Chandigarh

DF-II

CC/499/2014

Daksh Sharma - Complainant(s)

Versus

FIITJEE Limited - Opp.Party(s)

30 Jan 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	499/2014
Date of Institution	:	23.09.2014
Date of Decision	:	30/01/2015

 

                  

                                                         

 

Daksh Sharma (minor) son of Devinder Sharma r/o H.No.2337, BSNL Society, Sector 50-C, Chandigarh through his father Devinder Sharma.

                                      ...  Complainant.

Versus

1. FIITJEE Limited, 1^st and 2^nd Floor, SCO No.321-322, Sector 35-B, Chandigarh through its Manager Sh.Rajan Bhargava.

 

2. FIITJEE Limited, FIITJEE House, 29-A, Kalu Sarai Sarvapriya Vihar, New Delhi-110016 through its Managing Director.

…. Opposite Parties.

 

BEFORE:            SHRI RAJAN DEWAN, PRESIDENT

SMT. MADHU MUTNEJA, MEMBER

SHRI JASWINDER SINGH SIDHU, MEMBER

 

Argued by:              Sh.J.C.Kapoor, Counsel for the complainant alongwith Sh.Devinder Kumar, father of the complainant, in person.

Sh.Rahul Goyal, Counsel for Opposite Parties.

 

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainant is that   he took admission in Opposite Party No.1-Institute in June, 2013 for Two Year Classroom Program for JEE (Advanced)- Regular Week Contract Classes by paying a sum of Rs.2,29,816 through demand drafts/cheques, Annexure C-1 to C-4.  Copy of the Enrolment Report-cum-Acknowledgment is Annexure C-5. The complainant started attending the regular classes for one year i.e. during his 11^th standard in the evening session of the Opposite Party No.1-Institute.  Due to non-clearing of Chemistry and Maths paper of the school, the complainant was not promoted to 12^th standard and as a consequence his father requested vide letter dated 24.05.2014, Annexure C-7 with an electronic copy to Opposite Party No.2 to refund the fees for the second year as further coaching would not be of any use for his son.  According to the complainant, despite writing repeated e-mails, Annexure C-8 to C-10, the Opposite Parties failed to refund the fees, which amounted to deficiency in service and unfair trade practice on their part.   Hence, this complaint.
2.           The Opposite Parties in their written statement have pleaded that the complaint is not maintainable because in view of the judgment of the Hon’ble Supreme Court, education is not a commodity. It has been pleaded that  the complainant after understanding the terms and conditions of  OP-Institute admitted/enrolled his son Master Daksh Sharma in Two Year Classroom Program for JEE (Advanced)- Regular Week Contract Classes on 04.06.2014.  According to the Opposite Parties, the total course fees for two year course including service tax and cost of books and study material was Rs.2,29,815/-.  It has been pleaded that as per the undertaking/declaration agreed and signed by the complainant/his father and as per the terms of agreement, fees once paid shall not be refundable under any circumstances. It was denied that the Opposite Parties were lingering on the matter on one pretext or the other.  In the end, the prayer for dismissal of the complaint has been made.
3.           We have heard the learned Counsel for the parties and have gone through the documents on record.
4.           The core question to be decided in this case is, as to whether, the  complainant falls under the definition of the consumer in view of the principal laid down by the Hon’ble Supreme Court of India in P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors. in Civil Appeal No.22532 of 2012 decided on 9.8.2012. The answer to the question is the negative. The Hon’ble Supreme Court in P.T. Koshy & Another’s case (supra) held as under: -

      “In view of the judgment of this court in Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 = 2010 (2) CPC 696 SC, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity.  Educational institutions are not providing any kind of service, therefore, in the matter of admission, fees, etc., there cannot be a question of deficiency in service.  Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.

       In view of the above, we are not inclined to entertain the special leave petition. Thus, the Special Leave Petition is dismissed.”

5.           Besides this in  Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary, Revision Petition No.638 of 2014, decided on 02.05.2014, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that neither the student, fell within the definition of a consumer, nor  the Opposite Parties fell within the definition of Service Providers.
6.           Our view is further strengthened from the order passed by our own Hon’ble State Commission in First Appeal No.244 of 2014-M/s FIIT JEE Ltd. Vs. Mayank Tiwari, decided on 23.9.2014 whereby the appeal filed by M/s FIITJEE Ltd. was accepted and the order of this Forum was set aside and it was held that the complainant does not fall within the definition of consumer.   Even the order dated 23.09.2014, aforesaid,  passed by our own Hon'ble State Commission has been upheld by the Hon'ble National Commission vide its order dated 08.12.2014 passed  in Revision Petition No.4335/2014- Mayank Tiwari Vs. M/s FIITJEE Ltd.      The principle of law, laid down, in the aforesaid cases is fully applicable to the facts and circumstances of the instant case.
7.           For the reasons recorded above, the complaint is devoid of any merit and the same is dismissed with no order as to costs. However, the complainant is at liberty to seek any other legal remedy, which is available to him under law.
8.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

30/01/2015

Sd/-

(RAJAN DEWAN)

PRESIDENT

XXXXXXX

(MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

Cmg

 

DAKSH SHARMA

Vs.

FIITJEE LIMITED & ANR.

Consumer Complaint No.499 of 2014

 

Date of Order: 05.02.2015

 

DISSENTING  ORDER

 

1]       I have perused the order written by Hon’ble President Sh.Rajan Dewan, duly signed in agreement by the Learned Member Sh.Jaswinder Singh Sidhu. However, I cannot bring myself to sign in agreement with the decision that the complainant is not a consumer as the Opposite Party is an Education Institution, considering that the Opposite Party itself has stated that it is a limited company incorporated under the provisions of Indian Companies Act, 1956; engaged in the business of imparting quality education to students aspiring to get admission in various IITs of the country. It is thus clear that it only give tuitions and is not established under any Statute.   

 

2]       Factually speaking, the son of the complainant was enrolled with the Opposite Parties in a Two Year Classroom Programme for JEE Advanced Regular contract classes in the month of June, 2013.  Rs.229816/- was settled as fee, out of which Rs.139439/- was paid.  The Opposite Parties also took three post-dated cheques dated 7.2.2014 for Rs.6900/-, Rs.4600/- and Rs.78877/- respectively. 

         Though the complainant had taken admission with the OPs for tuition for 11^th & 12^th Classes, but after studying with the OPs for one year, the complainant failed in Class 11^th in his School.  He thus was unable to continue with the OPs in the second year for Class-12^th and accordingly sought refund.  The OPs have refused the refund due to which the instant complaint has been filed.

         I do not think it will be wrong to presume that the complainant cannot be expected to study Class 12^th Syllabus with the OPs when he has to repeat Class-11^th in his School.  The complainant has to do Class-11^th first and 12^th subsequently.  Without clearing Class-11^th, he cannot be expected to clear Class 12^th. Interestingly, the OPs have not shown any willingness to accommodate the complainant for another year of tuition in Class-11^th

        

3]       The Hon’ble President while dismissing the complaint has relied on the judgment of P.T.Koshy & Anr. Vs. Ellen Charitable Trust & Ors. in Civil Appeal No.22532 of 2012 decided on 9.8.2012, wherein the Hon’ble Supreme Court was pleased to take the view that Educational institutions are not providing any kind of service, thus in the matter of admission, fee, etc., there cannot be a question of deficiency in service.  The Hon’ble Apex Court was thus pleased to hold that such matters cannot be entertained under the Consumer Protection Act. The Hon’ble President also placed reliance on Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary, Revision Petition No.638 of 2014, decided on 02.05.2014, by the National Consumer Disputes Redressal Commission, New Delhi.

         But should these judgments really and correctly be used by us in the Consumer Forum to correlate & decide cases where tuition is being imparted?  The OPs are only giving tuitions and FIITJEE is not a University or School set-up under a Statute.

 

4]       In my opinion when the Opposite Parties have themselves stated that FIITJEE is a self-financed and self-managed institute and all expenses incurred on imparting the education are being borne from the amount received from the students, it is evident that FIITJEE has not been incorporated as a University or Educational Institution under the Statute of the Government of India/State Government. Hence, the OPs are not governed under the rules laid down by the Ministry of Human Resource Development or All India Council for Technical Education (AICTE).  If the Opposite Party had been set up under the statute, then the rules & regulation for its governance as well as refund of fee, would have been as per statutory provisions and then the cover of the above cited mandate of the Hon’ble Apex Court would come to their benefit as held by the majority order. But clearly the OPs are admittedly only a private profit making organization imparting tuitions to students.

 

5]       In this situation, I also cannot understand how a child can be expected to go to the 2^nd stage of Classes i.e. 12^th Class, when he has not even passed/cleared the first stage i.e. 11^th Class.  In this situation, I do not think any prejudice would be caused to the OPs if they refund the fee for 2^nd Stage – 12^th Class to the complainant.  

 

6]       Hence, in my opinion the contention of the OPs for refusal for refund of fee paid by the complainant for the second year is not only unjustified but also amounts to unfair trade practice.  It is not the contention of the Opposite Party that the seat vacated by the complainant will remain unfilled, causing financial loss to it.

 

7]       In the light of above observations, I do not agree with the majority order of dismissal of the complaint in the peculiar circumstance of the case.  The child cannot be expected to continue tuition/coaching of Class 12^th without clearing/passing Class 11^th.

  

8]       Hence, the fee paid by the complainant for the 2^nd Year needs to be refunded by the OPs.

         Accordingly, I allow this complaint against the Opposite Parties and direct them jointly & severally as under:-

 

a)   To refund the amount received towards post-dated cheques for the 2^nd year of education to the complainant.

c)   To pay compensation amount of Rs.50,000/- for indulging in unfair trade practice and the harassment caused to the complainant due to refusal by the Opposite Party for refund of amount in the peculiar circumstances of the case;

d)   To pay Rs.7000/- towards cost of litigation.

 

          This order shall be complied with the Opposite Parties within a period of 45 days from the date of its receipt, failing which they shall be liable to pay the above decreetal amount along with interest 9% per annum from the date of order till realization, besides the cost of litigation.

         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

5^th February, 2015                  

 

 (MADHU MUTNEJA)

MEMBER

 

 

 

Om

 

 

DISTRICT CONSUMER FORUM-II

[Consumer Complaint No.499 of 2014]

 

ORDER

 

Present:    None.

 

                                      

 

                   As per detailed order of even date, recorded separately, this complaint has been dismissed. After compliance, file be consigned to the record room.

                             Sd/-                      sd/-

Announced	[J. S. SIDHU]		[RAJAN DEWAN]	[MADHU MUTNEJA]
30/01/2015	MEMBER		PRESIDENT	MEMBER