BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.648/2013

DATED THIS THE 27^th JANUARY 2014

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.JANARDHANA, MEMBER

Complainant: -   

                                                Henry Raphael D Souza,

                                                S/o. Raymond D Souza,

                                                Residing at No.B-202,

                                                Nakshtra Apartment,

                                                7^th Cross, Lingarajapuram,

                                                Bengaluru-84

V/s

Opposite party: -          

                                                Royal Exchange (India)

                                                Haathi Mahal (RGBC),

                                                Cavellosim, Mobor,

                                                Salcette, Goa-403731

                                                By its director

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the Opposite Party, under Section 11 and 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OP to refund Rs.1,11,259=00 towards membership fee and maintenance amount and to pay Rs.1.00 lakh towards damages and cost of litigation, in the interest of justice and equity.

2. The brief facts of the complaint can be stated as under.

The complainant is a member of M/s. Royal Resorts, since 2009 and became a member of OP club by paying Rs.1,11,259=00 having membership no.HA/05/09/RIHC/270509/5151, and the membership relating to timeshare and resorts owned or managed by the Royal resorts group consisting of Royal Goan Beach Resorts Pvt. Ltd. Prestige Holiday Resorts Pvt. Ltd  and Regal Vacation Concepts Pvt. Ltd all companies registered under the Indian Companies Act, 1956.  During the year 2009, the complainant planned vacation to Kerala alongwith his family and accordingly requested to verify and confirm the booking for the dated between 26-12-2009 to 30-12-2009 as he wished to visit Kerala more particularly, Munnar, Tekkadi and Allepy and notifying his intention to have vacations sent an email on 7-3-2009 and again on 13-4-2009 and 14-7-2009, and to the email sent by the complainant during the month of March, the OP has replied during the month of April only to demand for the payment of management charges instead of meeting with his requirement for the booking of vacations and after several follow up through e-mails, the OP finally replied during the month of October stating that, there is currently no availability for Munnar from 28-12-2009 to 30-12-2009 and offered the alternative at Resort Monterio for the duration/dates 19-12-2009 to 26-12-2009 against 165 entitlement points and the same was not acceptable, since the complainant had already planned vacations with this family since he is working in Dubai. This has been attitude of the OP that, the OP consumed time by delaying the confirmation in reverting about the request and finally denying the confirmation of vacation as required by the members. The very purpose of becoming member is not served by the attitude and negligence of the OP club and OP is negligent to its customers when it comes to the matter of providing vacations and providing details to its customers. The OP and its executives have falsely with dishonest intention of deceiving the complainant have induced him to become a member on false assurances and the OP have wrongly represented to the complainant assuring the facilities, booking etc. After going through the sour experience with OP club and with an intention to put an end to relationship got issued legal notice to the OP terminating the membership and sought the refund of the membership amount alongwith the management fees collected by the OP. The OP got issued a untenable reply and also offered a peak holiday period at GOA at Roya Palm Resorts between 22^nd to 29^th of December 2012 for two persons and the OP has refused to rescind the agreement. The OP has failed to provide the vacation as assured and promised which amounts to deficiency of service and negligence on the part of the OP. The OP with the malafide intention of deceiving, cheating the complainant, has not bothered to settle any of the issue as demanded by the complainant, and the complainant has undergone enough mental tension, agony by investing huge money. Hence, the complainant has come up with the present complaint.

          3. After service of notice, the OP did not appear before the forum and he has been placed exparte, and posted the case for filing the affidavit of the complainant.

          4. So as to prove the case, the complainant has filed his affidavit by way of evidence, and produced 8 copies of documents with list dated 22-3-2013. We have heard the arguments of the complainant and we have gone through the oral and documentary evidence of the complainant meticulously. 

5. One Henry Rapheal D’Souza, who being the complainant has stated in his affidavit evidence that, he is a member of M/s. Royal Resorts who being the OP since 2009 by paying Rs.1,11,259=00 having membership no.HA/05/09/RIHC/270509/ 5151, and the membership relating to timeshare and resorts owned or managed by the Royal resorts group consisting of Royal Goan Beach Resorts Pvt. Ltd. Prestige Holiday Resorts Pvt. Ltd  and Regal Vacation Concepts Pvt. Ltd which are registered under the Indian Companies Act, 1956.  During the year 2009, he planned vacation to Kerala alongwith his family and accordingly requested to verify and confirm the booking for the dated between 26-12-2009 to 30-12-2009 as he wished to visit Kerala more particularly, Munnar, Tekkadi and Allepy and notifying his intention to have vacations sent an email on 7-3-2009, 13-4-2009 and 14-7-2009, and to the email sent by him during the month of March, the OP has replied during the month of April only to demand for the payment of management charges instead of meeting with the requirement for the booking of vacations and after several follow up through e-mails, the OP finally replied during the month of October stating that, there is currently no availability for Munnar from 28-12-2009 to 30-12-2009 and offered the alternative at Resort Monterio for the duration/dates 19-12-2009 to 26-12-2009 and the same was not acceptable, since he has already planned vacations with this family, since he is working in Dubai. The OP consumed time by delaying the confirmation in reverting about the request and finally denying the confirmation of vacation as required by the members. The very purpose of becoming member is not served by the attitude and negligence of the OP club and OP is negligent to its customers, when he requested for the booking/confirmation of holiday vacation to Goa he failed to understand the policy of clearing management charges for every year without affording an opportunity of utilizing the facilities or the confirming the booking of resort/club, as per his requirement though becoming member by paying huge amount towards membership fees and booking. The OP and its executives have falsely with dishonest intention of deceiving have induced to become a member on false assurances and the OP have wrongly represented to him assuring the facilities, booking etc, and so he does not intend to continue with membership of OP club and with an intention to terminate the membership, he got issued legal notice to the OP terminating the membership and sought the refund of the membership amount alongwith the management fees collected by the OP without providing any vacation to him. The OP has given an untenable reply. The OP has failed to provide the vacation as assured and promised which amounts to deficiency of service and negligence on the part of the OP, and he has undergone mental tension, agony even since the purchase of time share by investing huge amount. So, he filed the present complaint, so the complaint be allowed and pass an order as prayed for.  

          6. The above said assertions of the complainant have remained uncontroverted. The OP has neither appeared nor denied the sworn testimony of the complainant. So under the circumstance, we have no reasons to disbelieve the sworn testimony of the complainant.

7. Let us have a cursory glance at the documents of complainant. Document no.1 of the list of complainant is the copy of agreement dated 27-5-2009 between the complainant and OP which is signed by both parties and it is contained conditions of OP and one of the condition of purchase agreement is that, as a member of the Royal India Holiday Club the purchaser shall be entitled to request accommodation at any of the resorts in the club, and the said agreement signed by authorized signatory of Prestige Holiday Resorts Pvt. Ltd being sister concern of the OP. Document no.2 is the copy letter of Relation Officer dated 27-5-2009 of Parshuram Finance Pvt. Ltd addressed to the complainant stating that, his minimum monthly payment during this initial period is Rs.2,996=00 and upon payment of 12^th installment, he will be contacted. Document no.3 is the copy of letter of complainant and his wife to Parshuram Finance Pvt. Ltd dated 27-5-2009 stating that they will pay 11 EMI’s of Rs.2,886=00 at 0% interest and alongwith the 12^th installment, they will settle the balance principal amount of Rs.79,513=00 over 48 monthly installments. Document no.4 is the copy of letter of complainant and his wife dated 27-5-2009 addressed to the OP surrendering of such rights, benefits, privileges and entitlements to the Royal India Holiday Club in exchange for 132 points rights. Next document of the complainant list is the copy of brochure of the OP stating that the additional benefit of the OP to its members. Document no.6 is the copy of letter of complainant to the employee of OP stating that, he is planning to go holiday to Kerala in December 26^th to 31^st, he want to go Cochin, Munnar, Thekkady, and Allapy by using his membership and requested to send him the details. Document no.7 is the copy of letter of employee of the OP to the complainant stating that, there is no currently availability for Munnar from 28-12-2009 to 30-12-2009, however they can offer Monterio Resort from 19-12-2009 to 26-12-2009. Document no.8 is the copy of letter of OP to its member to pay the management charges for year 2012 and till they receive the payment all reservations and bankings will be blocked. Document no.9 is the copy of legal notice of complainant dated 23-8-2012 to the OP to pay the entire amount of Rs.1,11,259=00 paid towards the membership amount and management fees alongwith notice charges as the complainant is not satisfied with the service of OP. Copies of postal receipts and acknowledgment cards are produced. Last document of the complainant list is the copy of reply notice of Prestige holiday Resorts Pvt. Ltd addressed to the complainant’s lawyer, wherein the OP has admitted that, it received Rs.1,11,259=00 from the complainant and they will offer booking in Goa from 22^nd to 29^th December for two persons and submit his reservation request on or before 1^st November 2012.

8. The oral evidence of complainant that, after payment of the membership fee and other charges of Rs.1,11,259=00, the OP did not give any service to him as promised, though he requested to make arrangement of holiday trip to Kerala stands corroborated by documents no.1 to 8 of the complainant. The act of OP in not making arrangement for holiday trip as and when the complainant requested after inducting him as a member of the OP by receiving membership and other charges tantamounts to negligence and deficiency of service on the part of the OP. The complainant who comes to the forum seeking relief has proved with satisfactory oral and documentary evidence that, the OP is negligent and there is deficiency of service on the part of the OP in not complying the condition of purchase agreement after collecting the membership fee and other charges of Rs.1,11,259=00. When no service as such is given to the complainant as promised, the OP is disentitled to retain the amount of Rs.1,11,259=00. So the complainant is entitled to claim Rs.1,11,259=00 from the OP. So the OP is directed to refund Rs.1,11,259=00 to the complainant within 30 days from the date of receipt of the order, failing which, the OP shall pay the said amount to the complainant alongwith 7% interest per annum on the said amount from the date of complaint to till the date of realization, and the OP is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation, and according, the complaint of the complainant is partly sustainable. In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint of the complainant is partly allowed. The OP is directed to pay Rs.1,11,259=00  to the complainant within 30 days from the date of receipt of the order, failing which, the OP shall pay the said amount to the complainant alongwith 7% interest per annum on the said amount from the date of complaint to till the date of realization.

The OP is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this, 27^th day of January 2014).

MEMBER                                  PRESIDENT