JUDGMENT Per Justice Sham Sunder , President This appeal is directed against the order dated 7.9.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only),vide which it dismissed the complaint. 2. The facts, in brief, are that the complainant (now appellant) took admission in the OP (now respondent) institute for getting preparatory coaching for B.Tech and deposited Rs.25,000/- on 26.7.2009, on account of first installment of tuition fee, and Rs.4,000/- as hotel charges. She joined the classes on 27.7.2009, and the OP advised her to occupy the hostel, situated in a rented building i.e. H.No.231, Sector 16-D, Chandigarh. She was asked to adjust in a small room only. She protested, but nothing was done. Under these circumstances, she left the OP institute, after attending the classes for 4-5 days, and the seat was vacated by her. She sought refund of the amount of fee, after deduction of reasonable processing charges, but the OP failed to do so. It was stated that the OP, thus, was deficient, in rendering service and also indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no other alternative, a complaint under Section 12 of the Consumer Protection Act (hereinafter to be called as the Act only), was filed. 3. In written reply, the OP admitted that the complainant took admission in its institute for preparatory coaching and deposited Rs.25,000/-. It was denied that a sum of Rs.4,000/- was collected as hostel charges. It was stated that the complainant left the OP institute as she got admission in B.Tech at Mullana. It was further stated that, on account of leaving the coaching class, by the complainant, one seat of the OP institute remained vacant. It was further stated that there was no agreement between the parties, to the effect that the refund of fee shall be made, in case of leaving the coaching class, by the student, of her own accord. It was further stated that the OP was neither deficient in rendering service, nor indulged into unfair trade practice. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint. 6. Feeling aggrieved, the instant appeal, was filed by the complainant /Appellant. 7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case ,carefully. 8. The Counsel for the appellant, submitted that, since the complainant left the seat, on account of poor hostel facilities, and no service was provided by the OP, to her thereafter, so, it was liable to refund the fee, after deducting reasonable charges therefrom. He further submitted that even if the complainant got admission in B.Tech. in M.M.Engineering College, Mullana, that did not mean that she could be deprived of the fee, which she had deposited with the OP institute for preparatory coaching. He further submitted that, since no service was provided by the OP, after the vacation of seat, by the complainant, by not refunding the fee, after deducting reasonable charges therefrom, it (OP) indulged into unfair trade practice. He also placed reliance on Nipun Nagar Vs Symbiosis Institute of International Business, I(2009)CPJ 3(NC), Sehgal School of Competition Vs Dalbir Singh III(2009)CPJ33(NC), Brilliant Tutorials Pvt. Ltd. Vs Ashwani Verma,2011 CTJ 288(CP)(NCDRC), GGS College of Modern Technology Vs Mrs.Kusum Arora,2011 CTJ 346(CP)(SCDRC), Principal,S.D.College Vs Reetika Manhas & Anr IV(2008)CPJ 502, Islamic Academy of Education and another Vs State of Karnataka and others,2003(6) SCC 697, Atam Parkash Khatter Vs Commissioner & Secretary to Govt. of Haryana and others, CWP No.13308 decided on 21.7.2010, FIIT JEE Limited Vs Minathi Rath(Dr.),IV(2006)CPJ 255 in support of his contentions. He further submitted that the District Forum was, thus, wrong in dismissing the complaint. 9. On the other hand, the Counsel for the respondent, submitted that ,since the complainant left the coaching institute of her own accord, on the ground, that she had got admission in B.Tech in Engineering College, Mullana, and not on account of the poor facilities in the hostel and there was no agreement between the parties, that, in such a situation, the OP was liable to refund the fee deposited by her, the order passed by the District Forum, being legal and valid, is liable to be upheld. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons to be recorded hereinafter. The main question, that falls for determination is, as to whether, the complainant was entitled to the refund of the fee,after deduction of reasonable charges, when she left the preparatory coaching classes of the OP or not? There is, no dispute, about the factum, that the complainant, got admission in the institute of the OP, for preparatory coaching. C-1 is the copy of the receipt, showing that she deposited Rs.25,000/- with the OP institute, in cash, on 26.7.2009, and then, she was issued a student identity card annexure C-2 by the said institute. The plea of the complainant, to the effect, that there were poor hostel facilities, is not at all, supported by any evidence. However, it is evident from C-3, copy of the pay in slip of Oriental Bank of Commerce that she had paid Rs.60,000/- on 6.8.2009 and Rs.48,000/- on 18.8.09 to M.M.College, Mullana, on account of tuition fee for B.Tech ECE for the year 2009-2010. It means that she left the OP institute, of her own accord, as she got admission in B.Tech in Mullana College. Once she left the institute of the OP, the question of providing service by it, to her, did not at all arise. Even no document was produced by the OP/respondent, to show that the seat, which was vacated by the complainant, in the preparatory coaching, was not filled by any other candidate. No agreement was also produced which was allegedly executed, between the parties, at the time, the complainant took admission in the OP preparatory institute. In Sehgal School of Competition’s case (supra), there existed the condition, in the brochure, issued by the petitioner, to the effect, that, in case, a candidate left the course midway, the fee shall not be refunded, nor was transferable. The contention raised by the OP Institute before the District Forum, was repelled, on the ground that such a clause was unconscionable and, therefore, was not enforceable. An appeal was preferred by the appellant/OP, which was dismissed. The Revision Petition filed before the National Consumer Disputes Redressal Commission, New Delhi, was also dismissed. In Brilliant Tutorials Pvt. Ltd.’s case (supra), the complaint filed by the complainant, was opposed, inter-alia, on the ground, that the fee paid was non-refundable, and the complainant was bound by the terms and conditions of the agreement. The contention of the OP was not accepted by the District Forum, and the State Commission. Even the Revision Petition filed by the OP institute, was dismissed by the Hon’ble National Commission. In GGS College of Modern Technology’s case (supra), Rule 8 of the prospectus of the appellant, provided that no refund was admissible, after the cut off date. However, in that case also, refund was allowed and the appeal filed by the appellant was dismissed by this Commission. In Principal, S.D.College’s case (supra), again a question arose whether the appellant was entitled to retain the fee, in case, the candidate left the College. The District Forum ordered the refund of fee. An appeal filed was dismissed. In Islamic Academy of Education and another’s case (supra), the Hon’ble Supreme Court held that an Education Institution could only charge the prescribed fee for, one semester/year, and not for the entire course. On the basis of the ratio of law, laid down, in Islamic Academy’s case (supra), the Hon’ble National commission in Brilliant Tutorial Pvt. Ltd.’s case (supra), held that charging of fees, in advance, beyond the current semester/year, would certainly amount to unfair trade practice, and the same cannot be countenanced. In Atam Parkash Khattar’ case (supra), the Hon’ble High Court of Punjab and Haryana observed that the educational institutions, cannot be permitted to behave like a business establishment which work with profit motive, and there was no justification on their part in retaining the substantial fee, paid by a student, who decides not to pursue his/her studies in the said Institution. In Nipur Nagar,s case (supra), the Hon’ble National Commission, after quoting the public notice, issued by the University Grants Commission, held that the Institute was unfair and unjust, in retaining the tuition fee, even after the student withdrew from their Institute. In FIIT JEE Limited’s case (supra), the Delhi State Consumer Disputes Redressal Commission held that charging lumpsum fee for the entire duration of two years, in advance and that too, for the period for which they were yet to provide service of education, was highly unethical, unconscionable and unfair trade practice and this is an indirect way to earn large amount of money, and to earn undue profit by exploiting poor students. In FIIT JEE Limited’s case (supra), the complainant had joined two years integrated course started by the petitioner and paid a sum of Rs.1,04,000/-, for the said course. He left the course after three months and sought refund of the amount. The District Forum ordered the appellant to deduct Rs.32,000/- out of the aforesaid amount, and refund the balance amount. The appeal filed by the appellant was dismissed, against which, Revision Petition No.1976 of 2010, which was filed by the institute, was also dismissed by the Hon’ble National Commission vide its order dated 29.7.2010, directing the petitioner, to refund 50% of the amount, taken by it, for two years course, since the complainant had left the course, in the first year itself. When the instant case is examined, in view of the law, laid down, in the aforesaid cases, only one and one inescapable conclusion, that can be arrived at is that, the complainant was entitled to the refund of fee with effect from 7.8.09, when she moved an application for the said purpose, after deducting proportionate fee from 26.7.2009 (when she got admission in the preparatory coaching), to 6.8.2009. No receipt with regard to payment of the amount of hostel charges, has been produced, by the complainant and, under these circumstances, she could not be held entitled to the refund of any such amount. The District Forum was, thus, wrong in holding that the seat remained blocked , on vacation of the same, by the complainant, and that she availed double benefit, in the first instance, getting admission in the preparatory coaching and thereafter, in B.Tech in Mullana college. As stated above, no document was produced by the OP, to the effect, that the said seat was blocked. The OP must be in possession of the record. In the absence of production of any record, such an observation made by the District Forum, cannot be said to be correct. There was no question of taking the double benefit by the complainant. She only got admission in OP institute, for preparatory coaching. Since, she had applied for admission in B.Tech College, Mullana, when she got the same, she left the coaching Institute of the OP. By not refunding the fee, after deducting therefrom, proportionate fee from 26.7.2009 to 6.8.2009, the respondent indulged into unfair trade practice. The order of the District Forum, being illegal and perverse, is liable to be set aside. 11. For the reasons recorded above, the appeal is accepted. The OP is directed to refund the fee of Rs.25,000/- deposited by the complainant/appellant, after deducting therefrom proportionate fee, from 26.7.2009 (date of admission),to 6.8.2009. The OP is further directed to pay compensation in the sum of Rs.10,000/-, for indulging into unfair trade practice, by not refunding the fee. The OP shall also pay Rs.5000/- as litigation costs. 12. The amount of fee, as also the amount of compensation, shall be paid by the OP/respondent within a period of thirty days, from the date of receipt of copy of the order, failing which, the OP shall be liable to pay the same with interest @ 9% p.a. from 7.8.2009, till realization of the amount, alongwith costs. 13. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
