JUSTICE V.K.JAIN (ORAL)

             Master Pukhraj, son of the complainant/respondent, took admission in the coaching Institute of the petitioner on 30.07 2008, since he wanted to take coaching for admission to IIT. The case of the complainant is that since the child has joined the coaching after the course had already started extra classes were promised for him. The said extra classes, according to the complainant, were never given to his son. This is also the grievance of the complainant that the study material was not provided to the child and the number of students in each class was only 18 whereas at the time of admission he was told that there would be a 80 students in the class. Another grievance of the complainant is that the teachers were frequently changed. The complainant sought to withdraw from the Institute and asked for refund of the amount which he had deposited at the time of admission of his child. He was informed that as per the terms and conditions of the admission the fee charged from him was not refundable. Aggrieved the complainant approached the concerned District Forum by way of consumer complaint. The complaint was resisted by the petitioner which inter-alia maintained in its written version that not only the extra classes but also the requisite study material was duly provided to the son of the complainant. It was also stated in the written version that as per the terms and conditions signed at the time of admission no refund was payable once the classes had started.

2.      The District Forum having allowed the consumer complaint the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed the petitioner is before this Commission.

3.      The first question which arises is as to whether the petitioner gave extra classes to the son of the complainant and provided the requisite study material to him or not. As far as the study material is concerned the petitioner has placed on record a document purporting to be signed by the student while receiving the study material. The said document purports to be signed against the column meant for phase one of the course. The submission of the Ld. counsel for the complainant is that the purported signature of the son of the complainant on this document are forged and do not tally with his signatures at the time of taking admission in the Institute such as Enrollment Form. Admittedly no handwriting expert was produced by the complainant before the District Forum to prove that the purported signatures of his son on the above referred documents were not written by the same person who had signed the Enrollment Form as the student taking admission in the Institute. In the facts and circumstances as discussed hereinbelow, if the complainant was disputing the purported signatures of his son on the above-referred document he could have produced a handwriting expert. It is not necessary that a student will put his full signatures while receiving the study material. He may put only his short signatures/initials while receiving the study material while he may put his full signatures while signing the enrollment form. The important aspect in this regard is a letter written by the complainant seeking refund of the fee he had deposited for the admission of his child. This is not his case that in the said letter he had alleged any extra classes were not given and the study material was not provided to his child. In the ordinary course of human conduct if a father/guardian wants to withdraw his child from an Institute on account of his being dissatisfied with the services offered by the Institute, the least he would do is to give reasons for withdrawing the child while seeking refund from the Institute. This is more so when he knows that as per the terms and conditions signed by him at the time of admission of the child no refund is payable to him if the child withdraws after commencement of the coaching classes. This is complaint’s own case that the refund was refused by the petitioner relying upon the aforesaid terms and conditions. Even thereafter the complainant did not write to the petitioner alleging that he was compelled to withdraw his child on account of the failure of the petitioner to give extra classes and provide the requisite study material. There is no evidence or even allegation of the complainant or the child having ever complained to the petitioner Institute in writing about not providing the extra classes and not supplying the study material before refund was sought by the complainant. In the ordinary course of human conduct if the extra classes as promised are not given or the study material is not supplied the father of the child would at least write to the Institute requesting for the extra classes and the study material instead of straightaway withdrawing the child from the Institute and seeking refund.

4.      The Ld. counsel for the petitioner has drawn my attention to a certificate issued by Maheshwari Public School which shows that the son of the complainant had switched over from science stream to commerce stream. In the facts and circumstances of the case that seems to be the true reason for the complainant withdrawing his child from the Institute and later seeking refund of the fee deposited by him.

5.      It is submitted by the complainant that in its revisional jurisdiction this Commission will not be justified in interfering with the concurrent findings of the fora below.  The law is well settled as regards the scope of the revisional jurisdiction of this Commission. This Commission will not be justified in interfering with the order passed by the fora below particularly when it happens to be the concurrent order unless it is shown that finding recorded by the four below was perverse in the sense that no person acting on the basis of the material available to him would have returned such a finding. Considering that in the letter seeking refund there was no allegation of the Institute having not given any extra classes and having not provided study material and also that neither the extra classes nor the study material was demanded in writing at any time before asking for the refund and the child later changed to stream from science to commerce, the findings recorded by the fora below was without any  cogent evidence and, therefore, would be perverse which this Commission is competent to set aside in exercise of its revisional jurisdiction.

6.      The next question which arises for consideration is as to whether the petitioner will be justified in withholding the entire fee deposited by the complainant when the child has not completed the entire course and has withdrawn only after a few days of coaching. Such an issue came up for consideration of this Commission in REVISION PETITION NO. 2684 OF 2014 FIITJEE LTD. Vs. S. BALAVIGNESH dated 09.01.2015 and the following view was taken:-

“6.      It is, thus, evident that as per the terms and conditions contained in the enrollment form, the student taking admission with the petitioner is not entitled to refund of any part of the fee paid by him, irrespective of the ground on which he withdraws from the said coaching course. Having taken admission on the basis of the aforesaid terms, the complainant is bound by the said terms and consequently he cannot claim any refund or proportionate refund of the coaching fee deposited by him.

7.      When this petition came up for hearing before us on 10-07-2014 we directed the petitioner-company to file an affidavit of its Managing Director stating therein as to how many were the students in the class before the complainant withdrew from the said class and how many were the students after he had withdrawn from the class. In compliance of our direction the petitioner filed the affidavit of Ashish Kumar Aggarwal, authorized representative of the petitioner-company who stated on oath that there were 44 students in the batch in which the complainant was studying and after he had left there were only 43 students in the said batch. The petitioner also placed on record the relevant attendance record of the complainant.

8.      This is not the case of the complainant that after his withdrawing from the coaching class, the petitioner had admitted another student in his place. Thus, it is evident that in case the fee deposited by the complainant is refunded to him, the petitioner would suffer financial loss since it would get fee from 43 students as against a batch of 44 students, though it had planned its infrastructure including faculty members, class rooms, etc. and incurred expenditure on the premise that all the students taking admission in a particular batch would pay the requisite fee. Had the petitioner admitted another student in place of the complainant, there could have been justification for proportionate refund of the fee which the complainant had deposited with it. But, directing refund of fee paid by the complainant when the petitioner had only 43 students left in the batch as against admitted strength of 44 students, it would be unfair to the petitioner to direct it to refund the said fee. The learned counsel for the petitioner states that no student in place of the complainant was admitted at any point of time during the duration of the course in which admission was taken by him. We direct the petitioner to file an affidavit of its Managing Director in terms of the aforesaid statement within two weeks from today.

10.    As regards the term stipulating that the student withdrawing from the coaching class midway will not be entitled to seek any refund of the fee deposited by him being an unfair trade practice, we are of the view that in a case where the seat vacated on account of withdrawal by a student during the currency of the course remains vacant and no other student is admitted against the vacant seat, the refusal of the coaching institute to refund the fee cannot be said to be an unfair trade practice, though, such a term may constitute an unfair trade practice in a case where the coaching institute admits a student in place of the student who withdraws midway from the coaching course and thereby suffers no financial loss.

13.    For the reasons stated hereinabove, the revision petition is allowed and the impugned orders are set aside subject to the petitioner filing within two weeks, an affidavit of its Managing Director stating therein that no student was admitted by them against the seat vacated by the complainant at any point of time during the duration of the coaching course in which the admission was taken by him. We make it clear that the affidavit would be filed only by the Managing Director and not by any other functionary of the petitioner company. A copy of the said affidavit would be sent to the complainant through counsel before it is filed with this Commission. In case such an affidavit is not filed the Registry shall forthwith list this matter for directions. The amount which the petitioner has deposited pursuant to the order of this Commission be refunded to him along with interest which may have accrued on that amount.”

7.      The petitioner is, therefore, directed to file affidavit of its Managing Director stating therein that the seat which fell vacant on account of withdrawal of the son of the complainant was never filled up in the remaining duration of the course for which the fee was collected and it remained vacant throughout such duration. Subject to the filing of such an affidavit within four weeks the impugned orders are set aside and the consumer complaint is dismissed with no order as to costs. If, however, the affidavit in terms of this order is not filed within four weeks the revision petition shall stand dismissed without any further orders.