Chandigarh

DF-II

CC/689/2018

Rahul Pathania - Complainant(s)

Versus

The British School - Opp.Party(s)

Dhawal Bhandarii Adv.

05 Jul 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	689 of 2018
Date  of  Institution	:	05.12.2018
Date   of   Decision	:	05.07.2019

 

 

 

 

1]  Rahul Pathania s/o Rohit Kumar Pathania,

2]  Miss Ojasvi Pathania, daughter of Rahul Pathania, Aged 15 years (minor) through his father i.e. Rahul Pathania s/o Rohit Kumar Pathania

Both resident of House NO.431/1, Sector 44-A, Chandigarh 160044        

             ……..Complainants

 

Versus

 

The British School through its Principal, Address: Sector 44-B, Chandigarh.

 

………. Opposite Party

 

BEFORE:  SMT.PRITI MALHOTRA    PRESIDING MEMBER

         SH.RAVINDER SINGH     MEMBER

 

 

For Complainant :     Sh.Dhawal Bhandari, Adv. for complainants.

For OP(s)         :      Ms.Manpreet Kaur, Adv. for Opposite Party

 

 

PER PRITI MALHOTRA, MEMBER

 

            The case of the complainant in brief is that being allured by the advertisements of Opposite Party regarding bright future of students, the complainant NO.1 got her daughter Ojasvi Pathania, admitted in OP School in 9^th Class in August, 2018 by making payment of Rs.77,300/- against receipts Ann.C-1.  It is averred that within 2 days of joining the OP School, the complainant No.2 found harsh truth of wrong picture projected by OP School.  It is also averred that 9^th Class in which complainant No.2 was admitted was vacant with just 17-18 students against projected student’s strength of 30-35 classmates; there was no proper 100% English interaction, rather there was mixture of English, Hindi, Punjabi & Haryanvi interactions among students and teachers.  It is stated that there was total pandemonium in the said class as there was intermixing students from one class/section to another class/section and other class/section students were made to sit with current class/section students.  It is also stated that after discussing over the matter and rethinking numerous times, the complainant No.1 withdrew her daughter i.e. complainant No.2 from OP School and continue with her old school i.e. Yadavindra Public School only and requested the Administrator Ms.Lata of OP No.1 by submitting an application seeking refund of the amount of Rs.77,300/-.  The complainant No.1 also told Ms.Lata, Administrator of OP School that they may deduct certain amount from Rs.77,300/- and refund the balance amount.  However, the Opposite Party did not refund any mount despite numerous requests, visits and correspondences (Ann.C-2 Colly).  A legal notice was also sent to Opposite Party on 20.9.2018 (Ann.C-3), but to no avail.  Hence, this complaint has been filed. 

 

2]       The Opposite Party has filed reply and while admitting the factual matrix of the case, stated that the complainant is not a ‘consumer’ and thus the complaint is not maintainable.  It is stated that the complainant after going through the prospectus and admission guidelines, got his ward admitted in their school on 7.8.2018.  It is also stated that it was made clear to the complainant at the time of admission as per admission form duly signed by him that the fee is non-refundable (Ann.OP-2).  It is submitted that after taking admission, the child of the complainant never turned up to attend classes for the best reasons known to the complainant inspite of number of calls from Opposite Parties and thus the seat which the child of complainant occupied remained occupied for the whole year and in the whole session the complainant neither intimated the Opposite Party regarding their admission in any other school/institution nor served any notice or application for cancellation/withdrawal of their seat in the school of Opposite Party.  It is also submitted that the school of the OP is affiliated with CBSE. It is further submitted that the alleged request for refund of fee has never been made to the OP. It is stated that the complainants after submitting birth certificate and 8th class passed certificate from previous school, assured to produce the Transfer Certificate at a later point of time, which they never did. Denying all other allegations and pleading no deficiency in service, the OPs have prayed for dismissal of the complaint.

 

3]       The complainant has also filed rejoinder thereby reiterating the assertion as made in the complaint and controverting that of the reply filed by Opposite Parties.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the entire record.

 

6]       At the threshold, it is apt to mention that the evidence placed on record by the complainant belies the assertions put forth by the Opposite Party. The email correspondences and the legal notice issued to the Opposite Party are enough to establish that the OP Institute was well aware not only about the factual matrix of the case, but also received repeated requests for the refund of the admission charges after deduction of reasonable amount, which in our opinion could be the registration charges at the most.

 

7]       We are of the concerted view that every parent had a right to strive for the better prospectus for his/her ward and when even after spending handsome amount, there is sound apprehension that the purpose could not be achieved then he/she has a full right to take a prompt decision and act accordingly.  In the present case also, when after getting admission in a new school i.e. in the school of Opposite Party against the lucrative claims, it was found that the standards as claimed mismatched then there is no fun to go further for an experiment to put the future of the child at stake. Rightly the complainant, without wasting any time, approached the Opposite Party with a request for the refund of the amount.  Requests made vide emails as well through the Legal Notice were not entertained at the end of Opposite Party.

 

8]       The Opposite Party has not placed on record any waiting list of the candidates/students waiting in a que to get the admission in OP School or the seat remained vacant for the whole year due to the withdrawal of the complainant No.2 from the School.  

   

9]       Counsel for the Opposite Party also claimed that the OPs are protected by the judgment of ‘Maharashi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 and P.T. Koshy Vs. Ellen Charitable Trust 2012 (3)CPC 615 SC’ and also the catena of judgments passed by the Hon’ble National Commission holding that the ‘education’ is not a commodity and there is no relation of ‘service provider’ and ‘consumer’.

 

10]      The objection raised by the ld.Counsel for the OP that the matter under consideration is squarely covered by the judgment of’ Maharashi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 and P.T. Koshy Vs. Ellen Charitable Trust 2012 (3)CPC 615 SC, has been duly considered by the Hon’ble National Commission, in the latest pronouncement vide order dated 04.04.2019 in Revision Petition No.3052 of 2018 – Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial, wherein after giving due consideration to the judgments, referred above and discussing the issue at length, as involved in the present complaint, it has been concluded that the complainant is a ‘consumer’ and petitioner institution is a ‘service provider’ and thus uphold the order of the District Forum regarding refund of Rs.14,000/- and payment of Rs.5000/- as litigation cost.  Thus, the objection raised by the counsel for the Opposite Parties is hereby rejected.  However, the relevant extract of said judgment is reproduced as under:-

“14. From the above, it can be concluded that the educational institutions, which are imparting education of any kind within the admissible legal frame work of the country can be covered under the judgment of the Hon’ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra).  In other words, educational institutions covered under UGC, AICTE, State Universities, Central Boards and State Boards etc. can claim immunity from the provisions of Consumer Protection Act, 1986 for educational services.  Moreover, the State Commission has relied upon the decision of the Hon’ble Supreme Court in Budhist Mission Dental College & Hospital Vs. Bhupes Khurana & Others, wherein the following has been observed:-

“32. The Commission also held that this Court in Bangalore Water Supply and Sewerage Board (supra) held as under: [para 118 at page 583]:-

"...In the case of the University or an educational institution, the nature of the activity is, ex hypothesi, education which is a service to the community. Ergo, the University is an industry..."

The Commission further held as under:

"Imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration so they are consumers as defined in the Consumer Protection Act.”

16.    Based on the forgoing discussions, it is concluded that the complainant is a consumer and the petitioner institution is a service provider in the present case.”  

 

11]      It is not disputed that the complainant approached OP for admission of his child i.e. daughter Ojasvi Pathania, complainant No.2 in 9^th class  and made payment of Rs.77,300/- against receipts Ann.C-1. In view of the admitted facts, the dispute in the present complaint pertains to the refund of an amount of Rs.77,300/- paid by the complainant No.1 towards fee for his child Ojasvi Pathania. 

 

12]      It has been observed that the complainant No.1 after depositing the disputed amount of Rs.77,300/- in August, 2018 applied for the refund of the amount in August, 2018 itself and the said demand is duly followed by correspondences  & legal notice dated 20.9.2018.

13]      The plea of Opposite Party that as per the admission form duly signed by complainant, the fee is non-refundable, the same is not sustainable.  This point has thoroughly been discussed and decided by the Hon’ble State Commission, UT, Chandigarh in above referred case of FIITJEE Ltd. Vs. Ms.Shinjini Tewari (supra) wherein in Para No.11, it has been held:

“11.   Further in Paras 20 to 23, it was further held, inter-alia, as under:-

“20.   As regards the argument raised by the Counsel for the appellant/opposite parties that the complainants are not entitled to any refund in term of provisions of Clauses 8 and 10 of the enrolment form, which was duly signed by them at the time of taking admission with opposite parties No.1 & 2, we would like to extract aforesaid clauses as under:-

 “8. I undertake that if I leave the Institute midway before completing the full course for any reason whatsoever, including but not limited to transfer of my father/mother/legal guardian/ill health of myself or any other member of the family or my admission in any institute/course/engineering college etc. I or my father/mother/legal guardian shall not be entitled for refund of fees.

 10.    In addition to the above, I understand without any ambiguity that the fee once paid is not refundable at all, whatever the reasons be, nor is it adjustable towards any other existing courses at FIITJEE or any yet to be launched nor towards the fee of any other existing or prospective student.”

21.     It is a fact that when parents approach some coaching institute to get their ward admitted for coaching, they are supposed to sign the enrolment form and other terms and conditions, which are printed in very small letters. No doubt, the aforesaid clauses are totally one sided and against the interest of the complainants and also did not take care of the second party i.e. the complainants, yet there was no way out but to sign on dotted lines. Since complainant No.2 is minor, therefore, the said enrolment contract is void abinitio qua her.

 

22.           It may be stated here that the Hon’ble Supreme Court of India has recently in the case of Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018 decided on 02.04.2019 held that incorporation of one-sided clauses in a builder-buyer agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986. The Bench was considering an appeal against the order of Hon’ble National Consumer Disputes Redressal Commission, New Delhi wherein it was held that the clause relied upon by the builder to resist the refund claims made by the co0mplainant buyer, were wholly one sided, unfair and unreasonable and could not be relied upon. The Hon’ble Apex court held in Paras 6.7 and 7 of the judgment as under:-

 “6.7  A term of a contract will not be final and binding, if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 186 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

7.     In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.”

23.     Therefore, in view of law settled by Hon’ble Supreme Court of India, the aforesaid enrolment contract or the above clauses have no binding force on the complainants……”

 

         Moreover, it has also been held in catena of judgments of the Hon’ble Apex Court that the terms & conditions, which are one sided, unilateral and unconscionable, are not reasonable and unsustainable and deserves to be struck down. 

 

14]      Our view has also been well supported by the judgment of the Hon’ble National Commission i.e. Nipun Nagar Vs. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC) wherein it has bene held that any clause saying that fee once paid shall not be refundable, are untenable and unfair and therefore not enforceable.  In the said judgment, the Hon’ble National Commission has also held that in cases where the fee for the two years has been deposited and the seat remained vacant due to withdrawal of the candidate, the institution is required to refund the fee, as per the public notice issued by the UGC, whereby all the institutions are directed to refund money of student for the period college/institution not attended. 

 

15]      By not refunding the fee to the complainant, the Opposite Party has also acted in defiance of the order of the Hon’ble National Consumer Disputes Redressal Commission, UT, Chandigarh in case titled as “Sehgal School of Competition Vs. Dalbir Singh, III (2009) CPJ 33 (NC)”, wherein the Hon’ble National Commission has held as under:-

 

“5.  We have heard the learned counsel for the Petitioner. He submitted that the student had withdrawn voluntarily and, therefore, there was no deficiency of service. The Petitioner’s School has shown excellent results. Hence, it is wrong to observe that their coaching was not upto the mark. He also submitted that one of the conditions imposed by their School which accepting lump sum fees for two years is that ‘refundability/ transferability of seat/ fee is not possible under any circumstances’.

 

6.   The above condition is one sided and biased totally in favour of the Petitioner and against the principle of equity and natural justice and it is not a fair trade practice. The learned counsel quoted the judgment of this Commission in Homeopathic Medical College & Hospital, Chandigarh Vs. Miss Gunita Virk, I(1996) CPJ 37 (NC), wherein it is held that Fora constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal.

 

7.   This judgment is 13 years old. Subsequent to this judgment this Commission in a catena of judgments has held that it is unjust to collect the Fees for the total period of the course. In Nipun Nagar Vs. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC), Revision Petition No. 1336 of 2008, decided by this Commission on 7th November, 2008, after quoting the public notice issued by the University Grants Commission, it was held that the Institute was unfair and unjust in retaining the tuition fee of Rs.1 lakh even after the student withdrew from their Institute. Further if a student leaves before attending a single day of the college or school, he is entitled for total refund except for a small registration fee, say Rs.1,000/-. Even the University Grants Commission had issued a public notice directing all the institutions to refund the money of the students for the period, they have not attended the college/ institution, the extracts of the public notice is reproduced in extenso.

 

“It has come to the notice of the University Grants Commission (UGC) that institutions and Universities including institutions deemed to be Universities are admitting students to various programmes of studies long before the actual starting of academic session, collecting full fee from the admitted students, and retaining their schools/institutions leaving certificate in original. The institutions and Universities are also reportedly confiscating the fee paid if a student fails to join by such dates.

 

The Commission is of the view that the Institutions/ Universities, by way of retaining the certificate in original, force retention of admitted students, which limits the opportunities for the candidates from exercising other options of joining other institutions of their choice. However, it would not be permissible for institutions and Universities to retain the school/institution leaving certificate, mark sheets, caste certificate and other documents in original.

 

The Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the institutions and Universities, in the public interest, shall maintain a waiting list of students/candidates. In the event of a student/candidate withdrawing before the starting of the course, the wait-listed candidate should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs.1,000 (one thousand only) shall be refunded and returned by the institution/University to the student/candidate withdrawing from the programme. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.

 

The Universities/institutions are requested to abide by the instructions issued by the UGC. The UGC shall on its own or on receipt of specific complaints from those affected, take all such steps as may be necessary to enforce these directions.

 

Institutions/Universities are also required to convey these instructions to the colleges affiliated to them.

 

This notice has been reiterated subsequently also.”

 

8.   Therefore, we do not see any material irregularity or jurisdictional error in the order passed by the State Commission. Accordingly, this Revision Petition is dismissed. There shall be no order as to cost.”

 

         In the light of the above, we are of the view that non-refund of fee in the garb of unilateral, unfair and one sided conditions, pertaining to refund, is altogether an act of unfair trade practice and the Opposite Party is liable to make the refund of the same. 

 

16]      In view of the settled law, as discussed and as well law laid down in “Sehgal School of Competition Vs. Dalbir Singh, III (2009) CPJ 33 (NC)” And Nipun Nagar Vs. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC), the entire fee collected from the complainant, now in the present complaint, after a deduction of the processing fee of not more than Rs.1,000 (one thousand only) shall be refunded by the OP to the complainant, who withdrew admission of his child.

 

17]      Keeping into consideration the facts & circumstances of the case and the settled law, as discussed in the preceding paragraphs, the complaint is allowed. The Opposite Parties are directed to refund the entire fee of Rs.77,300/- to the complainant, after deducting Rs.1000/- towards registration charges. The Opposite Party is also directed to pay composite amount of Rs.10,000/- towards litigation cost and compensation to the complainant for the mental agony & harassment caused to him due to their deficient act coupled with unfair trade practice.

         This order shall be complied with by the Opposite Party within a period of 30 days from the date of receipt of copy of this order, failing which the Opposite Party shall be liable to pay additional compensatory cost of Rs.10,000/- apart from the above relief.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

5^th July, 2019                         

                                                                                       Sd/-  

                                                                    (PRITI MALHOTRA)

PRESIDING MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER