for Mrs.Arora
4 Weeks International/Domestic Holidays through RCI, valid till 31st December 2007
Air Deccan Coupons valid till 31st December 2006
Rs.10,000 worth food vouchers valid till 31st December 2007
The rest of the terms of the offer remain the same
1. Membership Certificate: - We are extremely sorry that your certificate got missed out when sending the membership kit to you. Please find the same enclosed
2. Validityof Club Mahindra Card: We reissue your membership cars every five years, so all cards have a validity of 5 years only. Sorry for not clarifying this and creating a confusion in your mind.
3. Holiday in May: - As discussed, I have sent a note regarding changes in the Kerala package that you wanted to opt for. It will take a couple of days for me to get a response, I will send an E-mail by Tuesday next week at the latest with a planned itinery.
4. Factfindrs of Tie Up Properties: I have also enclosed the fact finder of our Tie Up properties in Malta. This was missed out in the last set sent to you.48. The complainant states that ExA5 does not contain all the conditions which were agreed to be incorporated therein and according to him, the first opposite party promised him that in lieu of the excess amount collected, `39,510/- they would provide him with additional one week international holiday through the second opposite party without charging any exchange fee; the duration of the membership period for the complainant and his son as co-member to be offered would be 33 years and the ASF charges were to be paid by the complainant as the membership card was already issued to him and there will not be any ASF charges collected from him after the first five years of the membership period. In lieu of the ASF charges collected from him, the first opposite party said to have offered him 2 weeks of international /domestic holidays through the second opposite party.
49. It is contended on behalf of the first opposite party that the letter dated 25.02.2006 is only a bargain deal and it does not amount to an agreement. The next document providing for amended of the terms mentioned in ExA1and added to those stated therein ,are found in letter dated 1.10.2010, ExA54. The letter is described as the embodiment of offers in full and final settlement of the complainants claim. The letter reads as under:
Reference to telephonic discussion with Mr.Pavan reddy dated 23rd September 10, we are pleased to offer you the below:
1. 4 Week(s) holiday in Club Mahindra Resort valid till 31st October 2014 instead of 3 Week(s) RCI offer given vide as an enrollment offer dated 25th January 2006.
2. 15,000/- Worth Resort Credit vouchers valid till 31st October 2014.
3. 5000/- cash back in lieu of Deccan air tickets given to you vide as an enrollment dated 25th January 2006.
Please Note: 4 Week(s) holiday in Club Mahindra Resort can be utlilized in Red, White and blue seasons Only and All Other offers given earlier are stated cancelled.
The above offers are in full and final settlement of all claims that you may have against the company or an of its officers.
We hope you are planning aholiday soon and look forward to welcoming you and your family at one of our resorts soon. Please take care to complete your travel before the given date.
To book your holiday, write to us at reservatons@clubmahindra.com . For any other queries on your membership, writ in feedback@clubmahindra.com.
Alternatively, you could call us on 3988000.
We kindly request you to e-mail us at feedback@clubmahindra.com regarding your valuable feedback towards the services provided by the Member Relations at the Branch office in Begumpet.
Thank you very much again for giving us the opportunity to be service to you.
Please confirm your acceptance by acknwoeldging the above
Assuring you best of our services always.
Off: Record â 2,00,000/- Cheque only
+ 15,000/- Cash reward
+ LATEST CELL
50. Thus, it cannot be said that ExA5 is only a bargain and nothing more than a product of negotiations which are not fructified. ExA54 is the modified form of ExA5 and if ExA5 does not fulfill the ingredients of an agreement, ExA54 does also does not stand to the test. The facilities offered vis-Ã -vis terms and conditions had taken concrete shape on issuing of ExA54. The complainant had issued cheque for the first time for `1,49,730/- in the month of October,2005 and since then the cheque so issued was misplaced and thereafter the first opposite party requested him to issue fresh cheque and interestingly, offer letter. The facilities stated to have been offered to him in the month of October, 2005 were not offered resulting in the stalemate of some of the transactions.
51. The contention of the complainant that the staff of the first opposite party-company offered him the membership period for a period of 33 years is not supported by evidence to the effect. The plea of the first opposite party that at no point of time, it offered him the membership for 33 years is based on its policy that it had not offered any member the membership for as much as 33 years. The complainant has been harping on correction of 33 years as 25 years in ExA1. He has admitted that it is corrected and he did not raise any protest when it was corrected nor is it reflected in ExA5 or ExA54.
52. The branch-in charge of the first opposite party in his affidavit has stated that:
âI strongly deny that the complainant was offered membership for 33 years at any point of time. As a matter of fact my company-opposite party no:1 offers product to the members which entitle them to avail seven days of holidays every year, during the allotted season in the allotted apartment, in any of the resorts of Club Mahindra in India and abroad for a period of 25 years subject to terms and conditions mentioned in the Membership Rulesâ.
53. Thus, the complainant cannot lay upon a clause in ExA1 which does not support his claim for restoration of membership for a period of 33 years which was not agreed upon nor promised by the first opposite party.
54. Coming to the contents of ExA54, the first opposite party has disputed its contents which are added in ink stating that the complainant has made such addition to the contents of the document. The first opposite party has denied the contents of the documents made in ink which however, are not denied and even admitted by branch in charge in his affidavit. In paragraph 16 of his affidavit he refers to the circumstances in which ExA54 was executed as under:
âI admit the fact to the extent that our representatives visited the complainants office and the letter on record as annexed with the complaint was corrected under countersign. However, I submit that the Exhibit -5 filed by the complainant only bares the bargain done by the complainant and by inference the avarice that spurs him and it proves not a smidgen beyond that point.â
55. Â The items added in ink in ExA54 provide for payment of `2,00,000/- through cheque and `15,000/- and a latest mobile phone to the complainant. The offer made under ExA54 was not accepted by the complainant as seen from ExA56, the mail from the branch in charge of the first opposite party company that the complainant requested the first opposite party to modify the offer as to the RCI offer was valid till January,2010 and the offer made under ExA54 would commence from January,2011 till December,2014 and he sought for extension of the RCV till December,2014. The first opposite party informed the complainant that the offer under ExA54 was extended in lieu of the previous offers and the request for change of the offer made in ExA54 would be made subject to the decision of legal department as ExA54 was signed by the complainant.
56. The complainant booked online for reservation of Coorg for 8 days to his son during the last week of May,2010 . There was no confirmation mail response for 2 days from the first opposite party, the complainant who said to have been in Australia in the first week of June,2009 said to have made an international call to the branch office of the first opposite party and the staff of the first opposie party said to have given reply that it would look into the matter within three days. The first opposite party had sent mail dated 24.01.2010, ExA10(a)stating that the complainant was overdue and as such his request for confirmation of reservation was not acceded. The complainant states that he paid the amount on 1.06.2009.
57. The ASF charges have been enhanced by the First Opposite Party from `5,369/- every year on the premise of increase in price index and the complainant issued cheque drawn on SBI Mudfort Branch, Secunderabad for an amount of `7,948/- and as seen from ExA11, the cheque was sent through courier on 2.06.2009 to the first opposite party and after realizing the amount covered under the cheque on 12.06.2009, the first opposite party has issued receipt dated 17.07.2009 in favour of the complainant.
58. The reason for not confirming the reservation of the holiday requested for, is the amount stated to have been due from him. The receipt would indicate payment of the amount by the complainant towards the ASF charges. On 25.01.2010 the first opposite party had sent mail, ExA15 requesting the complainant to send his bank statement as an amount of `7,948/- was due towards Annual Subscription Fee for the year 2009 and in reply to the query made by the first opposite party, the complainant has sent mail under ExA16 on 27.01.2010 that he had paid the entire amount and he has furnished the payment details therein. Thereafter the complainant has sent three mails of which the mail dated 4.02.2010 under ExA19 contains the particulars of the payment details and the misplacing of cheque by the first opposite party which was issued by him at the time of joining the first opposite party as its member. The mail reads as under:
While thanking you for the reply
I would like to mention that the common sentence you used every time (do rest assured that this is only because it is our endeavor to assit you with a correct and deserving redressal.) Please note this is not my redressal but your serious lapses in administration. Starting from the nov 2005, you misplaced my check for the membership which I gave after lot of persuation from our marketing staff visting my house at least for 4 times.
Then fresh application without knowing THE DETAISL FO AMOUNT my son gave the check for higher amount (increase in MEMBERSHIP CHARTGES and), cannot get holidays as and when asked simple reply Is not available, 4 flight coupons could not be availed as all the time I booked flights cancelled, finally the point of compensation for the 4 flight coupons still unsettled. On line reservation for important places we could never get (even before the day starts I mean 6 months before the day you simply block them and sell them as hotel customers or one time holiday people, all important places like alu etcâ¦) I took all copies with dates printouts, change the customer holiday accounts as if they are your own property and the customers are at your mercy, giving notices for payment to even full amount at one go paid people like me, check even after realization do not reflect and claim not paid and finally points concerned to contractual obligations are also deviated thinking people will not get time to react.
Please clarify this points also
(1) Once I deposit week with RCI, WIL YOU AUTOMATICALLYDEBIT FROM MY ACCOUNT EVEN BEFORE I UTILIZE THE EXCHANGED WEEK WITH RCI OR YOU DEBIT FRFOM MY ACCOUNT only AFTER I UTLIZED THE SAME ON EXCHANGE?
(2) CAN I DEPOSIT WEEK WITH OTHER ORGANISATIONS LIKE R.C.I.?
(3) THE SO CALLED COMPLEMENTORY WEEKS (STILL I HAVE 3 WEEKS WITH R.C.I) IF THE WEEKS ARE NOT GIVEN BY RCI HOW YOU EXPECT ME TO UTLIZE? THERE IS ALMOST A CENTURY OPTIONS I HAD GIVEN TO R.C.I. (Every time I ask for a several alternative places they demand to deposit week, like that I deposited 2 weeks and R.C.I givenme exchange weeks first and also asked me to take payment extra holidays rather than giving me the so called complementary weeks as per them but as per me legally all 4 weeks intgernational holdiays from R.C.I given to me are PART OF PACKAGE, even they demanded 3000/- for gold customer membership saying I get priority for allotment of lholdiay weeks in my desired places and I paid so in 2008 itself after apprising your manager Hyderabad office)
Thanks for harrsassing a Sr.Citizen LIKE ME?
I WOULD ALSO LIKE TO MEET THE TOP PERSON WHEN I COME BACK TO INDIA S YOU MAY FIX APPONTMENT ANYWHEREIN INDIA AFTER 10th April.
Thanking you59. The mail summarizes the entire case of the complainant and that of the first opposite party, his submission of fresh application, payment of ASF , unsettled claim for flight coupons, the first opposite party blocking the online reservation etc., The first opposite party had sent another mail dated 6.02.2010,ExA20 seeking for furnishing of the bank statement of the complainant. This attitude of the first opposite party would be sufficient to hold its service as deficient as it had misplaced the first cheque issued by the complainant in the month of October,2005 and requested him to issue fresh cheque and submit fresh application form. The negligence on the part of the first opposite party in misplacing the cheque led to series of events leading to misunderstanding between the complainant and the first opposite party and the first opposite party causing inconvenience to the complainant.
60. The complainant ultimately requested his banker to send the image of the cheque and encashment detail to the first opposite party and through mail dated 7.2.2010 he had sent the image of the cheque and transaction details to the first opposite party. In reply, the first opposite party had acknowledged the image of the cheque and sent mail Ex.A22 informing the complainant that the mail sent by him was forwarded to its internal department and thereafter the first opposite party had sent another mail Ex.A23 on 9.2.2010 informing the complainant that the issue was resolved.
61. The complainant has stated that he had to return India earlier than the scheduled to and he had to spend the summer in India on account of failure of the opposite partyno.1 to confirm his holiday presumably on his account showing overdue towards AMF for the year 2009. It is true that the first opposite party was negligent in dealing with the cheque issued by the complainant not on one occasion but as many as two times and the complainant was compelled to suffer inconvenience. However, it cannot be said that owing to the failure of the opposite partyno.1 he had to return to India and he had to spend summer in India. The complainant has projected his inconvenience of spending summer in India as it he had been to India for the first time from a foreign country.
62. The complainant was issued four one way Air Deccan Ticket coupons by the first opposite party. The complainant has stated that the Air Deccan had not honoured the coupons on 24.1.2007 from Hyderabad to Delhi and another coupon on 1.2.2007 from Delhi to Hyderabad and on both occasions the Air Deccan had informed him to claim the flight cancellation charges from the first opposite party. According to the complainant cost of four air Deccan coupons is `20,000/- and the two air tickets is `12,000/-.
63. The second opposite party had sent mail dated 11.12.2007 to the complainant under Ex.A28 offering him special offer week and he was informed that certain weeks were not liable to be exchanged. The second opposite party said to have requested the complainant to deposit week and then only it would allot package weeks in his favour. The complainant deposited his three weeks with the second opposite party and two of those weeks said to have been utilized forcibly. On 23.11.2007 an officer of the second opposite party said to have held deliberations telephonically with the complainant in pursuance3 of which the complainant had paid an amount of `3,000/- to become its platinum member and he readily accepted three resorts of several proposed resorts. The three resorts are:
One week at Egypt from 22.2.2008, Second weeks at Zimbabwe during first week May 2008 continuing the third week at South Africa and to the effect the second opposite party had sent confirmation vouchers.
64. On receiving the confirmation voucher from the second opposite party, the complainant states that he had made arrangements for flights to the places, local tours, transportation, hotels etc. The complainant had sent request for confirmation having been allotted confirmed the accommodation to the respective embassies. The opposite parties stated to have not responded to his request. The mails, Exs.A29 to 34 would establish the request made therefor, to the opposite parties by the complainant. The complainant states that his passport and his wifes passport were held up with consulate general of Arab Republic of Egypt at Mumbai and they had to go to Mumbai to persuade the consulate officer for obtaining visa for 21 days. Exs.B35 and B36 are the mails showing the FAX message that the complainant could not proceed to visit the places as per schedule and resultantly he has stated to have suffered loss to the tune of `30,000/- due to the negligence on the part of the second opposite party. The second opposite party assured the complainant to allot alternate accommodation for the two week anywhere in the world of the choice of the complainant and accordingly deposited the two weeks in his inventory. The complainant states that the transportation accommodation etc., to the places would cost him and to his wife `2 lakhs. It is his contention that the second opposite party had not responded promptly to his request as and when he attempted to contact them on phone and they had neglected to furnish control number to the complainant and he states that the second opposite party insisted in to opt for rented accommodation .
65. It is contended on behalf of the second opposite party that it is not the obligation or duty of the second opposite party to arrange for visa to the complainant. The terms and conditions that are binding on the complainant and the second opposite party read as under:
2.1Â An Applicant is admitted as a member of CMHM upon the payment of 25% of AF to MHRIL. MHRIL may at the request of the Applicant, agree to receive the balance AF in installments under a payment plan of MHRIL or any other finance scheme approved by MHRIL set out in Schedule âAâ. In the case of installment payments, the Applicant shall deliver post-dated cheques/ECS/Credit card authorization cards. The Applicant further bind themselves irrevocably to pay the installment amounts and undertake to ensure due and prompt payment under the installment scheme.
2.2.The Member shall comply with the obligations to pay the balance AF as per the agreed price stricter and failure of which, shall amount to breach of contract by the Members.
2.3.The Applicant recognizes that the AF is payable by him for MHRILs goodwill, reputation and brand equity and after having being satisfied before joining with the quality of the CMRs, quality of service and facilities and is therefore not refundable under any circumstancs.
2.4.The CMHM Certificate shall be sent by MHRIL to the Applicant within 30 days from the date of realization of 25% of the AF admitting the Applicant as the Member of CMHM.
5.1Â A Member shall pay ASF in advance for the Year within such time as stipulated by MHRIL from time to time.
5.2.A Member cannot avail of his/her/its Holiday entitlements unless the ASF is paid in full
8.3.Member shall not entitled to avail holidays if any amount/s are due and payable to MHRIL as on the date of request for holidays.
13.3.        In respect of all matters pertaining to this transaction, only the Civil Courts in Chennai City shall have jurisdiction to the exclusion of all other Courts.
66. It is the contention of the second opposite party that the preliminary agreement dated 18.1.2006 entered into between the complainant and the opposite party no.1 is the basis for the contract between the complainant and the second opposite party and the second opposite party and its liability are narrowed down to the terms of membership between the complainant and the opposite party no.2. The role of second opposite party is in the nature of providing facility for exchange of time share week to its members and it is not said to have been involved in arranging passports, visa and other documents to its members.
67. The complainant enjoyed one week at Egypt, second week at Zimbabwe ion May 2008 continuing third week at South Africa. He had sent mail dated 26.3.2008 to the second opposite party expressing his satisfaction and that he enjoyed the trip tour to Hurdhada (Egypt). It is contended on behalf the second opposite party that it provides facility for exchange of time share week to its members with different resorts subject to availability of accommodation at particular resorts and the complainant had voluntarily deposited with the second opposite party his week which he can at any time withdraw as provided under article 6.4 which reads as follows:
68. The complainant is platinum member of the second opposite party as per the RCI Platinum Members rules, the complainant can opt for cancellation his membership at any time or the second opposite party may cancel or terminate the platinum membership of the complainant at any time.
69. The terms and conditions of the agreement or the offer letter entered into between the complainant and the first opposite party do not anyway operate on the transaction between the complainant and the second opposite party. The complainant has sought for the amendment of terms of the contract between him and the opposite parties which cannot be granted by this commission. The Courts or Tribunals cannot rewrite the terms of contract between the parties to the agreement.
70. The learned counsel for the second opposite party has relied upon the decision of Bombay High Court in Navnital and Co. And Ors. Vs Kishanchand and Co reported in AIR 1956 Bom 151 and the Honble Supreme Court in New Bihar Biri Leaves Co. and Ors., Vs State of Bihar and Ors.
71. The job offer with Srikar Organization said to have been lost by the complainant cannot be made attributable to the deficiency in service on the part of the opposite party no.1. The complainant is a trustee of the organization and his statement that the official of the first opposite party company met him in the office of the organization would show that the complainant has been associated with the organization. The medical record of the complainant proves that he has been a patient even before opting for membership of the first opposite party company and they do not establish the complainant suffering from Synco effect as a result of negligence on the part of the first opposite party in verifying the amount whether paid by the complainant towards annual maintenance fees or in not allotting holidays to him on the premise of non-availability. 72. Taking into consideration of the facts circumstances of the case, we are inclined to award an amount of `2 lakhs liable to be paid by the first opposite party. The complainant is entitled to a sum of `37,000/- towards international call charges, `63,500/- towards compensation for advancement of his journey to India, `42,000/- towards the amount covered under Deccan Airline Coupons, `30,000/- towards expenses incurred by him and his wife for air tickets and their stay at Mumbai and `27,500/- for the inconvenience caused to him in respect of the cheques issued by him. The complainant has failed to establish any deficiency in service on the part of the second opposite party.
73. In the result the complaint is allowed directing the first opposite party to pay an amount of `2 lakhs together with costs of `5,000/-. The complaint against the second opposite party is dismissed without costs. Time for compliance four weeks.