DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.243/2015
Shri Harsh Kakar
S/o Late Shri G.L. Kakar
50-B, Platinum Enclave,
I-Block, Sector-18,
Rohini, Delhi-110089.
….Complainant
Versus
- M/s Helios Tourism Pvt. Ltd.
Branch Office:16, National Park,
Lajpat Nagar-IV, New Delhi.
- M/s Shimla Havens Hotels & Resorts Pvt. Ltd.,
Gahan, Summer Hill, Shimla,
Himachal Pradesh – 171005.
….Opposite Parties
Date of Institution : 11.09.2015 Date of Order : 01.12.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated, the case of the complainant is that on 02.04.2014, Shri Manoj Wadhwa, Authorized Representative of OP-1 called the complainant and his wife at room No. 413, D-Mall, Sector-10, Rohini and explained the working, privileges and other terms of the vacation ownership scheme owned ‘Shimla Hotels & Resorts’ operated by the OP-2. The complainant was told that the OP-2 is affiliated with a large time work exchange network R.C.I. India Pvt. Ltd. (RCI) and on payment of Rs.95,000/- as membership fees, he would get one week of holidays each year for a period of 10 years in the resort owned and managed by OP-2 or in any of the resorts affiliated with R.C.I. India Pvt. Ltd. and he would be able to book these resorts on a very short notice. As the complainant was reluctant and apprehensive in buying the said vacation ownership scheme, Shri Manoj Wadhwa offered that the complainant should pay a sum of Rs. 17,350/- in exchange for which he would get two weeks stay in Shimla Hotels & Resorts or in any resort affiliated with RCI, and this vacation can be availed in a period of two years. The complainant asked to book RCI resort at 3 different places in Kerala (Allepey, Munnar and Thekkady to which Wadhwa replied that he would surely do that once the complainant gets his travel tickets booked. The complainant agreed to the same and accordingly the complainant was made to sign an agreement on the spot in which it was written: “Deposit Received: Rs.17,350/- Balance Due Rs.77,650/- (After the visit if satisfied)”. He was also issued a receipt bearing S.No. 027 dated 2.4.2014 for Rs.17,350/-.
On the assurance of Shri Manoj Wadhwa, authorized representative of OP-1, the complainant booked Air Tickets for Kerala and requested Shri Manoj Wadhwa to book the resorts, as promised by him. Till the date of his travel in June, 2014, the complainant kept on requesting Shri Wadhwa on phone as well as through SMS to confirm the booking of resorts as promised by him. However, when the complainant contacted Shri Wadhwa on reaching Allepey, Kerala, he expressed his inability to get a resort there and promised that he would certainly book a resort in Munnar, Kerala but when two days later the complainant reached Munnar and visited the address mentioned by Shri Wadhwa, he was shocked to see that in place of a resort it was worse than a roadside inn situated about 10 kms away from the city and having very poor facilities and poor connectivity. Complainant called Shri Wadhwa but he informed that this was the only he could arrange.
On returning Delhi, the complainant contacted Shri Manoj Wadhwa, authorized representative of OP-1. The latter felt sorry for not being able to book a suitable resort and promised that he would get the amount of Rs. 17,350/- refunded to the complainant and the refund process would take about three months. When the OP did not respond to the repeated requests of the complainant for refund, he contacted his senior Shri Rakesh Giri who was in charge of the then Branch Office of OP-1 at Unit No. F-17/18, 3rd Floor, Shopping Centre, Mansarover Garden, New Delhi-15. Shri Giri first asked for a few days to look into the matter but when the complainant did not get a response, he sent an email on 21.11.2014 to Shri Rakesh Giri. Complainant again contacted Shri Giri on phone who replied that he was very sorry for what had happened but instead of giving the refund, he requested the complainant to avail the services of the company and this time there would be no deficiency in service.
In the month of April, 2015, the complainant tried to contact Shri Rakesh Giri for getting booking in resorts in Shimla or elsewhere in Himachal Pradesh for the ensuing summer vacation in May-June, 2015. The complainant was told that the OP-1 has since shifted their Branch office to 16, National Park, Lajpat Nagar, New Delhi and one Shri Sachin was the in-charge of that branch office. Complainant again contacted Shri Sachin on phone who asked the former to give the details of his complaint on email and the complainant forwarded fresh details of his complaint on 20.04.2015 but when he did not get any reply for many days, the complainant visited the office of OP at 16, National Park, Lajpat Nagar-IV, New Delhi. Shri Sachin told him that he would not be able to process the refund after such a long time but he would certainly try to book a resort for the complainant. After that, the complainant tried to contact Shri Sachin at the landline number of the branch office many a times, but every time he was told that Shri Sachin is not available. Due to this evasive attitude of Shri Sachin, the complainant could not get booking in any of the resorts in the summer vacations 2015 also nor could he get the refund of his money. It is submitted that the complainant has not received the amount till date. Hence, pleading deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the present complaint for issuing the following directions to the OPs:
- Direct the opposite parties No. 1 and 2 (to pay) the sum of Rs.17,350/- charged by them from the complainant vide receipt No. 027 dated 02.04.2014;
- Direct the opposite parties No. 1 and 2 to pay interest to the complainant from 2.4.2014 till date at appropriate rate;
- Direct the opposite parties No. 1 and 2 to pay a compensation of Rs. 2,00,000/- to the complainant for all the harassment caused to the latter and the damages suffered by the latter due to their false promises and fraudulent acts;
- Impose penalty on opposite parties no. 1 and 2 under Consumer Protection Act, 1986 for indulgence in unfair and fraudulent trade practices;
- Award the cost of this litigation in favour of the complainant and against opposite parties no. 1 and 2.
Notice was issued to the OPs. When no one appeared on behalf of the OPs, OP-1 and OP-2 were proceeded exparte vide order dated 02.11.2016 and 24.03.2017 respectively.
Complainant has filed his exparte evidence by way of affidavit and written arguments as well.
We have heard the arguments of complainant and have also gone through the file very carefully.
Complainant has filed copy of receipt dated 02.04.2014 issued by the OP for an amount of Rs. 17,350/- which we mark as annexure-A for the purposes of identification. Complainant has also filed on the record copy of Membership Purchase Agreement which we mark as Annexure-B for the purposes of identification. Complainant has filed copies of two emails dated 20.04.2015 and 21.11.2014 stated to be sent to the OP which we mark as Annexure-C for the purposes of identification.
Averments made in the complaint and evidence led by the complainant have remained uncontroverted and unchallenged.
Generally speaking, when the OP in a consumer complaint does not choose to contest the complaint and is proceeded exparte the averments made in the complaint and the evidence led by the Complainant are accepted to be true and containing the truth and the Consumer Fora passes a decree on the basis of the unchallenged and uncontroverted case of the Complainant. However, in our considered opinion, in a particular case the Complainant may be required to prove the facts in proof of the averments made in the complaint and if the testimony is short of the evidence the Complainant is liable to be dismissed.
Coming to the facts of the present case we are of the considered opinion that the Complainant has failed to prove an act of unfair trade practice and/or deficiency in service on the part of the OPs. Firstly, the Complainant has not filed any evidence to prove that before taking the membership from the representative of OP No.1 he had satisfied himself about the authenticity of the documents or the promises being made to him and his wife. Even the address of OP No.2 has not been written in the copy of agreement in question (copy Annexure D). The Complainant deposited an amount for Rs.17,350/- vide receipt copy of which is Annexure-A. Annexure –B stipulates that the Complainant had to pay Rs.95000/- including Rs.17350/- as administration fee and he had to make the payment of balance amount of Rs.77,650/- after the visit if satisfied. The details of the visit which the Complainant and his wife were to make have not been described in any document. The terms and conditions attached to Annexure-B deal with the refund (clause No.3) which inter-alia provides that the payment can be refunded by the company after deducting the administration fee paid by the purchaser without any interest. Thus, it is clear that the Complainant had infact deposited the said amount of Rs.17,350/- towards the administration fee.
No single document has been filed on the record which may even show that the complainant had booked the air tickets for Kerala and had infact visited Allepey, Munnar and Thekkady or that he had himself stayed in any hotel in Allepey on his own cost or had gone from Allepey to Munnar. He has not filed the bills of any hotels or taxi fare or car fare or bus fare for his travelling from Allepey to Munnar. Vide email dated 21.11.14 the Complainant himself has inter-alia stated that Sh. Manoj Wadhwa, the representative of OP No.1 had failed to provide accommodation in any of the resorts in Kerala during his visit in June, 2014 despite being informed in this regard one month in advance through SMS messages and that messages had been exchanged between the parties. In order to prove the factum of his visit to Kerala during summer 2014 the complainant could have easily filed the copies of the SMS, air tickets, boarding passes, bills issued at Allepey and travelling papers etc. but, however, he has not done so.
Secondly, in the email dated 20.04.15 Complainant has inter-alia stated that Sh. Manoj Wadhwa had assured the Complainant that the former would not have to pay a single rupee during trial period even in RCI resorts but now OP No.1 is saying that the Complainant has to pay extra amount for these resorts. The Complainant accordingly asked for refund of his money. This is totally in contradiction to the averments made in the complaint. Therefore, we hold that the complaint is liable to be dismissed.
In view of the above discussion, we do not find any merit in the complaint and dismiss it and since the OP is now exparte with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 01.12.17.
