Tamil Nadu

South Chennai

895/2009

Benedict Fernandez & other - Complainant(s)

Versus

M/s.Royal Country Vacations,Relational Officer - Opp.Party(s)

M/S.T.Arulraj & E.S.Jose

05 Sep 2022

ORDER

Date of Complaint Filed :07.09.2009

Date of Reservation      : 05.08.2022

Date of Order               : 05.09.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No.895/2009

MONDAY, THE 5^th DAY OF SEPTEMBER 2022

1.Benedict Fernandez,

   No.27, Ramamurthy Colony,

   Jawahar Nagar Post,

   Chennai – 82.

 

2.Dr. A. Assunta Nirmala,

   No.27, Ramamurthy Colony,

   Jawahar Nagar Post,

   Chennai – 600 082.                                                        ... Complainants             

 

..Vs..

1.M/s. Royal Country Vacations, Rep. by Owner Relation Officer,

   No.78, 3^rd Floor, Real Diamond Building,

   Mount Road, Guindy,

   Chennai – 600 032.

 

2.M/s. Royal Country Vacations, Rep. by Management Charge Administrator,

   International Holiday Club (India),

   Haathi Mahal, Cavelosim, Mober,

   Salcete, Goa-403 731.

 

3.M/s. Country Club,Rep. by Manager,

   Reebok Building,

   IInd Flloor, No.2, little Mount,

   Saidapet, Chennai – 600 015.                                    ...  Opposite Parties

 

******

Counsel for Complainant            : M/s. T. Arulraj

Counsel for 1^st  Opposite Party    : Exparte

Counsel for 2^nd Opposite Party    : M/s. NL Rajah

Counsel for 3^rd Opposite Party    : M/s. V.T. Narendiran

 

On perusal of records and after having heard the oral arguments of the Counsel for the Opposite Parties 2 and 3, we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R.Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.5,98,400/- being the principal amount paid and with interest thereon and compensation with future interest @12% p.a along with cost of this complaint.

2.     The averments of Complaint in brief are as follows:-

        The case of the Complainants are that they have been offered to join the Club and purchase points for accommodation in various hotels on holidays for seven days in a year, in default to pay Rs.9000/- per day, by the 1^st Opposite Party on behalf of 2^nd Opposite Party. Under Clause.8 of the Agreement they shall be entitled to request accommodation on any resorts in the Club such as Royal Country Beach Clubs, Indonesia, Goa, India, Thailand, Gold Coast Hinterland, Australia. A list of Global Alliance Resorts was also furnished where holiday resorts available. The Complainants should pay variable management charges at Rs.33/- per point. They got themselves enrolled as members of the 2^nd Opposite Party by paying purchase price for vacation ownership at Rs.1,20,000/- and an admission charges of Rs.8000/-, for which 110 points was issued under points certificate by the 1^st Opposite Party. But a contract contrary to the above said term was executed between them and the 1^st Opposite Party on its behalf and on behalf of 2^nd Opposite Party. Under condition No.7 of the Agreement they have to pay annual maintenance charges to the promoter and they have paid a sum of Rs.4,095/- in the year 2004 and had paid the amount regularly till December 2008, and demanded. In spite of the same, the request made by them for accommodation in Nainital, Himachal Pradesh, Kodaikanal, Dindigul District and Lovawala, Maharashtra, received no response from the 1^st Opposite Party, which is against the term of the agreement and failed to render services. Further contended that the 2^nd Opposite Party had offered a plot measuring 1200 sq.ft at Bangalore, and they would undertake services for 15 years only and they would be accommodated in limited places, namely Goa and Hyderabad and no maintenance charges need to be paid, which is quite contrary to original Agreement,. Further contended they issued a notice to the 1^st and 2^nd Opposite Parties, the same was returned by the 1^st Opposite Party and the 2^nd Opposite Party on receipt sent a reply, had offered free stay in Goa in 2009 ad penalty for late payment has been waived, and requested to pay management charges of Rs.8995/- for 2009. That so far as per the agreement they have paid a sum of Rs.1,20,000/- on 04.12.2004, a sum of Rs.35,000/- (averaging Rs.7000/- per year) from 2004 to 2008, with fond hope that tour accommodation would be available to them. Because of the refusal to accommodate in the resorts, they have missed various other chances of tours, offered by other groups and airlines, resulting in their anguish and mental agony. As per the agreement they are entitled for compensation for 7 days per year equalent to 110 points at Rs.9000/- per day as assured, as such for 5 years a sum of Rs.3,15,000/- to be paid. A sum of Rs.5,98,400/- claimed by them were not paid by the Opposite Party, inspite of their demands. Hence the complaint.

3. Written Version filed by the 2^nd Opposite Party in brief is as follows:-

        The contention of the 2^nd Opposite Party is that the Complainant became their members on executing purchase Agreement dated 04.12.2004 with the 1^st Opposite Party and paid a sum of Rs.1,20,000/- to the 3^rd Opposite Party. It is admitted by the Complainants that the 1^st Opposite Party had purchased points from the 2^nd Opposite Party for the purpose of resale to general public, hence their role ends once the points sold to the 1^st Opposite Party and they do not participate in any transactions that take place or done by the 1^st Opposite Party for resale of holiday ownership with the general public. Hence there is no privity of contract between the Complainants and the 2^nd Opposite Party. Further submitted that the role of Prestige Holiday Resorts (PHR) and its relationship with 1^st Opposite Party is vital to understand in oder to appreciate the functionality of the 2^nd Opposite Party. PHR is a resort developer, had developed four resorts in Goa known as the Royal Goan Beach club, it sells Holiday ownership and it is associated with Karma Royal  Group of Companies, which had developed 16 Resorts in Asia. PHR role is to build resorts and to manage the resorts. It has 460 operational units which can accommodate approximately 2000 people per night. PHR sells Holiday ownership products weeks and points, which divides the number of units by 52 weeks in the year to create inventory. PHR appointed Hutchinson & Company (India) Pvt Ltd to be the Independent Trustee. They are an associate of said Hutchinson & Company Trust company Ltd, based in UK. The said Trustee holds the Deeds of the properties of Royal Goan Beach Club (RGBC) to secure the rights of occupation of the club members. PHR mainly sells Holiday through its own sales operators. PHR sold a product to the 1^st Opposite Party, at wholesale prices. Under the Agreement the 1^st Opposite Party runs a sales and marketing programme selling the products to the public. They have no relationship with the 1^st Opposite Party and the user at point of sale. Hence all the representations made by the 1^st Opposite Party and not prestige Holiday Resorts. Further contended that the purchase Agreement clearly illustrates their non participation in various terms and services rendered by the 1^st Opposite Party or its agents. Further the Complainants had signed with full understanding of terms with the 1^st Opposite Party, which clearly mentions” All payment should be made and sent to country Club India Ltd. Payment to any other company or its nominee does not discharge the purchasers from the obligations contained therein”. Hence no consideration has been received by them and no cause of action arise as against them. They developed and promoted the 1^st Opposite Party. The 3^rd opposite Party had purchased points from 1^st Opposite Party, for the purpose of resale to the general public. Therefore they are not liable to pay any compensation as they have not collected any amount neither promised any service to the Complainants, further they are not signatories to the purchase Agreement, hence they have not committed any deficiency of service. They are only promoters of various vacation schemes available and do not have any involvement in the 1^st Opposite Parties decisions and schemes. Further contended that by their reply dated 01.07.2009 sent to the Complainants they have clearly detailed their position and to contact the Customer services of Royal Goan Beach Club to book their holidays and further the customer care service personally contacted and detailed various benefits to the Complainants and also requested them to finalize their holiday dates for free stay. The 3^rd Opposite Party bought the products from them at wholesale prices and sold to the members of general public in Chennai and other places. Hence the 3^rd Opposite Party is in the position of a principal and they are answerable to the  purchasers. They neither made nor expressed any explicit terms and accommodation or holiday schemes and they are not aware of Clause 8 of the agreement entered into between the Complainants and the 1^st opposite Party. The Complainants were aware of variations in their terms of the agreement if any at the time of entering into the same and hence the Complainants are estopped from Complaining after entering into the agreement. They are not the principal of the 1^st Opposite Party and they cannot be made liable with any allegations on deficiency of service.  They had offered the available services and have done everything possible in their capacity to satisfy the Complainant. Their scope ends with showing the available offers to the Complainants and they do not decide on the schemes. The Complainants having signed the agreement which spelled out the terms and conditions transparently had filed complaint against them, which is frivolous and unsustainable, as except as a promoter, they have no contact with either the 1^st Opposite Party or the 3^rd Opposite Party, who have opened their office at Chennai. Hence the complaint is to be dismissed.

4. Written Version filed by the 3^rd  Opposite Party in brief is as follows:-

     The 3^rd Opposite Party contended that the very complaint does not constitute a consumer disputes under the Consumer Protection Act. The very compliant is misconceived  and wrong on facts and has no merits. The entire case is based on the agreements and based on contractual agreement and the same cannot be tried summarily, only the civil Court can give proper remedy and the complainant being the agreement holder are not a Consumer as per the Act. They are only an agent of 1^st and 2^nd Opposite Parties and the Complainants can take any relief only against 1^st and 2^nd Opposite Parties and the Complainants can take any relief only against 1^st and 2^nd Opposite Party. Further contended that it is true that they have entered into an agreement with the Complainants and availing the facilities as per the points purchased by them and the said facilities could be enjoyed on prior intimation reservation and confirmation. Further submitted that it is apparent from the documents and agreement the Complainants had purchased 110 points for which their code is blue, which denotes the classification of the holder for availability of off peak season vacations  in the locations for mid week stay and the said fact was clearly explained as per the brochure given to the Complainants and for booking the Complainants have to contact the 1^st and 2^nd Opposite Parties and confirm their booking as per their points rating and subject to availability of accommodation and the said fact has been suppressed by the Complainants. They have sold the said points as an agent of 1^st and 2^nd Opposite Parties. Further submitted that the complaint is barred by limitation and no document to prove the cause of action against them. Further submitted that they have made an offer to sell a plot measuring about 1200 sq.ft. at Bangalore(Tumkur) for free and the Complainants were asked to pay only development and  maintenance charges, which they refused to pay and rejected the offer and the same has nothing to do with the instant case and the Complainants had unnecessarily clubbed with the instant case and by no means it could be stated to deficiency in service. Further contended that there is no deficiency or consumer dispute and hence there is no cause of action. The Complainants are not entitled for any relief claimed in the complaint against them. Hence the complaint is to be dismissed.

5.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-9 were marked.

The 2^nd and 3^rd Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the 2^nd and 3^rd Opposite Parties no documents was marked.

6.  The 1^st Opposite Party did not appear before this Commission even sufficient notice served  and remained absent and set exparte.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

It is an undisputed fact that the complainants are members of the 2^nd Opposite party by executing purchase Agreement dated 04.12.2004 with the 1^st Opposite party and paid a sum of Rs.1,20,000/- to the 3^rd Opposite party.

        It is also not in dispute that the complainants had purchased 110 points from the 3^rd Opposite party for a value of Rs.1,12,000/- for which points certificate has been issued by the 1^st Opposite party.

      The disputed facts are that though the complainants regularly paid the annual maintenance charges till December,2008, they have not been provided with holiday stay accommodation as requested by them at Nainital, Himachal Pradesh, Kodaikanal, Dindigul District and Lonawala, Maharashtra  which was against the terms of the Agreement. Further 110 points purchased by the complainant is equivalent to 7 days accommodation per year to be provided by the 3^rd Opposite party agreed to pay a sum of Rs.9000/- per day, which the Opposite Parties have to compensate them.

      The contention of the 2^nd Opposite party in this regard that they are only a promoter and they have not received any consideration nor they are party to the purchase agreement dated 04.12.2004. Further contended that they cannot be responsible for any deficiency of service as the 3^rd opposite party who had purchased the points at whole sale price from them and resell the points to the general public and as such the 3^rd Opposite party had sold the purchase points to the complainants and entered into the purchase Agreement dated 04.12.2004 with the complainant. Even the said agreement does not impose any responsibility on them and if at all there is any deficiency in service only the 3^rd Opposite party is liable and responsible.

        The contention of the 3^rd Opposite party is that the accommodation / stay should be made with prior intimation / reservation and on confirmation. The Complainants as per their purchase points are entitled for off peak season vacations in locations for mid week stay, which was clearly explained in their brochure given to the complainants. Further contended that for accommodation booking the complainants have to contact 1^st and 2^nd Opposite party and the same would be confirmed as per their point ratings and subject to availability, which facts were suppressed by the complainants. Further contended that the offer for free plot at Bangalore is nothing to do with the instant case, as the complainants were not interested to pay the development and maintenance charges and rejected the said offer.

       In view of the discussion made above and perusal of exhibits filed by the complainants, it is clear that the complainants have enrolled themselves as a member of 2^nd Opposite party on execution of purchase agreement dated 04.12.2004 with the 1^st Opposite party , as found in Ex.A-1. It is also clear from page no.7 of Ex.A-1 that the complainants had purchased 110 points at Rs.1,12,000/- towards vacation ownership . As per Ex.A-1, the 2^nd Opposite Party is a promoter who sold purchase points to the 3^rd Opposite for resale of the same to the general public and by so, the 3^rd Opposite party is entitled to resell the same. Based on the points purchased by the complainants, they are entitled to a right of occupation at the club resorts. Ex.A-1 was entered into between the 3^rd Opposite party and the complainants, which was executed and signed by the 3^rd Opposite party and the complainants, and the 2^nd Opposite party is not a party to the said agreement. The role of the 2^nd Opposite party were limited to the extent that to enrol the purchasers / Complainants as members, to issue points certificate, to receive Annual maintenance charges from the purchasers / Complainants as a contribution to upkeep and maintain the resorts and administration to the club. As per Ex.A1 it is specifically mentioned that the complainants shall be entitled to request accommodation at any of the resorts in the club. The Global alliance resorts list provided by the 3^rd Opposite party has been marked as Ex.A2. On perusal Ex.A-6 reminder notice dated 26.03.2008 sent by the 2^nd Opposite party claiming maintenance charges outstanding for the year 2008 and Ex.A-7 notice along with statement of account, sent by the 1^st Opposite party to the complainants, claiming club management charges totalling a sum of Rs.8933/- from 07.12.2007 to 26.03.2008, to be paid on or before 05.05.2008. From Ex.A3 it is clear that the complainants had paid maintenance charges of Rs.8,933/- and the same was confirmed by the 2^nd Opposite party on 02.05.2008.

       On perusal of Ex.A4 legal notice dated 20.05.2009 sent to the 1^st and 2^nd Opposite parties, where in the complainant had sought for refund and compensation, in the said notice the request made for accommodation has not been specifically mentioned. Further even in the complaint, the complainants have not specified the requests made by them for accommodation at Nainital, Kodaikanal and Lonawala. After filing of the written version by the 3^rd Opposite party, raising the issue of limitation, the complainants in their proof affidavit had specified the year of requests made for accommodation at Nainital, H.P, Kodaikanal, and Lonawala as 2005,2007,2009, respectively. The Complainants have not filed any material evidence to prove their requests made by them and the same were not produced before this Commission. Further, if at all their requests for accommodation has not acceded nor provided by the Opposite parties, the complainants would have not paid the management charges as demanded by the 1^st and 2^nd Opposite parties and confirmation of payment made by the complainants as found in Ex.A6, A-7 both dated 26.03.2008 and Ex.A-3 dated 02.05.2008 respectively. Further if at all the complainants would have made requests for accommodation, immediately on payment should have raised the issue of not acceding their requests for accommodation as per the terms of purchase agreement dated 04.12.2004, Ex.A1. Though Complainants are the members of the Opposite parties 1 to 3 , they have not made out any cause of action to show that the opposite parties 1 to 3 had committed deficiency of service, in their complaint, further having signed the purchase agreement  (Ex.A-1) dated 04.12.2004, they are clearly estopped from the variations of the terms of the agreement raised by them. It is also clear from the complaint that the complainants were not interested to pay meet out the demand of management charges as per the agreed terms of Ex.A1, in spite of 2^nd opposite party provided free stay in Royal Goa Beach Clubs in 2009 and waiver of late payment of management charges. Hence, we hold that the Opposite parties 1 to 3 had not committed any deficiency of service and had not caused any financial loss or mental agony to the complainants. Accordingly, Point No.1 is answered.

Point Nos .2 and 3:

As discussed and decided Point No.1 against the Complainants, the  Complainants are not entitled for any reliefs  claimed in the complaint and also not entitled for any other relief/s. Accordingly, Point Nos. 2 and 3 answered.

In the result the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 5^th of September 2022.

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 List of documents filed on the side of the Complainant:-

 

Ex.A1		Xerox copy of the agreement
Ex.A2		List of Global alliance resorts
Ex.A3		Confirmation of receipt of payment by M/s. Royal Country vacations International Holiday Club(India) on 02.05.2008
Ex.A4		Advocate notice issued by the party by RPAD
Ex.A5		Reply notice sent by M/s. Royal Coutry Vacations International Holiday Club (India)
Ex.A6	26.03.2003	Reminder notice
Ex.A7	26.03.2008	Payment Bill
Ex.A8	28.05.2009	Bill payment reminder
Ex.A9	09.04.2011	Annual Bill reminder for the year April 2011 to April 2012

 

 

List of documents filed on the side of the Opposite Parties:-

 

NIL

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT