Delhi

StateCommission

A/535/2016

SUBHASH BANSAL - Complainant(s)

Versus

M/S FIITJEE LTD. & ANR. - Opp.Party(s)

K.K MUKHIJA

23 Oct 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 23.10.2019

First Appeal No. 535/2016

(Arising out of the order dated 07.10.2016 passed in complaint case No. 620/2016 by the District Consumer Disputes Redressal Forum-III Janak Puri, New Delhi)

In the matter of:

Mr. Subhash Bansal

B-1009, Shastri Nagar

New Delhi-52                                                                                ….....Appellant

 

Versus

 

1. M/s Fiitjee Ltd

Fiitjee House, 29 A

Kalu Sarai, Sarvapriya Vihar

New Delhi-110016…..Respondent No.1

 

2. Mrs. Simran Dutta, CEO/Signatory

M/s Fiitjee Ltd, (Punjab Bagh Centre)

31-32, Central Market

West Punjabi Bagh, New Delhi…..Respondents No.2

                                     

                                                                  

CORAM

 

Salma Noor, Presiding Member

 

1.             Whether reporters of local newspaper be allowed to see the judgment?                             

2.             To be referred to the reporter or not?                                                                                   

 

 

Salma Noor:  Presiding Member

 

1. Present appeal is filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as `the Act’) against the order dated 07.10.2016 passed by the District Consumer Dispute Redressal Forum III, Janak Puri, New Delhi in Complaint Case No.620/2016 whereby the complaint of the appellant/complainant was dismissed by the District Forum on the ground of maintainability. 
2. Brief facts of the case are that the appellant/complainant approached the respondents for the enrollment of his son in the JEE entrance examination. His son qualified the admission test and was selected and offered two year class room program for JEE (Advanced) Regular Week Contact Classes commencing from April 2015 with course reference No 12/course/1415/B0439 and was enrolled vide enrollment No.1151121570052 on 25.01.2015. Enrollment contract given to the appellant/complainant by the respondents/OPs as per fee structure of respondent-1/OP-1, total amount/fee for the entire course was Rs.1,97,120/- which was to be paid in the manner as provided with the fee acknowledgment slip. It is alleged that a sum of Rs.1,25,440/- was duly paid by the appellant/complainant till February 2015 and rest was to be paid in the month of December, 2015. It is alleged that as per the particular as provided by the respondents/OPs, the component of fee was given which includes Fittjee Book price, Admission fee, AITS, Examination fee, GMP, Infrastructure cost fee, Online test fee and Tuition fee and as a mal-practice, the major part of the fee was to be paid before the actual commencement of the session. It is alleged that his son after enrollment started attending weekly classes from the month of April 2015 and after attended few classes, he went into depression and his psychologist advised the appellant/complainant to remove his son from any kind of pressure. It is stated that as his study clubbed with the weekly classes were affecting his mental and physical health, appellant/complainant requested the respondents/OPs to refund his fee and to withdraw the candidature of his son vide his letter dated 18.04.2015. The respondents/OPs vide its letter dated 19.05.2015 rejected the complaint of the complainant on the ground that seat of his son will remain vacant throughout the session and as per policy the refund of fee could not be accepted. Thereafter, appellant/complainant made several visits to the office of the respondents/OPs to consider the case of his son on humanitarian grounds which was not accepted by the respondents/OPs.
3. It is further alleged that appellant/complainant in order to save his hard earned money and not to let it go waste, he requested the respondent-2/OP-2 to allow his son for attending the math class for two years vide letter dated 02.06.2015. According to the appellant/complainant, the said request was accepted half heartedly and the appellant/complainant was told to send his son for few days in weekly math classes. It is alleged that after attending few math classes, it was found that his son was not benefiting from teaching pattern because of lack of communication between teachers and students and the lack of proper infrastructure and facilities. It is also alleged that the student-teacher ratio was also too low and quality of the course was not found up-to the mark. It is alleged that son of the appellant/complainant further went into deep depression and started behaving abnormally. Thereafter, the appellant/complainant met both the respondents/OPs and requested to refund the money which was paid by the appellant/complainant as the program for which he got his son enrolled was never utilized but respondents/OPs did not pay any heed to the request of the appellant/complainant on the baseless grounds of rules/policy. Thereafter the appellant/complainant issued a legal notice to the respondents/OPs dated 22.12.2015. Despite receipt of the notice, respondents/OPs never replied to the notice.
4. In view of the above reasoning, appellant/complainant filed a complaint before the District Forum with the following prayers:

1. Direct the OPs to pay Rs.1,25,440/- towards the refund of fee paid along with 18% interest per annum from the date of due till its realization.
2. Grant compensation of Rs.50,000/- towards the damages for mental agony, suffering and harassment by the complainant.

 

5. The Ld. District Forum dismissed the complaint of the appellant/complainant at the admission stage observing as under:-
   •  

Similar view is taken by another bench of Hon’ble Supreme Court in special ** petition no 22532/12 titled P.T. Koshy & ANR vs. Ellen Charitable Trust & Ors decided on 09.08.2012. Similar view is taken by Hon’ble National Commission in Revision Petition no 1684/2009 titled as Registrar, GGS Inderaprastha University vs. Miss Tanvi decided on 29.01.2015, in Revision Petition No 4335/14 titled as Mayank Tiwari vs. Fiitjee decided on 18.12.2014, in Revision Petition No 3365/2006 titled Fiitjee vs. Dr.(Mrs) Minathi Rath, in Revision Petition No 1805/2007 titled Fitjee vs. B.B. Popli, Revision Petition No 3496/2006 P.T. Education vs. Dr. Minathi and in Revision Petition No 2660/2007 all decided on 14.11.2011 by common order. Similar view is also taken by Hon’ble State Commission of Chandigarh in Appeal no 244/2014 titled M/s Fiitjee Ltd vs. Mayank Tiwari decided on 23.09.2014.

Similar are the facts of the present case. The complainant’s son Aditya Bansal took admission with opposite parties for coaching. The opposite parties are giving education. Therefore a held by Hon’ble Supreme Court, Hon’ble National Commission and Hon’ble State Commission of Chandigarh time and again education is not a commodity and the opposite parties are not service providers and the complainant is not a consumer under the Consumer Protection Act.

Therefore, complainant is not maintainable. Resultantly the complaint is dismissed.”

 

6. Aggrieved by the aforesaid order of the District Forum, present appeal is filed by the appellant/complainant.
7. Notice was issued to respondent/OP. Respondent/OP appeared through his counsel and received the copy of appeal, but no reply to the appeal was filed by them. Right to file reply was closed vide order dated 28.11.2018.
8. I have heard the arguments of the appellant/complainant and perused the material on record.
9. I have gone through the judgments cited by the District Forum. I find that in case of Maharshi Dayanand University vs. Surjeet Kaur (supra), the issue was related to issuance of B.Ed. degree, which can only be issued as per the Rules and Regulations of the concerned University. In the case of P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors., Civil Appeal No.22532 of 2012 decided on 09.08.2012, the Hon’ble Supreme Court has relied on its judgment in case of Maharashi Dayanand University Vs. Surjeet Kaur (supra) and has held that “education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service.” The facts of these cases relate to statutory powers and functions of the educational institutions or the quality of education. The facts of the present case relate to the administrative aspects and are different from the cases cited. Moreover, the petitioner is not recognized by the AICTE as stated in the complaint and, therefore, it cannot be treated as an educational institution in the present case.
10. The Hon’ble National Commission in bunch of Revision Petition decided on 14.11.2011 titled as Fiitjee Limited vs. Dr. (Mrs.) Minathi Rath & Kanupirya (Minor) etc., categorically held that “The issues for decision before us are whether the petitioner/Institute in view of the judgment of the Honble Supreme Court in Islamic(supra) were justified in demanding advance payment of fees for the entire course period and refusing to pay the same by citing contractual agreement and because they were not educational institutions and, therefore, the above judgment of the Honble Supreme Court was not applicable to them. The other issue raised by the Counsel for petitioner is whether this case comes within the ambit and scope of the Consumer Protection Act,1986.

So far as the first issue is concerned, even though in a very narrow technical sense, for reasons pointed out by the counsel for petitioner in his oral submissions, 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 apply to educational institutions would also apply to these institutions in respect of the fees charged by them including advance fees. In any case, respondents are consumers and the petitioners are the service providers.

Petitioners are rendering service for consideration and fall within the purview of Consumer Protection Act, 1986.

The judgment of the Supreme Court would, thus, override any bilateral agreement between the parties. We are, therefore, of the considered view that respectfully following the judgment of the Hon’ble Supreme Court, the petitioner/institute could not have charges full advance fees for two years and could have charged prescribed fees for one semester/year.

In the instant cases, since petitioner/institutes do not follow the semester system, they could only have charged advance fees for one year. In view of these facts, the respondents are entitled to get refund of the fees after deducting the non-refundable service tax for the unattended second year of the course.

Regarding the contention of the petitioners that these cases do not fall within the ambit and scope of the Consumer Protection Act, 1986 because these complaints have not been made on grounds of deficiency in service before the District Forum, we find that this contention is not sustainable. In the first place, the complaints were made on specific grounds of deficiency in service before the District Forum and secondly as stated in the above para, as per section 2(d)(ii) of the Consumer Protection Act, 1986, the respondents are consumers who sought to avail of services for a consideration and the petitioner/institute is very much a provider of these services and thus these cases are consumer disputes within the meaning of the Consumer Protection Act, 1986.”

11. In view of the above, appeal is allowed and order of the District Forum dated 07.10.2016 is set aside. The complaint of the appellant/complainant is admitted and remanded back to the District Forum to decide the case on merits.
12. Appellant/complainant is directed to appear before the District Forum on 12.12.2019. Thereafter, the District Forum shall proceed further in the matter in accordance with law after issuing notice to the respondents/OPs.
13. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum. The record of the District Forum be also sent back forthwith. Thereafter, the file be consigned to record room.

 

                                                                                                        (Salma Noor)

                                                                                                          Presiding Member