DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 7th day of July 2023
Filed on: 03/10/2017
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C.C NO. 393/2017
COMPLAINANT
Rajan J Mundakkal, Mundakkal House, Vennala P.O., Emakulam
(Adv.Sherly S.A., Chamber No.333, KHCAA Chamber Complex, High court of Kerala, Pin-682 031)
VS
THE OPPOSITE PARTY
- The Managing Director Sterling Holiday Resorts India Ltd. No.7, City Tower, 3" Cross Street, Kasthurba Nagar, Aday, Chennai. Pin-600020. India.
2. Anil Sukumaran, Sterling Holiday Resorts India Ltd.,Team customer Engagement, Ravipuram Ernakulam Pin-682016.
F I N A L O R D E R
D.B.Binu, President
- A brief statement of facts of this complaint is as stated below:
The complaint is filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant enrolled as a member of Sterling Holiday Resorts India Ltd., with a branch office in Ravipuram, Ernakulam. The company's marketing representative assured the complainant that they only needed to pay Rs.1,76,000 in installments. The complainant paid the first installment of Rs.22,193 via cheque. However, the company started withdrawing Rs.12,996 per month from the complainant's credit card without authorization. The complainant was promised coupons and complementary benefits but did not receive them. When the complainant requested the promised benefits, the company failed to provide them. The complainant requested cancellation of membership and a refund, but the company refused, citing the terms of the membership. The complainant paid a total of Rs.1,55,990 over ten months, and the company suspended their membership without notice. A legal notice was sent, but no reply was received. The complainant seeks a refund of Rs.1,55,990 with 12% interest and compensation of Rs.1,00,000 for mental pain and agony. The company filed a written statement with incorrect allegations, including admitting to receiving Rs.1,64,599, which the complainant denies.
The complaint was submitted seeking return of the membership amount of Rs.1,64,599/- remitted in the company named Sterling Holiday Resorts India Ltd., a company which provides Holiday Resorts to its members, as they failed to provide the service offered by them. The first opposite party is the Managing Director of the company. The first opposite party though appeared before the commission and filed version, he failed to appear thereafter and did not conduct the case. Though notice was sent by this commission to the 2nd opposite party by post and also through e-mail, he also did not appear. The notice sent to the opposite parties 3 to 5 were returned as they left the branch office of the company at Ravipuram, petition submitted before the commission to delete their names were allowed and service was made complete. The complainant was remitting the total membership fee of Rs.1,76,000/- in installments. Thus, he paid Rs.22,193/-, the 1 installment on 03-06-2014. Thereafter the 1st opposite party was regularly withdrawing an amount Rs.12,996/- per month as per the credit card authorization of the complainant. Then for 10 months from 03-06-2014 an amount of Rs. 1,55,990/- as membership cost and on the 11th month an amount of Rs.4,337/- was withdrawn by the company as maintenance charge. Thus, all together an amount Rs. 1,64,599/-, was remitted by the complainant even as per the admission of the first opposite party in para 8 of their version. Though at the time of the enrolment as a member of the company, the complainant was assured that one coupon worth Rs.1000/- would be given for vacation and that they would send food coupons for Rs.5000/- and 4 coupons for 2 days' vacation along with membership documents. But complainant did not get any coupon as assured by them along with membership document. When the complainant contacted the branch office at Ravipuram, it was assured that coupons will be issued whenever required. The circumstances being this on information received from the Regional Office regarding the inability to issue the coupons as assured, the complainant requested the opposite party to issue food coupons for Rs.5000/- and to arrange booking at Ootty on 6, 7 and 8 of May 2015. But they failed to do so. It was in the circumstances the complainant requested for cancellation of membership and refund of the membership amount already remitted, as they failed to provide the service they offered. Thereafter on 16-12-2015 it was informed through e-mail that they suspended the complainant’s membership. The said act is illegal since it was without prior notice. Then a reply e-mail was received on 19-01-2016 informing that there would be no refund towards the cancellation of membership. Thereafter though a number of e-mails were sent they did not respond. In the circumstances on 04-05-2017, a lawyer notice was sent to the opposite parties. Though the 1st opposite party received the notice no reply was sent. The opposite parties failed to provide the service for which the complainant was entitled. Since after receiving the membership fee of Rs.1,64,599/- they have not provided any single service till date. That itself entitles the complainant for the compensation claimed in the complaint. Instead of providing the service, they suspended the membership as early as on 16-12-2015 without prior notice and ultimately cancelled the membership. Even though as per the vacation Ownership Plan Certificate issued by them which is produced along with the proof affidavit. The complainant is entitled for the entire membership fee remitted by him. directing the 1st opposite party to refund the membership fee of Rs. 1,64,599/- with 12% interest from 03-06-2014 to the complainant and to pay an amount of Rs. 1,00,000/- as compensation to the complainant, for the deficiency in service on the part of the 1st opposite party.
2. Notice
Notices were issued from the Commission to the opposite parties. The opposite party received the notice and filed their version.
3)THE VERSION OF THE FIRST OPPOSITE PARTY
They claim that the complaint is false, frivolous, vexatious, and lacks legal and factual support. They state that they are not responsible for any loss incurred by the complainant and that the compensation claimed is unsubstantiated.
The opposite party explains that they provide holiday resorts to their members and offer various benefits to enhance the holiday experience. They clarify the details of the membership purchased by the complainant, including the cost and the offers provided. They refute the complainant's allegation that the holiday request was denied and assert that it was confirmed and subsequently cancelled by the complainant. They argue that the allegations regarding food coupons and vacation coupons are baseless.
Regarding the complainant's request for membership cancellation and refund, the opposite party contends that the complaint is not maintainable as it does not constitute a consumer dispute. They refer to relevant legal precedents to support their argument. They explain the terms and conditions of the membership, including the division of costs into admission fee and entitlement fee. They state that the cancellation request was made after the specified time period and outline the refund norms as per the membership terms and conditions.
The opposite party cites previous cases where the terms and conditions were upheld to support their position. They claim that the complainant has no grounds for relief. They assert that the compensation claimed is excessive, unsubstantiated, and not warranted as their actions do not constitute a service default. They request the dismissal of the complaint and reimbursement of costs, emphasizing that they will suffer irreparable loss and injury if the complaint is not dismissed. They also highlight the need for the complainant to provide material evidence to support their claim for compensation under the Consumer Protection Act.
4) Evidence
The complainant has provided a proof affidavit and four documents marked as Exhibits A-1 to A-4.
Exhibit A1 is a copy of the legal notice dated 04-05-2017 that was sent to the 1st opposite party and others. Exhibit A2 is a copy of the AD card signed by the 1st opposite party upon receiving the legal notice dated 04-05-2017. Exhibit A3 is a copy of the registered letter that was sent to the Opposite Party but returned. Lastly, Exhibit A4 is a copy of the vacation Ownership Plan Certificate issued by the 1st opposite party. These documents are submitted as evidence in support of the complainant's case.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
The complainant has filed this complaint against the opposite parties seeking a refund of the membership amount of Rs. 1,64,599. They allege that the opposite parties did not fulfil their promised services. Additionally, the complainant is requesting compensation for the alleged deficiency in the services provided by the opposite parties.
The learned Counsel for the complainant submitted that the first opposite party, appeared before the commission initially but did not continue to participate. The second opposite party also did not appear despite being notified. The other named opposite parties could not be reached as they had left the branch office, and their names were subsequently removed from the case.
The complainant paid the first installment of Rs.22,193 on 03-06-2014 towards the total membership fee of Rs.1,76,000. The company continued to withdraw Rs.12,996 per month from the complainant's credit card as authorized. In total, the complainant paid Rs.1,64,599 over ten months as membership costs, with an additional maintenance charge of Rs.4,337 in the eleventh month.
The company assured the complainant of receiving various coupons as part of the membership, but they were not provided. When the complainant contacted the branch office, they were assured that the coupons would be issued when needed. However, when informed by the Regional Office that the coupons could not be provided as promised, the complainant requested food coupons worth Rs.5,000 and a booking at Ooty for specific dates, which the company failed to fulfil. Consequently, the complainant requested the cancellation of membership and a refund, but the company suspended the membership without notice on 16-12-2015. The company replied through email on 19-01-2016, stating that there would be no refund for membership cancellation. Despite multiple emails sent by the complainant, the company did not respond.
A lawyer's notice was sent on 04-05-2017, which was received by the first opposite party, but no reply was received. The first opposite party filed a version with incorrect allegations on 18-11-2017 but did not appear before the commission. As a result, the complainant's proof affidavit and submitted documents were accepted as evidence, and the case was closed.
The complainant argues that the company failed to provide any services despite receiving the full membership fee. The suspension and subsequent cancellation of membership without notice were illegal. The contention raised by the first opposite party in their version that the complainant is only entitled to 40% of the membership cost is deemed unsustainable since no services were provided after payment as mentioned in their version. The complainant seeks a refund of the membership fee with 12% interest from 03-06-2014 and compensation of Rs.1,00,000 for the company's deficiency in service.
The learned Counsel for the first opposite party submitted that the complainant is not a consumer under the Consumer Protection Act 1986 and urges the dismissal of the complaint. They argue that the complaint lacks credibility, legal basis, and factual support. They deny any responsibility for the complainant's losses and consider the requested compensation unfounded. The opposite party provides an explanation of their holiday resort business and the benefits offered to members. They refute the complainant's allegations regarding denied holiday requests, food coupons, and vacation coupons. They assert that the complaint for membership cancellation and refund does not meet the criteria for a consumer dispute, citing relevant legal precedents. The opposite party details the terms and conditions of the membership, including cost division, cancellation policies, and refund norms. They cite previous cases where similar terms and conditions were upheld. They argue that the complainant has no valid grounds for relief and that the claimed compensation is excessive and unsupported, as their actions do not constitute a service default. They request the dismissal of the complaint and reimbursement of costs, emphasizing the potential for irreparable loss and injury if the complaint is not dismissed. They stress the need for the complainant to provide substantial evidence to support their claim for compensation under the Consumer Protection Act.
After verification of all documents produced from either side and on making a through probe into the overall details of the complainant, the Commission finds point No. (1) in favour of the complainant. Since point Nos. (1) is proved on merit by the complainant point No. (2) and (3) are also decided in favour of the complainant and hence the following order are issued.
ORDER
- The opposite parties shall pay an amount of Rs.164599/- to the complainant with interest @9% from the date of order till the date of realization.
- The opposite parties shall pay an amount of Rs.50000/- to the complainant as compensation. This amount shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
- The opposite parties shall pay an amount of Rs.5000/- as cost of the proceedings to the complainant
The 1st and 2nd opposite parties shall be joint and severally responsible for the above amount.
Pronounced in the Open Commission this 7th day of July 2023
Sd/-
D.B.Binu, President
Sd
V.Ramachandran, Member
Sd/-
Sreevidhia T.N., Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s evidence
Exhibit A1 :: Copy of the legal notice dated 04-05-2017 that was sent to the
1st opposite party and others.
Exhibit A2 :: Copy of the AD card signed by the 1st opposite party upon receiving the legal notice dated 04-05-2017.
Exhibit A3 :: Copy of the registered letter that was sent to the Opposite
Party but returned. Lastly,
Exhibit A4 :: Copy of the vacation Ownership Plan Certificate issued by
the 1st opposite party.
C.C.No.393/2017
Order dated 07/07/2023
