APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :   10^TH JANUARY 2018

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 challenging the impugned order dated 19.05.2015, passed by the U.T. Chandigarh State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. 104/2015, “Neelakshi Chopra versus Sterling Holiday Resorts (India) Ltd. & ors.”, vide which, while dismissing the appeal, the order dated 03.01.2015, passed by the District Forum Chandigarh in consumer complaint No. 99/2014, filed by the present petitioner, partly allowing the said complaint, was upheld.

2.       The petitioner/complainant stated in her consumer complaint 99/2014, interalia as follows:-

“2.        That the complainant purchased a time share in Sterling Aldeia Branca, at Benaulim Beach, Goa, from Sterling Holiday resorts (India) Ltd. in 1996 after going through their advertisement as well as their brochure.  The time share was for the premium “Red Week” 29 December to 4^th January, hereinafter called the “new year week”. The time share was sold to the complainant with the promise and assurance that the complainant would have a beach holiday in Goa at new year eve every year.

3.         That the advertisement promised a holiday for 7 days every year for 99 years in their resort at Sterling Aldeia Branca at Benaulim Beach, Goa (from 29^th December to 4^th January every year).  This is also the peak tourist season in Goa.

4.         That on receipt of  full payment a certificate of membership was issued to the complainant on 25.10.1996 for the period expiring in 2096.  It is submitted that the same constituted a legally- binding agreement between the complainant and the company.  The agreement was for time share of a “regular apartment” having accommodation for four adults.”

3.       According to the complainant, beach holiday was to be provided to them at New Year Eve, by giving accommodation for four adults every year, for a period of 99 years at Sterling Aldeia Branca at Benaulim Beach, Goa.  However, the complainant had not been given the promised accommodation even for a single week since 1996, because the said project never came up on the ground.  The OPs did accommodate them at alternative places at the beach resort at Vagator until 2012, but thereafter offered them accommodation at places, which were far away from the beach.  The complainant maintained that there was huge qualitative difference in Goa between the experience of staying at a beach resort and staying at a hotel far away from the beach.  The complainant filed the consumer complaint in question, seeking compensation of ₹1,00,600/- for the year 2010 and to provide equivalent accommodation to her or to pay charges as per the agreement, until the project at Benaulim Beach, Goa was constructed. 

4.       The complaint was resisted by the OPs by filing a written statement before the District Forum, in which they denied the allegations levelled in the consumer complaint.  However, in reply to para 2 of the complaint as produced above, the OPs stated as follows:-

“That the contents of Para No. 2 of the complaint are matter of record and hence needs no reply.  However, it is to be noted that the holidays were governed by the terms and conditions.”

5.       The OPs further stated that they had provided equivalent stay facilities to the complainant at Vagator.  It was also stated that no cause of action had accrued to the complainant at Chandigarh and hence, the consumer fora at Chandigarh had no territorial jurisdiction to handle the complaint.  Moreover, the consumer complaint filed in the year 2014, seeking compensation for the holiday week entitlement for the year 2010 was time barred.  The OPs also stated that the membership was in the joint name of the complainant and Mr. Pramod Kumar Chopra, but the complaint had been filed by the complainant alone.

6.       The District Forum after considering the averments of the parties, partly allowed the consumer complaint vide their order dated 30.01.2015 and directed the OPs to make payment of ₹30,000/- as compensation to the complainant for deficiency in service and causing physical and mental harassment etc. and also to pay ₹10,000/- as cost of litigation.

7.       Being aggrieved against the order of the District Forum, the complainant challenged the same by way of an appeal before the State Commission.  The said appeal having been dismissed vide impugned order, the complainant is before this Commission by way of the present revision petition. 

8.       During arguments before us, it was averred by the learned counsel for the petitioner that the resort in question was never constructed by the respondents/OPs, and hence, the facilities as promised could not be given to the complainant, which constituted deficiency in service on their part.  According to the agreement between the parties, the accommodation was to be provided to the complainant every year, but they had been denied the said facility in perpetuity for the act of omission/commission on the part of the OPs.  The learned counsel also stated that many other pleas taken by the complainant in the consumer complaint had not been adjudicated upon by the consumer fora below and hence, the matter be remanded to the consumer fora below, for taking a decision on the said pleas.

9.       The learned counsel for the respondents stated, however, that the petitioner/complainant had obtained their membership long back in the year 1996, and since then, they had been availing themselves of the facility of holidays from year to year.  A statement of holidays availed by them had also been placed on record, according to which, such holidays were enjoyed a number of times at Vagator, Goa and other places.  The learned counsel stated that the project for which the time-share had been issued, had not been constructed, but in accordance with the terms and conditions of the contract between the parties, an equivalent accommodation had always been provided.  The learned counsel has drawn attention to clause 4.1 of the certificate of membership in support of his contention.  The learned counsel argued that all issues raised by the petitioner/complainant had been addressed in the order passed by the State Commission and hence, there was no justification for carrying out any modification in the order of the State Commission in the exercise of the revisional jurisdiction. 

10.     In reply, the learned counsel for the petitioner has drawn attention to a letter dated 27.12.2012 addressed by the opposite party to the petitioner, in which it has been stated as follows:-

“Considering the long term relationship with the customers, the company had arranged for an alternate arrangement with the new resorts at Goa, namely Villagio inn, and Camphor.  The new resort is with a good infrastructure and the beach is situated within 5 kms from the resort.”

11.     The learned counsel stated that the OPs were required to provide only beach holiday to the complainant, whereas the alternative resort was situated 5 Kms away from the beach and hence, there were violation of the terms and conditions by the OP Company. 

12.     We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

13.     A careful perusal of the material on record indicates that the respondents/OPs has candidly admitted the version of the complainant that had purchased the time share for Sterling Aldeia Branca, at Benaulim Beach, Goa in the year 1996 and that they were promised a beach holiday in Goa at New Year Eve every year.  As reproduced already, the version given in para 2 of the complaint has been admitted in the reply filed by the OPs Company.  They have stated, however, that the holidays were governed by the terms and conditions of the contract.  The OPs have tried to explain that they had been extending the facility of providing an alternative accommodation to the complainants from time to time.  As per the statement placed on record, such facility was provided at Vagator, Goa from the year 2001 to 2003 and then in the year 2007 only.  In the year 2008, the facility was given at Mellorosa Goa and in the year 2013 at Club Estadia.  However, the letter dated 27.12.2012 sent by the OPs to the petitioner clinches the issues as the OPs stated categorically that they were not able to build a resort at Benaulim.  However, they had made an alternative arrangement at Villagio inn and Camphor and the said resorts were situated 5 Km away from the beach.  The OPs also stated in that letter that the time-share holder shall be liable to pay utility charges, as may be fixed from time to time by the company.  The guests availing the holidays were also liable to pay the guest fee @ ₹1000/- per guest per stay.  It is made out from the own version of the OPs that they were not able to provide the requisite facility to the petitioner as promised with them at the time of issuing the certificate of membership.  They are now offering facility at places, which are situated away from the beach.  We tend to agree with the contention raised by the complainant in the consumer complaint that there is a huge qualitative difference in Goa between the experience of staying at a beach resort and staying at a place, far away from the beach.  The complainant has also raised a number of issues regarding charging of various amounts from the complainant under different heads like the guest fee etc. 

14.     Vide impugned orders passed by the District Forum duly confirmed by the State Commission, a sum of ₹30,000/- has been ordered to be paid as compensation to the complainant for deficiency in service and for causing physical and mental harassment to the complainant in addition to ₹10,000/- as litigation expenses.  While passing this order, however, the District Forum has not specified the basis upon which the computation of the compensation has been made.  The District Forum should have examined each and every issue listed in the complaint and then arrived at their conclusion about payment of appropriate compensation to the complainant for the act of omission/commission on the part of the OPs. 

15.     Further, it was the duty of the consumer fora below to have attempted to grant appropriate compensation to the complainant, considering the admission on the part of the OPs that they were not able to construct the project, as envisaged by them and for which, the concerned membership was issued.

16.     Keeping in view the above observations, the orders passed by the State Commission as well as the District Forum are set aside and the matter is remitted back to the District Forum with the directions that they should call the parties again, allow them to produce any further evidence in their favour and then arrive at a fresh conclusion after considering all the issues mentioned in the consumer complaint.  The present revision petition is allowed accordingly with no order as to costs.