Per Mr B A Shaikh, Hon’ble Presiding Member

1.      This appeal is filed by the original opposite party Nos.1 & 2; feeling aggrieved by the order dtd.23.03.2017, passed by District Consumer Forum, Nagpur, by which the complaint bearing No.233/2015 has been partly allowed.

          The opposite party Nos.1 & 2 are hereinafter referred to as appellant and original complainant is hereinafter referred to as respondent for the sake of convenience.

2.      The case of the respondent as set out by him in the consumer complaint filed by him, in brief is as under.

a.      The appellant is a coaching institute. The respondent is a student. The appellant conducted an examination called as FIITJEE Talent Reward Examination on 26.12.2010. The respondent while learning in 8^th standard in school, appeared in that examination and passed it. Therefore, he took admission in four years class room programme for FIITJEE 2015 for the years 2011-2012, 2012-2013, 2013-2014 and 2014-2015, to be conducted by the appellant. The respondent paid the fees from time to time for that  purpose  to  the  appellant  as  specified in the table given below.

c.       The respondent while attending the coaching classes, run by the appellant, found that there is lack of discipline. Many pupils during teaching hours were playing games on their mobile phone during the teaching hours and some were playing songs in their mobile phones. The teachers ignored the same and hence, the respondent unable to concentrate on teaching in classroom. Many complaints were made about the same to the branch head of the appellant. But they did not give any response for the same. Moreover, the appellant did not appoint a teacher for teaching biology subject and this fact was brought to the notice of the appellant in parents’ meeting of the year

2010-2011.

d.      Therefore, the respondent decided to leave the coaching institute of the appellant. He wrote a letter dtd.20.05.2013 to the appellant and demanded refund of the fees of Rs.59,838/- paid by him for the remaining years of coaching classes. As no response was given by the appellant, he wrote a second letter dtd.05.06.2013 to the appellant for the same purpose, but no cognizance of the same was taken by the appellant. Hence, the respondent served legal notice dtd.21.08.2013 through his advocate to the appellant and thereby demanded refund of the aforesaid fees. Again second legal notice dtd.26.04.2014 was served by the respondent to appellant. A complaint through Consumer Council, Nagpur was also made to the appellant, but appellants gave no response. Hence, alleging deficiency in service on the part of the appellants, the respondent filed the consumer complaint against the appellants seeking direction to the appellant to refund Rs.59,838/- with interest @ 18% p.a. to the respondent and also to pay him compensation of Rs.1.00 Lac for physical & mental harassment and litigation cost of Rs.10,000/-.

e.      Moreover, further relief was also sought that the direction be given to the appellant not to impose any such illegal conditions in the brochure and enrollment form, etc., which are mentioned in the letter dtd.22.08.2013. The respondent further prayed that direction be given to the appellant to comply with the aforesaid directions within 30 days and in case of default, appellant may be directed to pay additional compensation @ Rs.500/- per day to the respondent till the said order is complied with.

3.      The appellant appeared before the Forum below and filed reply and thereby resisted the complaint.

4.      The case of the appellant as set out in the reply in brief is as under.

a.      The appellant is a limited company and it is engaged in business of imparting quality education to the aspirant students to get admission in various IITs of the country.  The complaint is not maintainable before the Forum below as the complainant does not disclose a consumer dispute or cause of action against the appellant. Moreover, the Hon’ble Supreme Court in the case of Maharshi Dayanand University Vs. Surjeet Kaur, 2010(11) SCC 159, held that education is not a commodity and educational institutions are not providing any kind of service and therefore, in matter of admission, fees, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum.

b.      Moreover, in the case of P T Koshi & Anr Vs. Ellen Charitable Trust & Ors., in SLP (Civil) No.22532/2012, as per order dtd.08.09.2012, Hon’ble Supreme Court followed the aforesaid decision of the case of Maharshi Dayanand University (supra). It is thus held that complaint for refund of the fees is not maintainable before the Forum.

c.       Moreover, in the case of Myank Tiwari Vs. FIITJEE Ltd., in revision petition No.4335 of 2014 and in another case of FITJEE Ltd Vs. Balavignesh, in revision petition No.2684 of 2014 and in the case of FITJEE Ltd Vs. Daya Chand Prasad, Hon’ble National Commission has held that the educational institutions are not service provider and that the student cannot at his own sweet will ask for the refund of fees and it is his duty to check before enrolling.

d.      The respondent has failed to prove any deficiency in providing services by the appellant. The respondent himself withdrew voluntary from the course and demanding the refund of the fees which is not refundable as per terms & conditions of the Enrollment Form signed by him and his father.   The appellant has performed its part of contract and the respondent & his father are at fault. The appellant is running the course successfully. No student left the course in midway, except the respondent. He has filed the complaint to gain at the cost of the appellant.

e.      Moreover, the respondent accepted arbitration clause attached to the Enrollment Form.  The present complaint is misuse of process of law.           The respondent and his father signed the declaration form, admitting the terms & conditions laid down by the appellant and therefore, they are bound by the said terms & conditions. The appellant has been pioneer in the field of teaching and is known nationwide for shaping the careers of the student all over the country. Various students are getting admission in various IITs every year, who are taking admission in the coaching classes of the appellant.

f.       The respondent got registered in four years classroom programme for JEE (Advanced) regular week contact classes and appeared in the admission test conducted by the appellant on 26.12.2010 and complainant was declared successful in that test, who was therefore enrolled for the aforesaid course.  The Enrollment Form No.9061491150004, signed by the respondent and his father shows declaration, which is reproduced alongwith reply and by which, it was made clear to them that amount of fees cannot be refunded once paid, whatever reasons may be.

g.      It is denied that there was lack of discipline among the students during coaching and that the respondent had made complaint for the same and that teacher for teaching biology subject was not appointed. Other allegations made in the complaint, are also denied. Lastly, it was prayed by the appellant in reply that the complaint may be dismissed.

5. The Forum below after hearing both parties and considering evidence brought on record, passed impugned order on 23.03.2017. The Forum below relied on the two letters dtd.20.05.2013 and 05.06.2013 written by the respondent to the appellant making complaint about lack of discipline among the students of the class during teaching and held that the respondent had faced too many problems during attending coaching classes and the appellant failed to give reply to both the letters of the respondent. The Forum below also observed in the impugned order that the reply dtd.22.08.2013 given by the appellant to the respondent is filed on record, in which it is stated that the fees once paid cannot be refunded.  The Forum below also observed in the impugned order that all the decisions relied on by the appellant are not applicable to the facts & circumstances of the present case.  The Forum below also observed that as per the decision cited by the respondent, taking of fees at the time of admission for two years in advance, constitutes deficiency in service on the part of the appellant and that the appellant has not controverted the allegation made in the complaint and appellant did not file any affidavit to refute the same.  Moreover, the Forum below also observed that the appellant has not stated in his reply as to whether the seat of the respondent had either remained vacant or filled in by admitting another student and that as the respondent left the coaching class, the appellant has not suffered any loss and hence the respondent is entitled to refund of the fees of Rs.59,838/-. Therefore, the learned Forum below directed the appellant to refund Rs.59,838/- with interest @ 6% p.a. from 20.05.2013 till its realisation by the respondent and also to pay him compensation of Rs.10,000/- for physical & mental harassment and litigation cost of Rs.5,000/- and the order complied with within 30 days from the date of receipt of copy of same by appellant.

6.      As observed above, this appeal is filed by opposite party Nos.1; & 2 feeling aggrieved by that order.

7.      We have heard learned advocate Mr Mukesh Goel appearing for the appellant and Smt Vandana Charde, the mother and authorised representative of the respondent. We have also perused the entire record & proceedings of the appeal.

8.      The sum & substance of the appellant’s advocate is as under.

a.      The appellant is self managed and self financed institute and the main source of the funds of the appellant is only the income by way of fees from the students. The four years course is conducted by the appellant for preparing the students for IIT JEE – 2015 examination and no fresh admission is required to be taken for second year, third year and fourth year in the said course.

b.      The respondent took admission on 12.02.2011 and he and his father filled in Enrollment Form with fully understanding of its terms & conditions. Annexure was also attached to the Enrollment Form. The respondent was granted waiver of 75% of tuition fees and cost of books and Rs.100% scholarship on examination fees, which came to Rs.82,500/-. There is no segregation of fees for first year, second year, third year and fourth year.  The respondent attended the class regularly for more than two years and then stopped appearing in the class, which were regularly held as per schedule without fail. Thus, the decision of the respondent to discontinue the class was unilateral and therefore he cannot ask for refund of fees.  Moreover, he left the class in midway and therefore he is not entitled to refund fees as per terms & conditions, agreed by him and his father.

2. The appellant’s advocate relied on the decisions in the following cases and particularly cases in between the appellant on one side and some others on other side and submitted that in almost all the cases it is held that when the terms & conditions signed by the students are to the effect that the fees cannot be refunded once paid to the appellant, no direction can be given to the appellant or institute to refund the fees.

i.        FIITJEE Ltd. Vs. S Balvignesh, in RP No.2684 of 2014, decided on 09.01.2015.

The said petition was filed by the appellant FIITJEE Ltd before Hon’ble National Commission against the order by which appellant was directed to pay Rs.10,000/- as compensation to the respondent. 

It is held by Hon’ble Justice V K Jain in an order dtd. 09.01.2015 that as per terms & conditions mentioned in the Enrolment Form, the student taking admission with the petitioner - FIITJEE is not entitled to refund any part of the fee paid by him irrespective of ground on which he withdrew from the said coaching course. Moreover, having taken admission on the basis of aforesaid terms, the complainant is bound by the said terms and consequently he cannot claim any refund or proportionate refund of coaching fee deposited by him. It was also found in that case that it was not the case of the complainant that after he withdrew coaching classes petitioner admitted another student in his place.

ii.       FIITJEE Ltd. Vs. Varjeet Walia, in Revision Petition No. 1375 of 2014, decided on 06.07.2015 by Hon’ble National Commission.

In that case, it was the policy of the petitioner institute is not to fill up the vacancy, which may be created by vacation of the seat by any candidate, after joining the coaching course. The revision petition was allowed and order passed in complaint was set aside and complaint was dismissed.

iii.      FIITJEE Ltd Vs. Harish Soni, in Revision Petition No.2054 of 2013.

          In that case also the Hon’ble Member Dr B C Gupta of the Hon’ble National Commission had dismissed the revision petition but Hon’ble Justice Mr Choudhari, Presiding Member of the National Commission passed dissenting judgement and thereby allowed the revision petition.  Hence, the matter was referred to Hon’ble Justice Mr V K Jain for decision on the question as to whether the complainant is entitled to refund of fee for a period of remaining one year from two years integrated course.  The Hon’ble Mr V K Jain passed an order on 15.09.2015 that the complainant is not entitled to get refund of the fees for remaining period of one year.

iv.      Brilliant Classes Vs. Shri Ashbel Sam in Revision Petition No.270 of 2006, decided by Hon’ble National Commission on 29.01.2010.

          It is held by the Hon’ble National Commission in the said case that once the candidate has entered into an agreement to abide by the rules and regulations and has voluntarily deposited the course fee, he cannot at his sweet will withdraw from the course and then demand the refund of the fee on the plea that institute is holding irregular classes or rendering sub-standard lessons.

The learned advocate of the appellant, therefore, requested that the impugned order may be set aside and the complaint may be dismissed.

9.      On the other hand, Smt Vandana Charde, mother and authorised representative of the respondent made submission in brief as under.

i.        The appeal is filed through Ashish Kumar Agrawal, but the

annexurs of the appeal memo is signed by David Timothy

without any proper authority letter.

2. The appellant for the first time came in the appeal about FIITJEE Talent Reward Examination (FTRE) & that respondent approached the appellant for preparation for JEE Main & Advance examination and appellant granted scholarship benefit to the respondent and the respondent and his father before taking admission had full understanding of the terms & conditions mentioned in the Enrollment Form. The appellant did not come with a case before the Forum that the respondent stopped appearing in the classes, which were regularly held as per schedule and he unilaterally decided to leave the coaching classes.

iii.      The decision relied on by the appellants are not applicable to the facts & circumstances of the present case.  The appellant did not deny before the Forum below that no teacher was appointed for teaching biology subject and now in the appeal, the appellant cannot raise a plea that the teacher was appointed.

iv.      The Forum below has rightly directed the appellant to refund the proportionate fee for the remaining period of the coaching classes. The Forum below has rightly considered the decisions relied on by the respondent before it.

5. The present case was filed after a delay of 13 days.

6. There is no substance in the appeal and hence it deserves to be dismissed.

10.    The representative of the respondent relied on the decisions in the following cases.

1. FIITJEE Ltd.  Vs. Ishaan Punj, III(2014) CPJ 219 (NC).

In that case, the District Consumer Forum had allowed the complaint and directed the opposite party to refund Rs.38,294.50 with cost of Rs.1,100/- and compensation of Rs.2,100/- with interest @ 12% p.a. from 09.02.2006 till payment.

The Hon’ble National Commission partly allowed the revision petition and modified the order by setting aside payment of interest and confirming rest of the impugned order.

2. Brilliant Classes Vs. B M Gupta, II(2011) CPJ 1 (NC).

In that case, the daughter of the complainant had taken admission in the institute of the opposite party.  The opposite party was supposed to start course near complainant’s place, but the classes were held very far and misleading advertisement was given.  The District Consumer Forum allowed the complaint and dismissed the appeal.  It is also held that as the opposite party failed to provide subject teacher and open study centre near to house of the complainant, the opposite party has committed deficiency in service.  Therefore, order of the Forum below was upheld.

iii.      Sehgal School of Competition Vs. Dalbir Singh, III(2009) CPJ 33 (NC).

          There was medical coaching of two years, conducted by the petitioner.  The respondent deposited two years’ fee, but discontinued after one year on the ground that the coaching was not up to the mark.  The petitioner denied to refund of the balance fees. The complaint was allowed by the Forum below. The State Commission held that Clause saying that “fees once paid not refundable”, is unconscionable, unfair and enforceable. As per public notice issued by UGC, all institutes were directed to refund money of students for period, college / institution not attended. Therefore, order of Forum below was upheld by Hon’ble National Commission in revision petition.

3. FIITJEE Ltd. Vs.  Pramod Panwar, II(2012) CPJ 562 (NC).

In that case, the refund of the advance amount was sought as the admission was withdrawn due to the poor quality of teaching of the institution. The Forum below had allowed the complaint and State Commission dismissed the appeal. It is held that institute could not have collected the fees for entire duration of the course i.e. for two years which comes to Rs.94,282/- out of which respondent had deposited Rs.74,446/-. It is held that since the respondent’s son had studied for 5^1/2 years, it would be reasonable for institute to deduct Rs.47,441/- and refund balance amount to the respondent.  Therefore, Hon’ble National Commission modified the order of the State Commission by reducing the amount of refund of balance fee from Rs.55,000/- to Rs.30,000/-.

4. Brilliant Tutorials Pvt Ltd. Vs. Ashwani Verma, IV(2010) CPJ 396 (NC).

In that case, balance fee was not returned. The opposite party had collected fees for two years from the complainant for admission in its institute.  The son of the complainant left the institute after nine months and asked for refund of the half of the amount paid. The Forum below allowed the complaint. The State Commission dismissed the appeal.  The Hon’ble National Commission held that charging fees in advance beyond current year would amount to unfair trade practice. The order of the Forum below was confirmed.

5. James Longuin D’Souza Vs. Principal, Rural Medical College, 2007 CTJ 297 (CP) SCDRC, Mumbai.

In that case, there was no agreement or declaration executed by the complainant in favour of the college.  It is held that students or their guardians are not bound by the unilateral rules of an educational institution published in its prospectus.  If there is no imparting of education, the question of payment of fee does not arise. Therefore, it is held that collection of Rs.81,250/- by opposite party is not only case of deficiency in service but also unfair trade practice. Hence, the opposite party was directed to refund amount collected from the complainant.

6. United India Insurance Co Ltd. Vs. Bhundu Ram Since Deceased now represented by LRs., II(2007) CPJ 345 (NC).

It is held that insurer cannot be allowed to plead grounds, which it had not taken in repudiation letter issued by it.

vii.     Emaar Mgf. Land Ltd & Anr. Vs. Dyal Singh, IV(2015) CPJ 294 (NC).

          In that case, it is held that the appellants who have not delivered legal physical possession of apartment within prescribed period and enjoyed possession of the apartment as well as consideration paid by the respondent, they should be dealt with heavy hands and therefore punitive damages @ Rs.5,00,000/- was imposed on the builders.

11.    It is, thus, not disputed that the respondent and his father had voluntarily and with full knowledge had signed the Enrollment Form in which there is a clear condition that the fees paid to the appellant will not be refunded. Admittedly, the respondent was admitted in four years integrated coaching classes conducted by the appellant for the years 2011-12, 2012-13, 2013-14 & 2014-15 and he paid total Rs.95,748/- to the appellant as specified in the aforesaid table. Moreover, respondent initially completed coaching for two years i.e. for the year 2011-12 and 2012-13.  The respondent left the coaching classes of the next two years for the years 2013-14 & 2014-15 in the midway.

12.    It is not the case of the respondent that after he left the coaching classes in the midway, the seat fallen vacant due to his leaving the classes, was filled in by the appellant.  It is the submission of the appellant’s advocate that it is not the policy of the appellant to fill in the vacant post after any student left the classes in midway which is not denied by the respondent. Moreover, it is the integrated coaching classes of four years. There is no separate admission in the coaching classes in second, third and fourth year of a particular batch.  Therefore, it is crystal clear that after the respondent left the coaching classes in the midway after attending the coaching classes for two years, his seat was left vacant for further two years. The facts & circumstances of the present case are thus identical to the facts & circumstances of the cases relied on by the learned advocate of the appellant and referred to above.

13.    In our view, when the respondent and his father while submitting the Enrollment Form with clear knowledge of its contents, signed the said Enrollment Form and thereby admitted the terms & conditions mentioned therein that the fees once paid will not be refunded, then it cannot be said that the appellant rendered deficient service to the respondent by not refunding him the proportionate fees of last two years.

14.    The Forum below in the impugned order has not discussed as to how the decisions relied on by the appellant placed before it, were not applicable to the facts & circumstances of the present case.  The Forum below erred in observing that the appellant has not denied the allegations made in the complaint by respondent. Perusal of the reply filed by the appellant to the complaint, shows that the material contents of the complaint in para Nos. 3 to 15 are denied in toto by the appellant. Moreover, the appellant in the said reply, called upon the respondent to prove  the averment made in the para No.4 of the complaint that there was lack of discipline among the students of the coaching classes and the teacher for teaching biology subject was not appointed by the appellant.

15.    The Forum below erred in relying on the simple letters written by the respondent  to the appellant and the legal notices issued by the respondent to the appellants to hold that there was lack of discipline in the coaching classes. No affidavit of any of the student of those coaching classes is filed by the respondent to prove the lack of discipline in the classroom and failure of the appellant in appointment of a teacher for biology subject.

16.    It is pertinent to note that though in the letters dtd.20.05.2013 and 05.06.2013 it is stated by the respondent that in parent meeting, it was brought to the notice of the appellant that there is no biology teacher to teach the said subject, however, it is not made clear by the respondent as to why the said grievance was not put in immediately writing and as to why the respondent waited till 20.05.2013 to make that grievance for the first time.  Therefore, it cannot be accepted that there was no teacher available for teaching biology subject to the students attending coaching classes.

17.    In our view the when the respondent attended the coaching class of appellant for long period of two years and when many other students also attended those classes alongwith the respondent and no affidavit of any other student is filed in support of the case of the respondent, then the letters written by the respondent and notice issued by his counsel to the appellant cannot be said to be sufficient to hold that there was lack of discipline among the students of the coaching classes or a teacher for teaching biology subject was not appointed by the appellant.

18.    Thus, we hold that the respondent has not proved by cogent evidence that the appellant adopted unfair trade practice or rendered deficient service to him as alleged in the complaint, by not maintaining discipline among the students of the coaching classes and by not appointing a teacher for teaching biology subject. The Forum, therefore, erred in holding the appellant guilty for deficient service.

19.    Thus, on merits of the case, we hold the impugned order deserves to be set aside. We also find that when the respondent and his father signed the declaration in the Enrollment Form that no fee would be refunded, then the respondent cannot at his will withdraw from the course and demand the refund of the fee on the plea that there was lack of discipline among the students of the coaching class and no appointment of teacher was made for teaching biology subject.  It was the responsibility of the respondent and his father to have ascertained the detail with regard to the manner of running of coaching classes by the appellant before depositing fee for being enrolled. 

20.    We also find that the aforesaid decisions relied on by the representative of the respondent are not applicable to the facts & circumstances of the present case since they are different from those of the present case, as discussed above. The decisions relied on by the learned advocate of the appellant, on the other hand, fully support the present case of the appellant under above discussed facts & circumstances.

21.    Moreover, we also find that the appeal memo is signed by the appellant’s advocate and it is duly affirmed by David Timothy, the authorised representative of the appellant and hence, it cannot be said that the appeal memo is not properly signed and verified.

22.    The copy of the impugned order filed on record, shows that it was delivered to the appellant on 03.04.2017.  The appeal was presented before this commission by the appellant on 02.05.2017 as seen from the endorsement made on first page of the appeal memo by the registry of the office of this Commission.  Therefore, it can be said that the appeal is filed within limitation.

23.    We find that the aforesaid submission made by the representative of the respondent has got no force in law and hence the same cannot be accepted.

          Thus, for the foregoing reasons, we are of the considered view that the impugned order needs to be set aside. 

Accordingly, we pass the following order.

ORDER

1. The appeal is allowed.
2. The impugned order is set aside.
3. The complaint stands dismissed.
4. No order as to cost in this appeal.
5. Copy of the order be furnished to both parties free of cost.