Chandigarh

StateCommission

A/223/2018

FIITJEE Ltd. - Complainant(s)

Versus

Vikram Seth (Minor) through his natural Guardian (Mother) Mrs. Vandna Seth - Opp.Party(s)

Mukesh M Goel, ADv.

05 Apr 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

 

Appeal No.	:	223 of 2018
Date of Institution	:	27.08.2018
Date of Decision	:	05.04.2019

 

FIITJEE Ltd., 29-A, Kalu Sarai, Sarvpriya Vihar, New Delhi – 110016 through it’s A.R. Sh. Ashish Kr. Aggarwal.

ALSO AT

2^nd Floor, SCO 321-322, Sector 35-B, Chandigarh.

 

…….Appellant/Opposite parties.

 

Versus

 

Vikram Seth (Minor) through his Natural Guardian (mother) Mrs. Vandna Seth, H.No.419, Sector-8, Panchkula, Haryana.

….Respondent/Complainant.

 

Argued by: Sh. Mukesh M. Goel, Advocate for the appellant.

                    Sh. Arjun Kundra, Advocate for the respondent.

 

Appeal U/s 15 of the Consumer Protection   Act, 1986 against   order dated 12.07.2018 passed by District   Consumer Disputes Redressal Forum-I, U.T. Chandigarh   in Consumer Complaint No.699 of 2017.

 

 

Appeal No.	:	292 of 2018
Date of Institution	:	08.10.2018
Date of Decision	:	05.04.2019

 

FIITJEE Ltd., 29-A, Kalu Sarai, Sarvpriya Vihar, New Delhi – 110016 through it’s A.R. Sh. Ashish Kr. Aggarwal.

ALSO AT

2^nd Floor, SCO 321-322, Sector 35-B, Chandigarh.

…….Appellant.

Versus

 

Ashok Gupta S/o Hans Raj Gupta R/o H.No.715-B, Sector 36-B, Chandigarh.

…Respondent.

 

 Argued by: Sh. Mukesh M. Goel, Advocate for the appellant.

                     Sh. Hemant Goyal, Advocate for the respondent.

 

Appeal U/s 15 of the Consumer Protection   Act, 1986 against   order dated 27.08.2018 passed by District   Consumer Disputes Redressal Forum-II, U.T. Chandigarh   in Consumer Complaint No.217 of 2018.

 

 

Appeal No.	:	316 of 2018
Date of Institution	:	23.10.2018
Date of Decision	:	05.04.2019

 

FIITJEE Ltd., 29-A, Kalu Sarai, Sarvpriya Vihar, New Delhi – 110016 through it’s A.R. Sh. Ashish Kr. Aggarwal.

ALSO AT

2^nd Floor, SCO 321-322, Sector 35-B, Chandigarh.

…….Appellant.

Versus

 

1.  Sudha Katyal W/o Satish Katyal R/o H.No.3142, Sector 22B, Chandigarh.

2.  State Bank of Patiala through Regional Manager, Sector 17, Chandigarh.

3.  State Bank of Patiala through AGM, SCO No.99-107, Sector 8, Chandigarh.

…Respondents.

 

 Argued by: Sh. Mukesh M. Goel, Advocate for the appellant.

 

 

Appeal U/s 15 of the Consumer Protection   Act, 1986 against   order dated 05.09.2018 passed by District   Consumer Disputes Redressal Forum-I, U.T. Chandigarh   in Consumer Complaint No.333 of 2012.

 

BEFORE:  JUSTICE JASBIR SINGH (RETD.), PRESIDENT.                                  MRS. PADMA PANDEY, MEMBER

                 MR. RAJESH K. ARYA, MEMBER.

 

PER  RAJESH  K.  ARYA, MEMBER

                   Vide this common order, we are disposing of aforesaid three appeals bearing Nos.223, 292 and 316 all of 2018 arising out of three different orders passed by District Consumer Disputes Redressal Forum-I & II, U.T., Chandigarh (in short ‘the Forum’ only), as referred to above, vide which, the complaints filed by the complainant(s) bearing Nos.699/2017, 217 of 2018 and 333 of 2012, were allowed/partly allowed, by directing the appellant(s)/opposite parties to refund the fee to the complainant(s), which was illegally charged by the appellants/opposite parties for the remaining unattended period of the course besides compensation and litigation charges.

2.             The relief granted by Forums concerned, in aforesaid three complaints, reads thus:-

CC/699/2017

“10.              For the reasons recorded above, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is partly allowed. The Opposite Parties are, jointly & severally, directed:-

[a]   To refund Rs.49,918/- (after deducting fee for 08 days) to the Complainant;

 [b]  To pay Rs.10,000/- as compensation to the complainant for the unfair trade practice and harassment caused to him.

[c]   To also pay a sum of Rs.10,000/- to the complainant as litigation expenses. 

11.        The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @9% per annum on the amounts mentioned in sub-para [a] & [b] above from the date of institution of this complaint, till it is paid, apart from cost of litigation as in sub-para [c].” 

 CC/217/2018

          “14.   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 Party is directed to refund the balance fee amount of Rs.1,22,035/- (Rs.1,33,129-11094/-) to the complainant with interest @12% p.a. from the date of filing of complaint i.e. 13.4.2018.  The Opposite Party is also directed to pay litigation cost of Rs.10,000/- and compensation of Rs.25,000/- to the complainant for the harassment caused to him due to non-refund of due amount.

         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 Rs.1000/-for each per day on account of delay on their part in compliance of the order.”

CC/333/2012

“13.   Resultantly, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. The OPs are directed as under:-

i)                   OPs 1 & 2 (now through State Bank of India as referred above) to pay compensation to the tune of Rs.15,000/- to the complainant for deficiency in service as despite instructions to stop payment they negligently cleared the payment of two cheques in favour of OP-3. Their liability is fixed to this extent only.

ii)                OP-3 is directed to refund the amount of Rs.40,933/- to the complainant being the fee illegally charged by it for the remaining unattended period of the course alongwith interest @9% per from the date of receipt till realization.

iii)              OP-3 to pay Rs.40,000/- to the complainant as compensation for unfair trade practice on its part and mental agony and harassment caused to the complainant.

iv)              OPs to pay to the complainant Rs.20,000/- as costs of litigation which shall be shared by OPs 1 & 2 as one part and OP-3 as another in the ratio of 50:50.

13.    This order be complied with by the respective OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr. No.(i) to (iii) above, with interest @12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

3.             It may be stated here that in CC/699/2017, the course was Two Year Classroom Program. The complainant paid an amount of Rs.51,037/- for 2 Semesters/2 different sessions but after attending the classes for 8 days only, he withdrew himself on being not satisfied with the coaching imparted by the opposite parties. 

4.             Similarly, in CC/217/2018, the complainant opted for Two Years Classroom Programme – JEE (Advance) – Regular Week Contact Classes and paid the opposite party fee of Rs.1,33,129/- for two years. However, after attending the course for two months and then withdrew from the course.

5.             Likewise, in CC/333/2016, the complainant – Sudha Katyal’s son Nikhil Katyal took admission in Pinnacle Two years Program – Regular and had issued post-dated cheques towards fee and other expenses covering the entire period of the course. However, he left the course mid-session on 29.01.2009.

6.             Counsel for the appellant, namely, Sh. Mukesh M. Goel, Advocate, argued that in such a case, the complainants are not entitled to refund of any amount towards the fee paid. He further submitted 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 of service and such matters cannot be entertained by the Consumer Fora under Consumer Protection Act, 1986.

7.              It may be stated here that similar issue came before this Commission in First Appeal No.219 of 2018 titled ‘Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial’, which was dismissed vide order dated 23.08.2018. In the said appeal, the star argument of the Counsel for the appellant, was that the opposite parties, being an educational institute, complaint against them cannot be entertained by a Consumer Fora. Reliance was placed on judgments of the Hon’ble Supreme Court of India titled Bihar School Education Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 (SC) and Maharishi Dayanand University Vs. Surjeet Kaur, Civil Appeal No.680 of 2008 decided on 19.07.2010.

8.              After thoroughly discussing the import of aforesaid two judgments i.e. Bihar School Education Board Vs. Suresh Prasad Sinha and Maharishi Dayanand University Vs. Surjeet Kaur (supra), this Commission in Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial’s (supra), in Para 10 to 12, inter-alia, held as under:-

“10.        It was specifically said that the Board was not carrying any commercial, professional or service oriented activity and as such, consumer complaint was not maintainable, in such like cases before the Consumer Fora. However, it was also observed in later part of the judgment that ratio of a judgment is not mechanically to be applied to other case, without analysing the context in which observations were made by the Court in a given judgment. Same was the situation in the case of Maharshi Dayanand University (supra). In that case also, there was a dispute between the Authorities and student qua grant of B.Ed. degree to her. By taking note of observations made by the Supreme Court in the case of Bihar School Examination Board (Supra) it was said that Statutory Authority when performing statutory functions cannot be termed as service provider/industry.

11.        In the present case, as has been noted in earlier part of this order, the appellants have no statutory regulations/backing. It is a private Institute, not discharging any social obligation. In such like cases, we are of the considered opinion that no benefit of ratio of the judgments cited above, can be extended in favour of the appellants.

12.        The case of the respondent is also supported by the ratio of judgment passed by the Hon’ble Supreme Court of India in Buddhist Mission Dental College & Hospital, Versus Bhupesh Khurana & Others, Civil Appeal No.1135 of 2001, decided on February 13, 2009, wherein, the findings given by the National Commission, to the effect that imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act, were upheld. Relevant part of the said judgment reads thus:-

“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 hypothesis, 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."

33. The Commission rightly came to the conclusion that this was a case of total misrepresentation on behalf of the institute which tantamounts to unfair trade practice. The respondents were admitted to the BDS Course for receiving education for consideration by the appellant college which was neither affiliated nor recognized for imparting education. This clearly falls within the purview of deficiency as defined in the Consumer Protection Act, which defines the `deficiency' as under:

"`Deficiency' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

34. Therefore, the Commission rightly held that there was deficiency in service on the part of the institute and the claimants respondents are entitled to claim the relief as prayed in the plaint. The appeal filed by the appellant is devoid of any merit and deserves to be dismissed.”

13.        Not only as above, in the case of Krishan Mohan Goyal Vs. St.Mary’s Academy and Anr., Revision Petition No.3144 of 2016, the National Commission has also held that in some aspects of education activities, the Consumer Fora is competent to take action against the erring Educational Institutes such like the opposite parties, adopting unfair trade practices and also not rendering proper service. Same is the ratio of the judgment decided by the National Commission, in Jaipreet Singh Kaushal Vs. FIIT JEE Limited and another, Revision Petition No.918 of 2015 decided on 14.11.2017, wherein, it was held that the Institute is not justified in charging fee, for the entire course in one go…………”

9.              It may be stated here that in the instant case, the educational institution, in question, i.e. FIIT JEE Limited is not a statutory body and is mere business establishment, imparting educational services to the students by charging hefty fees. Therefore, in view of the ratio of judgments, referred to above, the argument raised by the Counsel for the appellant, that the complainant does not fall within the definition of consumer and 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 of service and such matters cannot be entertained by the Consumer Fora under Consumer Protection Act, 1986, is bereft of merit and stands rejected.

10.           The only law point involved in these appeals, to be determined, by this Commission, is, as to whether forfeiture of the entire fee paid by the complainants for the entire period course opted and not refunding a single penny, on leaving the said course by the complainants after attending the classes for 8 days, 2 months or mid-session, amounted to unfair trade practice or not.

11.           To support above argument, Counsel for the appellant cited few judgments. He mainly placed reliance on the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, comprising Hon’ble Justice K. S. Chaudhari, Presiding Member, Hon’ble Mr. Justice V. K. Jain, Member and Hon’ble Dr. B. C. Gupta, Member, in case titled ‘FIITJEE Ltd. Vs. Harish Soni’, Revision Petition No.2054 of 2013 decided on 08.10.2015.

12.           The issue, in question, before the Hon’ble National Commission, was whether it is justified to allow refund of fees for the remaining part of the course or not.

 

13.           In FITJEE Ltd. Vs. Harish Soni’s case (supra), relied upon by the Counsel for the appellants, the complainant’s daughter took admission by paying an advance fee of Rs.1,23,464/- on 15.04.2006 for getting admission in ‘FIIT JEE Pinnacle’ two years’ integrated programme.  After studying for one year, being not satisfied by the education imparted, she withdrew from the course and sought refund of the remaining fees alongwith interest and compensation.  The Hon’ble National Commission held in Paras 6 & 7 of its judgment as under:-

“6.     The complainant has placed on record the affidavit of its Managing Director Shri Dinesh Kumar Goel, stating therein that no student was enrolled against the seat vacated by the daughter of the respondent during the tenure of the entire course, at any point of time.  He has further stated that to ensure quality education and uniform teaching standard and keeping in mind the interest of students, the petitioner company does not fulfill the vacancy created by a student who leaves the course in midway.

7.     For the reasons stated hereinabove, I am of the opinion that the complainant is not entitled to refund of the fee for the remaining period of one year.”

 

14.           It may be stated here that that the Hon’ble National Commission in Sehgal School of Competition Vs. Dalbir Singh, 2009 (3) CPC  187, while dismissing the Revision Petition filed by Sehgal School of Competition, held in Paras 5 to 7, inter-alia, 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 Homoeopathic Medical College & Hospital, Chandigarh v. 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 catena of judgments has held that it is unjust to collect the fee for the total period of the course. In Nipun Nagar v. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC) = 2009 (1) CPC 272 (NC), Revision Petition No.1336 of 2008, decided by this Commission on 7^th 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……….”

 

15.           Not only above, in Brilliant Tutorials Pvt. Ltd. Vs. Ashwani Verma, 2010 (4) CPJ 396, the Hon’ble National Commission while placing reliance on the judgment of Hon’ble Apex Court in Islamic Academy of Education and Another Vs. State of Karnataka and others, (2003) 6 SCC 697, held that charging fees in advance beyond the current semester/year would certainly amount to unfair trade practice and the same cannot be countenanced. In Islamic Academy of Education and Another’s case (supra), the Hon’ble Apex Court had expressed unhappiness with educational institutes charging the entire fees upfront and had said that students should only be asked to pay fees for a semester/year to begin with. The argument of FIIT-JEE that the ruling of Islamic Academy was not applicable to it since it is not an educational institute but only a coaching institute was not negated by the Hon’ble National Commission and order of the State Commission was upheld, directing FIIT-JEE to refund the fees. We may add here that Hon’ble Supreme Court of India condemned the practice of the educational institutes of collecting fee in advance for the entire course i.e. for all the years and also debarred them to claim any interest on the fee deposited. Further the Hon’ble National Commission in FIIT JEE Ltd. Vs. Dr.Minathi Rath, 2012(1) CPJ 194 while considering the revision petition on identical facts, as involved in the present complaint, has categorically held that FIIT JEE Ltd. could not charge full advance fee for Two years and held the complainant entitled for receipt of refund of fee taken in advance from him by FIIT JEE.

16.           In our opinion, the plea of the appellants by way of affidavit that the vacancy created by the complainant(s) was never filled up and remained vacant, cannot be read against the respondent(s)/complainant(s). The appellant cannot be allowed to be on an advantageous position, keeping in mind the interest of poor consumer. It (appellant – Institute) cannot gulp whole of the fee paid, being the hard earned money. When a student or his/her parents signs the admission form, they have no bargaining power to negotiate, or refuse to sign any particular clause in the admission form. Hence, such clauses should not be held against the student. The appellant is continuing with an unfair trade practice of collecting huge amount to get itself enriched, which is totally against public interest at large, specially the parents, who send their children by putting a big cut on their stomach and giving each and every penny of their earnings to the coaching institute like the appellant, for imparting coaching, which does not guarantee or assure success in getting admission in IIT/NIT. Sometimes, after paying such hefty coaching fee, it becomes difficult for them to meet out their daily needs. Every parent, whether rich or poor or from any mediocre family, would desire that their children should get better education for which, sometimes, they have to obtain loan for paying fees etc. from Banks or Private Financiers. The appellant – Institute is not only a structure made up of bricks and cement where the students go and get coaching after paying hefty fees. The Institutes imparting coaching are also supposed to bear in mind that a child/student, who is coming to them, is also a future of our country, who at some stage is to contribute towards nation building or serve the country by entering into some field of his/her choice at some stage. Every student may not be so lucky to crack the entrances, after getting coaching etc. but it is a fact which cannot be denied that every student puts his/her best effort to clear these entrance exams. The coaching institutions should not act like money collection machines, without keeping in mind the feelings and future prospects of the student. The student may not be comfortable with the teaching methods/skills and attitude of some of the teachers at the coaching centre. In case, the student leaves in between or midsession or after attending for few days or months, in our opinion, he/she should not be denied refund of the fee for the remaining period, which he/she did not attend. If the student is given refund, he/she can pay the said amount to some other educational institute, where he/she wants to pursue coaching or education. The student is not supposed to pay another hefty amount to other coaching institute after leaving the appellant - institute. Parents may not be in a position to afford another heavy fee of another coaching institute and the student will be deprived of precious opportunity and formative years of career building. In case, the fee is refunded, the student can further move on with that amount to explore much better avenues of education, as per his/her desire. We may also add here that Consumer Protection Act, 1986, which is Consumer Oriental Legislation, is meant to protect the interest of consumers who show their courage to come forward and put forth their grievance against the unfair trade practices adopted by such like educational institutions. Future of an aspiring student, who will certainly contribute towards the development of our nation at some stage of his/her life, is of paramount importance and cannot be put at stake like this. Educational Institutions like the appellant must bear in mind the feelings and sentiments of an aspiring student who took admission with such like institutions with an aim and hope to achieve some better prospects and positions in their future. In our opinion, educational institutes should be prudent, desist from charging upfront fees for the entire course, and if they do, should not refuse a refund. A student or a trainee may leave midstream if he finds the service deficient, substandard and non-yielding, and to tell him that fees once paid are not refundable was an unfair trade practice, as no service provider can take or charge the consideration of the service which it has either not given or has not been availed. The existing practice in many institutions of collecting advance payment and not refunding this should be done away with. Such blatant act of the appellant(s) is a clear example of unfair trade practice, which has to be stopped by exercising a moral responsibility especially when seen in the light of the above facts and circumstances of this case.

17.           Therefore, in our opinion, interest of such like consumers is to be taken care of and protected while interpreting the law settled on the subject.

18.           We are of the considered opinion that the appellants miserably failed to make out any case and no benefit of the aforesaid judgment of Hon’ble National Commission rendered in the case of FIITJEE Ltd. Vs. Harish Soni’ (supra) can be extended to the appellant. We opine that the respondents/complainants are definitely entitled to refund of fees as ordered by the Fora below vide the impugned orders.

19.           No other point was argued by the Counsel for the parties.

20.           For the reasons recorded above, all the appeals bearing Nos.223 of 2018, 292 of 2018 & 316 of 2018, being devoid of any merit, are dismissed, with no order as to costs. Impugned orders passed by District Forum – I  in complaints bearing No.699 of 2017 & 333 of 2012 and District Forum-II in complaint bearing No.217 of 2018 are upheld. Consequently, in view of dismissal of appeal bearing No.316 of 2018, the application for condonation of delay in filing the said appeal stands dismissed having been rendered infructuous.  

21.           Certified copies of the order be sent to the parties free of charge.

22.           File be consigned to the Record Room after completion.

Pronounced

05.04.2019.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(PADMA PANDEY)

MEMBER

 

 

(RAJESH K. ARYA)

MEMBER

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