BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 13^THDAY OF FEBRUARY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP1 to refund the amount of Rs.76,340/- along with interest at 18% p.a., from 13.07.2021 till payment.
2. Hold the Ops guilty of unfair trade practice and direct the Ops to pay the complainant damages of Rs.30,000/- and
3. Pass such other and/or further order of this Hon’ble Commission may deem fit and proper.

2. The case set up by the complainant in brief is as under:-

The complainant is a member with the OP1.  Complainant became the member with an intention to avail the vacation benefits offered by the OP company.  On account of covid 19 pandemic the vacation benefits available to members in various resorts would not be enjoyed for the year 2020-21.

3. The complainant was very regular and punctual in paying annual subscription fee (ASF) to OP.  Even for the year 2020 the complainant paid the ASF though the national lockdown was announced in March 2020 and it was clear that tourism and resorts would not be possible for at least one year.  In the meantime in April 2021 the OP sales executive namely M/s Agatha Rodrigues contacted the complainant and informed that as an incentive for the long standing relationship of the complainant with the company a privileged offer was extended that the complainant would be upgraded from the category of “Red One Bed Room” to “Purplestudio” if an amount of Rs.76,340/- is paid and further it was intimated to the complainant by the sales executive that the ASF for the year 2021-22 would not be required to be paid. In the absence of the above said offer, the complainant would have paid the ASF for the renewal of Red One Bed Room.  However on account of the offer for upgradation and waiver the complainant has paid an amount of Rs.76,340/- to the OP company for the upgradation of the category and paid the amount through receipt dated 28.05.2021 and informed the same and the same was confirmed by email dated 29.05.2021 from the OP, about confirming the payment.

4. The complainant was surprised when he received an invoice for the ASF for the year 2021-22, the complainant tried to reach the sales executive M/s Agatha Rodrigues, over phone but she did not receive the phone calls. Later the complainant came to know that she was deliberately avoiding the complainant’s phone calls.  After that the complainant has constrained to send an email to OP1company and the other OPs and company executives.

5. It is the specific contention taken by the complainant that the Ops are resorting to unfair trade practice and they are wrongly extracting monies from customers for unjustly enriching themselves. As per the assurances made by them, they ought to have upgraded the complainant red one bed room to purple studio for having received the amount.  However subsequently the OP sales executive conveniently sent an email stating that it was clarified that ASF with this upgrade will get reduced this year to Rs.17,386/-.

6. The complainant was not interested in engaging further with the OP and he has send an email on 13.07.2021 stating that he is not interested in any upgrade and had called the OP to adjust the ASF from the amount of Rs.76,340/-  and refund the balance within 24 hours.  The complainant’s efforts to reach executive of Ops for the same went in vein. 

7. It is further case of the complainant that the regular ASF would be above Rs.20,000/- and the OP have offered that they are giving a discount for this year and the ASF would be reduced Rs.17,386/-.  It would not made sense for any person to pay Rs.76,340/- to avail a discount of a few thousand from the ASF for only one year and the same cannot be termed as discount.  The Ops are clearly guilty of unfair trade practice.

8. After that the complainant had sent emails to the OP senior executives who are responsible to resolve the issues, but none of them bothered to even to respond to the emails let alone resolving the issues.  Recently on 18.09.2021 M/s Agatha Rodrigues sent an email calling upon the complainant to fill up a declaration form for refund in which there is a reference to the companies process for refunding the amount charged towards upgrade.  The OP had not shared the request of the complainant for process for refunding of the amount charged towards upgrade.

9. It is further case of the complainant that the OP had blocked the complainant’s access to the holidays the moment the dispute was raised and the receipt of the invoice for ASF by the complainant.  The OP had deliberately blocked the complainant during the holiday season in October to deprive him of his right to enjoy his vacations with his family.  Hence the very purpose of being a member with the OP1 was defeated.  The complainant apart from incurring extra expenses towards vacations was also put to mental agony and hardship and legal cost for no fault of his.  Hence the OP is liable to compensate the complainant for the expenses incurred by him towards his vacation on account of illegal and unlawful act of Ops by blocking the complainant inspite of holding back the complainants money which is still available with the OP in excess of annual subscription fee.

10. The complainant being aggrieved by the unfair trade practice by the OP issued a legal notice and OP1 has sent an interim reply stating that they would investigate into the allegations to which the complainant issued a reply calling upon the OP to complete its investigation within seven days. The OP has not come back so far.  Hence the complainant has filed this complaint.

11. In response to the notice, Ops 1 to 5 have appeared and filed their version.

12. It is the case of the Ops that the complaint is not maintainable either in law or on facts and it is an abuse of process of this commission and it is liable to be dismissed.  There is no act amounting to deficiency of service, unfair trade practice on negligence from the part of the OP.

13. It is further case of the OP that the complainant had enrolled as a Red Studio Member in December 2008 and thereafter on the basis the excellent services provided by this Ops he upgraded his membership Red One BR in April 2019.  In April 2021 when an offer of upgrade was extended to him he gave consent and paid an amount of Rs.76,340/- and accordingly his membership was upgraded to purple studio in April 2021.  During pandemic as per the instructions of the government all the resorts were closed.  The OP as per the membership rules was required to pay ASF even if no holidays are availed by him in any particular year. The OP have clearly denied that one Agatha Rodrigues of the OP company sales executive has made an offer of waiver of ASF to the complainant at the time of upgradation of the membership by the complainant.

14. It is the specific contention taken by the complainant that their company sales executive M/s Agatha Rodrigues on 14.07.2021 has clearly informed the complainant that she never agreed to waiver of ASF either to the complainant or to his spouse.  The complainant has not supported his claim by any documentary evidence.  However the complainant even went ahead and escalated the matter unnecessarily by repeating the same contents in his emails without considering the explanation given by M/s. Agatha Rodrigues in her email.  This OP was willing to refund the balance amount of upgrade fees after deducting the ASF for the year 2021 and downgrade the membership to red one BR.  The complainant also requested the interest on the balance refundable amount of upgrade fees which he is not eligible.  The complainant is liable to pay ASF and there is no waiver of ASF.  The ASF for the year 2021 is pending which even after providing a discount was not paid by the complainant.

As per the membership rule 5.7

In the event of nonpayment of ASF including arrears if any within the stipulated period inspite of intimation in this regard from MHRIL to the address provided by the members the member shall not be entitle to avail holidays till the payment of ASF together with interest and the MHRIL reserves the right to charge interest on monthly basis for the outstanding ASF payable by the members.

15. It is further case of the OP that they did not deprive the complainant ever of his right to enjoy.  However the complainant would not book holidays as he did not pay the ASF till date.  Thus the allegations of mental agony, hardship legal expenses are specifically denied by them. Inspite of specific request by the OP,the complainant failed to pay ASF within the stipulated time limit and instead demanded interest on the balance refundable amount after deducting the pending ASF for the year 2021.  The complainant also denied extending his support to fill in the refund declaration form cighting irrelevant causes. Despite Ops best efforts in refunding the balance amount of upgrade cost the same could not be done due to negligence on the part of the complainant,for which this OP cannot be held responsible.

16. OP have further admitted about the legal notice sent to them and further stated that they have also sent the final reply on 24.02.2022 and the same was received by the complainant’s counsel on 03.03.2022. When the complainant has accepted the membership rules and duly signed the member application form and further availed many holidays and other benefits thereunder. The complainant cannot be allowed to question the same by way of this complaint. The complainant has not suffered in any manner whatever for the reasons of any acts of the OP company and the complaint is nothing but bunch of lies containing false and frivolous story concocted by the story in furtherance of his malafide intention to extract illegal money and benefits from this OP.  Therefore OP prayed for dismissal of complaint with exemplary cost.

17. The complainant in order to prove his contention has filed his affidavit evidence and relies on 15 documents.  Affidavit evidence of Corporate Manager, legal namely Mahalakshmi S., of OPcompany, has been filed and OP relies on 05 documents.

18. Heard the arguments of both parties.

19. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

20. Our answers to the above points are as under:

Point No.1:Negative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

21. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence and documents filed by both the parties.

22. It is undisputed fact that the complainant is a member with the OP1 and he was regular in paying the ASF. He has even paid the ASF for the year 2020 though the national lockdown was announced in March 2020.

23. It is also undisputed fact that the OP company sales executive has contacted the complainant and made an offer stating that they will upgrade the complainant from category of Red One bed Room to purple studio if he has paid Rs.76,340/-.  As per the offer the complainant has paid the amount and the same was confirmed by the email sent by the OP and the complainant membership was upgraded.

24. It is the specific dispute between the complainant and the OP is that the sales executive M/s Agatha Rodrigues had informed this complainant that there is a waiver of ASF in view of upgradation of the category of Red One bed Room to Purple studio if an amount of Rs.76,340/- is paid and they further informed him that the ASF for the year 2021-22 would not require to be paid.

25. On the other hand the specific contention taken by the OP that their company sales executive namely M/s Agatha Rodrigues never offered to the complainant that there a waiver of ASF for the year 2021-22 after availing the upgradation in the membership.

26. It is pertinent to note here that the complainant has not produced any documents to show that the company executive of the OP has offered that waiver of the ASF if the complainant upgraded his category by paying Rs.76,340/-.

27. It is the specific case of the OP that the upgradation of the complainant from category Red One Bed Room to purple studio is nothing to do with ASF payable for the year 2021-22. They have never promised to waive off the ASF charges for the year 2021-22. Inspite of sending several emails the complainant failed to pay the ASF. The OP have also offered to refund the upgradation charges paid by the complainant and agreed to restore his membership bank to Red One Bed Room so that the complainant can continue the benefits as before by paying the ASF for the year 2021-22, but the complainant for the reasons best known to him was not ready to accept the offer made from the OP.The complainant instead of paying the ASF, hehas escalated the matter with other Ops and finally he got issued the notice and the same was replied by this OP.  It is also the specific case of the OP that they have made all efforts to settle the matter, but the complainant is not willing to pay the ASF and hence they have blocked his membership and in view of this he is not entitled for availing any vacations eventhough he has got holidays in his credit.

28. It is pertinent to note here that this commission has also made several efforts to settle the dispute and as per the settlement the OP have paid some of Rs.48,729/- towards settlement but the complainant has returned the amount as he is not interested in the settlement offered by the OP.

29. It is clear from the allegations and the documents and the evidence of both the parties that the complainant is not at all given any offer by the OP for waiver of the ASF after upgradation of his membership. Inspiteof that the complainant has escalated the matter with other Ops without paying the ASF.  It is pertinent to note here that the OP company is engaged in the business of vacation ownership and provides resorts accommodation to its members who have enrolled into membership of the company.  The members have to pay the ASF to the company for its maintenance and without the ASF amount the OP company cannot maintain their resorts. Even though there is no such offer made by the OP for waiver of the ASF amount the complainant has filed this complaint alleging that the OP has to waive off the ASF amount after upgradation of his membership.

30. If the complainant is not interested in upgradation of his membership the OP have also offered for refund of the amount and they have requested for payment of ASF by restoring his membership to his old Red One room category.  Instead of receiving the amount, and continuation of membership by paying ASF the complainant has filed this complaint by making all the allegations against the OP. The retention of the membership or for the cancellation is left with the discretion of complainant.  If the complainant wants to avail the services of the OP he has to pay the ASF or otherwise he may cancel his membership as per the membership rules and regulations of the OP company. Under these circumstances the complainant has failed to establish any deficiency of service or unfair trade practice on the part of the OP. The complainant is only entitle for refund of the amount of Rs.76,340/-. The question of continuation of his membership by paying ASF is left with the discretion of the complainant.Hence we answer point No.1 in Negative and point No.2 partly in affirmative.
31. Point No.3:-In view the discussion referred above the complaint is liable to allowed in part, since the complainant has failed to prove his contention about deficiency of service and unfair trade practice he is not entitle for any compensation and also legal expenses. The complainant is only entitle for refund of amount of Rs.76,340/- from the OP1. Hence we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP1 is hereby directed to refund the amount of Rs.76,340/- in favour of the complainant within 60 days from the date of this order.
3. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 13^thday of FEBRUARY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;