DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB: PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Friday the 24th day of March 2023
C.C. 48/2018
Complainant
Dr. Babu Francis C.A,
Residing at Manger, Golf Link Road,
Chevayour (P.O), Chevayur Village,
Calicut, Kerala – 673 017.
Opposite Parties
1. Sterling Holiday Resorts Ltd,
Regd Office, Thomas Cook Building,
Dr. DN Road, Mumbai -400 001.
2. CEO, Sterling Holiday Resorts Ltd,
Corporate Office, City Tower No.7,
3rd Cross Street, 3rd Floor,
Kasturba Nagar, Adayar,
Chennai – 600 020.
(By. Adv. Sri. M.Vinod Kumar)
ORDER
By Smt. Priya.S- Member
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
The case of the complainant, in brief, is as follows:
The complainant is a doctor practicing in the Government service, an Additional Professor of Pediatric Medicine at Government Medical College, Calicut. The opposite parties are running Holiday Resort Company under the name Sterling Holiday Resorts and have offices all over India.
3. Invited over phone, the complainant attended a promotional event of the opposite parties at the Hotel Marina Residency, Calicut on 26-06-2016. One Anoop Rishikesh, who introduced himself as the team leader of the opposite parties outlined and introduced various holiday package schemes of the opposite parties to the complainant. The complainant was given a special offer that if he paid Rs.3,02,360/- for a particular package, it would be upgraded to a higher scheme called Red Package. For this, the complainant had to pay Rs.1,05,826/-within a certain period. Succumbing to their persuasion and canvasing, the complainant paid the amount in 2 installments, namely Rs.30,000/- and Rs.75,826/-. An ownership certificate was issued to the complainant, but it did not live up to the promises made by the opposite parties’ team leader of being upgraded to Red Category. According to the scheme the complainant paid for, he had to remit 35% on the first and the second year and 30% in the third year. Apart from this, annual fee was fixed at Rs. 8,500/-. But when the complainant made enquiries he was told that no such promotional scheme existed and that he would have to pay much more to be in Red Category Scheme. This was contrary to the promise made.
The complainant then contacted the said Anoop Rishikesh again and on 25-09-2016 had issued a letter to the complainant stating the terms clearly. He had again promised in writing, free upgrade to Higher (Red) Membership and that the necessary certificate with the upgraded details would be couriered to the complainant. But nothing of that sort has transpired so far. Emails and registered letter sent to the company were nonproductive. The complainant had contacted Mubineez Ali, Senior Executive - Customer Acquisition and George Rajin T. S., Senior Executive Customer Assurance. One of them had taken down the grievances of the complainant in writing and had given the complainant an assurance that the issue would take up with the higher authorities immediately. But nothing has transpired so far. The complainant had given a complaint to Nadakkavu Police against the said Anoop Rishikesh. But the police have referred the matter stating that it is a civil dispute, though there is a clear element of cheating involved. The complainant went in person to the Chennai office of the company and registered a complaint in November 2017, but no avail. The complainant is faced with no option but litigate to get his grievance redressed. The opposite parties by not responding to the mails and registered letters and personal visit of the complainant have rendered deficient service to the complainant. The opposite parties through their staff, the said Anoop Rishikesh, Mubineez Ali and George Rajin T.S committed unfair trade practice by promising upgrades and canvassing a membership and later not delivering on the promised upgrade. The complainant no longer wants the free upgrade to the higher Red Membership as promised, as the complainant has lost faith in the opposite party company, but wants a full refund of Rs.1,08,526/- along with the compensation of Rs.50,000/- for the delay in delivering and the promise as well as cost of Rs. 10,000/- for various email, registered letter and personal visit to Chennai in this regard. The complainant wants the opposite parties to refund the amount collected with interest at the rate of 24% per annum and compensation for deficient service and unfair trade practice, along with the cost of the litigation Rs.25,000/-.
5. The opposite parties filed their version jointly.
6. According to the opposite parties, the complainant has purchased Holiday Plus Product sold by the 1st opposite party with Member id 1229947. The complainant herein had paid a sum of Rs.1,05,388/- towards that membership cost. The total membership cost is Rs.4,53,550/- and the complainant had paid a sum of Rs.1,05,388/- being 35% of the cost of membership. The complainant had paid the said amount by the way of credit card Rs.30,000/- on 26-06-2016 and Rs.75,388/- by cheque dated 27-06-2016. The customer had opted to pay the membership cost by 25% down payment and 12 EMIs. However, the complainant at his will had opted not to pay further EMIs. The membership certificate was duly dispatched on 23-07-2016. The customer at his will failed to complete the payment of membership purchased. The complainant had come forward with false case. The membership has been rightly upgraded as promised and the membership purchased by him is the Red Studio Membership. The complainant has read the terms in the application form and signed his acceptance for the same while enrolling himself for the membership and the membership has also been dispatched to the complainant. Having read through all the terms and conditions, the complainant has failed to complete the payment and has sought cancellation after about 1 year.
7. The terms of cancellation are as follows:
Clause 12: Cancellation of the SHSP by the customer and refund Norms
Reference of 12 (iv) States that in the event of cancellation request given beyond 61 days, the company is entitled to retain 100% of the admission fee (which is equivalent to 60% of the membership cost shall be paid) after deducting the expenses as given in clause 12(iv). In the current case the complainant has only paid 25% of the membership cost which falls deficit for the admission fee as envisaged in the terms and conditions of the membership. Hence the complaint is not eligible for any refund. There is no deficiency in service or any unfair trade practice on their part at any point of time. The complaint is liable to be dismissed.
8. The points that arise for determination in this case are :
1. Whether there was any deficiency of service or unfair trade
practice on the part of the opposite parties, as alleged?
2. Reliefs and costs.
9. Evidence in this case consists of the oral evidence of PW1 and Exts A1 to A8 and A9 series on the side of the complainant and Exts.B1 and B2 on the side of the opposite parties.
10. Heard both sides.
11. Point No.1 – There is no dispute that the complainant had paid Rs.1,05,826/- to the opposite parties. The complainant seeks refund of the said amount.
12. The complainant filed proof affidavit and was examined as PW1. Exts A1 to A8 and A9 series were marked.
13. Evidence of PW1 shows that having invited over phone, the complainant attended a promotional event of the opposite parties at the Hotel Marina Residency, Calicut on 28-06-2016. One Anoop Rishikesh, who introduced himself as the team leader of the opposite parties outlined and introduced various holiday package schemes of the opposite parties to the complainant. The complainant was given a special offer that if he pays Rs.3,02,360/- for a particular package, it would be upgraded to a higher scheme called the Red Package for this the complainant had to pay Rs.1,05,826/- within a certain period. Succumbing to their persuasion and canvassing the complainant agreed and paid the amount in three installments, namely, Rs.30,000/- and Rs.75,826/-. An ownership certificate was issued to the complainant but was not upgraded to Red Category. According to the scheme the complainant paid for, he had to remit 35% on the first and the second year and pay 30% in the third year. Apart from, this annual fee was fixed at Rs.8,500/- But when the complainant made enquiries he was told that no such promotional scheme existed and that he would have to pay much more to be in the Red Category Scheme. This was contrary to the promise made.
14. The complainant again contacted Anoop Rishikesh on 25-09-2016. He had issued a letter to the complainant stating the terms clearly. He has again promised, this time in writing free upgrade to higher (Red) Membership and that necessary certificate with the upgraded details will be carried to the complainant. Nothing of that sort has transpired so far.
15. Though the opposite parties had issued Vacation Ownership Plan Certificate on 23-07-2016 its does not belong to Red Category. Ext A1 series depicts the email communication between the complainant and opposite parties. Though the complainant had repeatedly intimated his issues the opposite parties never gave a proper solution to his queries and worries. Even though PW1 was cross examined nothing has been brought out to discredit their version. The opposite parties did not enter the box.
16. The complainant is claiming refund of Rs.1,08,526/- which he had paid. The opposite parties are of the stand that reference 12(iv) of the cancellation of the SHSP by the customer and refund norms states that in the event of cancellation request given beyond 61 days, the company is entitled to retain 100% of the admission fee which is equivalent to the 60% of the membership cost paid and the balance of entitlement fee (which is equivalent 40% of the membership fee cost) shall be paid after deducting the expenses as given in clause 12(iv). In the current case complainant has only paid 25% of the membership cost which falls deficit for the admission fee as envisaged in the terms and conditions of the membership.
17. Exhibit A2 is a letter written by Anoop Rishikesh. In that letter it is clearly written that on paying Rs. 3,02,360/- the complainant will be able to achieve Higher Membership (Red Category). It is also written that the first yearly payment towards membership for Rs.1,05,826/- has already paid (ie, 35% of the total cost of the product Rs.3,02,360/-). Then the complainant has to pay Rs. 1,05,826/- for the second year (ie, 35% of the total cost of the product) and Rs.90,708/- for the third year (ie, 30% of the total cost of the product Rs.3,02,360/-) Rs.8,500/- has to be paid yearly as ASF. Ext A2 is not assailed by the opposite parties.
18. Though the opposite parties have promised to give the complainant a Red Category Membership it is clear from Ext. A3 that they have given the complainant a Holiday Plus Membership. But what the opposite parties have promised on 26-06-2016 is that the complainant will be getting a Red Category Membership after payment of 35% of product cost ie, Rs.1,05,826/- ie, on the very next day of the promotional event of the opposite parties at the Hotel Marina Residency, Calicut on 26-06-2016. Accordingly the complainant had remitted Rs,1,05,826/- by 27-06-2016.
19. What can we infer from the facts of the case is that right from 01-09-2016 the complainant was continuously sending emails for upgrading his Membership to Red Category. The complainant then contacted the said Anoop Rishikesh again and on 25-09-2016 as per Ext A2, he has issued a letter to the complainant stating the terms clearly. He has again promised this time in writing, free upgrade to Higher (Red) Membership and that the necessary certificate with the upgrade details will be couriered to the complainant. Nothing of that sort has transpired so far.
20. The complainant had contacted Mubineez Ali, Senior Executive –Customer Acquisition and George Riju T.S., Senior Executive -Customer Assurance. One of them had taken down the grievance of the complainant in writing and had given the complainant an assurance that the issue would be taken up with the higher authorities immediately, but nothing has transpired so far.
21. Ext A5 is the complaint given by the complainant to Nadakkavu Police against the said Anoop Rishikesh but they have referred matter stating that it is a civil dispute.
22. The complainant also went in person to the Chennai office of the company and registered a complaint in November 2017, but to no avail.
23. The Opposite parties by not responding to the mails and registered letters and visit of the complainant have rendered deficient service to the complainant. The opposite parties through their staff have committed unfair trade practice by promising upgrades and canvassing a membership and later not delivering on the promised upgrade.
24. While perusing Ext B1 it can be seen that there is a correction in the cost of the product as Rs.4,53,550/-. This depicts that the present case is a typical example of unfair trade practice.
25. After perusing the oral and documentary evidence in this case we are of the view that the complaint is only to be allowed. In this case there is unfair trade practice and deficiency in service from the part of the opposite parties. Complainant is entitled to get a refund of Rs. 1,08,526/-. The complainant is also entitled to get a compensation of Rs.10,000/-. The complainant is also entitled to get Rs.5,000/- as cost of proceedings.
26. Point No.2 : In the light of the finding on the above point, the complaint is disposed of as follows:
a). CC 48/2018 is allowed in part.
b). The opposite parties are directed to refund Rs.1,08,526/- (One Lakh Eight Thousand Five Hundred and Twenty Six only) to the complainant.
c). The opposite parties are directed to pay Rs.10,000/- (Rupees Ten Thousand only) as the compensation to the complainant.
d). The opposite parties are directed to pay Rs.5,000/-(Rupees Five Thousand only) as the cost of proceedings to the complainant.
e). The order shall be complied with within 30 days of the receipt of copy of this order.
Pronounced in open Commission on this the 24th day of March 2023.
Date of Filing: 07-02-2018.
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PRESIDENT
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MEMBER
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MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of hand written note (2 pages) issued by Anoop Rishikesh outlining schemes and payments dated nil.
Ext. A2 – Copy of hand written note (1 page) to complaint by Anoop Rishikesh dated 29-09-2016 promising free up gradation.
Ext. A3 – Copy of vacation ownership certificate plan (5 pages) issued to complaint dated 23-07-2016 along with covering letter.
Ext. A4 – Copy of membership card issued to complainant.
Ext. A5 – Copy of complaint given by Complainant to Nadakkave Police dated 11-11-16 long with refer notice.
Ext. A6 – Copy of hand written letter issued to complainant by George Raju dated 25-07-2017.
Ext. A7 – Copy of letter sent by complainant to CEO at Chennai dated nil
Ext. A8 – Copy of letter sent by complainant to CEO, Mumbai dated nil with copy of AD card.
Ext. A9 – Copies of emails sent (3 nos) on various dates.
Exhibits for the Opposite Party
Ext. B1 – Sterling Holidays Vacation Ownership Plan Customer Application Form.
Ext. B2– Order in first appeal No.A/509/2017 by the Hon’ble State Commission, West Bengal.
Witnesses for the Complainant
PW1 – Dr. Babu Francis C.A,
Witnesses for the opposite parties
Nil.
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PRESIDENT
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MEMBER
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MEMBER
Forwarded/ By Order
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Assistant Registrar
