Haryana

Panchkula

CC/36/2019

MRS.MANJU SIGHAL - Complainant(s)

Versus

STERLING HOLIDAY RESORTS (INDIA),LTD. - Opp.Party(s)

ASEEM GUPTA

28 Nov 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	36 of 2019
Date of Institution	:	09.01.2019
Date of Decision	:	28.11.2022

 

 

Smt. Manju Singhal, w/o Sh. Subhash Singhal, Resident of House No.736, Sector-12, Panchkula, Haryana.

 

                                                                           ….Complainant

Versus

1.     Sterling Holiday Resorts(India) Limited, Through its Managing     Directors, CITI Towers, 3^rd Floor, No.7, 3^rd  Cross Street, Kasturba   Nagar, Adyar, Chennai-600020, Tamil Nadu.

        2^nd Address:-

        Sterling Holiday Resorts(India) Limited, Through its Managing     Directors/Senior Executives, SCF-63-64, Ist Floor, Phase 10, Above   Reliance fresh, Mohali-160062.

2.     Sh. Prince Kumar, Senior Executive, Customer Acquisition, Sterling     Holidays Resorts Limited, SCF 63-64, Ist Floor, Phase 10, above     Reliance Fresh, Mohali-160062.

3.     Sh. Amit Chaudary, Senior Executive, Sterling Holidays Resorts Limited, SCF 63-64, Ist Floor, Phase 10, Above Reliance Fresh,      Mohali-160062.                                                                                                                                                                        ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Sh. Aseem Gupta, Advocate for complainant.    

Sh. Atul Aggarwal, Advocate for OPs No.1 to 3.

 

ORDER

(Per  Satpal, President)

1.             The brief facts of the present complaint are that the complainant received a call on 08.09.2016 from the office of OP No.1 requesting her to attend a meeting with their representatives on 09.9.2016 at @ home, Elante Mall, Chandigarh as they were promoting their business venture by way of selling packages for holidays, tours travels etc. and accordingly the complainant attended the meeting wherein the OPs No.2 & 3, being representatives of OP No.1, presented the various benefits and incentives on the basis of which the complainant took the membership by availing the holiday vacation package belonging to OP No.1 and paid an amount of Rs.1,03,388/- to the OPs on 09.09.2016 out of total payable amount of Rs.4,53,550/-. The complainant paid the sum of Rs.103388/- in three transactions and she was also assured by the OPs that the interest amount levied on the HDFC Bank Credit facility would be waived off. In the month of January 2017, the complainant made the booking for her stay in the property of the OP’s at Agra from 16.01.2017 to 19.01.2017 but it came out to be total failure. It is alleged that the complainant alongwith her husband reached the Regal Vista Resort at around 4 p.m. on 16.01.2017, wherein it was found that the location of the hotel was not at all good and more so  no greenery etc. was maintained  and the premises were very dirty; when the complainant reached the hotel, the staff was not courteous as it should be in the hospitality industry. As the complainant proceeded towards the room, she found that the room was not ready as it was being moped and she was offered a room with wet floor, many other problems like  electric breakdown thrice in the night, defective tea kettle, improper water drainage in the bathroom and dirty towels etc., were faced by the complainant in the hotel; there was lot of noise in the corridor in the night which made it difficult for the complainant to sleep on 18 Jan, 2017 and a boy guest was roaming topless, which the complainant found objectionable, as it was public place. The Ops did  not provide the facility of SPA to the complainant. On returning back from Agra, the complainant wrote an email dated 21.01.2017 to the OP narrating all the above faced difficulties. The OPs reverted back on 23.01.2017 & 08.02.2017 and admitted that they would forward her concern to the resort at Agra and get in touch with her but thereafter, the OPs failed to confront the problems faced by the complainant & her husband. The complainant had informed the Ops several times telephonically and also Ms. Meenakashi, Area Head that she does not wants to continue with her membership but the OPs have failed to refund her amount.  Due to the above said act and conduct on the part of the OPs, the complainant has suffered mental and physical agony, financial loss and harassment. Hence, the present complaint.  

2.             Upon notice, the OPs No.1 to 3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless and false; no territorial jurisdiction; no cause of action; not come with clean hands; suppressed material facts and no cause of action. On merits, it is stated that the marketing team of the OP was conducting certain product awareness programme in Chandigarh for the existing member of the OP. It is submitted that the complainant herself got the information of the said programme and showed her interest in the product of the OP and in the meeting, the OP gave proper details of the product and explained each and every detail to the complainant and she became interested in the membership plan of the OPs and therefore, instantly made part payment qua the membership on 09.09.2016 and the form was filled and signed by the complainant.  It is alleged that the present complaint has been filed so as to avoid the application of clause 12(iv) of the membership application form and that the complainant has failed to comply with the terms contained in the clause no.10 of Membership application form. It is further alleged that the present complaint has been filed just to avoid the payment and with intention to rescind the contract after availing complimentary holidays. It is further alleged that the OPs Resort in Agra is situated  at prime location and most of the prominent hotel of Agra are within the same vicinity. It is submitted that the complainant and her husband reached at hotel at 4’o clock in the late afternoon and thus, there was no possibility of moping the room at that time. It is also stated that the complainant has failed to pay ASF of 2016, 2017 and 2018 and therefore, just to avoid payment and with intention to rescind the contract after availing complementary holidays has filed this false complaint. It is further submitted that member cancellation is premeditated thought as after purchasing of the membership, member does not want to abide terms and conditions of the membership application form and wants to rescind the contract executed by and between complainant and OPs, further it is important to mention that to bypass Clause No.12(iv) of the Membership Application Form the complainant has filed the present complaint. So, there is no deficiency in service and unfair trade of practice on the part of OPs No.1 to 3 and prayed for dismissal of the present complaint.

3.             To prove her case, the learned counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-8 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OPs has tendered affidavit Annexure R-A alongwith document Annexure R-1 to R-3 and closed the evidence.   

4.             We have heard learned counsels for the complainant as well as OPs No.1 to 3 and written synopsis filed by the learned counsel on behalf of the complainant as well as OPs and gone through the entire record available on record, minutely and carefully.

5.             Admittedly, the complainant had availed the services of the OP No.1 by taking the membership no.1231265 of holiday vacations package belonging to OP No.1 by making the payment of Rs.1,03,388/-  on 09.09.2016 out of total payable amount of Rs.4,53,550/-. The payment of Rs.3,388/- was made on the spot i.e. in Elante Mall and Rs.1,00,000/- from the credit card of Ms.Richa Singhal is not in dispute. It is also not in dispute that the complainant had visited the Regal Vista Resort on 16.01.2017 on the basis of complimentary holiday voucher no.140744 and stayed there up to 19.01.2017. The grievances of the complainant are qua the alleged deficient services provided to her and her husband at the said hotel by its staff. The learned counsel on behalf of the complainant reiterating  the averments made in the complaint as also in the affidavit Annexure C-A & Annexure C-1 to C-8 has prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.

6.             The OP has resisted the complaint by raising preliminary objections as well as on merits in its written statement. A strong objection has been raised qua the territorial jurisdiction of the Commission stating that the District Consumer Commission at Panchkula lacks territorial jurisdiction to entertain and try the present complaint as offices of the OPs are located at Mohali or at Chennai. The learned counsel on behalf of the OPs contended that the payment was made by the complainant at Chandigarh and membership of holiday vacation package was issued to her from Madras. Therefore, no cause of action had arisen at Panchkula.

                This objection is rejected in view of the specific averments made in para no.3 of the complaint as well as corresponding para of the affidavit Annexure C-A to the effect that Sh. Prince Kumar(OP No.2) and Sh.Amit Chaudhary, who were Senior Executive, had visited the house of the complainant at Panchkula on the same day i.e. 09.09.2016 to collect the payment from her, which was paid by the complainant through the credit card of her daughter, namely, Ms.Richa Singhal. In view of the specific averments of the complainant qua the collection of amount of Rs.1,00,000/- from the complainant at her residence at Panchkula on 09.9.2016 by the said officials i.e. OPs No.2 & 3 on behalf of the OP No.1, it was incumbent upon the OPs to bring on record the testimony of said officials, namely, Sh.Prince Kumar(OP no.2) and Sh.Amit Chaudhary(OP No.3) on record. There is no testimony in the shape of affidavits of said Sh. Prince Kumar and Sh. Amit on record so as to disprove and falsify the contentions of the complainant. The OP No.1 has preferred not to bring the testimony of said officials, namely, Sh.Prince Kumar and Sh.Amit Chaudhary on record for the reasons best known to it. Therefore, the averments made by the complainant qua the payment made by her at Panchkula go uncontroverted and unrebutted; hence, the objection disputing the territorial jurisdiction of the Commission is dismissed.

7.             On merits, the complaint has been contested on the ground that refund of the deposited amount qua membership under said holiday package is/was impermissible beyond 61 days in the light of stipulations contained in Clause 12 of membership application form. The learned counsel on behalf of the OPs reiterating the averments made in the written statement vehemently contended that the complainant cannot be permitted to travel beyond the explicit terms as contained in the membership application form, wherein Clause 12(iv) provides that amount of refund beyond 61 days is/was Nil. It is contended that the complainant herself has failed to abide by the terms and conditions of the membership application form and wanted to rescind the contract executed between the complainant and the Ops by taking the unsubstantiated plea of deficiency. It is also argued that no notice was ever sent by the complainant seeking cancellation of the contract, therefore, the present complaint is liable to be dismissed.

8.             Controverting and rebutting the contentions of the complainant qua the deficient services of the OP during her Stay at Agra between 16.09.2017 to 19.09.2017, the learned counsel contended that the said hotel i.e. Regal Vista Resort is located at a prime location, which is only 2km away from Taj Mahal. It is contended that the complainant has tried to raise every possible trivial issue. Denying any lapse and deficiency on the part of the staff at Regal Vista Resort, the learned counsel has prayed for dismissal of the complaint being baseless, frivolous and meritless.  The learned counsel in support of his contentions has placed reliance on the following case laws:-

1. Mahindra Holidays & Resorts India Limited Vs. Hemant Kumar M Wadekar, in Revision Petition No.2311 of 2014 decided on 31.08.2015(NCDRC).
2. Commodore Vijay Kumar Gautam NM Vs. Sterling Holiday Resorts & Anr. in Appeal no.A304/2019 decided on 30.07.2021 (SCDRC,U.T.Chd)
3. Sterling Holiday Resort Ltd. & Ors. Vs. Parveen Kumar Pandey in F.A.No.A/ 509/2017 decided on 04.01.2019(SCDRC, West Bengal).

 

9.             Before looking into the hardships and inconvenience faced by the complainant and her husband as alleged during their stay between 16.09.2017 to 19.09.2017 at Regal Vista Resort, Agra on account of deficient services rendered by the hotel staff, it is necessary for us to examine whether the refund of the deposited amount qua the membership of said vacation package is not permissible beyond 61 days as alleged by the OP on the basis of clause 12(iv) of the membership application form. The OP has taken shelter of terms and conditions as contained in Sterling Holidays vacations ownership plan, which is placed on record as Annexure R-1. A bare perusal of the terms and conditions appended with Annexure R-1 reveals that the same have been printed with small alphabet/letters having very small size which are difficult to peruse and read minutely even by a young person having no issue qua his eyesight. The size/font of the printed words is so small which can’t be read without the aid of a magnifying glass. Therefore, the OPs cannot  be permitted to draw any kind of benefit out of the said terms and conditions as relied upon by them. In so far as the issuance of the notice by the complainant prior to seeking the cancellation of the membership is concerned, it may be mentioned here that OPs have admitted in para no. 22 and para no.9 of the written arguments about the delivery of notice but the same is neither made available by the complainant nor by the OPs on record. Even, it is not the case of the complainant that any prior notice seeking the cancellation of the membership was ever served upon the OPs. However, it may be mentioned here that the copy of the present complaint as received by the OPs along with notice could have been treated as a notice and acting on the same the Ops could have refund the amount as prayed for by the complainant. Therefore, the complainant cannot be denied the relief merely on the ground that no prior notice was given by her to the OPs.

10.            Now, we advert to the deficiencies as alleged by the complainant on the part of hotel staff i.e. during her stay between 16.09.2017 to 19.09.2017. The deficiencies have been alleged in part no.6 and 7 of the complaint which may be summarized as under:-

1. That the location of the hotel was not at all good and there was not greenery and the premises of the hotel were dirty.
2. That the complainant was provided a room with wet floor as it was being mopped when the complainant reached at the resort.
3. That electric break down occurred thrice in the night.
4. That the tea kettle was not working properly and the auto cut was not working properly.
5. The water drainage in the bathroom was not working properly. Towels were hazy and dirty.
6. That the room key had to be activated at reception on each day.
7. That there was lot of noise in the corridor in the night on 18.01.2017 and a boy guest was roaming topless.
8. That no spa facility was provided.

 

11.  
12.  

13.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OP No.1:-

1. To cancel the agreement/contract between the complainant and OP No.1 as prayed for vide prayer clause 14(c ) of the complaint.
2. To refund a sum of Rs.1,03,388/- to the complainant along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
3. To pay an amount of Rs.10,000/- to the complainant on account of mental agony and harassment.
4. To pay an amount of Rs.5.500/- as cost of litigation charges.

 

14.            The OP No.1 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP No.1. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:28.11.2022

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                               President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Satpal                              

President