Date of Filing: 26/02/2016

    Date of Order: 26/09/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:  26^th DAY OF SEPTEMEBER 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.327/2016

V/s

ORDER

BY SRI. D.SURESH, MEMBER:

1. The complainant has filed this complaint U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.Ps) alleging deficiency in service on the part of the O.Ps  and  to direct O.Ps to  refund  Rs.74,700/- with 18% compound interest  from 26.09.1996  a sum of Rs.18,64,106/- with costs of this complaint and   litigation expenses and to pass such other order as this Forum deems fit.-

2.   The brief facts of the complaint is that, the complainant subscribed for a membership in the Op company and purchased time share from the OP company to be utilized at Peermadu IVTS by his aged parents on 26.09.1996 by paying Rs.74,000/- as full payment through DD drawn on Honkgkong and Shanghai Bank branch Bangalore. He was issued an acknowledgment of receipt by the Op and also issued him certificate membership bearing customer number 93209, for the duration 1999 to 2097. Further he submits that the Op promised him that the Peermadu resort would be ready by 12.05.1999 for the first stay.  Whereas resort was not ready and it was never built. Thus Op breached the agreement for providing the service. In the meanwhile president and CEO of OP made Email correspondence with the complainant that they would like to provide holiday at two alternative resort but the complainant did not accept the offer because he specifically paid the amount for Peermadu IVTS only.   As per the agreement Op has not taken any step to build resort as assured by them. As on date Peermadu resort is not ready.  Later on Op came forward and offered best holiday destinations to on different dates.  As per the clause, it is the obligation of the company that in case the holiday resort is not ready company, shall pay damages calculated at the rate of 18% per annum on the amount paid by the time share shareholder for the period of delay. Complainant got issued a legal notice dated 17.05.2014 to the OP. Inspite of receiving notice, Op neither replied nor complied the demand made by the complainant. Hence this complaint.

3.      Upon service of notice, O.Ps appeared before the Forum and filed their version contending that the complaint is not maintainable, it is vexatious and frivolous to be dismissed. Further OPs have submitted that the complainant purchased time share from them under certain terms and conditions written down in the agreement which are binding on both parties.  As per  clause 4.2 of the terms and conditions, the delayed completion or non-completion is not a breach of terms unless alternative equivalent accommodation is not provided.  Since the Ops have offered an equivalent accommodation in the same area, for the reasons best known to the complainant, the offer was turned down by the complainant for which the OP is not at fault. The Op has tie-up resort at Thekkady in the same Peermedu Taluk which the complainant could have enjoyed as an alternative equivalent accommodation. Further they submitted that non construction of resort building was un-intentional and was due to financial crunch and down time.  O.Ps still hold the land in the said destination. Further they submitted that erstwhile president and CEO of Op Company offered holiday to the complainant at two alterative resorts, but, the complainant failed to realize that non completion of the resort at the preferred destination alone is not a breach of agreement unless an equivalent resort is not provided. In fact the complainant himself has admitted the same. Further Ops have submitted that the clause 2.2.4 precisely limits the accumulation of the unused holidays for complainant use beyond the extent of 21 days including the current years’ available holidays.  Further the Op companies is liable to pay compensation only in the event of preferred/allotted holiday resort is not ready and if equivalent facility is not provided. It is pertinent to note that the Op  are having tie-up resort Thekkady belonging to the Taluk of Peermade which has not been availed by the complainant. On this ground only complaint is liable to dismissed.  The op did not breach any of the terms of the agreement at any stage. Hence OPs prayed to dismiss the complaint.

4.     To substantiate the above case, both the parties have filed their affidavit evidence along with documents.  We have heard the arguments.

5.     On the basis of pleadings of the parties, the following points will arise for our considerations are:-

                                1)    Whether the complainant has proved

                        deficiency in service on the part of the OPs?

2)    Whether the complainant is entitled to the

         relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT (1):       In the Affirmative.

POINT (2):       Partly in the affirmative  

                                as per the final order.

REASONS

POINT (1):

7.     On perusing the pleadings of both the parties it is undisputed fact that complainant availed service of O.P. and purchased the membership from the OP( Ex.P.3), by paying Rs. 74,000/- through DD.OPs have acknowledged and issued a receipt for the same dated 22.9.2010.The said  receipt marked as ex.P1.  Complaint was issued certificate of membership along with allotment advice (Ex.P.4), same is marked as EX.P2, wherein in the amount column. It is shown as Nil balance and also there is no installment amount due from the complainant in respect of membership.  While issuing membership certificate to complainant with customer ID as 93209 OP had promised to the complainant that Peermedu resort would be ready by 12.5.1999 for the first stay.  According to O.Ps they never constructed the resort. Instead of providing assured resort, OP offered the complainant that they would like to provide holiday at two alternative resort to which the complainant did not accept, as he has specifically paid the amount and took membership for Peermedu IVTS only.  Further, in membership certificate as well as application there is a clause that is the obligation of the company   (4.2) in case the holiday resort is not provided by the company then, company shall be liable to pay damages calculated at the rate of 18% P.a. on the amount paid by the Time share holder for the period  of delay.

8.     OP themselves have admitted that there was delay in construction of Peermedu resort, and the same was not constructed due to financial crunch.  Still the resort at Peermedu is not ready.  The attitude of OP putting pressure on the complainant to avail holidays facilities in the available resorts instead of providing holiday facilities at the promised resort, and if he is not agreeing to the same would lose the benefit amounts to deficiency in service and unfair trade practice. Further the contention of the OP that the amount paid for purchasing time share membership would not be reimbursed, in case purchaser did not use their holiday facility in which there was demand for accommodation amounts unfair trade practice.      

9.     The certificate of membership makes it clear that the complainant became member of sterling holidays  for   a period of 99 years and holiday allotted to complainant is in Peermedu vide EX No P.3. and OP asked to deposit the amount of Rs. 74000/=vide EX No. P4. Although the complaint was given holiday resort confirmation voucher for sterling holiday at Peemedu, by not providing accommodation at the promised resort, OPs have defiantly committed deficiency in service. 

10.     In View of the specific provisions in the membership certificate, OPs have to pay damages as shown under the clause 4.2. of agreement. Thus complainant is entitled to claim damages from the OP.  Since OP failed from fulfilling their commitments towards complainant, in such a situation cause of action is recurring in nature. There is no presumption that delay in approaching court is always deliberate.  This forum has held that the word “ sufficient cause”  under section 5 of limitation  Act  should receive a liberal construction so as to advance substantial justice, the decision rendered  in Shakuntala Devi Jain Vs Kuntala Kumari (1969) 1SCR 1006 is taken in to consideration. Hence point urged by the OP in respect of limitation cannot be accepted.  Hence complainant has  proved deficiency in service on part of the OPs and we answer Point No.1: in the Affirmative. 

 POINT No.2:-

11.   In view of our answer to Point No.1 in the affirmative, there is deficiency in service on the part of O.P and hence it is liable to refund the amount which it has received from the complainant i.e. Rs.74,700/- along with interest at 12% per annum. Due to inaction of the O.P in not returning the amount, the complainant has suffered physical strain, mental agony and financial loss which we quantify at Rs.10,000/-. The Act of the O.P made the complainant to file this complaint by engaging advocate by paying his profession fee and also spent money in attending the Forums hearing on each and every day.  We are of the opinion that if a sum of Rs.5,000/- if awarded towards litigation expenses ends of justice will be met.  Hence we answer Point No.2 partly in the affirmative and we proceed to pass the following:-

ORDER

1. The complaint is partly allowed with cost.

2. The OP No.1 and 2 are jointly and severally liable to pay to the complainant a sum of Rs.74,700/- along with interest at the rate of  12% per annum from date of filing of the complaint.

3. Further O.P No.1 and 2 are hereby directed to pay Rs.10,000/- towards damages and Rs.5,000/- towards cost of the litigation expenses to the complainant.

4.  The O.P No.1 and 2 are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 26^th Day of September 2018)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

PW-1 : John Thomas Kandrikal– Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1:   Copy of the acknowledgement slip of the application.

Doc.No.2:   Copy of the receipt of the amount paid by the complaint dated. 29.09.1996

Doc.No.3:   Copy of the membership dt: 19.10.1996

Doc.No.4:   Copy of the allotment advice dt: 26.10.1996

Doc.No.5:   Copy of the E-mail sent by President & CEO dt:03.01.2003

 Doc.No.6:   Days to credit pass book

 Doc.No.7:   DTC Pass book dt: 09.08.2005

 Doc.No.8:   E-mail regarding pass book dt: 03.08.2011

 Doc.No.9:   E-mail regarding the accumulated day of holiday

dt:08.03.2014.     

 Doc.No.10: Copy of the legal notice dt:17.05.2014

 Doc.No.11: RPAD acknowledgment dt:27.05.2014

 Doc.No.12: Hongkong Bank Statement of complainant’s account

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Mr. S.Ramesh- OP

Copies of Documents produced on behalf of Opposite Party/s:

-Nil-

MEMBER                               PRESIDENT