Date of filing: 25.06.2019 Date of Disposal: 12.04.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 12TH DAY OF APRIL, 2023
CONSUMER COMPLAINT NO.1025/2019
PRESENT:
SRI.RAJU K.S,
Sri. Sahil Gupta,
S/o. Dr. Susheel Gupta,
Aged About 37 years,
R/at: No.1/3, Civil Station,
Assaye Road, Near Ulsoor Lake,
Frazer Town, Bangalore-560042.
(Rep by Sri. Venkatesh Prasad. R, Advocate)
M/s. Neev Academy,
Yemalur Campus,
Survey No.16, Yemalur,
Opp. Sai Garden Apartments,
Kempapura Main Road,
Kempapura, Bellandur,
Rep. by its Head of School
Dr. Aloha Laving.
(Rep. by Sanjay Nair, Advocate)…… OPPOSITE PARTY.
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
01. The complainant has filed this complaint Under Section 12 of the Consumer Protection Act, 1986 seeking for a direction to the opposite party to refund the entire amount of Rs.2,75,000/- paid by the complainant and such other relief as this Commission deems fit in the circumstances of the case.
02. It is not in dispute that, the complainant has got admitted his son for Grade-1 for the academic year 2017-2018 which commenced from 05.06.2017 at opposite party school and had paid the registration fee/admission fee of Rs.1,00,000/- on 21.11.2016 and fee of Rs.1,75,000/- for the Term I for the said academic year on 15.04.2017. Further it is not in dispute that, the complainant has preferred to withdraw the admission of his son and intimated to opposite party on 01.05.2017 and sought for refund of the entire amount of Rs.2,75,000/-. Further it is not in dispute that, the opposite party had refused to refund the said amount on the ground that, fees once paid it will not be refunded.
03. It is the further case of the complainant that, even though several email correspondences been made, the opposite party blatantly refused to refund the fee paid. Further the opposite party had collected the fee in advance in the month of November-2016 for the courses commencing in June/July 2017, which was illegal. Further the opposite party had utilized the amount paid by the complainant without rendering any service. Hence the complaint came to be filed.
04. It is the further case of the opposite party that, as per the terms and conditions of the policies and the documents executed by the parents, there is no relaxation, rebate or concession in the said policies. Further the complainant’s son previously had attended K-2 programme at Neev Early years, Indira Nagar from the year 2013-14 and the complainant wished to continue the child’s education with the opposite party’s institution. Further the complainant and his wife had filled up the application for admission form on 19.10.2016 and accordingly the student was admitted to Grade-I for the academic year 2017-2018.
05. Further the complainant’s wife had executed the Parent Agreement form on 21.11.2016 and had read the terms of the Offer Letter dated: 15.11.2016. Further opposite party had intimated to the complainant vide email dated: 11.05.2017 that, Registration fee and the Tuition fee paid is a non-refundable one. Hence the opposite party school is right in refusing to refund the non-refundable registration fee and Term I fee to the complainant. Further there is an inordinate delay on the part of the complainant in approaching this Commission. Further in the light of the decision by the Hon’ble Supreme Court of India, students cannot file a Consumer Complaint for deficiency of service against the education institutions. Further the complainant cannot be a Consumer within the meaning of Section 2(1)(d) of Consumer Protection Act, 1986. Further there is no deficiency of service on the part of opposite party as claimed by the complainant within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986. Hence sought for dismissal of the complaint.
06. To prove the case, the complainant (PW.1) has filed affidavit in the form of his evidence in chief and got marked EX.P.1 to EX.P.7 documents. The Finance and Legal Head of opposite party (RW.1) has filed affidavit in the form of her evidence in chief and got marked EX.R.1 to EX.R.12 documents.
07. Counsels for the complainant and opposite party have filed their respective written arguments with citations.
08. The points that would arise for consideration are as under:-
(1) Whether the complaint is maintainable?
(2) What order ?
08. Our findings on the aforesaid points are as follows:-
Point No.1 : In negative
Point No.2 : As per the final order for the following:-
REASONS
09. POINT NO.1:- The complainant (PW.1) and opposite party (RW.1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.
10. It is the contention of learned counsel for opposite party that, since the opposite party is an educational institution, it cannot be a service provider. Hence the complainant cannot be a Consumer. Contrary to that, it is the contention of learned counsel for the complainant that, since the complainant had paid the registration fee as well as tuition fee to the opposite party and the service in-turn offered by the opposite party amounts to service and the opposite party will be a service provider.
11. In support of the contention counsel for the complainant relies the judgment rendered by Hon’ble National Consumer Disputes Redressal Commission reported in 2010 SCC OnLine NCDRC 181, in between the Registrar, Andhra University & another Vs. Janjanam Jagedeesh decided on July 6, 2010. The facts in the said case is that, the complainant as per his choice was given admission in M.Sc. by opposite party No.2 and the complainant had paid a sum Rs.40,600/- fee for one academic year and got admitted on 30.06.2004. Subsequently the complainant was offered admission at National Dairy Institute in Hyderabad, and on the basis of another entrance test conducted, when the complainant approached the former institute for the release of original certificates and refund of fee, the former institute has refused to refund. In the circumstances Hon’ble National Consumer Disputes Redressal Commission had directed the opposite party to refund the fee taken.
12. Further the counsel for complainant also relies the judgment rendered by Hon’ble NCDRC reported in II (2009) CPJ 314 (NC) between COMED-K Vs. T. Nagamani. The facts in the said case is that, the complainant had paid Rs.2,30,000/- as fee for admission to Dental College through COMED-K. Subsequently the complainant had paid fee to the KLE College also for admission and subsequently the complainant got admitted in KMC, Manipur University. The Hon’ble National Consumer Disputes Redressal Commission had confirmed the order of District Forum in allowing to refund the fee paid by deducting the processing charges and also observed that, this Commission in a catena of judgments has directed the education institutions to refund the fee to the students who have left the college and got admission in some other institutions.
13. Further counsel also relies the judgement relied by Hon’ble National Consumer Disputes Redressal Commission on 29.09.2000, in between Bhupesh Khurana & Others Vs. Vishwa Buddha Parishad & Others. In the said case also it was ordered to refund the admission expenses paid by the complainant at the time of admission with interest.
14. Further counsel also relies the judgment rendered by Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh, in between the British School Vs. Rahul Pathania decided on 19 August, 2021. The facts of the said case is that, the complainant got her daughter admitted to the school by making payment. Within two days of joining the school, the complainant found harsh truth of wrong picture projected by the school, hence the complainant withdrew her daughter and sought for refund of the amount of Rs.77,300/-. The Hon’ble State Commission has observed that, the documents signed by the complainant with the school for getting the refund of the amount deposited subsequent to the immediate withdrawal of his Ward from the school is ultra-vires, since the same principle of law would apply over here and it was directed to refund the said amount.
15. Contrary to that, the learned counsel for opposite party relies the judgment rendered by the Honble National Consumer Disputes Redressal Commission reported in 2021 SCC OnLine NCDRC 24 decided on February 2, 2021, in between Rajendra Kumar Gupta Vs. Dr. Virendra Swarup, Public School & another. The facts in the said case is that, the complainant’s son was studying in the opposite party – school and he had received an urgent call from the school requesting the complainant to come to the school as his son was unwell. Later on it was revealed that, he had drowned in the swimming-pool of the school and died. Hence the complaint was filed for compensation. In the circumstances, it is held by referring number of judgments that, education includes curricular activities such as swimming is not a service within the meaning of Consumer Protection Act, 1986.
16. Further counsel also relies the judgment rendered by Hon’ble National Consumer Disputes Redressal Commission reported in 2020 SCC OnLine NCDRC 7, in between Manu Solanki & Others Vs. Vinayaka Mission University, decided on January 20, 2020. In Para-35 of the said Judgment it is observed that, any defect/deficiency in conferring of a degree or diploma, marks, certificates which may arise during the course of imparting of Education does not fall within the purview of Consumer Protection Act, 1986. Further in Para-51 it is observed that, institutions rendering education including Vocational courses and activities undertaken during the process of pre-admission as well as post-admission not be covered under the provisions of the Consumer Protection Act, 1986.
17. Further counsel relies the judgment rendered by Hon’ble Apex Court reported in (2010) 11 Supreme Court Cases 159, in between Maharshi Dayanan University Vs. Surjeet Kaur decided on July 19, 2010. In para-20 (12) of the judgment it is observed that, when the Examination Board conducts an examination in discharge of its statutory function, it does not offer its ‘services’ to any candidate. Further examination fee paid by the student is not the consideration for availment of any service, but the same is a charge paid for the privilege of participation in the examination. The fact in the said case is that, the complainant pursued MA and B.Ed. simultaneously contrary to general rules of examination which prohibits pursuing two courses simultaneously. The complainant felt aggrieved by the action of the member in refusing to confirm the degree of B.Ed. on her she had approached the Commission for necessary direction. In the circumstances for the reasons stated above, the Hon’ble Commission and the Hon’ble Apex Court had rejected the relief sought.
18. Further the counsel also relies the judgment rendered by the Hon’ble Apex Court in SLP No.22532/2012, dated: 09.08.2012. It is ordered that, education is not a commodity and educational institutions are not providing any kind of service, therefore in the matter of admission fees there cannot be any question of deficiency of service.
19. Further counsel also relies the judgment rendered by the Hon’ble Apex Court decided on 02.11.2017 in Civil Appeal No.17802/2017, in between Anupama College of Engineering Vs. Gulshan Kumar & others. In this judgment by referring the judgment rendered in Maharshi Dayanand University Vs. Surjeet Kaur and the judgment rendered in the case in between P.T. Koshy & another Vs. Ellen Charitable Trust & Others, it is observed that, education is not a commodity and 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.
20. In the judgements relied by the counsel for the complainant it is not specifically discussed as to whether the school was a service provider or not? Further the judgements were rendered prior to the judgements relied by the counsel for opposite parties decided by Hon’ble Apex Court. In the judgments relied by the counsel for the opposite parties it is specifically stated that, Educational Institutions are not providing any kind of service, hence there cannot be a question of deficiency of service. Therefore the matter cannot be entertained by the Consumer Forum. In the case in hand also the complainant claims for refund of the admission fee and tuition fee paid by the complainant, since the complainant’s son had withdrawn from Grade-1 class from opposite party institution and sought for refund of the tuition fee and registration fee paid. We feel in view of the principles laid down in the judgments relied by the counsel for the opposite parties this Commission cannot entertain the complaint filed by the complainant and the complainant can seek his remedy elsewhere, if advised. Hence we answer point No.1 in negative.
21. POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-
ORDER
The complaint is dismissed. No order as to costs.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 12th Day of April, 2023)
//ANNEXURE//
Witness examined for the complainant side:
Sri. Sahil Gupta, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.
Documents submitted by the complainant side:
- Hard Copy of mail dt.15.11.2016 sent by opposite party with fee schedule for the academic year 2017-18, the policy hand book of academy and parent agreement form with list of document - EX.P.1.
- Hard copy of mail dt.24.11.2016 from OP with registration fee receipt for Rs.1,00,000/- – EX.P.2.
- Hard copy of mail dt.05.04.2017 from OP with receipt for a sum of Rs.1,75,000/- towards tuition fee, etc., – EX.P.3.
- Hard copy of mail dt.01.05.2017 sent from wife of the complainant to OP – EX.P.4
- Similar representation sent by wife of the complainant on 26.05.2017 in detail – EX.P.5
- Hard copy of reply mail sent by OP dt.31.05.2017 – EX.P.6
- Certificate Under Section 65 B of Evidence Act – EX.P.7.
Witness examined for the opposite party side:
Swapnili TTewari, Finance & Legal Head of opposite party (RW-2) has filed affidavit in the form of her evidence in chief.
Documents marked for the Opposite Party side:
1. Copy of Resolution – EX.R.1.
2. Copy of application of complainant – EX.R.2.
3. Copy of agreement – EX.R.3.
4. Copy of emails containing 3 pages – EX.R.4 to EX.R.6.
5. Copy of attendance of student – EX.R.7
6. Copy of show cause notice issued by BEO – EX.R.8
7. Copy of reply to show cause notice – EX.R.9.
8. Copy of Legal Notice dt.06.02.2018 – EX.R.10.
9. Copy of reply dt.16.02.2018 – EX.R.11.
10. Certificate U/s. 65B Indian Evidence Act – EX.R.12.
