Per Mr B A Shaikh, Hon’ble Presiding Member

1.      This appeal is filed by the original opposite party; feeling aggrieved by the order dtd.15.09.2015, passed by District Consumer Forum, Nagpur, by which the complaint bearing No.117/2014 has been partly allowed.

2.      The case of the respondent herein / original complainant as set out by him in the consumer complaint in brief is as under.

a.      Master Gaurav Chawla is the son of the respondent. Gaurav completed his 10^th standard examination from reputed school namely Jain International School, Nagpur. The appellant runs an institute at Nagpur. The appellant conducted counselling session with some of the students including the son of the respondent and suggested science stream for his son Gaurav.  Moreover, appellant’s representative also advised the complainant for enrollment of his son for Pinnacle Programme conducted by the appellant. Therefore, as per advice of the appellant’s representative, the respondent got his son admitted in science stream in Jain International School at Nagpur and joined him for Pinnacle Programme conducted by the appellant  institute. The appellant also conducted a test prior to admitting him for Pinnacle Programme.  After verifying the test result, the appellant asked the respondent to make complete payment of the programme for first year. The appellant also asked the respondent to sign some enrollment forms, stating that there are meager formalities, which they will complete.  Therefore, believing the words of the appellant the blank enrollment form was signed by the respondent and his son.  The appellant did not inform the respondent about the declaration mentioned in the enrollment form and thus, misguided the respondent for obtaining wrongful gains from him.  

b.      The respondent deposited Rs.1,91,155/- with the appellant before commencement of the course. Moreover, the respondent also handed over two post dated cheques of Rs.77,736/- and Rs.14,100/- dated 02.02.2014 as security for remaining fees payable in the year 2014.  The appellant started course and provided study material to the son of the respondent.

c.       However, after attending the classes by the son of the respondent from 10.06.2013 to 17.06.2013, Gaurav found it difficult to understand the science course and hence he was depressed. The appellant at the time of re-counseling of Gaurav, suggested the respondent that his son should be admitted in commerce stream instead of science stream and hence as per advice of the appellant, Gaurav was shifted from science to commerce stream.  However, when the respondent - father of Gaurav requested the appellant to provide additional teaching to his son in commerce stream, the appellant refused to do so and said that they do not conduct any such teaching for course of commerce stream.

d.      Moreover, when the respondent requested the appellant to refund fees to him, the appellant did not refund those fees.  Therefore, the respondent issued legal notice dtd. 01.07.2013. The appellant gave reply on 29.07.2013 and refused to refund those fees. Moreover, the appellant also sent copy of enrolment form alongwith reply. The respondent found that it was the same enrollment form on which the appellant had obtained his signature without explaining the contents of the same to the respondent and the respondent had signed the same as the appellant had said that the said form was required by way of formality.  The appellant cannot refuse the refund of the fees on the basis of declaration on the said enrollment form.  Moreover, Gaurav - son of respondent was shifted from science stream to commerce stream only as per advice of the appellant and hence the respondent cannot be put monetary loss due to non-refund of the fees by the appellant.

e.      Therefore, the respondent filed consumer complaint claiming direction to the appellant to pay him total amount of Rs.3,91,155/- which is inclusive of refund of aforesaid fees, interest, litigation cost and compensation for physical & mental harassment and misguiding the respondent.

3.      The Forum below issued notice of that complaint to the appellant / original opposite party.  The said notice was duly served to the appellant.  However, the appellant failed to appear before the Forum below.  Hence, the Forum below proceeded exparte against the appellant.

4.      The Forum below, after hearing advocate of the respondent and considering the evidence brought on record by respondent, accepted aforesaid case of the respondent, passed the impugned order and thereby partly allowed the complaint and directed the appellant to refund Rs.1,91,995/- with interest @ 9% p.a. from 29.07.2013 till realisation of the same by him and to pay him compensation of Rs.5,000/- for physical & mental harassment and litigation cost of Rs.3,000/-.

5.      As observed above, feeling aggrieved by the said order, the original opposite party has filed this appeal. 

6.      We have heard advocate Mr Mukesh Goel appearing for the appellant and advocate Mr Pravin Dahat appearing for the respondent.  We have also perused the record & proceedings of the appeal.

7.      The learned advocate of the appellant made submission in brief is as under.

i.        The terms & conditions in the enrollment form filed on record, shows that the fees once paid to the appellant would not be refunded under any circumstance and that the Forum did not consider the said condition mentioned in the enrollment form and erred in partly allowing the complaint.

ii.       The decision to discontinue the classes was taken by the respondent’s son unilaterally and therefore there was no reason or occasion for the respondent to ask for refund of fees and the appellant has rightly turned down his request as per reply given to his notice and this fact was not considered by the Forum below.

iii.      It is falsely stated by the respondent that signatures on the blank enrollment form were obtained by the appellant by misguiding the respondent and therefore the respondent is bound by terms & conditions and declaration of the said enrollment form.

4. The notice of the Forum below received by the appellant was mixed up with some other files and therefore appellant could not appear before the Forum below to defend its case.

8.      The decisions in the following cases are relied on by the learned advocate of the appellant.

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, the learned advocate of the respondent made submission in brief is as under.

i.        It is not disputed by the appellant that the notice of the complaint issued by the Forum below was duly served to the appellant but the appellant did not appear before the Forum below to contest the complaint. It is well settled principle of law that unless there is specific denial of any allegation / fact made in the case, it shall be taken to be admitted. As the appellant has not filed reply to the complaint denying the submission made in the complaint, it is deemed that the appellant admitted the same and now the appellant cannot deny the same for first time in this appeal.

ii.       The appellant has not denied the averment made by the respondent in the prior notice, but the appellant simply relying on the non-refund clause on the enrollment form, denied to refund of the fees and therefore, all the averments made in the complaint by the respondent went unchallenged.

iii.      The appellant cannot deny the refund of the fees on the basis of non-refund clause in the enrollment form as it is not disputed by the appellant by filing reply to the consumer complaint that the contents of the said enrollment form were not explained and read over by the appellant to the respondent and his son and that by misguiding them the appellant obtained their signatures on the blank enrolment form. Hence, the appellant cannot rely on the contents of said enrolment form to support its defence.

iv.      The son of the respondent was initially admitted in science stream as per advice of the representative of the appellant and subsequently as the respondent’s son found the said science stream difficult, then again as per advice of the appellant’s representative, his stream was changed from science to commerce and that the appellant has not denied by filing reply to the consumer complaint that as per advice of the representative of the appellant the science stream was selected for the respondent’s son and then again due to second advice his stream was changed from science to commerce and hence the appellant cannot denying the refund of the fees.

5. The respondent’s son attended the classes of the appellant only for few days i.e. from 10.06.2017 to 17.06.2017 and as per advice of the representative of the appellant, he changed the stream and hence the appellant cannot deny the refund of the fees.

6. The Forum below has properly considered the evidence brought on record and passed legal & correct order and it needs to be confirmed in this appeal.

10.    The respondent’s advocate relied on the decisions in the following cases.

i.        FIIT JEE Ltd Vs. Dr (Mrs) Minathi Rath, in revision petition No.3365 of 2006, decided on 14.11.2011.

          It is held by Hon’ble National Commission that coaching institutions may not be conventional educational institutions but since they provide coaching and training to students of an educational nature to equip them for higher studies in specialized educational institutions, the same principles that applies to educational institutions would also apply to these institutions in respect of the fees charged by them. In any case, respondents are consumers and the petitioners are service provides and that the petitioners are rendering service for consideration and fall within the purview of Consumer Protection Act, 1986.

ii.       Mody University of Scienceand Technology & Anr. Vs. Megha Gupta, in revision petition No.3288 of 2016, decided on 08.12.2016 by Hon’ble National Commission.

          In that case, petitioner did not place on record any evidence to show that after the complainant had left the Course, her seat remained vacant and had not been filled up by another candidate by the last date of admission. Hon’ble National Commission confirmed the order passed by District Consumer Forum and the State Commission by which the complaint was allowed, giving direction to the petitioner to refund fees to the complainant.

3. Seven Square Academy Vs. Mrs Chitralekha Nitin Bendke, in Appeal No.A/14/453, decided on 01.07.2016 by Hon’ble State Commission, Mumbai.

In that case, it was found that as per Rules & Regulations, amount of fees could not be refunded but application for cancellation of admission was moved within a period of two days. It was held that to retain the amount of fees is not proper on the part of the appellant and therefore, the order passed by the District Forum to refund the fees with compensation & litigation cost, was upheld in that appeal.

iv.      Billbong High International School Vs. Ajeet Kumar Khatri, in First Appeal No.73/2013, decided on 19.11.2015 by Hon’ble M.P. State Commission, Bhopal.

          In that case, the appellant did not appear before the Forum despite service of notice.  The complaint was allowed by the District Forum and appellant was directed to refund 90% of the deposited amount with Rs.5,000/- compensation for mental & physical harassment and cost of Rs.2,000/-.

          The amount of fees was deposited on 04.03.2011 and the session of the institution was to begin from 15.06.2011 and the request for withdrawal of admission and refund of fees was made on 18.04.2011.  The appellant had failed to show that due to withdrawal of admission the seat remained vacant and institute suffered loss.  Therefore, the order passed by the District Forum was confirmed in the appeal.

11. The most material aspect of the present case is that all the averements made in the complaint by the respondent went unchallenged before the Forum below as the appellant chose not to appear before the Forum below after service of notice to it.  It is well settled principle of the law that if there is no denial to pleadings / averments of complainant, by the opposite party then it is deemed that the opposite party admitted the said pleadings / averments. Therefore, in the instant case, as the appellant did not file any reply / written version to the complaint denying the averments made therein by the respondent, it is deemed that all the averments made in consumer complaint are admitted by the appellant. Therefore, in the appeal, for the first time, the appellant cannot deny any of the said pleading / averment made in the complaint.

12.    Hence, keeping in mind, the aforesaid well settled principle of law, we proceed to consider evidence brought on record of the complaint and submission made by the learned advocate by both parties in appeal.

13.    It is, thus, specific case of the respondent as set out in the consumer complaint that the appellant’s representative had misguided the respondent and his son while obtaining their signatures on the blank enrollment form that the said form is being obtained by way of mere formality and thus of no value.  The said form was sent by the appellant to respondent, only when the respondent had served notice before filing of the complaint to the appellant demanding refund of the fees. In our view, the aforesaid all the averments of the respondent made in the consumer complaint needs to be relied on since there was no denial to the same before the Forum below.  Therefore, we hold that as the signatures of the respondent and his son were obtained on blank enrollment form by the representative of the appellant by misguiding them, the appellant cannot rely on the declaration made in the said form and the terms & conditions mentioned in the said form so as to deny refund of fees to the respondent. The aforesaid all the decisions relied on by the learned advocate of the appellant are not applicable to the facts & circumstances of the present case since in none of the case the facts & circumstances are identical to those of the present case discussed above.  In those cases, averments made in the complaints were duly denied by the opposite party by filing their reply, whereas in the present case the appellant chose not to file reply to the consumer complaint before the Forum after service of notice. Therefore, the aforesaid decisions are of no assistance to the appellant in the present appeal.

14.    The submission of the respondent made in the complaint also went unchallenged that only as per advice of the representative of the appellant, the respondent admitted his son in science stream and as within a period of few days it was found that the said science stream was difficult for the son of the respondent to understand, his science stream was changed to commerce stream only as per advice of the representative of the appellant. Hence, there is no reason to disbelieve the said submission of the respondent made in the consumer complaint.

15.    It is not the case of the appellant that he had made clear to the respondent and his son while advising to change his stream that fees paid by the respondent would not be refunded after change of the stream.  In our view, when blank enrollment form was signed by the respondent and his son as appellant misguided them, it was the responsibility of the appellant to explain the respondent and his son after change of stream that fees will not be refunded to them.

16.    Thus, we find that as no such specific understanding was given and as the appellant had obtained signatures of the respondent and his son on blank enrollment form without giving understanding to them about conditions of the said form, it can be said that the appellant adopted unfair trade practice by doing so.

17.    We find that as the son of the respondent has withdrawn from the science stream and joined commerce stream only at the instance of the appellant’s representative that too after attending the class of the appellant only for few days and as the contents of enrollment form were not read over and explained by the appellant to the respondent and his son while obtaining their signatures on the same, appellant cannot refuse refund of the fees to respondent. Thus, refusal by the appellant to refund fees constitutes unfair trade practice on its part.  We, thus, find that the order passed by the Forum below exparte against the appellant is legal, correct and proper, needs to be confirmed in appeal.

          Accordingly, the following order is passed.

ORDER

i.        The appeal is dismissed.

ii.       No order as to costs in this appeal.

iii.      Copy of the order be furnished to both parties free of cost.