Tamil Nadu

North Chennai

36/2014

J.Rajashekar,S/o.M.Jeyaraj,Dr.S.A.Ashokan,S/o.K.Sadayandi - Complainant(s)

Versus

The Managing Director - Opp.Party(s)

M/s.S.Kalyanaraman

02 Feb 2018

ORDER

 

 

                                                            Complaint presented on:  18.02.2014

                                                                Order pronounced on:  02.02.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

FRIDYA  THE 02^nd DAY OF FEBRUARY 2018

 

C.C.NO.36/2014

 

1.J.Rajashekar S/o.M.Jayaraj,

 

2.Dr.S.A.Ashokan S/o. K.Sadayandi,

1821, Vasantham Colony, Anna Nagar,

Chennai – 600 040.

                                                                                    ….. Complainants

 

..Vs..

1.The Managing Director,

Royal Sterling International Holiday,

Club India Pvt. Ltd.,

Haathi Mahal, Cavlossim, Mobor,

Salcette, Goa – 403 731.

 

2. The Managing Director,

Hutchinson & Co (India) Pvt Ltd.,

Unit W 206, II Floor, Sunrise Chambers,

No.22, Ulsoor Road, Bangalore – 560 042.

 

3. The Managing Director,

Holiday Club India Pvt Ltd.,

Haathi Mahal, Cavlossim, Mobor,

Salcette, Goa – 403 731.

.....Opposite Parties

Date of complaint                                 : 27.02.2014

Counsel for Complainants                    : M/s.S.Kalyanaraman, G.Jeny Bernard,

                                                                    S.Pavithra Praba & S.Velmurugan

 

Counsel for 1^st & 3^rd Opposite Parties    : N.L.Rajah & J.Dharmarajan

 

Counsel for 2^nd opposite party           : Ex - Parte

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

This complaint is filed by the complainant to refund a sum of Rs.2,25,000/- towards point certificate, refund an amount of Rs.34,430/- spent at Cambay Resorts, Kerala and also to pay a sum of Rs,2,00,000/- as compensation for mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINTS IN BRIEF:

          The 2^nd opposite party is the trustee of the 1^st opposite party. The 3^rd opposite party is the marketing agent of the 1^st opposite party.  The complainants entered agreement with the 1st opposite party for the purchase of 182 points in value of certificate and for the said points the complainants are entitled to use T-2 type of apartments in the red season for 25 years.  The 1^st complainant purchased 165 points for the accommodation for the total consideration of Rs.2,64,000/-. The purchase agreement was also executed and a sum of Rs.26,400/- was paid as down payment and agreed to pay the balance in equal installments. Subsequently the 1^st complainant decided to withdraw the same as the opposite parties have resorts only at Goa and hence he had not paid the installments.

          2. The 2^nd complainant is the father-in-law of the 1^st complainant was a member of Sterling Club Promoted by Sterling Holidays Resorts India Limited.  The offer was made that both the complainants together could take points in Royal Sterling International Holiday Club which is promoted by the 1^st opposite party with Sterling Holidays India Limited. The same could be done by the 2^nd complainant transferring his existing rights in the sterling Holiday Club to the 1^st opposite party and both the complainants have paid only a sum of Rs.1,65,000/- instead of paying the original consideration Rs.2,65,000/- for 182 points.  

          3. The brochure issued to the complainants mentioned that the member of Royal Sterling International Club with ownership of point’s value can use accommodation in both Royal Club as well as Sterling Club.  There is no need to pay the utility fees by members of the Royal Sterling International Holiday Club when traveling to any of the club resorts.  The down payment made by the 1^st complainant a sum of Rs.26,400/- under the purchase agreement was adjusted in the amount of Rs.1,65,000/- being the amount to be paid to the Royal Sterling International Holidays Club. The complainant after buying the points value certificate had also paid the amenity and management charges.

          4. The complainants state that accommodation in sterling was asked for at Yercaud or Mahabhalipuram in May 2009, the opposite parties could not confirm the accommodation. Then again in October 2009 the opposite parties failed to confirm the accommodation in Sterling Yercaud, they also did not arrange for accommodation in sterling Lonavalla in August 2010.

5. The complainant sent mail dated 16.02.2011 to book the apartments in Green Palms Resorts for the period 11.05.2011 to 20.05.2011 three months ahead. The opposite parties sent reply mail dated 18.02.2011 that the Green Palms, Kerala  fully booked over the period and however the Cambay Palm Lagoon Kerala was booked. Hence, the 1^st complainant with no other alternative accepted the same. Further the 1^st complainant paid a sum of Rs.10,500/- for using the accommodation, also paid a sum of Rs.4,430/- in Cambay Resorts, Food Expenses around Rs.15,000/- and train fare Rs.4,500/- and thus totally the complainant spent a sum of Rs.34,430/- and for the said amount he is entitled for refund from them.

6. The 1^st  complainant next requested to book three rooms in Sterling at Darjeeling for May 2013   and the opposite parties replied that the said sterling Holiday Resorts is no longer affiliated to them. The brochure issued to him clearly stated that the said Sterling is affiliated to the 1^st opposite party. By refusing to accommodate the opposite parties have committed deficiency in service and caused mental agony to the complainant. In view of that the opposite parties failed to accommodate as per request of the complainant, they had sent mails dated 30.09.2012, 12.02.2012 to refund the amount collected from them and also to return the original purchase agreement of the Sterling Holiday Resorts of the 2^nd complainant. Hence the complainant filed this complaint to refund a sum of Rs.2,25,000/- towards point certificate, refund an amount of Rs.34,430/- spent at Cambay Resorts, Kerala and also to pay a sum of Rs,2,00,000/- as compensation for mental agony with cost of the complaint.

 

 

7. WRITTEN VERSION OF THE  1^st  OPPOSITE PARTY ADOPTED BY THE 3^rd OPPOSITE PARTY  IN BRIEF:

          The 1^st complainant purchased 165 points for an amount of Rs.2,64,000/- and made a down payment of Rs.26,400/- and agreed to pay the balance amount of Rs.2,37,600/- in 10 installments at the rate of Rs.23,760/- each. However, the complainant has not paid the installments for the months of August, September 2017 and he was given 14 days time to make payment. In the mean time the second complainant on 12.09.2007 purchased 182 points for an agreed amount of Rs.1,65,000/- through purchase agreement. The complainant wrote a letter on 11.10.2007, due to financial crisis requested to transfer his points to the Royal Sterling membership. The 1^st complainant sold on the clubbing of Sterling Resorts with Royal Resorts. His major concern is that he cannot avail holidays for free with Sterling operated resorts.

          8. During the 1^st week of May 2009 the complainant requested to book Yercaud/Mahapalipuram for the period 20.05.2009 to 25.05.2009 due to insufficient time and summer holidays they were unable to provide the availability. On 22.08.2010 again wanted to book Sterling Lonavala, which by them was no longer affiliated with them. Again during February 2011 he requested for Kerala from 11.05.2011 to 20.05.2011 and however they offered alternate day’s 28.05.2011 to 04.06.2011 for which the complainant did not confirm. In March 2011 requested for Darjeeling/Ooty for which they turned down due to non-availability of space for peak periods. However, during 25 to 31 May 2011 at Cambay Kollam was arranged against points with applicable fees. Therefore, the opposite parties have not committed any deficiency in service and hence the complainants are not entitled for any refund of the amount and pray to dismiss the complaint with costs.

9. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

10. POINT NO :1        

          The 1^st complainant purchased 165 points for an amount of Rs.2,64,000/- and made a down payment Rs.26,400/- and agreed to pay the balance amount of Rs.2,37,600/- in 10 installments at the rate of Rs.23,760/- each. However, the complainant has not paid the installments for the months of August, September 2017 and he was given 14 days time to make payment. In the mean time the second complainant on 12.09.2007 purchased 182 points for an agreed amount of Rs.1,65,000/- and his  purchase agreement is marked as Ex.A1 and the Ex.A2 point certificate issued by the 1^st opposite party. According to the 1^st opposite party the complainant wrote a letter on 11.10.2007 due to financial crisis requested to transfer his points to the Royal Sterling membership and the 1^st complainant sold on the clubbing of Sterling Resorts with Royal Resorts.

          11. According to the complainant he had requested the opposite parties to book resorts at Yercaud or Mahapalipuram in May 2009, again in October 2009 in Sterling Yercaud and in August 2010 Sterling Lonavala and the opposite parties have not confirmed none of the resorts and thereby committed deficiency in service and further the complainant requested to book Cambay Palm in Kerala from 11.05.2011 to 20.05.2011 and however they  did offer alternate date from 28.05.2011 to 04.06.2011 and  during that stay the complainants were made to pay Rs.10,500/- for three rooms extra, a sum of Rs.4,430/- in Cambay Resorts, Food Expenses around Rs.15,000/- and train fare Rs.4,500/- and thus totally he spent a sum of Rs.34,430/- and collecting such amount the opposite parties have committed deficiency in service and unfair trade practice.

          12. The opposite parties admits in their written version that the complainants  requested to book resorts as said above  and however for Yercaud/ Mahapalipuram  due to insufficient time unable to book in the May 2009 itself and request to book Sterling Lonavala was no longer affiliated to them. Due to insufficient time and when the resort requested by the complainant was not affiliated to the opposite parties they cannot be blamed. However, as requested by the complainant the opposite parties booked an alternate date in Cambay Palm Lagoon Kerala Cambay Lagoon Kerala. The complainants spent a sum of Rs.34,430/-  in the said Cambay Palm and by allowing them to spent is deficiency on the part of the opposite parties. The complainants paid a sum of Rs.10,500/- for three rooms. This payment amount was indicated to the complainant before occupying the resorts. Only after accepting the demand made by the opposite parties, the complainant paid that amount cannot be termed as deficiency. The complainant spent the other amounts in the resort, for food expenses and train fare is for the convenience of the complainants and hence by collection of such amounts also cannot be regarded as deficiency on the part of the opposite parties.

          13. The complainants asked for the refund of the amounts paid for the purchase of the point’s certificate. The terms and conditions issued to the complainants by the opposite parties, nowhere deals about the refund of the purchase points certificate amount. The complainants have not established how they were entitled for refund of the said amount. Further, the opposite parties specifically stated in the written version that the complainant is a defaulter and not paid the monthly installments   for August and September 2007 at the rate of Rs.23,760/- for the purchase of the point certificate. The fact of default payment of installments has not been denied by the complainant.  The complainant relied on a judgment of the Supreme Court of India reported in (2009) 4 SCC 473 (BUDDHIST MISSION DENTAL COLLEGE AND HOSPITAL Vs. BHUPESH KHURANA AND OTHERS) in support of their contention that the opposite parties have committed deficiency in service. The facts in the above judgment is differs from the facts of the case in hand. Therefore in such circumstances we hold that the complainants are the defaulters and the opposite parties have not committed any deficiency in service.        

14. POINT NO:2

Since the Opposite Parties have not committed any Deficiency in Service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 02^nd   day of February 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 12.09.07             Purchase Agreement & Surrender and Transfer

                                                    Certificate

 

Ex.A2 dated 16.09.08             Point Certificate

 

Ex.A3 dated 07.10.13             complainant Legal Notice

 

Ex.A4 dated 31.10.13             opposite party’s Reply

Ex.A5 dated NIL                     RSIHC – Booklet – page  20 – Sec 14 (about joint

                                                    Venture)

 

Ex.A6 dated NIL                     RSIHC – Booklet – page  24 – Sec 17 (about the

                                                    list of resorts in RSIHC)  

 

Ex.A7 dated NIL                     RSIHC – Booklet – page  18,  – Sec 12 (Utility fee

                                                    only applicable for GAP)

 

Ex.A8 dated NIL                     RSIHC – Booklet – page 5 – (Flexibility)

 

Ex.A9 dated NIL                     RSIHC – Rules –page 1 (Management Charges

                                                    Rs.700 – for 2002-2003)

 

Ex.A10 dated NIL                             RSIHC – Rules – page 4 (10% increase every year

                                                    – Management Charges)

 

Ex.A11 dated 30.08.12           Complainants mail – Exorbitant Maintenance

                                                     charges

 

Ex.A12 dated 05.09.12           Complainants mail – Exorbitant Maintenance

                                                     Charges

 

Ex.A13 dated 16.02.11           Complainant mail : Room request in Palm, Kerala

 

Ex.A14 dated 18.02.11           Opposite party mail – non availability

 

Ex.A15 dated 11.05.11           Opposite party mail – room in other resort in

                                                     Kerala

 

Ex.A16 dated 31.05.11           Cambay  Resorts, Kerala – Bill

 

Ex.A17 dated 11.02.13           Opposite party mail – extra cost & Sterling Not

                                                     Affiliated in Darjeeling

 

Ex.A18 dated 17.02.13           Complainant mail – being member of Sterling why

                                                     should pay

 

Ex.A19 dated 25.03.13           Mail from Sterling to 2^nd complainant

 

Ex.A20 dated 30.08.12           Complainant mail – Regarding Refund

 

Ex.A21 dated 12.02.13           Complainant mail – Regarding Refund

 

Ex.A22 dated 15.03.13           Opposite party mail – Sterling Original Document

                                                     not received

 

Ex.A23 dated 18.09.12           Opposite party acknowledgement Sterling

                                                     document - received

                                                   

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

                                      ……. NIL ….

 

 

 

MEMBER – I                                                               PRESIDENT