BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 09^th DAY OF NOVEMBER 2017

O R D E R

SRI. P.V SINGRI, PRESIDENT

Complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct OP to pay him a sum of Rs.5,20,985-70 and further direct OP to provide him all the necessary facilities in future without causing any problem together with cost, alleging deficiency of service.

2. The brief allegations made in the complaint are as under:

That representative of OP approached complainant during the year 1994 and offered him to provide resort facilities during vacation for a period of 99 years @ 7 days per annum free of cost, if at all the complainant make payment of Rs.35,000/- at a time.  That the complainant was not interested in OP Holiday Resort, however he was forced and lured by the representative of OP by offering several facilities and made the complainant to part with Rs.35,000/- and entered into an Sterling Vacation Timeshare Agreement for Ooty (Elkhill) Regular Apartment dated 08.06.1994.  That before the complainant could read and understood the terms and conditions of the agreement, the representative of OP Manager obtained the signature of complainant in hurry and later on sent the copy of agreement to complainant allotting him membership No.11764.  That complainant was provided 7 days vacations in the Resort at Ooty from 13^th October to 19^th October every year.  That in pursuance of the agreement the complainant in the month of October 1994 wrote to OP to book him resort facility at Yercaud, Salem District, Tamil Nadu.  To the request for the said booking the complainant received a letter dated 17.10.1994 from OP stating that they are not able to book the resort at Yercaud during the dates requested by complainant.  That the said act of OP in refusing the booking was deliberate.  That OP is in the habit of refusing the booking of regular member and provide the same facilities to non members for higher rates.  That, on 21.07.1995 OP wrote a letter to complainant stating that, he is required to book the resort atleast 45 days in advance so as to enable them to make necessary booking.  That nobody would be able to organize their vacation 45 days in advance and the said letter is nothing but an attempt to deny the complainant the vacation facilities in terms of Timeshare Agreement dated 08.06.1994.  That, complainant is entitled for booking facilities from 13^th October to 19^th October every year.  However the letter dated 21.07.1995 by OP is an attempt to deprive the complainant the vacation booking during the period agreed upon in the agreement.

That, in the month of September 1998 OP wrote a letter to complainant stating that, he is required to pay a sum of Rs.1,450/- towards annual maintenance and further asked to pay the said amount to every year.  That the said letter of the OP is in violation of terms and conditions of the contract.  That though complainant resisted the said demand made by OP but OP failed to reply to any of his letters.  OP also failed to reply to the question raised by complainant as to under what clause of the agreement they are demanding the yearly maintenance charges.  That OP has sent to debit note to complainant and even in the said debit note sent from time to time the amount mentioned differs.  That in the letter dated 18^th December 2013 OP has made a payment of total sum of Rs.33,171/- towards annual maintenance charges.  That OP has no right to demand annual maintenance charges having received a sum of Rs.35,000/- at a time, in the year 1994.  That without providing any vacation facility to complainant for the last 20 years OP has no right to demand annual maintenance.  That on 04.11.1998 complainant wrote a letter to OP stating that he is unable to pay yearly maintenance charges and demanded the complainant to refund the amount paid by him by cancelling his membership.  However, OP has not at all responded to the said letter.  On 23.01.1999 OP from their Chennai office wrote a letter to complainant in response to his letter dated 21.01.1999 stating that there is no provision in the agreement to cancel the membership and to refund the membership fee.  That on 06.11.2001 the complainant wrote a letter to OP asking them to adjust the amount collected by them by renting out resort facilities to others towards the annual maintenance charges demanded from complainant.  That OP refused to the request made by the complainant by their letter dated 21.11.2001 stating that there is no provision for such adjustment and further informed the complainant that there are only 28 days vacations available in his account.  That when complainant questioned about the same he was informed by letter dated 10.03.2010 that the membership much entitled for accumulated vacation facility of 14 days in year and later on the request on consideration that facility was extended to 28 days.  That OP is demanding a sum of Rs.33,171/- from the complainant during the year 2014 without providing any vacation facility to complainant all these years.  That OP who has more than 67000 members and resorting to cheat the members by unlawfully demanding annual maintenance charges.

That on 11.09.2013 complainant wrote letter to OP requesting for vacation for six members of his family for the period between 14^th October to 16^th October at Ooty (Elkhill) or other place.  That complainant was informed that, he is not entitled to the said vacation unless he pays the arrears of annual maintenance charges.  That OP is denying the vacation to complainant on one or the other grounds.  That OP is making money by renting out the vacation facility to others by denying the same to complainant as and when requested by him.  That OP is charging a sum of Rs.3,750/- per day at their Elkhill Resort and taken into account, such tariff, the total amount for 20 years at the rate of  26250x20 @ 7 days per year comes to Rs.5,25,000/-.  That OP after deducting the arrears of Rs.29,014-30 from the said amount of Rs.5,25,000/- is liable to pay the complainant a sum of Rs.4,95,985-75.  That OP did not respond to the said request made by complainant sent through e-mail dated 04.10.2013.  That OP is also liable to pay damages of Rs.25,000/- for having deprived the complainant his vacations for which he is legally entitled.  That OP is liable to pay complainant a sum of Rs.5,20,985/- inclusive of Rs.25,000/- towards damages.  That complainant sent a e-mail dated 01.11.2013 demanding OP to pay him a totally Rs.5,20,985-70 but so far OP has not responded for the said letter.  That complainant has come to know through English news paper Times of India dated 09.02.2004 that Thomas Cook India buys Sterling Holiday for 870 crore rupees.  That OP is selling company without informing/consent of the members including complainant.  That since OP did not respond to the e-mail dated 01.11.2013 demanding a total sum of Rs.5,20,985-70 from OP, he had no other choice but to approach the Forum for redressal.

For the above, amongst other reasons, complainant prays for a direction to OP to pay him a total sum of Rs.5,20,985-70 and further direct them to provide vacation every year as per the terms of the agreement without causing any inconvenience in future together with interest and cost of litigation.

3. In response to the notice issued OP appeared through their advocate and filed their version contending in brief as under:

That complainant is eligible for the week No.41 i.e., for a period from 1994 to 2092, in Ooty Elk Hill Resort between 13/10 to 19/10 every year till the year 2092.  That it is false to allege that the complainant was intentionally denied holiday request instead, complainant was suggested with alternate facilities preferable of his choice.  That complainant requested for availing holidays other than his own week and month but the same has to be confirmed based on availability.  That as per agreement a sum of Rs.19,250/- was paid by the complainant towards Advance Subscription towards Customer Facilities (ASFC).  That as per the agreement ASFC is defined as under:

“ADVANCE SUBSCRIPTION TOWARDS CUSTOMER FACILITIES (ASFC)” means the amount payable as an advance subscription to the Company for meeting the expenditure towards facilities which all the Timeshare holders in the allotted Holiday Resort are liable to pay for.  The total cost of membership purchased by customers is bifurcated into (i) the cost of Timeshare and (ii) Advance subscription towards customer facilities (ASCF).  The latter part is created to cover the administrative expenses towards the list of facilities as mentioned in your agreement to enable us to facilitate holidays during the Agreement period of 99 years i.e., the facilities we provide to the customers for Split, Exchange, Float, Accumulation, etc.

That the annual amenity charges are collected by OP for maintaining the resorts for which the complainant is liable to pay as per clause-13.c of the terms and conditions which reads as under:

“Clause 13 (c) The Time share Holder shall pay the requisite charges/fees/prices decided by the company from time to time for use and enjoyment of the amenities.

ii. The time share holder shall also liable to pay charges/fees/prices as may be fixed from time to time by the Company in respect of electricity, telephone, gas, oil, water etc., that may be utilized by the Timeshare Holder while enjoying his Timeshare.

(d) The time share holder shall accept, comply with and follow all rules and regulations that may be formulated from time to time by the Company for the purpose of enjoyment of time share by various Time Share Holders.

Taxes and Levies:

Any levies/taxes/duties/charges/fees which may be imposed by any Government or any local body or public body or authority in future in respect of the transaction under this Agreement shall be paid by the Timeshare Holder to the Company on demand”.

That annual amenity charges is revised in line with inflation based on the cost incurred by OP for various refurbishments in order to maintain and sustain the quality of resorts and could differ every year which has been duly notified to the complainant.  The annual amenity charges fixed towards the membership of the complainant for the years 1998 and 1999 was Rs.1,450/- and Rs.1,375/- totally amounting to Rs.2,825/- which has been informed to the complainant.  That as per the Industry standards, OP Company levies the lowest annual maintenance charges in the timeshare industry.  That when complainant requested for refund with interest he was replied that the membership cannot be cancelled since there is no provision for cancellation as per the terms of the agreement.  That the Accumulation facility for VTS customers as per clause.20 of the agreement is 14 days alone.  However as a gesture of good will the company had decided to extend the facility by allowing VTS customers to accumulate 21 days which was further extended to 28 days for the complainant on his request.  That the clauses of the terms and conditions and the relevant portion is mentioned below.

20. Accumulation Facility: Whenever a Timeshare Holder acquires an Accumulated Week under clause 18 above and/or accumulated days under clause 19 above, the Time Share Holder can utilize in the subsequent years such Accumulated week/Accumulated days either under Floating Facility or Split Week Facility as if they are floated week/days subject to the following conditions which will override the conditions mentioned under the floating and split week facility.  (1) The Accumulated week and/or Accumulated days can be utilized only during Classic Period.  (2) At no point of time the number of days to the credit of the Timeshare Holder shall exceed 14 (one accumulated week being considered as 7 working days) and any excess shall be deemed to have lapsed automatically for which the Timeshare Holder shall not be entitled for any compensation or damages.

That it is false to allege that OP earns money by renting of rooms for higher price, therefore the complainant was denied the facility to stay.  That OP letting out only the hotel block at the resort and the apartments allotted to the customers are not let out to any third parties.  That the complainant never utilized the facility of the membership for the reasons best known to him.  Therefore the OP absolved of any liability to pay any compensation to complainant.

That on 11.09.2013 complainant requested holiday through website and OP replied that the rooms are available and the same can be confirmed on receipt of pending dues and annual maintenance charges which is payable by the complainant for the use and enjoyment of the facilities as per the terms and conditions of the agreement.  That the Sterling Holiday Resorts (India) Ltd., has been merged with Thomas Cook (India) Limited.  That post merger Sterling and Thomas Cook continues to operate independently with each company having its own management team and independent board of Directors.  That there is no any deficiency of service on the part of OP and also any negligence.  That OP is therefore is not liable to pay any compensation much less the amount claimed by the complainant.

4. The points that arise for our determination in this case are as under:

        5. The complainant as well as OP tendered their affidavit evidence, reiterating their respective contentions.  Both parties have produced certain documents in support of the respective cases.  Written arguments have been filed.  We have also heard oral arguments.

6. Our answer to the above issues are as under:

REASONS

7.  Admittedly the complainant became member of Vacation Timeshare of OP by paying a total sum of Rs.35,000/-, in the year 1994.  In terms of the agreement, complainant is eligible for vacation for week No.41 i.e., for the period from 1994 in Ooty (Elkhill) Resort between 13^th October to 19^th October of every year till the year 2092.  It is pertinent to note that, Sterling Vacation Timeshare Agreement is for OOTY (ELKHILL) Regular Apartment.  Though the agreement is for the property of OP situated at Elkhill Ooty, complainant is entitled for vacation in other properties belonging to OP, however, subject to availability of accommodation for the period requested.  As far as the Elkhill property is concerned, complainant is entitled for vacation every year from 13^th October to 19^th October for a period of seven days, for 99 years.

8. After having become member, for the first time the complainant requested for booking of accommodation in the property of OP situated at Yercaud in Salem District, Tamil Nadu State.  Admittedly, the complainant was not provided with accommodation at Yercaud property for the reason as stated by OP that, rooms were not available during the said period.  However complainant alleges that, he was denied vacation at Yercaud deliberatedly by OP and the accommodation in the said property was provided to non members by collecting higher fees.  OP denied this allegation of OP.  Complainant did not produce any material to substantiate his allegation that his request for accommodation at Yercaud during the month of October 1994 was denied deliberately.  In absence of credible oral or documentary evidence, we are unable to accept the allegation of complainant that his vacation at Yercaud was denied deliberately by OP.  In fact during the month of October the complainant was entitled for vacation between 13^th October to 19^th October during the said year at Elkhill Resort.  Complainant claims that, during 1994 no proper facilities were available at Elkhill Resort at Ooty, therefore, he sought for vacation at Yercaud.  For this also complainant did not place any material to substantiate that necessary facilities were not available at property situated at Elkhill Ooty during 1994. 

9. Complainant for the second time, after becoming member, requested for vacation accommodation at Elkhill Ooty for total six members from 14^th October to 16^th October 2013.  Complainant alleges that, he did not receive any reply to his letter dated 11.09.2013 for reservation from 14^th October to 16^th October 2013 from OP and he was also not provided the vacation as requested by him.  To this OP states that, though the accommodation was available as requested by complainant, he was asked to avail facility only after paying the arrears of annual amenity charges which stood at Rs.29,014-30.  Complainant alleges that, he is not liable to pay annual amenity charges at a time and also for the reason that he never availed vacation facility in any year for which period charges, annual amenity charges having been claimed by OP.  Against this, OP contended that, as per clause-13.c of the terms and conditions of the agreement the complainant is liable to pay charges/fees/prices as fixed by OP Company from time to time in respect of electricity, telephone, gas, oil, water etc., that may be utilized by time share holder while enjoying his time share.  We perused clause-13.c of the agreement and the relevant portion of the said clause is as under:

“Clause 13 (c) The Time share Holder shall pay the requisite charges/fees/prices decided by the company from time to time for use and enjoyment of the amenities.

ii. The time share holder shall also liable to pay charges/fees/prices as may be fixed from time to time by the Company in respect of electricity, telephone, gas, oil, water etc., that may be utilized by the Timeshare Holder while enjoying his Timeshare.

10. As could be understood from the plain reading of the clause-13.c that every time share holder of OP Company is liable to pay necessary charges/fees as may be fixed, from time to time, by the OP Company in respect of the amenities used including electricity, telephone, gas etc., while enjoying his/her time share.  In pursuance of clause-13.c of the agreement, OP demanded the complainant to pay sum of Rs.1,450/- and Rs.1,375/- for the years 1998 & 1999 totally amounting to Rs.2,825/-.  The complainant did not pay the said amount for the reason that he has not availed the vacation during such period.  OP Company went on demanding complainant to pay the annual amenity charges for the subsequent years and since the complainant did not pay any amount towards annual amenity charges as claimed by complainant, the total arrears stood at Rs.29,014-30 as on 2013.  However, the arrears stood at Rs.33,171/- upto the year 2014.

11. As stated above, it is the contention of the complainant that, he is not liable to pay the said amount as he never utilized/availed the vacation at any point of time since after becoming time share holder in the year 1994.  It appears to us that, complainant is justified in denying to pay the annual amenity charges since he has not made use of the vacation at any time since 1994 till the date of filing of the complaint.  The plain reading of clause-13.c also makes it very clear that each time share holder is liable to pay the charges/fees as may be fixed by company from time to time in respect of electricity, telephone, gas, oil etc., that may be utilized by them while enjoying their time share.  Since the complainant has not utilized his time share at any point of time, in our opinion, he is not liable to pay the said amount.  Therefore, we are of the considered opinion that, OP Company is not at all justified in demanding complainant to pay the annual maintenance charges despite knowing fully well that he has never enjoyed his timeshare and at any point of time since after becoming member in the year 1994.  In view of the said provisions contained in clause-13.c of the agreement, OP Company is certainly in justified in denying vacation to the complainant for the period between 14 to 16 of October 2013.  The conduct of OP in denying vacation to complainant during the period allotted to him certainly amounts to grave deficiency of service.  OP Company is certainly not justified in refusing the complainant to avail vacation in terms of agreement between 13^th October to 19^th October of every year.  OP Company would have justified in demanding annual maintenance charges only if they had permitted him to avail vacation during the month of October 2013.  Without providing the vacation to complainant in terms of the agreement, OP Company certainly is not justified in demanding annual amenity charges either for the year 2013 or for the year subsequent to 2013.

12. The complainant claims that, in the event of OP committing breach of terms of vacation time share agreement by not providing apartment during holiday week, mentioned in the confirmation voucher, it is liable to pay liquidated damages equivalent to 100% of the rent/tariff that may be charged by complainant to other persons for staying in the apartment during such holiday week.  Clause-23 of the agreement deals that the damages to be paid by OP Company in the event of committing breach of the terms and agreement.  Sub clause.1 of clause-23 reads as under:

“In the unlikely event of the COMPANY committing a breach of the terms of this agreement by not providing the Apartment during the holiday week and/or days/week mentioned in the Confirmation Voucher, the COMPANY shall pay liquidated damages equivalent to 100% of the rent/tariff that may be charged by the COMPANY to other persons for staying in the Apartment during such holiday week and/or days/week.  The liquidated damages shall be paid by the COMPANY to the TIMESHARE HOLDER along with the intimation from the COMPANY at the time of not providing the allotted Apartment”.

13. In view of the provisions contained in sub clause-1 of clause-23 of agreement, OP Company is liable to pay damages equivalent to 100% of the rent/tariff that they charge to other persons for staying in the apartment during the period booked by timeshare holder i.e., complainant.  Complainant claims that during relevant period of time i.e., during October 2013 the tariffs for an apartment was at Rs.3,750/-.  Complainant had booked the vacation for 14, 15 and 16 of October 2013, the total tariff for 3 days would be (Rs.3,750x3 =) Rs.11,250/-.  In view of the above said provisions, OP Company is liable to pay 100% of the said amount to complainant which comes to Rs.11,250/-.

14. Complainant has sought damages to the tune of Rs.5,25,000/-.  He has calculated the said damages on the basis of not availing vacation for a period of 20 years.  According to complainant, OP Company has earned the said sum of Rs.5,25,000/- by renting out his timeshare vacation to other customers.  The complainant has not produced any credible material on record to show that OP Company has rented out his timeshare vacation to other customers and thereby earned a sum of Rs.5,25,000/-.  OP Company in its version as well as in the affidavit has taken up a contention that the apartments are not rented out to any customers except the hotel block.  We have no material on record to believe that the OP Company has rented out the apartment during the timeshare vacation of complainant to others and has made money out of it.  The complainant for the reasons best known to him has failed to avail the time share vacation allotted to him.  Having not availed the vacation in terms of agreement, the complainant is not entitled to claim any damages on the ground that, OP Company has earned money by renting out his timeshare vacation to others.  Therefore, we are of the opinion that, complainant is not entitled to sum of Rs.5,25,000/- claimed by him as damages or in the form of profits earned by OP.

15. No doubt the conduct of OP in refusing complainant to avail timeshare vacation during October 2013 must have put him to great inconvenience and mental agony.  Despite having paid a sum of Rs.35,000/- in the year 1994, the complainant has been denied vacation in the timeshare allotted to him without assigning any valid reasons.  Therefore, OP Company has to be directed to pay compensation of Rs.20,000/- to the complainant for deficiency of service on their part.

16. In view of the discussions made above, we are of the opinion that, OP Company shall have to be directed not to demand annual maintenance charges from the complainant during the years, whenever he has not availed timeshare vacation.  Furthermore they shall not demand the arrears of annual amenity charges from the complainant for the period 1998-99 to till 2017-18.  Further OP Company is directed to provide timeshare vacation to complainant during the allotted vacation period without causing any inconvenience, in future.         

17. The order could not be passed within the stipulated time due to heavy pendency.  

18.  In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.

OP Company is directed not to claim annual amenity charges from complainant from 1998-99 till the date of this order and shall pay a sum of Rs.11,250/- for having denied the vacation during the month of October 2013 and also pay compensation of Rs.20,000/- to complainant for deficiency of service, together with litigation cost of Rs.10,000/-.

OP Company shall comply the said order within four weeks from the date of communication of the order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 09^th day of November 2017)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 27.11.2014.

1. Sri.K.P Narasimha Murthy.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 16.01.2015.

Sri.Ramesh.  

Document produced by the Opposite party - nil

MEMBER                                                             PRESIDENT

Vln*