Chandigarh

StateCommission

A/219/2018

Frankfinn Institute of Air Hostess Training - Complainant(s)

Versus

Aashima Jarial - Opp.Party(s)

K.S.Kohli, Adv.

23 Aug 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	219 of 2018
Date of Institution	:	20.08.2018
Date of Decision	:	23.08.2018

1. Frankfinn Institute of Air Hostess Training, Registered Office 721, Suneja Tower-II, District Centre, Janakpuri, New Delhi-110058.
2. Frankfinn Institute of Air Hostess Training, SCO 118-120, 1^st Floor, Sector 34-A, Chandigarh.

…..Appellants/Opposite parties

V E R S U S

Aashima Jarial D/o Ganeshwar Singh, R/o Ward No.6, Village and Post Office Nangal Jarialan, Tehsil Ganari, District Una, H.P.

…. Respondent/Complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:-      Sh.Keshav Kumar, Advocate for the appellants.       

JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                This appeal has been filed by the appellants/opposite parties, against an order dated 18.07.2018 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum only), vide which, it allowed consumer complaint bearing no.57 of 2018 filed by the respondent.

2.         As per facts on record, the respondent/complainant deposited an amount of Rs.15,000/- on 15.06.2017, with the appellants/opposite parties, to reserve a seat in their Institute in a course meant for Air Hostess Training. It is case of the respondent that when the above amount was deposited with the appellants, an assurance was given to her that, in case, she got admission in some other course, for which she had already undertaken entrance examination, the amount so deposited will be refunded to her. Within days, result of entrance examination was declared, on the basis of which, the respondent got admission in some other course, in the month of August 2017. In view of above, after declaration of her result, she made a request to the appellants, to refund the amount paid but to of no avail. When nothing was done, she sent a legal notice on 22.06.2017, seeking refund of amount paid. Thereafter, consumer complaint, referred to above, was filed before the Forum.
3.         Upon notice by the Forum, reply was filed by the appellants. Basic facts were not put under challenge. It was only said that on reading terms and conditions of getting admission in their Institute, the amount was deposited by the respondent, of her free will. She was aware that, in case, she is not going to participate in the course of the appellants, fee deposited will not be refunded to her. It was further vehemently stressed that the opposite parties being an Educational Institute, complaint against it cannot be entertained by a Consumer Fora. Detailed reply was filed agitating above legal issue. To say so, basic reliance was placed upon two judgments of the Supreme Court of India titled as Bihar School Examination Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 (SC), and Maharshi Dayanand University Vs. Surjeet Kaur, Civil Appeal No. 6807 of 2008 decided on 19.7.2010.
4.         In the rejoinder filed, the respondent reiterated all the averments contained in the complaint, and controverted those, contained in written version of the appellants.
5.         The parties led evidence in support of their case.
6.         On analyzing the pleadings of the contesting parties; documents placed on record and also the arguments addressed, the Forum allowed the complaint, by observing as under:-

“It is an admitted fact that on 15.06.2017 the Complainant deposited a sum of Rs.15,000/- with the Opposite Party towards booking her seat for Frankfinn Diploma in Aviation, Hospitality & Travel Management course. It is also admitted fact that the Complainant did not attend even a single. Per record, the Complainant had duly intimated the Opposite Party for refund of Rs.15,000/- paid towards the booking of seat, but the Opposite Party did not bother to refund the same.

In this view of the matter, we are of the concerted opinion that once the Complainant did not attend even a single class, it was incumbent upon the Opposite Party to refund the fees paid by her, after deducting reasonable administrative charges. Pertinently, the Opposite Party cannot claim any prejudice caused to them when the Complainant did not attend the course in the OP-Institute. It is settled proposition of law that no fee (including advance fee) can be illegally held by the Opposite Party for the period for which no coaching/service is being availed by the Complainant.

It is thus established beyond all reasonable doubts that the complaint of the Complainant is genuine. The harassment suffered by the Complainant is also writ large. The Opposite Party has certainly and definitely indulged into unfair trade practice as it ought to have refunded the booking fees after deducting the reasonable administrative charges, which it failed to do and propelled this unwarranted, uncalled for litigation upon the Complainant. At any rate, the Opposite Party even did not bother to redress the grievance of the Complainant despite having approached for the same by the Complainant time and again. Thus, finding a definite deficiency in service on the part of the Opposite Party, we have no other alternative, but to allow the present complaint against the Opposite Party.”

7.         By noting as above, it was stated that the respondent was harassed, unnecessarily, and by doing so, the appellants had indulged into unfair trade practice. It was further observed that after deducting the administrative charges, fee paid by the respondent should have been refunded to her. By not doing so, it was said that the appellants were also guilty of rendering deficient services. When allowing above said complaint, following relief was given to the respondent:-

“[a]  To refund Rs.14,000/- (after deducting Rs.1,000/- towards administrative charges) to the Complainant;

[b]  To pay Rs.5,000/- as compensation to the complainant for the unfair trade practice and harassment caused to her.

[c]   To also pay a sum of Rs.5,000/- to the complainant as litigation expenses. ”

                An amount of Rs.1000/- was ordered to be deducted towards administrative charges. Amount awarded was to be paid within a fixed period, failing which, it was to entail penal interest.

8.         Hence this appeal.
9.         By placing reliance upon the aforementioned judgments of the Supreme Court of India and some other judgments of the National Commission, it has vehemently been contended by Counsel for the appellants that complaint against the appellants was not maintainable, in view of ratio of law laid down therein.              We do not agree with the contention raised. It may be stated here that the appellants are a Private Limited Company, which appears to have been incorporated under the Companies Act 1956, to earn profits. It has no statutory backing. Statutory Rules and Regulations framed by a Competent Authority, also does not govern its functioning.

                Whether such an Institute is entitled to claim that it would not fall within the definition of an Industry, as has been held by the Supreme Court of India in Bangalore Water Supply Vs. R.Rajappa and Others, 1978 SCR (3) 207. We have gone through the judgment passed by the Supreme Court of India in Bihar School Examination Board (supra), wherein it was held that the Board is a Statutory Authority governed by Statutory Rules and performing public duty to impart education to citizens of the Country. The complainant named Rajesh Kumar, therein, had appeared in an examination conducted by the said Board, in 1998. Rajesh Kumar and another student Sunil Kumar Singh were allotted the same Roll No. 496. Hence, the Centre Superintendent allotted to Rajesh Kumar, Roll No.496A and this was communicated to the Board office at Patna. The result of Rajesh Kumar was not published inspite of several letters written by him.  Perforce, he was made to appear in the Board examination in the following year and suffered loss of one year. By filing a complaint before the Consumer Forum, the said student claimed compensation etc., for the loss caused. It was noticed by the Supreme Court that the Board is a Statutory Body, established under an Act and its statutory functions include holding of periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. It was also observed that the above said steps are the part of process of different stages of a single statutory non-commercial function. It was further said that by making payment of fee to put a candidate under examination, the said candidate will not become a consumer. On analysing the facts of that case, it was held as under:-

“The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intended to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a `service provider' and a student who takes an examination is not a `consumer' and consequently, complaint under the Act will not be maintainable against the Board.

12. The learned counsel for the respondent placed considerable reliance on the decision of this Court in Lucknow Development Authority vs. M. K. Gupta [1994 (1) SCC 243] to contend that a statutory authority that offers any kind of service for which a fee is charged, will be amenable to the jurisdiction of the consumer fora. He relied upon the following passages from paras 4 and 6 in support of his contention :

"In absence of any indication, expressed or implied there is no reason to hold that authorities created by the Statute are beyond purview of the Act..... The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility". (Vide para 4).

.......the entire purpose of widening the definition (of `service' under section 2(o) of the Act) is to include in it not only day to day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer". (vide para 6)

13. Let us examine whether the said decision has any relevance. To understand a decision correctly it is necessary to first know the facts of the case. The facts in Lucknow Development Authority were that even after the payment of the entire amount by the respondent for the flat which was allotted to him, possession was not given to him and the work of constructing the flat was still incomplete, although the time for handing over the possession had expired. In these circumstances, the National Consumer Commission ordered possession of the flat to be handed over without delay after completing the construction work and it further directed payment of 12% simple interest on the deposit made by the respondent. The question that was considered was whether any act or omission by the Development Authority relating to housing activity such as delay in delivery of possession of the houses to the allottees, non- completion of the flat within the stipulated time or defective or faulty construction etc. will come within the purview of the Act. The submission before this Court in that case was that Statutory Development Authorities do not come within the purview of the Act. While negativing the said contention, this Court observed that activities which are not otherwise commercial, but professional or service oriented in nature will come within the purview of the definition of `service' in Section 2(o) of the Act. But the said observation is of no relevance. The Board is not carrying on any commercial, professional or service-oriented activity. No `benefit' is conferred nor any `facility' provided by the Board for any consideration. Therefore, the said decision is inapplicable.”

10.         It was specifically said that the Board was not carrying any commercial, professional or service oriented activity and as such, consumer complaint was not maintainable, in such like cases before the Consumer Fora. However, it was also observed in later part of the judgment that ratio of a judgment is not mechanically to be applied to other case, without analysing the context in which observations were made by the Court in a given judgment. Same was the situation in the case of Maharshi Dayanand University (supra). In that case also, there was a dispute between the Authorities and student qua grant of B.Ed. degree to her. By taking note of observations made by the Supreme Court in the case of Bihar School Examination Board (Supra) it was said that Statutory Authority when performing statutory functions cannot be termed as service provider/industry.
11.         In the present case, as has been noted in earlier part of this order, the appellants have no statutory regulations/backing. It is a private Institute, not discharging any social obligation. In such like cases, we are of the considered opinion that no benefit of ratio of the judgments cited above, can be extended in favour of the appellants.
12.         The case of the respondent is also supported by the ratio of judgment passed by the Hon’ble Supreme Court of India in Buddhist Mission Dental College & Hospital, Versus Bhupesh Khurana & Others, Civil Appeal No.1135 of 2001, decided on February 13, 2009, wherein, the findings given by the National Commission, to the effect that imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act, were upheld. Relevant part of the said judgment reads thus:-

“The Commission also held that this Court in Bangalore Water Supply and Sewerage Board (supra) held as under: [para 118 at page 583]:-

"...In the case of the University or an educational institution, the nature of the activity is, ex hypothesi, education which is a service to the community. Ergo, the University is an industry..."

The Commission further held as under:

"Imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration so they are consumers as defined in the Consumer Protection Act."

33. The Commission rightly came to the conclusion that this was a case of total misrepresentation on behalf of the institute which tantamounts to unfair trade practice. The respondents were admitted to the BDS Course for receiving education for consideration by the appellant college which was neither affiliated nor recognized for imparting education. This clearly falls within the purview of deficiency as defined in the Consumer Protection Act, which defines the `deficiency' as under:

"`Deficiency' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

34. Therefore, the Commission rightly held that there was deficiency in service on the part of the institute and the claimants respondents are entitled to claim the relief as prayed in the plaint. The appeal filed by the appellant is devoid of any merit and deserves to be dismissed.”

13.         Not only as above, in the case of Krishan Mohan Goyal Vs. St.Mary’s Academy and Anr., Revision Petition No.3144 of 2016, the National Commission has also held that in some aspects of education activities, the Consumer Fora is competent to take action against the erring Educational Institutes such like the opposite parties, adopting unfair trade practices and also not rendering proper service. Same is the ratio of the judgment decided by the National Commission, in Jaipreet Singh Kaushal Vs. FIIT JEE Limited and another, Revision Petition No.918 of 2015 decided on 14.11.2017, wherein, it was held that the Institute is not justified in charging fee, for the entire course in one go. The case of the respondent is fully covered under the principle of law laid down by the National Commission, in the judgments, referred to, in this para. The Forum was justified in ordering refund of the fees, referred to above, after adjusting some amount towards administrative fees, as the respondent had made a request for refund thereof, within few days of depositing the same, as she had got admission in some other course. She had not attended even a single lecture, in the Institute of the appellants. Contention of Counsel for the appellants that even then loss has been caused to the appellants, is imaginary. It is not a case like Medical Institute, where number of seats is fixed and admission cannot be given after a fixed date. In that event, if a student withdraws in-between after attending the course, the seat goes waste thereby causing financial loss to the said Organization/Institute, but, in the present case, there was no such handicap with the appellants. Another student could have been admitted to the course, as the respondent intimated and showed her intention to get refund before start of the coaching classes. In view of above, the order passed by the Forum needs no interference of this Commission and is accordingly upheld. 
14.         For the reasons record above, this appeal being devoid of merit, is dismissed, at the preliminary stage, with no order as to cost.
15.         Certified copies of this order, be sent to the parties, free of charge.
16.         The file be consigned to Record Room, after completion.

Pronounced.

23.08.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

Rg.