ORDER

BY SRI D.SURESH, MEMBER.

1.     This is the Complaint filed by the Complainant under Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service  and to refund of entire amount of Rs.2,00,000/- paid towards Augmentation and to pay Rs.5,00,000/- towards damages for harassment, physical injury, mental agony and financial loss also costs of the proceedings and for other reliefs as this forum deems fit.

2.     The brief facts of the complaint are that: Complainant admitted her child baby Varsha to OP’s Pre-nursery school for the academic year 2018-2019.  While admitting  the child to the school OP’s  requested and demanded to sign the application as well as declaration annexed to it and also instructed   the complainant to remit  Rs.2,00,000/-. Accordingly complainant deposited a sum of Rs. 2,00,000/- through bank draft.

3.     Complainant’s were  under forcible circumstances to relocate to Doddanekkundi Extension, Bangalore from Banashankari 3^rd stage, So  they decided to withdraw the  admission School  was to start the  class from 7.06.2018.  Condition for refund of admission fee is follows:-.

2. “If parents/guardians wish to withdraw their child/children from Innisfree House school at any time after the school year has commenced, the child/children have attended even one day of school,  the complete installment fee du for the term must be paid.” 

4.     From the above clause, complainant is entitled for refund of entire fee only on withdrawal of admission of their child well before commencement of classes of school.  When complainant approached for getting refund of deposit OP told that she is entitled for refund of only 25 % of sum paid, which is illegal  and has no  authority to deduct  deposit money.  OP had ample time to substitute another candidate in the place of outgoing child.  Though there was an option for substituting for the student, the OP did not choose to do and did not refund the amount.  Hence this complaint.

5.     Upon service of notice OP appeared and filed its version and contended that complainant informed the OP No.1 of her desire to withdraw the admission of her daughter  from the school via email dated 29.5.2018.   This e-mail was received after all formalities of admission was completed.   School term was to start on 7.06.2018.  Therefore complainant  only gave 9 days notice of withdrawal and they are not entitled for refund  of fee as  she was to give notice not less than 30 days  to OP NO.1.  complainant daughter did not attended school even for a single day.   Further complainant has not made allegations in respect of quality service,  education- deficiency of service. Complainant  has to abide by the  terms and conditions of contract between the parties.

6.     OP has  admitted  that it has received  Rs.2,00,000/- as admission fee from the complainant.   Without any reasons complainant has  withdrawn  her child from the school voluntarily.   Notice of withdrawal must be made in writing as per the  school policy of OP.   Clause NO.2 of declaration is not applicable to this complainant.  Declaration is signed on 18.11.2017  and Rs. 2,00,000/- is paid on 23.11.2017, hence  complainant parents had sufficient time to decide whether they wanted to admit their child to school or not.   Further, allegation in respect of admission that the OP could have found another pupil for that academic year do not survive  because  admission process is not a single day work it has many stages.   9 days notice is not sufficient as all other children would have already secured admission. Under the circumstance  admitting new student in place of complainant’s child was not possible. Hence complaint be dismissed.    

7.     In order to prove the case, Complainant and OP have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether there is deficiency in service

    on the part of OP?

2) Whether the Complainant is entitled to

   the relief prayed for in the complaint?

8.     WE ANSWER:-

POINT NO.1 :   In the Affirmative.

POINT No.2  : Partly in the affirmative.

                                For the following.

REASONS

POINT No.1:-

9.     After perusing  the complaint, version, evidence and documents of both side it is clear that there is no dispute as to the complainant  child getting admission to   OP’s institution  it is well settled “candidates who pays fee to a education institution for attending classes and appearing in examination is a consumer and publication of result is a service.” 

10.   Admitted to Pre-nursery school for the academic year 2018-2019 and OP institution asked to remit Rs.2,00,000/- as admission fee and other academic fee.  Accordingly complainant deposited a sum of Rs.2,00,000/ - through bank draft.  After depositing the said amount Complainant was to relocate to Doddanekkundi Extension, Bangalore from Banashankari 3^rd stage, and   decided to withdraw from the school   admission. While admitting the child OP institution School proposed to scheduled its academic from 07.06.2018 and it is mentioned there in as:-

2. “If parents/guardians wish to withdraw their child/children from Innisfree House school at any time after the school year has commenced, the child/children have attended even one day of school,  the complete installment fee du for the term must be paid.” 

11.   From the above clause complainant is entitled for refund of entire fee  on withdrawal of admission of their child since it is well before  commencement  of classes of school. 

12.   The OP admits that they have received  Rs.2,00,000/- as admission fee. But has taken contention that there was no   deficiency of service on its part and  Complainant has withdrawn her child from the school voluntarily.   Notice of withdrawal must be made in writing as per the  school policy of OP.  hence clause NO.2 of declaration is not applicable to this complainant.  Declaration is signed on 18.11.2017  and Rs. 2,00,000/- is paid on 23.11.2017, hence  complainant parents had sufficient time to decide whether they wanted to admit their child to school or not.  Contention taken by the OP do not survive under law or on facts,   because  law does not permit the parties to take advantage of irregularities in the procedures.

13.   The complainant sent e-mail on 29.05.2018 and school was to  start from 07.06.2018 and admission was on process as per  the afore said  clause, and request for refund was made before the  beginning of academic year.  There was  sufficient time to fill up the seats which had fallen vacant.  The school had also failed to produce any documentary evidence to show that the cancelled admission had resulted in the seats remaining vacant for academic year.   Further It is a known fact that there will be  more demand for seats in the school .  Educational institutions generally take a false plea that the cancelled seat remained vacant. Admitting another candidate without refunding the fees to the student who has withdrawn results in double enrichment.  Such institutes have become commercial shops and there cannot be any worse form of unscrupulous and unfair trade practice in the field of education. 

14.   In view of the above, if any student leaves the institution mid way before completing the full course, for any reason what so ever, including transfer of parents/ guardians/ forfeiting the amount for the  service which it has not provided, is against the public policy and good conscious,  unjust  and unconscionable, as the provider of service has the right to charge consideration only for the services provided.

15.   The Objective of the Consumer Protection Act is to curb such practices where students and their parents are  exploited.  Accordingly by its judgment of July 1 delivered by judicial member Ushal Thakare for the bench along with Dhanraj Khamatkar the Maharastra State Commission has held that, fees once paid shall not be refunded is unconscionable and void, as service provider can not retain the money when  no service has been rendered.  The student can seek refund even if receipts states that fees are non refundable.  Similar view is taken in BRILLIANT TUTORIALS V/S RAHUL DAS APPEAL NO. 509/2006.  We are inclined to disagree with the contention of the OP counsel as this issue was considered and decided by the Hon’ble Supreme Court in case of ISLAMIC ACADEMY OF EDUCATION AND ANOTHER V/S  STATE OF KARNATAKA (2003) 6 SC NO. 697. 

16.   In view of the above decision, we are of the Opinion that the OP has to refund entire amount  which was received at the time of admission from the complainant Hence  POINT NO.1 IN THE AFFIRMATIVE.

POINT NO. 2

17.   In view of the above discussion, OP is liable to refund a sum of Rs. 2,00,000/-  along with interest at the rate of 12%  per annum from the date of receipt of amount.   Further OP has put the complainant under mental stress for which she has to be compensated her and  we assess the damages at Rs.10,000/-.  The act of the OPs made the complainant to knock the doors of this forum by spending money in attending the Forum hearing on each day.  We are of the opinion that if a sum of Rs.5,000/- if awarded towards litigation expenses ends of justice will be met.  Hence we answer POINT NO 2 PARTLY IN THE AFFIRMATIVE  and we proceed to pass the following:-

ORDER

1. The Complaint is allowed in part with cost.

2. Ops are jointly and severally hereby directed to  refund a sum of Rs.2,00,000/-  along with interest at the rate of 12%  per annum from the date of receipt of amount i.e. on 23.11.2017 till the payment of the entire amount.

3. Further Ops are hereby directed to pay a sum of Rs.10,000/- towards damages and Rs.5,000/-towards cost of the litigation and other charges.

4. The O.Ps are hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5.     Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 16^th  AUGUST 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1 Copy of the online admission application.

Ex P2:Copy of the banker’s cheque.

Ex P3:Copy of the receipt for receiving the same.

Ex P4: Copy of the emails correspondence,

Ex P5: Copy of the Birth certificate of the child.

Ex P6: Copy of the legal notice.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Smt.Arati Dinesh, Principal of OP.No.1.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: True copy of the declaration given by the parents of the student.

MEMBER                        PRESIDENT

A*