This case has arisen out of an application U/s 12 of the Consumer Protection Act, 1986.
The case of the petitioner is that he is an unemployed youth, during his HS examination, when he started to search some coaching then he came to know from advertisement about O.Ps and he met with O.P.No-1 who supplied him some printed papers and assured that the person/teachers whose names and pictures are printed in the advertisement papers will take class in the coaching centre. After getting assurance petitioner has taken admission on 05.06.2018 before O.P.No-1’s training institute for coaching and on 18.04.2018 deposited Rs.10,000/- & thereafter on 15.06.2018 of Rs.50,000/- by cheque vide No:-000621497, as fees.
That after taking admission petitioner several times went to O.P.No-1’s office for his class who only given him dates but did not arrange any single class. The petitioner is waiting for his class for preparation, so he did not appear any competitive examination & he failed to take admission any other place for coaching.
That lastly when petitioner became sure that O.Ps cheated him then on 11.03.2019 he wrote a letter to O.P.No-2 to get back his deposited amount Rs.60,000/-, received by it on 03.04.19 but did not take any step. On 21.04.19 petitioner filed an application before DLSA but all efforts gone in vain. Due to deficiency of service and unfair trade practice by the O.Ps the petitioner lodged this complaint with prayer for directing the O.Ps to pay deposited amount Rs.60,000/- with up to date interest, compensation of Rs.1,00,000/- for suffering from mental pain & agony and essential time loss of life, special compensation of Rs.10,000/- and litigation cost of Rs.10,000/-.
O.P.No-1 did neither appear nor contest the case.
O.P.No-2 contested the case by filing W.V stating that the petitioner took his admission in Med 2 Yr 1819 course, total course fee was Rs.75,000/- + GST and the petitioner deposited sum of Rs.60,000/-, the batch was started from 6th May, 2018 and the petitioner was a regular student of the classes scheduled for the said course. The petitioner attended more than 55% of classes in the centre of O.P.No-2 so the question of non-arrangement of single class for him does not arise at all. Moreover, total number of classes held during his studentship was 92 and the petitioner attended 51 classes. When the O.P asked for payment of balance course fee petitioner took the plea “Pore debo” & he continued the same plea till his last date of attendance in the class of the O.P. O.P.No-2 denied service of notice upon him. O.P.No-2 submits that petitioner is not a consumer as defined U/s 2 (7) of the Consumer Protection Act, 2019 & claim dismissal of complaint being motivated and not maintainable.
Points for consideration:-
- Whether there was any deficiency in service or unfair trade practice on the part of the O.Ps which gives rise cause of action to file the complaint and the petitioner is entitled to get the claim?
D e c i s i o n w i t h r e a s o n s
Petitioner’s case and evidence is that he is an unemployed youth, during his HS examination, when he started to search some coaching, then he came to know form some advertisement about O.Ps and he met with O.P.No-1 who supplied him some printed papers and assured that the person/teachers whose name and pictures are printed in the advertisement paper will take class in the coaching centre. Advertisement showing course details, subjects and name of person/teachers and photography of teachers and some successful students is produced by the petitioner.
Inspite of direction O.P.No-2 did not supply the actual name of Branch Head, Adamas Career, Raiganj and his address, so the case is heard ex-parte against O.P.No-1, who may have challenge the aforesaid case of the petitioner.
Receipt No:-517557 dated 18th April, 2018 shows that the petitioner had deposited Rs.10,000/-(Admission fee Rs.8,474.58, CGST 762.71, SGST 762.71) through mode: Debit Card with Adamas Career for the course: Med-2Yr-1819, Batch No:- Med-2Yr-1819 _ New, Roll No:1, Batch Start date: 6th May, 2018, student code:1819/AC/027, next installment date: 1st June, 2018.
Receipt No:-518144 dated 15th June, 2018 shows that petitioner had paid Rs.50,000/- by cheque No:-621497, dated 15th June, 2018 drawn on SBI (Test fee Rs.9,000/-, Tuition fee Rs.21,847.46, Admission Fee Rs.11,525.42, CGST Rs.3813.56, SGST Rs.3,813.56) with Adamas Career.
Petitioner’s case is that O.P.No-1 has given dates for classes but did not arrange any single class for him since last 01 year, as a result neither he took admission in other coaching centre nor prepared himself to appear any competitive examinations but huge time from his life was spoiled.
Petitioner’s further case is that on 11.03.219 he wrote a letter to O.P.No-2 for getting back deposited amount Rs.60,000/- and O.P.No-2 received said letter from 03.04.2019 but did not take any steps. Xerox copy of said letter is produced, but whether it was posted or delivered to O.P.No-2 is not found. It appears that identical demand notice/request letter dated 12.03.2019 was posted from Raiganj SO on 12.03.2019 but no document is produced regarding its service on O.P.No-2. Document shows that the petitioner wrote another letter dated 28.03.2019 demanding return of Rs.60,000/- as deposited, posted from Raiganj SO on 30.03.2019 and item delivered on 03.04.2019 to O.P.No-2 (As per Postal Track Consignment Report).
O.P.No-2 denied that any notice has been served upon it by the petitioner demanding therein to get back the amount deposited by him, appears wrong. The letter dated 28.03.2018 mentioned hereinabove, be in the form of demand notice or request letter as might be, but it was delivered to O.P.No-2.
Petitioner stated further than on 21.04.2019 he filed an application before the DLSA but all efforts gone in vain. O.P.No-2 stated that it has no knowledge about filing of such application. But document produced show that petitioner submits application for legal aid to the DLSA, Uttar Dinajpur on 09.08.2019 against O.P.No-2. Whether notice was served on O.P.No-2 it cannot be ascertained and the result of such application is not found.
According to O.P.No-2 total fee for the said course was Rs.75,000/- + GST & the petitioner deposited a sum of Rs.60,000/- and the batch was started from 06th May, 2018 and the petitioner was a regular student of the classes scheduled for the said course and total number of classes held during his students ship was 92 of which the petitioner attended 51 classes, more than 55% of classes in the centre and when O.P asked for the balance payment of the course fee, the petitioner took the plea “Pore debo” and he continued the same plea till his last day of attendance in the class of the centre of O.P and being demanded payment the petitioner stopped attending his scheduled classes for the said course and for the purpose of some wrongful gain filed this intentional and motivated application.
In order to prove it’s case O.P.No-2 submits Student Attendance Report generated on 12.12.2019 and Student Management System generated on 21.12.2019 in connection with 17 students & 12 students respectively mentioning name of Avik Das (petitioner), Student ID 18-19/AC/027, Roll No:1, Classes attended 51, Classes scheduled 92, Attendance percentage 55.43. The case of O.P.No-2 is proved by the documents and the onus shifted to the petitioner to discard the same and to establish his claim but the petitioner has miserably failed to discharge his burden of proof.
Another specific defence is jurisdiction of this Commission to entertain such an application of the petitioner.
For petitioner a citation Re:- P. Sreenivasulu & Anr P.J.Alexender & Anr in Civil Appeal Nos-7003-7004 of 2015 is referred which upheld the view expressed in the case of Buddhist Mission Dental College & Hospital V. Bhupesh Khurana & Ors [(2009) 4 SCC 473] that an educational institution would come within the purview of the Consumer Protection Act, 1986.
For O.P.No-2 decision of NCDRC is referred. The bench while taken into consideration a batch of petitions and further referring to several decisions of the Supreme Court reached to the conclusions that,
“Coaching classes cannot fall within the definition of ‘Education Institutions’.”
“Any defect or deficiency or unfair trade practice pertaining to a service provider like ‘Coaching Centres’ does not fall within the jurisdiction of the Consumer Fora.”
The commission relying on the in Amar Singh Yadav V Shanta Devi, AIR 1987 Patna 191, wherein it was held that,
“……while deciding the Law of Precedence has observed that when there is a direct conflict between two decisions of the Supreme Court of co. equal Bench, the subordinate Court must follow the judgments which states the Law more elaborately and accurately & that the question whether the decision is earlier or later is not material. In the instant case in Maharishi Dayanand University Case (Supra) the Hon’ble Supreme Court had discussed the Law elaborately”.
Thus, the Commission stated that ratio laid down in the last judgment i.e Amar Singh Yadav V Shanta Devi, AIR 1987, Patna 191 has to be followed.
Under above facts and discussion, we are of the considered view that there was no deficiency of service or unfair trade practice on the part of O.Ps & there was no cause of action to file this complaint and the present complaint against Coaching Centre/Adamas Career is not maintainable in this Forum/Commission and the petitioner thus not entitled to get relief as prayed for.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-62/2019 be and the same is dismissed on contest against O.P.No-2 and ex-parte against O.P.No-1 but without any cost.
Let a copy of this order be given to the parties free of cost.
