LIPI MOHANTY Vs. STERLING HOLIDAY RESORTS

JUDGEMENT

(1.) In the complaint, the complainant besides asking for compensation for mental agony and financial loss, claims refund of Rs.55,000 together with interest thereon at the rate of 18 percent per annum from the opposite parties. The case of the complainant is that the opposite party No.1 is a company which runs hotel business. It has holiday resorts at various places in India as well as abroad. It makes loud announcements alluring simple and guileless people to become its members for the purpose of availing facilities in the holiday resorts. The complainant on being induced and motivated by such open pronouncement became its member by paying Rs.55,000 vide customer No.6771, Project Code VTS 4. As per the terms and conditions of the holiday package, the complainant and her family members are entitled to enjoy the apartments maintained by the opposite parties for a period of 99 years i. e. , one week each year on the 22nd week of a year. As per the allotment advice given to the complainant, the first holiday package was to begin at Puri with effect from 3.6.1996. The opposite party No.1 through its authorised agents had lot of correspondence with the complainant and had been assuring that she and her family members would be provided with quality services. Due to some communication gap, the complainant could not avail the holidays for the years 1996 and 1997 for which both the weeks for 1996 and 1997 accumulated and it was to be enjoyed along with time share of 1998. She accordingly asked the opposite party No.1 to sale the time share of the weeks for the year 1996 and 1997 to some other customers on market rent and adjust the market value. The opposite parties did not respond to the aforesaid request made by the complainant. The General Manager of opposite party No.1 in his letter dated 30.6.1997 wrote to the complainant expressing regret of inconvenience and assured that he would depute a person for discussion. On 14.9.1997 a holiday plan was sent to the complainant but there was no accommodation at Puri. In letter dated 21.7.1997 one Miss Subhra Chatterjee, customer's service confirmed that since holiday resort for the year 1996 has not been availed, the complainant has 14 days time share to her credit. At this juncture the opposite party No.1 decided to close the Puri resort. Due to closure, the complainant who earlier submitted a holiday plan for Puri resort requested the opposite party No.1 to purchase the time share and send the market value since the holidays for the year 1996 and 1997 could not be used for the default of the opposite parties. The opposite parties in their letter dated 1.7.1998, instead of repurchasing the time share for the year 1996 and 1997 requested the complainant to visit any other place except Puri. As she had no plan and had not submitted any holiday plan for any other place, question of acceding to the request to visit any other place did not arise. As agreed upon, the opposite parties were bound to provide accommodation to the complainant and its family members at Puri. As it failed to do so the complainant is entitled to get compensation besides refund of the membership amount of Rs.55,000 as the opposite parties are guilty of deficiency in service.

(2.) The opposite parties have filed written objection denying the allegation of deficiency in service. Their case is that the grievance raised by the complainant does not come within the purview of the Consumer Protection Act, 1986 . On merit their case is that their company is in time share business having resorts at various places across the county including at Puri. In case of non-availability, a time share member may carry forward for two years holidays and, therefore, no loss was caused to the complainant. Her demand to rent out holidays was wrongful and that is why the opposite parties never agreed, nor there is any provisions for the same. The Puri resort required maintenance and during the relevant time the resort was not in a useable condition temporarily and, therefore, members were requested to avail other resorts other than Puri. The Puri resort is operational at present and the complainant may enjoy the same subject to the adherence of the terms and conditions.

(3.) It is an admitted fact that the complainant is one of the members of the opposite party No.1 and is entitled to avail/enjoy the holiday resorts run and maintained by the opposite party No.1. It is not in dispute that the opposite party No.1 has its resort at Puri. The complainant's entitlement to the time share commenced from 22 weeks of June 1996. Neither she nor any of her family members could avail the holiday resort during the years 1996 and 1997. For this, both the weeks for 1996 and 1997 accumulated and the complainant's entitlement to enjoy along with the time share of June, 1998 cannot be denied. When the complainant desired to avail the Puri resort, she was denied the same on the plea that it had been temporarily closed for the purpose of renovation. When the complainant was not interested to avail resorts at some other place other than Puri, the opposite party No.1 cannot compel her to avail the same. In the letter dated 23.6.1998, the Assistant General Manager of the opposite party No.1 informed the complainant that attempts were being made to make the Puri resort operational soon and expressed regret to rent or buy back the time share and stated that she was eligible for compensation as per the terms and conditions of the agreement for their inability to accommodate during the allotted weeks at Puri. The opposite party No.1 is bound by the commitment made in the aforesaid letter to compensate the complainant. Inability to accommodate the complainant during the allotted weeks at Puri amounts to deficiency of service on the part of the opposite parties. As the complainant is no more interested for availing the facilities and wants to withdraw herself from the membership, the opposite parties are liable to refund the amount deposited by her. The opposite parties should have promptly refunded the amount after receipt of the notice in the present case. For their deliberate lapses, they are liable to pay interest on it. Having regard to the totality of the circumstances, we direct the opposite parties jointly and severally to refund rupees 55,000 to the complainant together with interest thereon at the rate of 9 percent per annum from June, 1998. The opposite parties have rightly in their letter dated 23.6.1998 admitted that the complainant is entitled to get compensation which we assess at Rs.15,000. Had the opposite parties voluntarily compensated her, she would not have approached this Commission with this complaint. Therefore, she is entitled to costs which we assess at Rs.5,000 (Five thousand ).