BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                         : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU V.R                                             : MEMBER

C.C. No. 297/2016 Filed on 14.06.2016

ORDER DATED: 18.12.2019

Complainant:

Gopichand M.C., Lekshmi Nagar, Kesavadasapuram, Pattom Palace P.O, Thiruvananthapuram-695 004.

   (Party in person)

Opposite party:

The Zephyr Entrance Coaching Centre, represented by its Director Mr. Sunil Kumar V., Kunnumpuram, Near Ayurveda College Junction, Thiruvananthapuram-1.

(By Adv. B. Vasudevan Nair)

This case having been heard on 31.10.2019, the Forum on 18.12.2019 delivered the following:

ORDER

SRI. VIJU V.R : MEMBER

The complainant has presented this complaint before this Forum under Section 12 of the Consumer Protection Act 1986.  The brief facts of the case are that the complainant approached the opposite party on 24.04.2016 seeking admission for his son Adwaith Gopichand.  The complainant has paid Rs. 25,000/- on that day itself.  The class started on the same day itself.  But the complainant’s son discontinued the studies on 24.04.2016 itself as the coaching was very poor and below the standard levels.   Even though it was assured by the opposite party that the study materials will be given at the time of joining, it was not fulfilled.  The fact of discontinuation of study was intimated to the opposite party on 27.04.2016 and the complainant had sought for refund also.  But the request of refund was turn down by the opposite party.  The non-issuance of study materials and non- refund of admission fee amounts to unfair trade practice and deficiency in service, hence this complaint.

The opposite party received notice and filed version and averred that the Forum has no jurisdiction to entertain the complaint as the same is not with respect to any of the services defined under the Consumer Protection Act. The complainant’s son joined the course by filling the application form in which it is clearly stated that “FEE ONCE REMITTED WILL NOT BE REFUNDED UNDER ANY CIRCUMSTANCES”.  The opposite party again stated that there was only an introductory class on 24.04.2016 and the student cannot judge the quality of coaching by attending the introductory class.  The complainant’s son left the course for the reasons best known to him alone.  The student has collected the study materials also. After voluntary withdrawal from the said course, without any reason, the complainant approached this Forum alleging deficiency in service. Hence the complaint may be dismissed with cost.

Issues to be ascertained:

1. Whether there is deficiency in service or unfair trade practice from the side of opposite party?
2. Whether the complainant is entitled to get the reliefs?

Issues (i) & (ii):- Both these issues are considered together for the sake of convenience. The complainant has filed chief affidavit in-lieu of chief examination and has produced 4 documents which are marked as Exts. P1 to P4.  Complainant was examined as PW1 and he was cross-examined by opposite party. Opposite party filed chief affidavit in-lieu of chief examination and Ext. D1 is marked and but he was not present for cross-examination. Both the parties filed argument notes.  The admission was not challenged by the opposite party. The main contention raised by the opposite party is that the complaint is not maintainable as the same is not with respect to any of the services defined under sec. 2(1)(o) of the consumer protection Act.  The term ‘service’ is defined in Section 2(1)(o) of the 1986 Act:

Therefore, it is clear from the preamble of the definition that service of any kind or nature that is rendered in exchange of consideration to direct or potential user comes within the definition of service. Some types of services even enumerated in an explicit manner within the definition but the definition of service is not limited to only those mentioned explicitly.  As for example, medical service is not included directly in the definition.  However, a series of judgments are available that medical treatment and the facility associated therewith is classifiable as service under the Consumer Protection Act.

The term “consumer” as per Section 2(1)(d) of the 1986 Act:

Therefore, the term consumer is really broad and includes any beneficiary of service without differentiation with respect to the type of beneficiary or nature of goods or service he/she purchases. Interestingly, the scope of service in this definition also has no limit because of the term “any service”.  Therefore, there is no bar in accommodating students into the definition of the consumer because “any person” connected as the purchaser to “any goods” or “any service” is a consumer as per the Act.  

In Nipun Nagar v. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC), 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/-.

In Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial reported in 2019(2) CPR396 (NC) it is clearly pointed out that when the fees are paid to educational institutions, the complainant is “consumer” and the educational institution is “service provider”.   So that point is answered accordingly.

Another contention raised by the opposite party that ‘fee once remitted will not be refunded under any circumstances’ cannot be accepted because 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.  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 institutions are not only a structure made up of bricks and cement where the students go and get coaching after paying hefty fees. 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 opposite party- 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. 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. Hence the act of the opposite party is a clear example of unfair trade practice. 

Hence we find that the complainant has succeeded in proving his case and there is unfair trade practice from the side of opposite party.  Hence the opposite party is liable to compensate the complainant.  The complainant is entitled to get refund of the fee after deducting fee for one day, say Rs. 1,000/-.

In the result, the complaint is allowed. The opposite party is directed to refund an amount of Rs 24,000/- to the complainant and pay Rs. 3,000/- as compensation to the complainant for the mental agony suffered by the complainant and Rs. 1,000/- towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries interest @ 8% per annum from the date of default till realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 18^th day of December 2019.

        Sd/-       

P.SUDHIR                              : PRESIDENT

        Sd/-

PREETHA G. NAIR  : MEMBER

       Sd/-

VIJU V.R                               : MEMBER   

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C.C. No. 297/2016

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - Gopichand M.C.

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of fee receipt

P2     - Copy of legal notice dated 04.04.2016

P2(a)     - Copy of postal receipt

P2(b) - Copy of acknowledgment card

P3     - Copy of reply notice dated 11.05.2016

P4     - Copy of reply to the reply notice

P4(a) - Copy of postal receipt

P4(b) - Copy of acknowledgement card

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

          D1     - Copy of application form

                                                                                                      Sd/-

PRESIDENT

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