BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.

FA No. 279 OF 2016 AGAINST CC No.14 OF 2016

ON THE FILE OF DISTRICT FORUM-RANGA REDDY

     Between :

1. M/s. FIITJEE Limited, represented by

It’s Mentor Director.

2. FIITJEE Ltd., Represented by it’s

Centre Coordinator.

3. FIITJEE Limited, represented by its

Admissions Manager       

(All are C/o. H.No.22-97, Plot No.  Vijayanagar Colony,

Kukatpally, Hyderabad – 72.)                 …Appellants / Opposite Parties                                    

AND

Ashish K.James, (Being minor represented

By his father prof. Dr. K.C.James Raju as

Natural Guardian) Plot No.7, Shyam Nagar,

Telecom Nagar Colony, Gachibowli,

Hyderabad.                                                      ....Respondent / Complainant

Counsel for the Appellants / Opposite Parties:  M/s. Rupendra Mahendra

Counsel for the Respondent / Complainant: M/s. Gopi Rajesh & Associates

Hon’ble Sri Justice B.N.Rao Nalla          …      President

&

Hon’ble Sri Patil Vithal Rao  …              Member

Wednesday the Twenty Ninth day of November

Two thousand Seventeen

Oral Order : (Per Hon’ble Sri. Patil Vithal Rao, Member).

                                                           ***

This Appeal is directed against the order dated 27.10.2016 passed by the District Consumer Forum-III, Ranga Reddy [for brevity, ‘the District Forum’] in C.C.No.14/2016 directing the Opposite Parties to repay the Complainant an amount of Rs.1,70,000/- after deducting a sum of Rs.9,761/- notionally as fees for 20 days classes attended by the Complainant, with interest @ 12% p.a., and costs of Rs.5,000/-  For the sake of convenience, the parties will be referred to hereinafter as arrayed in the complaint.   

2.         The case of the Complainant, in brief, is that he joined a two years full time coaching program of the Opposite Parties Institution (for short, ‘the Institution’) by making payment of Rs.1,79,761/- towards 1^st year’s coaching fees and an amount of Rs.1,09,550/- towards 2^nd year’s  coaching fees.  The said amount was paid through 4 cheques and that the Institution encashed two cheques towards 1^st year’s fees while retaining the remaining two cheques pertaining to the 2^nd year’s fees.  The further case of the Complainant is that the coaching classes were commenced from 01.06.2015 and that after the results of the 10^th class were declared, he changed his plans and discontinued the course from 18.06.2015.  Thereafter, his father made repeated requests to the Institution to refund the fees and return the two chequs after deducting the corresponding fees for the period of his son’s attending the classes, by addressing letters and sending e-mails.  But, the Institution refused his request on the premise that inview of the terms and conditions of the Declaration given by the Complainant and his mother at the time of the admission, his request could not be acceded.  As per the Complainant, he discontinued the classes while the admissions were still under progress and that his vacant seat was already filled up by the Institution and that as such the conduct of the Institution was unfair and illegal.  For these reasons he sought refund of fees of the 1^st year course and return of the two post dated cheques pertaining to the 2^nd year’s fees with interest and costs.
3.         The Opposite Parties Institution resisted the claim before the District Forum by way of a written version on the grounds, interalia, that the Complainant voluntarily withdrew himself from the Institution after attending classes for about 20 days, without any intimation and that as per the principle the Institution did not fill up his vacant seat.  Because once the classes are commenced, a new student will not be able to cope up with the subjects which were already completed.  However, at the time of admission the Complainant and his mother signed a Declaration /Undertaking admitting the terms and conditions therein, as per which the fees could not be refunded under any circumstance.  This being duly a contractual obligation between the parties the question of refund of the fees doesn’t arise.  As per the Opposite Parties, if such fee was allowed to be refunded, it would cause great loss to the Institution.  They have also contended that inview of the arbitration clause forming part of the Declaration attached to the Enrollment Form the present complaint was not maintainable and that the Complainant has to approach the sole Arbitrator to resolve the issue.  For all these reasons they sought dismissal of the complaint. 
4.             After due enquiry into the matter the District Forum allowed the complaint as noted in Para no.1 supra. 

5.                  The said order is challenged by the Opposite Parties by way of the present Appeal under Section-15 of the Consumer Protection Act, 1986 on the grounds, interalia, that the District Forum did not consider the fact that the Complainant had voluntarily withdrawn himself from the course constraining the Institution to leave the seat vacant without filling it with any other candidate.  Infact, the Complainant and his mother have agreed to the terms and conditions of the Enrollment Form by voluntarily signing the Declarations / Undertakings at the time of the admission and that inview of the contractual obligation they cannot claim refund of the fees.  If, the same is refunded the Institution will be put to loss as the same has been functioning with self-financing.  As per the Opposite Parties / Appellants, the District Forum has ignored all these material aspects and passed the impugned order even without considering various judgments relied on by them and that as such the same is liable to be set aside by allowing the Appeal.
6.                The Opposite Parties have filed a copy of the Enrollment Form in the present Appeal as additional evidence and the same has been marked as Ex.B1.
7.                Perused the written arguments of the parties and heard both the learned counsel.   
8.          Now the point for consideration is that:

whether the impugned order is erroneous and illegal both on facts and law and that as such liable to be set aside?         

9.         Point: The factual aspect of the matter, narrated in Para no.2 supra, is not in dispute.  The only dispute is with regard to maintainability of the claim under the provisions of the Act, 1986.
10.  Undisputedly, the Complainant has joined the Institution to undertake coaching for two year’s to sit for entrance examination to get admission into IIT Institution, after 10^th class, by depositing a sum of Rs.1,79,761/- through two cheques towards 1^st year’s coaching fees and giving two post dated cheques for a sum of Rs.1,09,550/- towards 2^nd year’s coaching fees and attended the classes only for 18 days commenced from 01.06.2015.  Thereafter, he withdrew himself from the classes voluntarily and sought refund of the above said fees, ofcourse,  after deducting the corresponding fees for the period of his attending the classes.  But the same was not conceded to by the opposite parties by citing the terms and conditions contained in the Declarations / Undertakings forming part of the Enrollment Form which is marked as Ex.B1 in the present Appeal.  The Complainant has termed the said Declaration as illegal.  Thus, the whole controversy reveals around the document under Ex,B1.  The second limb of the defence set up by the Opposite Parties is with regard to the maintainability of the claim in view of the arbitration clause in the said document.  The District Forum, in the impugned order, has found fault with the opposite parties in not filing the above noted material document i.e., Enrollment Form to prove their defence among other reasons.
11. It is pertinent to note that at the time of seeking admission the Complainant and his mother Smt. Latha James have signed the Enrollment Form, Ex.B1 on 14.02.2013.  The said document, among other terms and conditions, also contain the following clauses of Declarations / Undertakings which are extracted, for beneficial use, as under:

8.  I undertake that if I leave the Institute midway before completing the full course for any reason whatsoever including but not limited to transfer of my Father / Mother / Legal Guardian / ill health of myself or any other member of the family or my admission in any institute / course engineering college etc., or my studentship is cancelled because of misconduct etc., I or my Father /mother/Legal Guardian shall not be entitled for refund of fees.

9. I/We undertake that once I (student) join the study course /program offered by FIITJEE, I/We shall not be entitled to change the study centre/program nor will I be entitled to refund of fees.  However, if FIITJEE finds me competent / eligible the higher course / program, it may consider my request for change of program subject to payment of difference of course / program fee.

10. In addition to the above, I understand without any ambiguity that the fee once paid is not refundable at all, whatever the reasons be, nor is it adjustable towards any other existing course at FIITJEE or any yet to be launched nor towards the fee of any other existing or prospective student.

12. The Opposite Parties have specifically contended that, the Complainant and his mother have voluntarily signed and thus agreed to abide the said terms and conditions without any coercion, undue influence or duress.  It is to be noted that, the Complainant did not adduce any evidence to refute the said contention.  Thus it is clear that the parties have entered into the contract and as such they are under obligation to abide by it and that a court cannot change or alter the said terms and conditions without consent of the parties.
13. The learned counsel for the Appellants / Opposite Parties has taken us through various decisions of the Hon’ble National Consumer Disputes Redressal Commission and the Hon’ble Supreme Court apart from some of the decisions of other State Commissions and also a decision of this Commission in:

14. Similar question, as the present one on hand, was involved in the above cited cases and it was consistently held therein that education is not a commodity and that educational institutions are not providing any sort of service, therefore, in the matter of admission fees etc., there cannot be any question of deficiency in service.  Therefore, it was ruled that such matters cannot be entertained by the Fora under the Act, 1986.  The Hon’ble Apex court in a latest judgment dated 17.01.2014 in Civil Appeal no.697/2014, between the Indian Institute of Bank and Finance (IIBF) Vs. Mukul Sri Vastava, held that the Complainants, under the above circumstances, shall have liberty to seek their grievance before the proper Forum or Civil Court, as per law.  This judgment was referred to by the Hon’ble National Consumer Disputes Redressal Commission in Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary, III (2014) CPJ 120 (NC).  In view of this legal dictum we have no difficulty in holding that the Complainant is not a ‘consumer´ within the meaning of the Act, 1986 and that as such complainant’s claim is not tenable before the District Forum.
15. Inview of the above cited legal aspect, in our considered view, it is needless to remit back the matter to the lower forum for appreciation of the document under Ex.B1, which has been filed for the first time in the present Appeal, in resolving the issue.
16. The learned counsel for the Respondent / complainant has vehemently contended that the Institution didn’t  produce any record to establish that the vacancy of the seat which arose on account of Complainant’s leaving the Institution, was not filled up at any point of time and that as such the Complainant is entitled for refund of the fees.  To support this contention he has relied on the decision of the Hon’ble National Commission in “Sri Chaitanya Educational Institution Vs. Govind Prasad Rath,” II (2016)CPJ 35(NC).  In this case the Petitioner / Institution didn’t produce any rule of the institution prohibiting filling up the seat falling vacant on account of withdrawal of a student and that no evidence was also produced to prove that due to such a withdrawal the seat remained vacant throughout the course.   Therefore, the order of the District Forum directing to refund the fee, which was confirmed by the State Commission, was up held.  But, in this regard it is to be seen that, the judgments of the Hon’ble Apex Court in “Maharshi Dayanand University” And “Indian Institute of Bank & Finance” (Supra) were not referred in the said decision.  Thus, when the Complainant is not a ‘consumer’ under the Act, 1986, in our humble opinion, he cannot avail any benefit from the above decision of the Hon’ble National Commission for the sake of the present claim. However, we would like to add that to seek the relief before a proper Forum/Civil Court he can seek help for condonation of delay under Section-14 of the Limitation Act, 1963, inview of the law laid down by the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG International Institute (1995) CPJ 1(SC).
17. With regard to the second limb of the defence of the Opposite Parties, we hold that the arbitration clause contained in the Enrollment Form, Ex.B1 cannot be given any credence inview of Section-3 of the Act 1986 for filing of a complaint irrespective of it’s result to come.  Under the said provision, the remedy under the Act, 1986 is an independent one and in addition to but not in derogation of the provisions of any other law for the time being inforce.           
18. We have given careful consideration to the impugned order.  The learned District Forum did not consider all the vital aspects raised by the Opposite Parties but simply based the finding on the pleas put-forth by the Complainant without assigning proper reasoning.  Unfortunately, it did not refer to the various decisions, which are binding precedents, cited and relied on by the defence counsel. Such type of approach is nothing short of judicial impropriety and deserves no appreciation.  Thus, the impugned order is perverse and erroneous and that as such liable to be set aside by allowing the present Appeal. 
19. The point is answered accordingly.            
20. In the result, the Appeal is allowed by setting aside the impugned order.  Consequently the complaint stands dismissed. The Complainant is at liberty to approach a proper Forum / Civil Court, if so advised, for redressal by availing the benefit of Section-14 of the Limitation Act, 1963 seeking condonation of delay.  In the circumstances, the parties shall bear their own costs.      

      PRESIDENT    MEMBER           

      Dt.29.11.2017