BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint No.116/17.
Date of instt.:04.05.2017.
Date of Decision:28.09.2017.
Roop Narayan s/o Shri Uttam Chand, age about 55 years, r/o 1289, A-11, Dhand Road, Model Town, Kaithal.
……….Complainant.
Versus
- Sterling Holiday Resorts (India) Ltd., registered office – City Tower, 3rd Floor, No.7, 3rd Cross Street, Kasturba Nagar, Adyar, Chennai-600020, through its Managing Director.
- Vivek Sharma, authorized representative of respondent.
- Brejesh Jha, authorized representative of respondent.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Shri Dinesh Tyagi, Advocate for complainant.
Shri Kabir Dhall, Advocate for Op. No.1 (though Op No.1 ex parte).
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the complainant has purchased membership/ product Sterling Holidays Vacation Ownership (VO) Membership (hereinafter referred to SHVOP) vide customer No.1221058 for a period of 25 years from Op w.e.f. 16.06.2015. It is further alleged that on 08.06.2015, the respondent company and authorized representative of respondent company i.e. Ops No.2 and 3 organized a camp at Hotel Vegetarian Village, Padma City Mall, Kaithal on behalf of the company and in that camp, on the proposal of the representative of the company, the complainant agreed to purchase the proposed product of the respondent company. On the same day, Rs.26,043/- as down payment given by complainant in cash to Ops No.2 and 3. It is further alleged that all written communications, proposal and acceptance were communicated at Kaithal. It is further alleged that Holiday entitlement month of complainant was due in November 2016 and product cost was Rs.2,95,430/- and down payment of Rs.26,043/- was paid by the complainant to the Op No.2 and 3. It is further alleged that in addition to this down payment, four equal installments of Rs.7811/- also paid by the complainant to Ops through bank account No.016990100000384 of Yes Bank, Kaithal of Sourabh Sikri (son of complainant) on 08.07.15, 07.08.15, 07.09.15 & 07.10.15 and total amount paid by the complainant to the ops was Rs.60,487/-. It is further alleged that on 12.10.2015 the complainant sent email for cancellation of SHVOP being dissatisfied and asked the Ops to refund the amount already paid to the Ops by the complainant and in response to that email, one email was sent by Op on 14.10.2015 to the complainant assuring the refund of amount deposited by him. It is further alleged that the representative of Op No.1 company assured at the time of selling of product that amount deposited by the complainant will be refunded if the complainant cancelled the plan without availing any benefit under the scheme, but till date, no refund was made to the complainant by the Ops. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, Op No.1 did not appear and opted to proceed against ex parte vide order dt. 28.07.2017. The addresses of Ops No.2 and 3 were to be disclosed by the Op No.1, but Op No.1 proceeded against ex parte, no notices were issued to Ops No.2 and 3 for want of their addresses. On 29.08.2017, ld. counsel for Op No.1 moved an application for joining the proceedings on behalf of Op., which was allowed vide order dated 29.08.2017 and Op No.1 is allowed to join further proceedings in this complaint.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A; documents Ex.C-1 to Ex.C-11 and closed evidence on 29.08.2017.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. From the pleading and evidence of the complainant, it is clear that the complainant has purchased membership/product Sterling Holidays Vacation Ownership (VO) Membership for a period of 25 years from Op No.1 w.e.f. 16.06.2015. It is further clear that on 08.06.2015, in a camp organized by the Ops, the complainant agreed to purchase the proposed product of the respondent company and on the same day, Rs.26,043/- as down payment was paid by complainant in cash to the Ops. The complainant alleged that if he cancelled the plan without availing any benefit under the scheme, then the amount will be refunded to the complainant. It is further alleged that Holiday entitlement month of complainant was due in November 2016 and product cost was Rs.2,95,430/- and down payment of Rs.26,043/- was paid by the complainant. In addition, four installments of Rs.7811/- paid by the complainant to Ops through bank account of his son on 08.07.15, 07.08.15, 07.09.15 and 07.10.15 and total amount paid by the complainant to the Ops was Rs.60,487/-. On 12.10.2015, the complainant sent email for cancellation of SHVOP ‘being dissatisfied, and asked the Ops to refund the amount already paid and Ops assured to refund the same through email on 14.10.2015, but till date, no amount was refunded to the complainant by the Ops. To prove his assertions, the complainant produced in evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C11. On the other hand, none appeared on behalf of Ops and Op. No.1 was proceeded against exparte vide order dated 28.07.2017. The evidence of complainant goes unrebutted against the Ops. The complainant produced the terms and conditions of the product and the Sterling Holiday Vacation Ownership Points Rules (SHVOPR) as Ex.C11 and the Clause No.12 (a) of the Rules is relevant which deals in the cancellation of the SHVOP by the customer and refund norms and the same runs as under:-
Cancellation by the customer:
“(i) Any request for cancellation shall be valid only if made by the primary applicant in writing, either by letter, email or fax and it’s receipt duly acknowledged by the authorized representative of the company.
(ii) If the receipt of cancellation request is within 10 days of cancellation DP realization:
1. 100% of the money paid by the customer will be refunded within 60 days from the date of cancellation of the company.
(iii) If the receipt of cancellation request is between 11 to 60 days from date of DP realization:
1. Cancellation fee will amount to 25% of the admission fee. The balance, after deduction of the above cancellation fee, if any, paid by the customer and realized by the company will be refunded within 60 days from the date of cancellation by the company after deducting:
(a) Cost of holidays availed.
(b) Cost of promotional offer/ gifts issued.
(c) RCI enrolment fee.
(d) Any other expenses incurred by the company to service the customers.
(iv) If the receipt of cancellation request is beyond 61 days from the date of DP realization:
1. Cancellation fee would amount to 100% of the admission fee.
2. Entitlement fee (40% of the VO plan price) will be refunded within 60 days from the date of cancellation by the company after deducting:
(a) Cost of holidays availed.
(b) Cost of promotional offer/gifts issued.
(c) RCI enrolment fee.
(d) Any other expenses incurred by the company to service the customer.”
It is admitted by the complainant during the argument that his cancellation falls in Clause (iv) which is beyond 61 days. According to this Clause, the complainant is entitled for 40% of the VO plan price, after other necessary deductions, if any, as mentioned above. We found force in the contention of the complainant and the complainant has proved the same by cogent evidence as mentioned above. The Ops have failed to return the amount in question of the complainant. In these facts and circumstances of the case, we are of the considered view that the Ops are liable to pay 40% of Rs.60,487/- the VO plan price, as per Clause (iv), mentioned above, but the Ops have not returned the same. Hence, the Ops are deficient in providing the services to the complainant.
6. Thus, in view of above discussion, we allow the complaint and direct the Ops to refund the entitlement fee i.e. 40% of the VO plan in question of the complainant in accordance with Clause (iv) mentioned above. The Ops are also burdened with costs of Rs.2,000/- as compensation for harassment, mental agony and costs of litigation charges to the complainant. All Ops are jointly and severally liable. Let the order be complied with within 30 days from the date of communication of order, failing which the complainant entitled for interest @8% per annum from the date of this order till its realization. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.28.09.2017.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
Present : Shri Dinesh Tyagi, Advocate for complainant.
Shri Kabir Dhall, Advocate for Op. No.1 (though Op No.1 ex parte).
Remaining arguments heard. Order pronounced, vide our separate order in detail of even dated, the present complaint is allowed. File be consigned to record-room after due compliance.
Dated: 28.09.2017. Member Member President.
