Punjab

Ludhiana

CC/15/571

Dr.Mohan Pal - Complainant(s)

Versus

Asia Resorts Ltd - Opp.Party(s)

P.S.Batra ADv.

05 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 571 of 23.09.2015

Date of Decision            :   05.02.2018

 

Dr.Mohan Pal Singh son of S.Ajit Singh, resident of 593-L, Model Town, Ludhiana.

….. Complainant

                                                         Versus

 

Asia Resorts Limited, Regd. Office: Timber Trail, Parwanoo (H.P.), through its M.D./Director, having one of its office at Feroze Gandhi Market, Ludhiana.

Opposite party

 

 

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh.P.S.Batra, Advocate

For OP                           :         Sh.Rajan Malhotra, Advocate 

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, a doctor by profession, was allured to have 49 years membership for enjoying a free regular accommodation in Tiber Trail Heights Holiday Resorts, Parwanoo. It is claimed that as per clause 1.4 of the terms and conditions, the full furnished accommodation consisting of one bedroom, living room and one kitchenette for a period of one week every year to be provided on becoming such member. Such regular accommodation for 49 years period to be provided from 4.3.1997 to 11.3.2045. Complainant paid the entire membership                                fee in Ludhiana office of OP as per demand of OP. Certificate bearing customer No.1002 1025 0997 0721 was issued in this respect. Complainant was availing the facility for a week’s stay in Tiber Trail Resorts from time to time without paying any charges because he purchased a timeshare membership after paying a lumpsum amount at Ludhiana. On 12.9.2015, complainant being a timeshare member intended to avail a regular accommodation only for one day for 15.9.2015, but he was asked to deposit Rs.3290/- per day for regular accommodation for stay at Timber Trail, Parwanoo. Complainant objected to this demand, but OP refused to entertain the genuine request of the complainant. This demand of Rs.3290/- alleged to be highly excessive, unjustified, arbitrary and illegal and as such, by claiming that OP provided deficient services and adopted unfair trade practice, this complaint filed for seeking compensation for deficiency in service of Rs.50,000/- and litigation expenses of Rs.20,000/-.

2.                OP filed written reply by claiming that complaint is not maintainable in the given facts and circumstances of the case; complainant has not approached this Forum with clean hands because he has suppressed the true and material facts; this Forum has no jurisdiction to entertain and try the complaint because no cause of action alleged to have accrued to complainant at Ludhiana. Moreover, it is claimed that      as per terms and conditions of the contract, in the event of any dispute or difference, the matter liable to be settled by the Arbitrator as per the provisions of the Arbitration & Conciliation Act. Venue of such arbitration proceedings is to be at Chandigarh as per clause 5.12 of the General terms and conditions of the certificate of membership. Besides, it is claimed that as per clause 3.3(d) of the terms and conditions of the certificate of membership, time shareholder is liable to pay the utility charges, as may be fixed from time to time by the company in respect of the electricity, air conditioner or heater or water and other utilities etc. Admittedly, payment of membership fee was made by the complainant by way of cheques, which were deposited and collected at Chandigarh. Complainant only paid the membership charges and he admittedly, has been availing the facilities in Timber Trail Resorts. In view of clause 3.3(d) of the terms and conditions of Certificate of membership, complainant liable to pay the utility charges as may be fixed from time to time in respect of electricity, AC or heater etc as referred above. As and when, the facility of stay in Timber Trail resorts availed by the complainant,he had paid the utility charges as claimed by OP and as such, it is claimed that complainant liable to pay the demanded utility charges of Rs.3290/- per day at the time of checkout. Booking of the complainant was confirmed through email dated 12.9.2015. Complainant was offered 30% discount on food, but 10% discount on bar being time share member. Complainant through email dated 14.9.2015, again booked one Chalet accommodation for 14.11.2015 for one night, which was duly confirmed on the same day. Complainant enjoyed the said Chalet accommodation on above said day by paying the applicable utility chargers and as such, this complaint alleged to be filed just for abusing the process of law. With the passage of time, there bound to be great escalation/inflection in each and every field like electricity, water,labour and all other concerned facilities and even OP is required to carry out renovation work of the resort and the rooms therein, for which, huge expenses bound to be borne by it and as such, keeping in view these paramount considerations,utility charges liable to be paid by the members. OP also to maintain and upkeep the cable car and other recreation activities by bearing heavy expenses. Salaries of the employees even alleged to have increased day by day and as such, utility charges bound to be increased from time to time. No objection was ever raised by the complainant regarding payment of Rs.3290/-. The utility charges have been claimed as per clause 3.3(d) of the terms and conditions of the agreement. Other averments of the complaint denied.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C4 and thereafter, his counsel closed the evidence.

4.                On the other hand, Sh.Satish Gaur, General Manager of OP concern tendered in evidence his affidavit Ex.RA along with documents Ex.R1 to Ex.R4 and thereafter, counsel for OP after tendering documents Ex.R5 to Ex.R10, closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral    arguments by counsel for parties addressed and those were heard. Records gone through carefully.

6.                 Undisputedly, complainant became life member of OP scheme on payment of lump sum charges, due to which, certificate Ex.C1=Ex.R2 was issued in favour of complainant. Perusal of that certificate reveals that complainant became entitled to regular accommodation in Timber Trail Height Resorts for a period of 49 years commencing from 4.3.1997 and ending on 11.3.2045. Complainant claims that earlier he had been availing free accommodation services, but when he got booked the accommodation on 12.9.2015 for one day for 15.9.2015, then charges of Rs.3290/- were claimed from him and that act of OP is illegal. However, it is the case of OP that complainant had been paying such utility charges earlier also and those are claimed as per clause 3.3(d) of the terms and conditions of Certificate of membership Ex.C1=Ex.R2. Besides, it is contended that every member has to pay also  the   regular room utility charges and as such no deficient services provided by OP in putting forth the demand of Rs.3290/- for booking for 15.9.2015 as revealed by contents of Ex.C2=Ex.R3/Ex.R4. Such charges earlier used to be demanded is a fact borne from the contents of Ex.R5 and Ex.R6. On confirmation voucher for accommodation of 18.3.2015, Rs.3290/- were collected as utility charges is a fact borne from the contents of Ex.R5 and Ex.R6. Likewise, utility charges for availed accommodation of 14.8.2014 of amount of Rs.5380/- were collected is a fact borne from the contents of Ex.R9. For availed accommodation of 18.9.2015, regular utility charges of Rs.3290/- were claimed is a fact borne from the contents of Ex.R5 and Ex.R6 also. Likewise, for the availed service for 14.8.2014, utility service charges of Rs.5380/- were claimed is also a fact borne from the contents of Ex.R8 and Ex.R9. So, from this produced documentary evidence, it is made out that utility charges are not claimed by OPs from the complainant for contemplated accommodation of 15.9.2015, but even they had been claimed earlier also. That claim is stacked as per clause 3.3(d) of the terms and conditions of agreement, copy of which is produced on record as Ex.R2.

7.                That clause 3.3(d) of the terms and conditions provides as under:-

“The time share holder shall also be liable to pay utility charges as may be fixed from time to time by the company in respect of electricity, air-conditioning or heater(wherever applicable), water and other utilities etc, whenever he/she/it enjoys his/her/its holiday week in the holiday resort. However, in case the time share holder opts for an exchange under exchange facility to the notified holiday resorts, the time share holder shall pay the utility charges as applicable to such Resort/s.”

8.                From perusal of this clause, it is made out that timeshare holder liable to pay the utility charges as may be fixed from time to time by OP company, in respect of the availed essentialities like that of electricity, service of air-conditioner, heater and water etc. It is contended by counsel for complainant that claimed utility amount is excessive and arbitrary because the claimed amount of Rs.3290/- cannot be expected to be spent for providing services of electricity etc. That submission of counsel for complainant has no force because utility charges service to be determined by the company as per clause 3.3(d) of Ex.R2 referred above. It is not for the Court to ascertain the quantum of utility charge services, particularly when no material produced on record to establish as to how much expenses is bound to be incurred on providing services of electricity, air-conditioning or heater or water etc. Such a dispute certainly is of a civil nature. Elaborate evidence required for ascertaining as to how much amount required to be spent by OP for providing services of electricity, air-conditioning, heater or water and recreation facilities etc. Expenses on renovation of rooms also bound to be incurred and even  OP bound to pay salaries to its   employees, so as to provide the contemplated services to the time share holders and costs  of all these contemplated services to be borne by the OP and thereafter, same to be shared by the time share holders. So, voluminous evidence required for ascertaining as to how much expenses actually were borne by the OP in providing services and as such, that matter certainly cannot be decided by this Forum for finding as to whether the amount  of utility charges claimed is excessive or not.

9.                Even if arbitration clause may be there in the agreement, but despite that this Forum has jurisdiction to entertain and adjudicate this complaint because as and when consumer dispute regarding providing of deficient services arises, then remedy available to the consumer under Consumer Protection Act is in addition to the remedy available under the provisions of Arbitration & Conciliation Act.

10.              Lump sum amount was paid by the complainant to OP at Ludhiana and even he received the certificate of membership at Ludhiana and as such, certainly part of cause of action accrued to the complainant at Ludhiana, due to which, in view of section 11 of the Consumer Protection Act, 1986, this Forum certainly has jurisdiction. As the act of charging the utility charges is in accordance with the terms and conditions of clause 3.3(d) of Ex.R2 and as such, OP did not adopt any unfair trade practice and nor they rendered any deficient services in putting forth claim of service utility charges.

11.            Copy of terms and conditions of agreement produced on record as Ex.C3 also by the complainant. Even if clause 1.4 provides for providing regular accommodation to the members or clause 1.18 thereof provides for advance subscription to be made by the customer for availing facilities, but those clauses to be read in conjunction with clause 3.3(d) of the terms and conditions placed on record as Ex.C3 and as such, when those clauses read together, then this means that entitlement of the complainant for regular accommodation is there, but he had to pay service utility charges. This does not mean that on payment of advance charges, complainant will not be responsible to undertake obligation as contemplated by clause 3 containing various sub-clauses including clause 3.3.(d) of the terms and conditions of agreement Ex.C3=Ex.R2. Rights and duties goes side by side and as such, keeping in view the fact that obligations are also to be undertaken by time share holder in view of clause 3, complainant certainly bound to pay the service utility charges. So, demand put forth regarding service utility charges is not illegal, arbitrary or improper and as such, complaint merits dismissal, particularly when the alleged deficiency in service not proved and nor complainant able to establish that OP adopted any unfair trade practice.

12.              Therefore, as a sequel to the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

13.                        File be indexed and consigned to record room.

 

                     (Param Jit Singh Bewli)              (G.K. Dhir)

              Member                                                 President

Announced in Open Forum

Dated:05.02.2018

Gurpreet Sharma.