State Consumer Disputes Redressal Commission
Aditya Bansal vs Sterling Holidays Resorts India Ltd. on 30 November, 2015
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1048 of 2013
Date of institution : 03.10.2013
Date of decision : 30.11.2015
Aditya Bansal, S/o Pardeep Bansal resident of Pardeep Eye Care
Centre, Ward no.13, Mansa, Tehsil and District Mansa.
.......Appellant/Complainant
Versus
Sterling Holidays Resorts India Ltd. No.7 City Towers, 3rd Cross
Street, Kasturba Nagar, Adyar, Chennai through its M.D.
........Respondent/Opposite Party
First Appeal against order dated
27.08.2013 passed by the District
Consumer Disputes Redressal
Forum, Mansa.
Quorum:-
Mr. J. S. Klar, Presiding Judicial Member
Mr. H. S. Guram, Member.
Present:-
For the appellant : Sh.Arihant Goya, Advocate For the respondent : Sh.Ashim Aggarwal, Advocate H. S. GURAM, MEMBER:-
This appeal has been preferred by the appellant(complainant in the complaint) against the respondent of this appeal (OP in the complaint), assailing order dated 27.08.2013 passed by the District Consumer Disputes Redressal Forum Mansa, (in short 'District Forum'), in CC No.75 dated 15.04.2013, partly accepting the complaint by directing OP to pay Rs.10,000/- to the complainant, as F.A. No. 1048 of 2013 2 compensation for his mental tension and physical harassment, to furnish details regarding Annual Amenity Charges for the year 2011- 2012 (w.e.f. 01.01.2011 to 31.12.2012) on the basis of number of holidays enjoyed by complainant. The worked out Annual Amenity Charges would be payable by complainant within one month from the date of receipt of the OP. OP was directed to allow the complainant to avail holidays as per his entitlement of 60 days including the holidays for the year 2013.
2. The brief facts of the case are that complainant is the holder of a Time Share Account bearing No. 81296 of Sterling Holidays Resort India Ltd. As per the terms and conditions mentioned in overleaf of time share allotment letter, he was entitled to 7 days holidays per year in OP's resort. He was having 63 days of holidays, to be availed in the OP's resort. According to OP's E-mail dated 04.10.2010, the Time Share was allotted to him at OP's resort situated at Corbett Park. It was averred that there was no resort of OP form the date of allotment of this Time Share till December 2012. It was only thereafter that OP made arrangement for some rooms in Corbett Park, but those were not upto the standard mentioned in the allotment letter of the Time Share. It was further maintained that there was no Kitchen available in the rooms under the temporary arrangement made by them. It was further pleaded that OPs had raised a demand of Rs.5386/- as Annual Amenity Charges for the year 2011-2013 and imposed guest charges. Such demand on the part of OP has been alleged to be totally illegal and OP was not entitled to raise such demand as per terms and conditions of the TimeShare and particularly in view of the fact, when rooms being F.A. No. 1048 of 2013 3 offered by OP were not upto the mark. OP was not making his confirmed reservations on the pretext that amount due was not paid by him. The customer care of the OP was not cooperating and never gave proper and satisfactory answers to his queries from time to time. On failure to get any relief from the OP, the complainant filed his complaint and sought the directions to be issued, to pay 18% per year from back date till proper rooms be made; and to pay Rs.20,000/- as compensation and Rs.3500/- as costs of litigation. OP be further directed to cancel Rs.5386 as Annual Amenity Charges and also to stop charging such charges and guest charges, as there is no such provision as per terms and conditions of the Time Share allotment letter.
3. Upon notice, OP filed its written reply stating that it is a public limited company with its registered office at Chennai. It was pleaded that District Forum did not have the territorial jurisdiction to entertain the present complaint. The matter in the complaint related to resort at Corbett, Nanital, as such no cause of action had accrued to the complainant at Mansa. It was further pleaded by OP that complaint was time barred as the said complaint was filed by him in the year 2013, whereas, allegations in the complaint seeks the enforcement of their email dated 04.10.2010. This fact was known to the complainant even after knowing this fact that OP did not have a resort at Corbett. The complainant had purchased the said Time Share from the original owner. They had offered to complainant the shifting of his Time Share to some other resort, but that offer was refused by him. It was further pleaded that as per Clause 20 of the agreement, the maximum number of days that can be accumulated F.A. No. 1048 of 2013 4 would be upto 21 days only. The information providing 63 days in his credit was only a gesture of good will. The said offer was struck off since the company had taken on lease a resort at Corbett thereby, providing alternate accommodation to the members owing Time Share at Corbett. It was further pleaded that compensation was to be paid by it, only in a situation when there was no alternative accommodation being provided to him. It was further pleaded that he had suppressed the material facts and did not approach the Forum with clean hands. It was maintained that he purchased present Time Share from Mr.Solil Chatterjee, who had paid total consideration of Rs.66,000/- in the year 1996. The original Time Share customer had been enjoying holidays with its resort situated across India till the year 2010. The company purchased land measuring to the extent of 4.50 acres at Corbett Park, vide sale deed dated 09.12.1994 in order to provide holidays to its customers, who had purchased Time Share at Corbett. However, the Supreme Court has stayed further construction in all properties situated in various places including the Kaladhungi corridor, Northern part of Corbett National Park-Kosi and Powalgarh forests until further orders by the Apex court. The said W.P.897/1996 has been still pending before the Supreme Court. It was next contended that compensation to the customers would be paid only, when there was no alternative accommodation, being provided by it to avail holidays. They allowed its customers to avail holidays at resorts situated across India though the customers, who had purchased a Time Share and was entitled to avail holiday only at a particular destination. This gesture was a special offer to the customer, who had purchased Time Share at Corbett. This fact was F.A. No. 1048 of 2013 5 duly informed to him at the time of transfer of Time Share purchased by him and OP prayed for dismissal of the complaint.
4. Complainant tendered in evidence his affidavit of Aditaya Bansal Ex.C-1, alongwith documents Ex.C-2 to Ex.C9 and closed the evidence. In rebuttal thereto, the OP tendered in evidence documents Ex.OP-1 to Ex.OP-2 and closed the evidence. On conclusion of evidence and arguments, the District Forum Mansa partly accepted the complaint of the complainant. Dissatisfied with the above order of District Forum Mansa, the complainant now appellant has preferred this appeal against the same.
5. We have heard the learned counsel for the parties and have examined the record of the District Forum. We have also examined the order of the District Forum and the observations given in its order to the effect that both the complainant as well as OP had not tendered complete documents for adjudication of controversy at their end. Counsel for the appellant argued that once a liberty is given by a company providing 63 days of holidays as shown in his credit to be availed by him, which were accumulated due to non availing of holidays, hence the company cannot curtail the holidays by citing clauses in the agreement. Counsel for the appellant argued that District Forum order needs to be modified as it has directed the complainant to avail 63 days accumulated holidays upto 31.12.2013. As per the period of stay given in a calendar year is maximum to 21 days and full 63 days period could not be utilized by the complainant upto 31.12.2013. As order was pronounced by District Forum on 27.08.2013, hence there were hardly 4 months period left to avail the said holidays. As per the directions of the Forum, OP was directed to F.A. No. 1048 of 2013 6 supply worksheets of charges towards holidays availed by him at a prorate basis and not for full 7 days. The counsel for the appellant drew our attention to the clauses of the terms and conditions in Ex.C- 4, 3.3, 4.1, 4.2, 4.3 and 2.3. 2.3 Clause read as under:
"The maximum number of days which the TimeShare holder shall be entitled to enjoy in a year by availing accumulation/advancing/splitting or any combination thereof shall not exceed 21 days."
According to this Clause, the company would not have permitted to allow him avail 63 days till 31.12.2013, as such, order so passed by the District Forum needs modification.
6. He further drew our attention to Clause 2.2.4 pertaining to accumulation facility which read as under:
"The utilized Floated Week and the unutilized days under Split Week Facility shall automatically be accumulated to the credit of the Timeshareholder and the Timshareholder can utilize the accumulated week/days during the subsequent years. At no point of time, the number of days to the credit of the Timeshareholder shall exceed 14 in addition to his/her/its entitlement of that particular year and any excess thereof shall be deemed to have lapsed automatically for which the Timeshareholder shall not be entitled for any Compensation or damages."
In view of these guidelines and terms and conditions, which have been provided by the complainant himself in his complaint, he cannot wriggle out from these terms and conditions and cannot seek modification of the order so passed by the District Forum. F.A. No. 1048 of 2013 7
7. On the other hand, counsel for the OP argued that contention raised by the counsel for the complainant regarding obligation of company contained in Clauses 4.1; 4.2; and 4.3 are not attracted because as per Clause No.4.4, the company was restrained by the order of the Apex Court from constructing its holidays resort in Corbett Park. Complainant was entitled only 21 days to the extent of accumulation and any accumulation beyond 21 days would automatically stand lapsed and as such, he is entitled only for maximum of 21 days and the order so passed by the District Forum is correct one.
8. We have examined the record of the District Forum and also examined the order of the District Forum. As per terms and conditions under clause 2.2.4 and 2.3, which are to be read simultaneously, we find that complainant was only entitled to avail 21 days accumulated holidays in a year.
9. In view of this, we find that directions given by the District Forum to the complainant to avail holidays of 63 days upto 31.12.2013 was contrary to the terms and conditions as referred to above. We have also considered the contention of the counsel for the OP to the effect that the penalty imposed by the District Forum of Rs.10,000/- under Clauses 4.1, 4.2 and 4.3 are not applicable. In view of Clause No. 2.2.4, the District Forum has overlooked the terms and conditions, wherein 14 days of unutilized holidays at the maximum could be carried forward. Hence, the complainant was entitled to carry forward 14 days of unutilized facility after 31.12.2013 alongwith the period to be availed by him from 01.01.2014. It is an admitted fact that the facility of holiday resort under construction F.A. No. 1048 of 2013 8 Timeshare sold to the complainant by the OP was stopped by the Supreme Court in W.P.897/1996 order, it was not permitted to do the construction in the Corbett Park. However, the company was eligible to charge annual maintenance charges for the period for which the complainant used the facility under the said Timeshare facility on a prorate basis and not for the full 7 days period as the Annual Amenity charges. This controversy is discussed by the Hon'ble National Commission in a case reported in II (2013) DPJ 212 titled as "Harwinder Singh Randhawa Vs. Avalon Resorts Pvt. Ltd.", wherein Hon'ble National Commission observed that "Petitioner is not supposed to pay maintenance allowance, when he has not utilized the facility. Contract entered into between the parties is binding one. None of the parties is authorized to cancel it for invalid reasons."
10. In view of this observation of the Hon'ble National Commission, we are of the opinion that the OP was required to charge maintenance charges to the extent of the holidays period utilized by the appellant in its resorts and not for the period for which he had not availed the said facility.
11. The second point for consideration before us is that District Forum awarded compensation of Rs.10,000/- against OP, whereas it has been argued by the counsel for the OP that the same was wrongly fastened on it by the District Forum. We have examined the written statement filed by the OP in the District Forum, wherein, it has been submitted in Para No.7 that as per Clause 20 of the agreement, the maximum number of days that can be accumulated are 21 days. In view of their admission in the written reply, the failure on their part to book the accommodation for the appellant amounted F.A. No. 1048 of 2013 9 to unfair trade practice.
12. Accordingly, the appeal filed by the appellant is partly allowed and the order of the District Forum is modified to the extent that appellant is entitled to carry forward 14 days of unutilized period upto 31.12.2013 i.e. 2 years accumulation of 7 days each.
13. District Forum order is modified only to the extent as discussed above, OP is directed to recalculate the amount to be charged as Annual Amenity Charges to be levied from the appellant within one month from the date of this order.
14. The arguments in this appeal were heard on 19.11.2015 and the order was reserved. Now, the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. Klar) Presiding Judicial Member (H.S. Guram) Member November 30,2015 RK 2