BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 258/2003 Filed on 30.06.2003<br /> Dated : 31.07.2008<br /> Complainant:<br /> Dr. Abraham Kuruvila, Mazhavancheri Parambil, 42, Bapuji Nagar, Thiruvananthapuram.<br /> <br /> (By adv. A Hidayathulla)<br /> <br /> Opposite parties:<br /> <br /> 1.M/s Sterling Holiday Resorts India Ltd., 406, TTK Road, Alwarpet, Chennai – 600 018 represented by its Managing Director.<br /> <br /> 2.The President, M/s Sterling Holiday Resorts India Ltd., 406, TTK Road, Alwarpet, Chennai – 600 018.<br /> <br /> 3.The Executive Member Services, Sterling Holiday Resorts India Ltd, 'Shreyas', 116, Canal Road, Giri Nagar, Cochin – 20.<br /> <br /> 4.Branch Manager, M/s Sterling Holiday Resorts India Ltd., T.C No. 28/2851, Muttara Building, Vanchiyoor, Thiruvananthapuram – 35. <br /> <br /> (By adv. Saju P. Chacko)<br /> <br /> This O.P having been heard on 05.06.2008, the Forum on 31.07.2008 delivered the following:<br /> <br /> ORDER <br /> <br /> SMT. S.K.SREELA: MEMBER<br /> <br /> The complainant who is a doctor by profession has filed the complaint against Sterling Holiday Resorts alleging the following: Lured by advertisements of the opposite parties, the complainant had purchased 16 units of time share of the 1st opposite party for a total consideration of Rs. 61,440/- paid by way of cheque on 29.11.1997. Later on complainant was served with unit certificate dated 03.04.1998 and was allotted 16 units with membership period from 1999 to 2050. On the reverse side of the unit certificate it was found certain totally one sided conditions in favour of the opposite parties which were never agreed by the complainant at any point of time. During 1998 April, the complainant reminded the opposite parties to allot him one week stay at the Goa Resort Sterling from 18.05.1998 which was promised to him as early as on 1997 which was followed by a letter dated 24.04.1998 communicating the exact dates of arrival and departure. But to the shock of this complainant, it was informed that the opposite parties are unable to confirm the request as the Resort is running full during May which was totally against the promises of the opposite parties made in November 1997. Subsequent to this, the complainant tried to get bookings at Goa and other stations at different points of time for which also the opposite parties expressed their inability to provide any facility as promised. These acts of the opposite parties in not providing the service as promised amounts to gross deficiency in service and the complainant has approached this Forum for refund of the amount among other reliefs. <br /> <br /> The 1st opposite party has filed version for and on behalf of other opposite parties also contending as follows: As per the terms and conditions of the membership certificate, all disputes arising out of this transaction shall be settled by arbitration and in respect of all matter pertaining to this transaction only the civil court in Chennai shall have jurisdiction and hence opposite parties contend that this complaint is to be referred to the Arbitrator and this Forum has no jurisdiction to try this complaint. The complainant has filed the complaint well beyond the period prescribed for the refund of the membership fee and hence it is barred by limitation. This opposite party is a pioneer in “Time share concept” in Indian tourism. The transactions are based on documents executed upon the mutual consent of the parties. The complainant has also read, understood and then signed and acknowledged certain documents towards his membership. This complaint is not maintainable before the Forum since the purchase of time share does not fall under the purview of the Consumer Protection Act and since the dispute between the parties is for the right involved in immovable property. The contract between the complainant and the opposite parties existed only between the year 1999 to 2050 and any request for facilities prior to period has no binding effect on the opposite parties. Unused holidays on each year are cumulatively credited to the complainant's account and can be used by the complainant subject to the terms and conditions agreed. During the subsistence of the contract between parties no request was made by the complainant for any facilities. There is no deficiency in service or unfair trade practice on the part of the opposite parties. Hence pray for dismissal of the complaint with compensatory costs. <br /> <br /> The complainant has filed affidavit and has been examined as PW1, marked Exts. P1 to P15 and Branch Manager of Sterling Resorts India Ltd, Thiruvananthapuram has filed affidavit on behalf of the opposite parties and Exts. D1 and D2 were marked for the opposite parties. <br /> <br /> The issues that would arise for consideration are:-<br /> (i)Whether this Forum has jurisdiction to entertain this complaint and whether the complaint is barred by limitation?<br /> (ii)Whether there is any deficiency in service on the part of the opposite parties?<br /> (iii)Whether the complainant is entitled for the reliefs claimed for?<br /> <br /> Point (i):- One of the main contentions raised by the opposite parties is that, as per the terms and conditions of the membership certificate, all disputes, differences or questions arising out of this transaction shall be settled by arbitration as per the provisions of the Arbitration Act and the venue of the arbitration shall be at Chennai only. In Ext. P2, the terms and conditions, as per 6.19 and 6.20 the above reference with regard to the arbitration has been stated. But it is a well settled position that the arbitration clause in an agreement would not come in the way of prosecution of remedy under Consumer Protection Act. The existence of remedy by way of arbitration does not preclude a consumer from seeking redressals before the forums constituted under Consumer Protection Act which is a special statute enacted by Parliament for the specific purpose of providing a speedy, cheap and efficacious remedy to consumers before the Special Forums created for that purpose. Mere existence of arbitration clause does not oust the jurisdiction of this Forum which is a settled position. <br /> <br /> Whether the complaint is barred by limitation is the next aspect which requires consideration. A perusal of the unit certificate which is marked as Ext. P6 reveals that the membership period is from 1999 to 2050. Ext. P6 is dated 03.04.1998. The dispute is with regard to the said membership which is upto a period of 2050. Since the period mentioned in Ext. P6 agreement has not expired, and since the opposite parties are obliged by the terms of the agreement till 2050, we have no difficulty in holding that the claim is not beyond time and the cause of action is a continuing cause of action and the opposite parties should not raise this sort of technical pleas in order to cover their mistakes if any. <br /> <br /> The opposite parties further contend that the purchase of time share does not fall under the purview of the Consumer Protection Act since the dispute between the parties is for the right involved in immovable property and the question of consumer dispute does not arise and hence the complainant is not a consumer. The opposite parties have quoted the judgment passed by the Hon'ble National Commission reported in 1997(1) CPJ P 26(NC) in support of their above contention. But there are umpteen judgements favouring the complainant that a dispute pertaining to property time share is maintainable under the Consumer Protection Act. The complainant has produced the ruling of the Hon'ble National Commission reported in 2004 CTJ 245(CP)(NCDRC) wherein the Hon'ble National commission has held that 'even where immovable property is involved in a dispute, there can be a deficiency in service within the meaning of the Consumer Protection Act. When a member has purchased right of stay in a holiday resort and he is denied that right of stay or services rendered are not as per the standard agreed to, it is a clear case of deficiency in service of the owner running the resort'. <br /> <br /> Point (ii):- The aspect which is to be looked into is whether there is any agreement between the parties and whether the complainant was made aware of the terms and conditions thereto. According to the complainant, he had purchased 16 units of time share of the 1st opposite party on the basis of the advertisement carried out by the opposite parties. Complainant further alleges that, on receipt of the unit certificate, it was found that on the reverse side of the certificate there were certain totally one sided conditions in favour of the opposite parties which were never informed to the complainant or agreed by him. The opposite parties contend that the complainant had read, understood and then signed and acknowledged certain documents towards membership and the execution of the documents are based upon mutual consent of the parties thereof. Ext. D1 is the copy of the application form of the complainant. It bears the signature of the complainant. On the reverse side of Ext. D1 also, the complainant's signature is affixed, on the applicant's review form for confirmation of understanding, accepting the same. Point 11 of Ext. D1 states 'I/We understand that my/our regular holidays against holiday units purchased by me/us during the year 1997 will commence from 01.01.1999'. further in the same document, the complainant has accepted that he has read and understood clause 5 of the terms and conditions pertaining to issue of confirmation vouchers. The acceptance of the above mentioned clause 5 by the complainant goes to prove that the complainant was made aware of the terms and conditions in Ext.P2/Ext. D2. PW1 has admitted the signatures in Ext. D1. There is no dispute with regard to the signatures also. Hence what is to be considered is whether there is any violation of the terms and conditions leading to deficiency in service on the part of the opposite parties. <br /> <br /> On a perusal of all the documents produced by the parties, it has been seen specifically mentioned that the membership period is 1999 to 2050. As per Ext. P5 dated 06.05.1999 sent by the opposite party to the complainant it has been stated that you are eligible to take holidays during the year commencing from 01.01.1999. This being the position, as per Ext. P7 on 15.04.1998 it is seen that the complainant had requested for 9 holidays for a week in Goa for the week of 18.05.1998. Ext. P9 is the details regarding the train schedule to Goa and back to Thiruvananthapuram on 16.05.1998 and 21.05.1998 respectively. As per Ext. P10, which is the letter send to the complainant by the stating holiday resorts, the request for Goa during May is admitted. <br /> <br /> But the reason for rejecting the complainant's request is that “please note we are unable to confirm your request as our resort is running full during May. Should you require accommodation in any other dates or in any other resorts get in touch with us”. The above denial of holiday in Goa has not been made on the basis of the aspect that the complainant is not eligible since the membership period is from 1999 to 2050. But the denial of the request made by the complainant and further assuring him accommodation in any other dates or in any other resorts reveal that the complainant was eligible for holiday during 05/1998 though the membership would commence only in 1999. In Ext. P3 it is stated that the scheme is valid till the year 2050, but in the same document the opposite parties have provided the bonus holidays for the period till 31.12.1998 and for the units for which money is realised by the opposite parties in 1998, validity period is till 31.12.1999. The opposite parties have further stated that the bonus holidays to be planned after the realisation of payment of 14 units. Admittedly, the complainant has purchased 16 units and the materials on record reveal that the complainant is eligible for bonus holidays, but which has not been provided to the complainant. The requests for the complaint has been rejected by the opposite parties on flimsy ground. <br /> <br /> The terms and conditions of the policy is the basis of the contract and one has to live within the terms of contract. The terms and conditions cover the issuance of bonus holidays to the complainant. The opposite parties ought have provided the holiday facilities to the complainant as per the terms and conditions. The repeated requests for holiday for a week in Goa by the complainant and the denial by the opposite parties have been brought out in evidence. Moreover, the National Commission has held in 2004 CTJ 245(CP)(NCDRC) that, when a member has purchased right of stay in a resort and he is denied that right of stay, it is a clear case where there is deficiency in service on the part of the owner running the resort. At this juncture, the argument of the opposite parties that the complainant is not entitled for the same is not at all acceptable and is totally against the agreed terms and conditions in Ext. D1 and D2, Ext.P2, P6 and as per Ext. P3. <br /> <br /> In the light of the above discussions, this Forum finds that the acts of the opposite parties in giving false assurance for attracting consumers amounts to unfair trade practice and the opposite parties are liable to compensate the complainant for deficiency in service on their part. <br /> <br /> Point (iii):- For the foregoing discussions this Forum finds that the complainant is entitled to get back Rs. 61440/- along with a compensation of Rs. 5000/- and costs of Rs. 1000/- from the opposite parties jointly and severally. <br /> <br /> In the result, the opposite parties are jointly and severally ordered to pay an amount of Rs. 61440/-, along with an amount of Rs. 5000/- towards compensation and Rs. 1000/- towards costs of the proceedings to the complainant within a period of two months failing which the above mentioned amount shall carry interest at 12% from the date of the order till the date of payment. <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 31st July 2008.<br /> <br /> G. SIVAPRASAD President<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> S.K.SREELA : MEMBER<br /> <br /> <br /> O.P.No.258/2003<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS :<br /> PW1 - Dr. Abraham Kuruvila<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Photocopy of receipt No. PR 4019768321 dated 09.12.1997.<br /> <br /> P2 - Photocopy of acknowledgement slip with payment details.<br /> <br /> P3 - Photocopy of letter dated 10.12.1997 issued by the opposite <br /> party. <br /> <br /> P4 - Photocopy of price list and miscellaneous terms w.e.f <br /> Sept/01/97. <br /> <br /> P5 - Photocopy of letter dated 06.05.1999.<br /> <br /> P6 - Photocopy of unit certificate with Unit No. 000000123339.<br /> <br /> P7 - Photocopy of letter dated 15.04.1998.<br /> <br /> P8 - Photocopy of letter dated 22.04.1998 issued by the <br /> complainant.<br /> <br /> P9 - Photocopy of letter dated 24.04.1998 issued by the <br /> complainant.<br /> <br /> P10 - Photocopy of letter dated 13.05.1998 issued by the <br /> opposite party. <br /> <br /> P11 - Photocopy of letter dated 29.11.1999 for cancellation of <br /> holiday units. <br /> <br /> P12 - Photocopy of letter dated 07.12.1999 for cancellation of <br /> holiday units.<br /> <br /> P13 - Photocopy of advocate notice dated 08.01.2003.<br /> <br /> P14 - Original postal receipt dated 08.01.2003.<br /> <br /> P15 - Original postal acknowledgement card. <br /> <br /> III OPPOSITE PARTIES' WITNESS :<br /> DW1 - Suresh<br /> IV OPPOSITE PARTIES' DOCUMENTS :<br /> D1 - Photocopy of application form No. 0283.<br /> D2 - Photocopy of acknowledgement slip.<br /> <br /> <br /> PRESIDENT<br /> <br /> <br />