DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 535/2022

Date of Institution: 06.10.2022

Judgment Reserved on: 16.08.2024

Judgment Passed on: 20.08.2024

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Judgment By: Shri S.S. Malhotra (President)

JUDGMENT

By this judgment the Commission would dispose off the complaint of the complainant alleging deficiency in service by the OP in not refunding the entire fee paid by the complainant for the coaching of her daughter.

1. Brief facts as stated by the complainant in the complaint are that she admitted her daughter Ms. Avishi Patairya in the OP’s institute Preet Vihar for preparing NEET Examination and paid an amount of Rs.64,259/- on 07.01.2022 towards first installment and at the time making this amount she was assured by OP that if the child does not continue then amount would be refunded considering the number of days the child has attended to the coaching and accordingly complainant’s daughter started going to the classes from 26.05.2020 which was the date of ‘batch commencement’ however her daughter was finding it too hard to carry on classes with OP alongwith her school studies & just after attending 4 classes, she dis-continued the batch and the complainant then informed the OP on 03.06.2020 that her daughter would not be able to continue. The representative of OP intimated her that the refund would be processed within 21 days but even after more than 3 months, there was no follow-up nor any amount was returned and it is alleged that OP is doing fraudulent activity and there is deficiency in service on the part of OP who is influential person and can dupe hard earned money of the complainant and despite writing various emails and telephonic conversation the amount was not returned which establishes that OP is running unfair trade practice in not returning the money of the complainant. The complainant then sent a legal notice to the OP dated 05.09.2022 and thereafter OP refunded an amount of Rs.41,870/- on 08.09.2022 but remaining of Rs.22,389/- has not been returned and it is prayed that OP be directed to refund this amount and also pay interest and legal expenses with compensation of Rs.50,000/-   
2. The OP was served and has filed its reply and has submitted that the complaint is liable to be rejected on account of non-joinder of necessary parties, the OP is not a service provider, the complainant is not a service seeker as it is settled principle of law that the education is not covered within the definition of ‘service’ under Consumer Protection Act and even otherwise complainant has concealed the material facts that at the time of admission, she was given discount of 52% in tuition fee which fact has been concealed by the complainant and even otherwise, the terms & conditions as well as the course opted by the complainant were duly understood by the complainant before signing the agreement and in no case there is any deficiency on the part of OP and parties are bound by terms & conditions of the refund policy and admittedly the answering respondent has already refunded the tuition fee of Rs.36,870/- to the complainant alongwith Rs.5,000/- towards security to the complainant. It is further submitted that there was an arbitration clause in the terms & conditions & therefore this Commission does not have any jurisdiction and complainant has to approach the arbitrator for resolving the controversy as alleged and thereafter he has relied upon certain judgments interalia stating that education and institute which are providing any kind of service to the aspirant and are imparting the education, are not covered within the definition of service and accordingly it is prayed that complaint of the complainant be dismissed.
3. As far as merits are concerned it is mentioned that complainant has filed refund application to the OP and thereafter in view of the terms & conditions of the admission form and refund policy of the OP, the claim was processed and OP has refunded an amount of Rs.36,870/- towards tuition fee and Rs.5,000/- towards security to the complainant and since needful has already been done, the present complaint which has been filed after having received this amount, there is no subsisting cause of action & the complaint is liable to be dismissed & may kindly be dismissed.
4. Complainant has filed rejoinder interalia stating that OP who has been stressing on the terms & conditions but he himself is not following the law and even regarding refund, the tactics has been only to delay the refund so that OP can shrug off their refund liability & therefore the written statement of OP be rejected. As far as facts w.r.t. necessary parties is concerned it is submitted that complainant is not much aware about the internal administrative functioning of the organisation of OP and it was logical for the complainant to make Aakash Education Service Limited as a party to whom the amount was paid. It is further stated but the Counsellor at the institute of OP whose name is not known to the complainant, sent a link on her mobile phone soliciting her about the Aakash National Talent Hunt Exam(ANTHE) and told that if daughter qualifies ANTHE she will get admission in the best batch and as such, the complainant got impressed by the verbal assurance of the Counsellor felt getting admission of her daughter with the OP institute for preparing her daughter for the medical streams and she was confident that education which OP would be imparting to her daughter would definitely improve her child to have bright future. As far as discount is concerned it is submitted that all students who qualifies ANTHE were eligible for discount and it is not the daughter of the complainant alone who had qualified or was given discount. As far as arbitration clause is concerned it is stated that the Hon’ble High Court of Delhi in Vivek Rai Vs. Aakash Institute has already observed that the remedy under Consumer Protection Act is an additional remedy and arbitration clause is not necessarily to be invoked if a person approaches the Consumer Forum and thereafter she relies upon certain judgments in support of this contention. As far as merits are concerned, the contents of the written statement are denied and contents of the complaint are reiterated.
5. Complainant has filed evidence of her own whereas OP has filed evidence of Sh. Manoj Kumar AR of OP. Both the parties have filed written arguments and the Commission has heard the argument and perused the record. The Counsel for the OP has basically argued that all the admissible amount has already been returned to the complainant which was as per the refund policy and subsequently mentioned that out of amount paid by the complainant an amount of Rs.4519.76/-  has been paid as tax i.e. CGST & an amount of Rs.4519.76/- has been paid as service tax to UTGST and Rs.10,169/- has been deducted and as the complainant’s daughter has attended certain classes an amount of Rs.10,169/- was also deducted & remaining amount has already been refunded to the complainant whereas the contention of the complainant is that her full amount has to be refunded as the complainant has attended only 4 business classes and was entitled to claim full refund.
6. The Commission has heard the argument and perused the records. It is admitted case of the complainant that it is her daughter who could not cope-up with the school studies alongwith the studies to be imparted by the OP and as such it is the daughter of the complainant who quit the institute of OP. If the complainant’s daughter going to take admission with the institute of OP where she was not able to cope-up with the studies simultaneously with the school classes then it was a fact which had to be considered by the complainant at the first instance. Merely on the hope of getting her child preparing for medical NEET Examination, the parents are not supposed to put the child into embarrassing position by taking admission and then by leaving such institute on account of pressure in coping up with school studies as well as coaching classes. The deficiency would have been on the part of OP, only if the requisite programmes of studies were not being discussed or assured study/assured tutor/assured faculty have not been provided by the OP and in the considered opinion of this Commission, these facts cannot be ascertained by attending just 4 classes. The complainant definitely and truthfully has conveyed that it is her daughter who could not be cope-up with the studies of two courses simultaneously i.e. of the school and of the OP coaching centre and as such she left. Therefore there appears to be no deficiency on the part of OP as far as this aspect is concerned.
7. The next aspect is whether, if the student is not able to cope-up with the studies simultaneously with the school syllabus then whether OP would not refund the amount & if liable, then to what extent. Here the OP has a refund policy & in fact has already returned the amount of Rs.36,870/- towards coaching fee & Rs.5,000/- towards security deposit & admittedly an amount of Rs.9,038/- has also been paid by the complainant towards tax liability. This apparently cannot be returned to the complainant. Further an amount of Rs.10,169/- has been deducted by the OP towards administrative charges as a part of refund policy. In the considered opinion of this Commission, amount of Rs.10,169/- is also not refundable to complainant as certain amount definitely has been spent by the OP on the students by way of employing various staff/employees in conducting the examination and then facilitating the student for her studies & therefore deducting Rs.10,169/- also cannot be said  to be an unreasonable  or unfair trade practice. Thus the OP has deducted Rs.19,207/- and therefore was required to refund Rs.45,012/- to the complainant whereas it has refunded only Rs.41,870/-. The balance amount therefore is about less than Rs.4000/-. There is no explanation by the OP as to why this amount has not been returned to the complainant. Apart from this calculative discrepancy, there appears to be no deficiency on the part of OP & therefore in totality of facts & circumstances the OP is directed to refund Rs.5,000/- in addition to the already refunded amount to the complainant at the first instance, however without any interest & without any compensation as major part of the amount has already been returned by the OP after receiving the legal notice. It is further ordered if the OP would not pay remaining Rs.5,000/- then OP would pay interest on this amount @9% p.a. from the date of filing the complaint till the date of actual realization. In the circumstances parties would bear their own respective cost.

Copy of the Order be supplied/sent to the both parties free of cost as per rules.

Announced on 20.08.2024.

File be consigned to Record Room.