Date of Filing: 30/01/2017

Date of Order: 24/03/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 24^TH DAY OF MARCH 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.145/2017

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT

1.     This is the complaint filed by the complainant against the O.P under Section 12 of the Consumer Protection Act 1986 praying to pass an order directing the O.P to refund the fee paid by him to the O.P for a sum of Rs.49,500/- after deducting one month’s pro-rata fee. Further he claims Rs.10,000/- as litigation charges.

 2.    The brief facts of the complaint can be stated as under. The Complainant has enrolled his daughter by name Joslyne Joseman for NEET 2017 COACHING class at ALLEN, Banasawadi Center on 15.9.2016 after enquiring about the course fee, fee installment facility and refund clause etc. Thereafter he paid a sum of Rs.49,560/- through cheque bearing No.523192 dated 15/9/2016  towards  50% fee for the course.

3.     Since the O.P’s prospectus specifically stated that in case the students get admission to the medical, engineering course through competitive examination refund will be made after deducting 50% of the prescribed fee paid by the student and since his daughter by name Joslyne Joseman got admission for BDS in Krishnadevaraya College for Dental Sciences Yelahanka on 7.10.2016 through NEET exam he requested and demanded the O.P by submitting all the relevant documents to refund the amount by him and also issued notice to do so for which the O.P has not heeded too. Hence he filed this complaint for deficiency of service and not honouring the terms and conditions of the acceptance of the tuition fee and refund.

4.      After service of notice the O.P appeared through his counsel and filed its version. In the version O.P has contended that, this Forum does not have jurisdiction to adjudicate the complaint, the complainant is not a consumer under the provisions of  C.P. Act., there is no privity of contract between the complainant and the O.P and hence case is liable to be dismissed. 

5.     It is further contended that daughter of complainant by name Ms.Joslyne Josman got herself enrolled for coaching under medical leader batch to take NEET 2017 exam on 15.9.2016.  The fee prescribed  for the coaching program was Rs.1,41,600/-.  Since the daughter of the complainant had good academic performance at 12^th Std the O.P institution offered a discount of @ 25% +5% in all  and the complainant asked to pay Rs.99,120/-. Whereas the complainant only paid Rs.49,560/- instead of Rs.99,120/-.  The application for refund filed by the complainant is much after the date prescribed by it and further this complaint is not maintainable as Consumer Forum has no jurisdiction to decide the cases in respect of education institution as per the judgments of Supreme courts and NCDRC and hence submitted and the complaint is liable to be dismissed as knowingfully  well the complainant has dragged the Opposite Party in to uncalled for litigation and hence the prayed the Forum to dismiss the complaint.

6.     In order to prove the case the complainant and the O.p have filed their affidavit evidence, documents and written arguments. We have heard the arguments and perused the documents in detail.

7.    From the above the following points arise for our consideration:

1. Whether the complainant proves that he is a Consumer under Section 12 (d) of Consumer Protection Act and this Forum has jurisdiction to decide this complaint?

2. Whether the complainant proves that there is deficiency in service on the part of O.P in not refunding 50% of the fee paid?

3. If Point No.1 and 2 is answered in affirmative what relief the complaint is entitled so?

8. Our answers to the above points:

POINT 1): In the affirmative.

POINT 2): In the affirmative.

POINT 3): As per the final order

for the following:

REASONS

ON POINT No.1:-

9.  The complainant has filed his affidavit evidence reiterating the contents of the complaint. The complainant in this case is the father of the student by name Ms.Joslyne Josman. She got admitted for coaching with O.P. institution on the advertisement made by O.P regarding providing coaching and fine tuning them for the IIT, JEE, Pre-Medical, CET and Professional courses entrance examination. This has been admitted by the O.P in its version and also in its affidavit evidence which is nothing but repetition of the version filed. The broacher advertising the details of the courses, subjects offered and the fee structure levied and the way in which application to be filled to claim refund has been mentioned in the said broacher.  In view of this and as per arguments advanced and various decisions rendered by various Districts Forums of the country which decisions has been reported in Deccan Chronicle dated 25.7.2016 decided by the Consumer Forum of West Godhawari District, Andhra Pradesh and the decision of the Dehradaun Consumer Disputes Redressal Forum have held that Education Institutions and the students who offer and opt for education / coaching comes under the Consumer Protection Act. Hence in view of this complainant through his daughter is a Consumer under Section 2 (d) of the Consumer Protection Act 1986. Since the complainant’s daughter is a minor cannot sue on her own,  this complaint is filed by her father who is looking after her and also taking care of her education.  

10.   Further, Ms.Joslyne Josman took the services of the O.P to make her fine tuning and educate her for taking up the oncoming competitive professional entrance/main NEET-2017 examination for consideration i.e. the fee prescribed by O.P. in this case.  Section 2 (d) (2) clearly says that:-

“CONSUMER: Any person who -

(i) …………..

(ii) Hires or avails of any services for a consideration which has been paid or promised…………….”

11.      To counter the same, the O.P has not placed any material before this Forum to throw out the complainant from the ambit of Consumer Protection Act. In the version filed he has mentioned the decision reported in Civil Appeal No.22532/2012 dated 9.8.2012 SCC and also the decision in Maharshee Dayanand University Vs Surjith Kumar and Regional Institute of Co-operative Management Vs Naveen Kumar Chowdary wherein, it is held that education is not a commodity and hence Consumer Forum has  no right to decide the dispute.  We are of the opinion that the said decisions are not applicable to the case on hand. On coming to know that O.P has made an advertisement that he would render service of coaching and fine tuning the students to prepare themselves for the coming competitive career oriented preliminary/final examination for a fee, the complainant opted for it by paying Rs.49,560/-.  Hence as stated earlier, the  complainant has opted for the services of the O.P and hence complainant is a consumer under the Act.  

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12.       The counsel for the O.P has argued that this Forum has no jurisdiction to entertain this complaint. His main argument is that, O.P has its corporate office at Kota, Rajasthan State and hence the Consumer Forum at Kota, Rajasthan has alone the jurisdiction to entertain this complaint.

13.       To counter this argument, the complainant has submitted that his daughter is a resident of Bengaluru, the advertisement given by the O.P is for providing coaching for preparing for facing the competitive examination of technical/medical education and that O.P has a branch in various extensions of Bengaluru and that his daughter joined the course in Banasavadi Centre of Bengaluru, and the payment of the fee also been made in Bengaluru and the same has been received by the O.P in Bengaluru and hence this Forum has jurisdiction to entertain this complaint. 

14.     On perusing the oral and documentary evidence, it becomes clear that, the O.P has a campus by name ALLEN Bengaluru Campus wherein, Bengaluru it is having  eight (8) branches i.e. in Jayanagar, Koramangala, HSR Layout, Basaveshwara Nagara, Banasawadi, Bannerghatta, Hebbal and Marathhalli.  The amount has been taken in Bengaluru only. The cause of action for the complainant to initiate this complaint has taken place in Bengaluru since the complainant’s daughter opted for taking the special coaching in Banasawadi center of the O.P in Bengaluru and the O.P has received the fee and later refused to refund the same as per the scheme of refund mentioned in the said broacher. In view of this, the contention of the O.P that the complainant ought to have filed the complaint in the District Forum at Kota, Rajasthan is ill-founded and not in conformity with the place of cause of action which has taken place between the parties. Hence we answer Point No.1 in the affirmative.

ON POINT No. 2:

15.     It is the case of the complainant that, his daughter Ms.Joslyne Josman opted for the course Medical leader batch on 15.09.2016 for NEET examination 2017. The course fee fixed as per the evidence and the broacher produced is Rs.1,41,600/-. As an incentive, they offered discount of 30% out of the same. The complainant paid a sum of Rs.49,560/-  being the fee for the said course. It is the case of the O.P that complainant ought to have paid Rs.99,120/-, while considering her academic performance they accepted 50% of the prescribed fee towards first installment.

16.      It is the further case of the complainant that, as per the offer made by the O.P in the broacher he is entitled to the refund of 50% of the prescribed fee out of the amount paid by the student.  The scheme envisages as hereunder:

Refund in special case after last date of second refund.

A student gets admission in any medical /engineering college located in India for MBBS  /BDS/BTECH, /B.E./B.ARC through any competitive examination refund will be made after deducting 50% of the prescribed fee out of the amount paid by the student. Refund of fee will be applicable only for the aforesaid courses. Last date of such special case is 30.9.2016. For this following documents must be submitted along with prescribed refund application form.

17.    According to the complainant, his daughter got a seat for the BDS course in Krishshnadevaraya College of Dental Sciences and Hospital, Yelahanka on 7.10.2016 through  NEET  Selection ranking and hence she was unable to pursue her  coaching at ALLEN i.e O.P. It is not in dispute that, the complainant’s daughter was admitted to the O.P’s institution by receiving a sum of Rs.49,560/-. As per the terms and conditions of the refund, the O.P has to refund the same, since she got a seat for BDS course in the above institution on 7.10.2016.  In view of this O.P has to repay the same.

18.   Considering the fact that the complainant has paid only Rs.49,560/-  instead of Rs.99,120/-  and in view of the scheme of refund the complainant is only entitle to 50% of Rs.49,560/-  which he has paid to the O.P. O.P ought have refunded 50% of the fee whatever received by it by the complainant. It has not done so. At the same time, it should not fleece the customers or the students and their parents. If they had repaid/refunded the 50% of the amount paid by the complainant, the situation of the complainant approaching this Forum to exercise his right would not have arisen.  Since O.P denied refund of the amount inspite of their announcing the scheme of refund in their advertisement and in the broacher and since  the complainant’s daughter after paying the fee (Partly) to the O.P and then as per the refunds scheme got a seat for Dental course in the institution through NEET exam, there is deficiency in service. Hence we answer Point No.2 in the affirmative.  

ON POINT No.3:

19.     Since we have answered Point No.1 and 2 in the affirmative and in favour of the complainant we have to see to what relief the complainant is entitled. 

20.    As pointed out above, the complainant has deposited Rs.49,560/-  instead of Rs.99,120/-. Had he deposited Rs.99,120/- the complainant would have entitle for 50% of the said amount.  Whereas, he deposited Rs.49,560/-   and as per the scheme he is entitle for 50% of the amount paid by him which works out to be Rs.24,780/-.

21.   It is to be seen here that the complainant paid the amount on 15.9.2016 and within a span of 20 to 25  days she got the seat for BDS course.  Hardly she had attended the classes with the O.P. Hence no deduction out of the said amount in respect of the said days of attending the courses by the daughter of the complainant in our view is required.

22.    The act of O.P made the complainant who is in private service to approach this Forum by spending time, money and energy which could have been avoided by the O.P had they taken the matter seriously and resolved the same amicably. The very attitude of the O.P., the tenor of the   version and the evidence clearly go to show that O.P is very adamant in settling the matter which forced the complainant to approach this Forum.  Hence we are of the opinion that the complainant is entitle for the litigation charges. The complainant has also suffered mental and physical strain by approaching this Forum and in attending the hearing all these days after filing the complaint which the O.P would have avoided. Hence we are of the opinion a sum of Rs.10,000/- towards litigation and Rs.10,000/- towards damages for making the complainant to suffer physically and mentally if ordered to be paid by O.P to the complainant we fee ends of justice will be met.   Hence, we answer Point No.3 accordingly and pass the following:-

ORDER

1. The complaint is partly allowed with cost.

2. The OP i.e. Allen Career Institute Bengaluru City, Represented by it Authorized Signatory is hereby directed to pay a sum of Rs.24,780/- along with interest at 12% per annum from the date of complaint till realization to the complainant.

3. Further O.P is also directed to pay Rs.20,000/- towards cost of the litigation, mental and physical strain suffered by him in bringing this litigation.

4.    The O.P is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

 (Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 24^th Day of March 2018)

MEMBER                        PRESIDENT

*Rak

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1: Mr.Josemon Daniel - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1: Photocopy of notice issued to ALLEN

Doc.No.2: Photocopy of refund clause of ALLEN

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1 : Srihari.M.B – Opposite Party.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Book of the course Booklet for the year 2016-17.

ExR2:Book of the Information Bulletin for the year 2016-17.

MEMBER                          PRESIDENT