IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 29thday of July, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 117/2018 (filed on 13-06-2018)
Petitioner : Shaji M.K.
S/o. P.K. Kunjupanickan,
Madackal House,
S.H. Mount P.O.
Kottayam – 686006.
(Adv. K. Anil Kumar Ambady)
Vs.
Opposite Parties : (1) Sterling Holiday Resorts (India)
Limited, City Tower,
3rd Floor No.7, 3rd Cross Street,
Kasturba Nagar, Adyar,
Chennai – 60020, Tamil Nadu,
Rep. by its Managing Director.
(Adv. Divya P.S.)
(2) Ramesh Ramanathan,
Managing Director,
Sterling Holiday Resorts (India)
Limited. City Tower,
3rd Floor No.7, 3rd Cross Street,
Kasturba Nagar, Adyar,
Chennai – 60020, Tamil Nadu.
(3) Vijesh Bhargavn,
Customer Assurane Nagar,
Sterling Holiday Resort (India)
Ltd. Kochi.
O R D E R
Sri. Manulal V.S. President
Crux of the complaint is as follows:
Due to the continuous persuasion of first opposite party’s agents complainant had attended a meeting held at Hotel Arcadia Kottayam on 10-9-2017. By concealing certain material facts from the complainant the first opposite party insisted the complainant to take the membership of the first opposite party. The complainant took the membership of the first opposite party and the complainant had to pay an amount of Rs.1,15,500/- to the first opposite party. Later the agents of the first opposite party telephoned the complainant and told him that he had to pay Rs.12,000/- as yearly fees and has to pay an additional amount of Rs.9,000/- as and when the complainant books Hotels through RCL. The above said clause was intentionally concealed from the complainant by the first opposite party.
As soon as complainant had realized the said illegal act of the first opposite party, the complainant contacted the executives of the first opposite party and requested them to take necessary steps to cancel the membership and to return the amount spent by the complainant for taking the membership. The executives behaved very indifferently towards the complainant. At last due to the continuous request of the complainant the executives provided an e-mail address of the first respondent and directed complainant to send an e-mail to the first opposite party. Though the complainant had sent a message requesting to cancel his membership, but the opposite parties turned deaf ears to the request of the complainant and to return the money to him. Since the complainant did not know English well he had made the request for the cancellation of his membership in Malayalam language. On 19-3-2018 the complainant caused a lawyer’s notice to the opposite parties calling upon them to cancel the membership of the complainant and to return the entire amount that he had spent for getting the membership and to pay Rupees One lakh as compensation for the mental agony and sufferings of the complainant. According to the complainant persuading him to possess the membership concealing material facts from him is an unfair trade practice on the part of the opposite party and evading from returning the amount which the complainant had paid for getting the membership is deficiency in service on the part of the opposite parties. Hence, the complainant had filed this complaint praying to direct the opposite parties to make refund of Rs.1,15,500/- and payment of compensation of Rs.1,00,000/-
Upon notice opposite parties appeared before the commission and filed version as follows:
The liability of the opposite parties under the Time Share membership is part and parcel of the contract executed between the parties. The membership is offered by the opposite parties to stay in the resorts for a particular number of years and for specific season during the year. The complainant took the membership Plan (Membership ID- 1236140) during September 2017and paid an amount of Rs.1,15,424/- on 10-9-2017. The terms and conditions of the membership is clearly spelt in the membership application form which is signed by the complainant at the time of enrolling into the membership and a copy was given to the customer. The paid amount shall be refundable as per the clause 12 of the membership terms and conditions.
The total cost of the membership is Rs.5,17,699/- as per membership, if the cancellation is requested post 100 days from the date of Down payment (DP) realization, the 60% of the product cost being Rs.3,10,619/- will be retained by the company and the balance sum shall be refunded after deducting cost of holiday.
In this case the complainant has paid Rs.1,15,424/-. As per the agreement 60% of the total cost shall be retained by the company. 60% of the total cost excluding tax is Rs.2,63,237/- plus Rs.961/- being cost toward RCI affiliation charge is Rs.2,72,928/-. If the complainant had paid total product cost, the opposite party would have been able to refund 40% of the total cost as per the terms and conditions of the membership. Since he had paid only part of the membership cost, the opposite party is entitled to deduct 60% of the cost along with RCI cost being Rs.2,72,928/- from Rs.5,17,699/-. As per terms and conditions the company is entitled to deduct the cost of the holiday utilized by the complainant along with the cost of offer given to him. However, since the balance remaining after deducting60% of the total cost and cost of other offers a sum of Rs.37264/- remains shortfall payable by the complainant to the opposite parties. There is no deficiency in service or unfair trade practice on the part of the opposite parties.
Complainant filed proof affidavit in lieu of chief examination and marked exhibits A1 to A6. Samrat Rassal who is the authorized signatory of the opposite party filed proof affidavit in lieu of chief examination and marked exhibits B1 to B5 from the side of the opposite party.
On evaluation of complaint version and evidence on record we would like to consider the following points.
1. Whether there is any deficiency in service and unfair trade practice on the part
of the opposite parties?
2. If so what are the reliefs and costs?
Point number 1 and 2 together.
Admittedly, the complainant accepted the membership of time share of the opposite parties by making initial payment and the opposite parties issued membership certificate, the membership ID no. of the complainant is 1236140 type of time share is Holiday Plus. Exhibit A6 proves that the complainant had paid an amount of Rs.1,15,425/- to the first opposite party on 10-9-2017 by using his credit card. It is submitted by the opposite party in proof affidavit that the membership period is for 25 years. Therefore, it is clear that the first opposite party had accepted the respondent as its member.
According to the complainant thereafter the agents of the first opposite party telephoned the complainant and told him that he had to pay Rs.12,000/- as yearly fees and has to pay an additional amount of Rs.9,000/- as and when the complainant books Hotels through RCL. Then only he came to know about the clause, which was intentionally concealed from the complainant by the first opposite party. When the complainant had realized the said clause, he has sent Exhibit A1 e-mail to the first opposite party and requested them to take necessary steps to cancel the membership and to return the amount spent by him for taking the membership.
Complaint is resisted by the opposite parties stating that the paid amount shall be refundable as per the clause 12 of the membership terms and conditions.
Therefore we have to refer to condition No.12 relating to
‘CANCELLATION OF THE SHVOP BY THE CUSTOMER AND REFUND NORMS’, which says,
“i. Any request for Cancellation shall be valid only if made by the Primary Applicant in writing either by letter, email or fax and its receipt duly acknowledged by the Authorized representative of the company.
ii. If the Receipt of Cancellation Request is within 10 days from the date of DP Realization
1. 100% of the monies paid by the customer will be refunded within 60 days
from the date of Cancellation by 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 50% 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 customer.
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.
In the present case, the complainant opted for the membership on 10-9-2017 vide exhibit B2. He had applied for the cancelation of membership on 15-11-2017 vide exhibit A1(a) i.e. after 30 days. As per sub clause (iii) of Condition No.12 referred above the complainant is entitled to a refund of Rs.50% of the admission fee i.e. after deducting 50% cancellation fee of the admission fee . As per the terms and conditions the opposite parties were bound to refund 50% of the admission fee after deducting the RCI enrolment fee of Rs.3,658/-, which they failed to refund and it amounts to deficiency of service as well as unfair trade practice on their part.
1. As an upshot of aforesaid discussion, we allow the complaint with a direction to opposite parties no.1 to 3 to refund an amount of Rs.53,964/-(i.e.50% of the admission fee 57,622-3,658=53,964) to the complainant with interest @ 9% p.a. from the date of cancellation i.e15-11-2017 till realization. Opposite parties no.1to3 are further directed to pay Rs.25000/- as compensation for the harassment
undergone by the complainant along with Rs.3000/- as cost of litigation. Order be complied by opposite parties within a period of 30 days of the receipt of the certified copy of the Order.
Pronounced in the Open Commission on this the 29th day of July, 2022
Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
Appendix
Exhibits marked from the side of complainant
A1 – series - Copy of e-mail from complainant to opposite party (4 nos.)
A2 – Copy of lawyers notice dtd.19-03-18 to the 2nd opposite party
A3 – Postal receipt
A4 –Postal acknowledgement card
A5 – Call details (subject to proof)
A6 – Statement for HDFC bank credit card
Exhibits marked from the side of opposite party
B1- Sterling Holidays Vacation ownership plan Terms and conditions
B2 - Sterling Holidays Vacation ownership plan customer application form
B3 – Photocopy of PAN in the name of petitioner
B4 – Copy of adhar card
B5- Copy of welcome letter along with details of policy
By Order
Assistant Registrar
