STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Vivek High School, Sector 38-B, Chandigarh through its Principal

                                                               ……Appellant

                                 V e r s u s    

Anurag Sharma son of Sh. V.B. Sharma resident of H. No.763, Sector 8, Panchkula.

                                                              ....Respondent

         Appeal under Section 15 of the Consumer Protection

               Act, 1986.

BEFORE:      JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

Argued by:        Mr. Inderjit Kaushal, Advocate for the appellant.

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            Appellant/Opposite Party has filed this appeal against  order dated 15.12.2016, passed  by the   District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’ only), allowing a complaint filed by the respondent/complainant  

 2.        After downloading an admission form, the respondent/complainant submitted it with the OP for admission of his daughter in Nursery Class. As per admitted facts, the said application was processed and complainant’s daughter was granted admission against Serial No.7276. A fee book was issued to the complainant to deposit admission charges alongwith development  fund and consolidated fee amounting to Rs.63,000/-.  Before start of the session, complainant was transferred out of Chandigarh.  He made request to refund the amount paid, and in response thereto, after getting his signatures on some blank papers, only an amount of Rs.33,000/- was refunded. Despite making requests, balance amount of Rs.30,000/- was not returned to him, which led him to  file a consumer complaint bearing No.400 of 2016.

3.            Upon notice, reply was filed by the appellant/Opposite Party. It was stated that as per rules and regulations, administrative/admission charges are non-refundable on account of the fact that  the school had completed the procedure by admitting daughter of the complainant by incurring expenditure.  Development fund and consolidated fee was returned because child was withdrawn from the school before the start of the session.  It was further asserted that in the fee book itself, it was mentioned that the admission/administrative charges were non-refundable in case of withdrawal of a child.  It was further stated that the complainant was not a consumer, and as such, on account of that fact, the complaint be dismissed.  

4.         Both parties led evidence. The Forum, on analysis of pleadings of the parties, evidence/documents on record, and arguments raised, allowed the complaint vide impugned order dated 15.12.2016, granting following relief to the respondent/complainant ;

               a)      To refund Rs.30,000/- being the             remaining admission fee to the                  complainant.

               b)     To make payment of Rs.7,000/- to the     complainant towards compensation          for    causing mental and physical            harassment.

 c)     To make payment of Rs.5,000/- to the     complainant as litigation expenses.

The amount was ordered to be returned within the stipulated period, failing which the amount awarded was to get penal interest.  Hence, this appeal.

 5.         Counsel for the appellant has vehemently contended that being an educational institute,  appellant cannot be subjected to jurisdiction of the Fora as per provisions of the Consumer Protection Act,1986. The appellant was not a service provider and it was performing statutory duty to impart education, and as such, directions cannot be issued to it, by the Consumer Fora, as has been done in the present case.

                 We are not going to agree with the contention raised. It is true that the appellant/OP is a school. However, grievance of the complainant was not qua rules and regulations governing imparting of education but it was only qua refund of amount paid which was being retained towards administrative charges. The Forum has also observed so, in the order under challenged, by stating as under;

“ Admittedly the complainant approached the OP school for admission of his daughter in the nursery class and paid Rs.63,000/- towards admission fee but due to transfer of the complainant he withdrew his request for the admission of her daughter and so requested the OP to refund the admission fee. The case of the complainant is that instead  of refunding the whole amount OP, refunded Rs.33,000/- only and retained the remaining huge amount of Rs.30,000/- with itself in the name of non-refundable administrative charges.  The OP in its reply has maintained that as per Rules and Regulations the administrative/admission charges are non-refundable. Therefore, there is no deficiency in service on its part.

                       After going through the reply filed by the OP as well as the new admission slip placed on record, it is evident that the OP is a private institute imparting education. Pertinently, in the present case the complainant surrendered the seat of her daughter in advance before the beginning of the new session  and it is also matter of fact that the said seat was occupied by some other child after paying full admission fee as charged by the OP school.  Therefore, surrender of seat by the complainant’s daughter before the beginning of the session did not cause any kind of financial loss to the OP. In our view by admitting other child with full fee and at the same time retaining the complainant’s remaining amount is itself unfair trade practice on the  part of the OP by charging administrative/admission charges twice for one and same seat.   The reliance put on the admission slip mentioning non-refund of the fee cannot be accepted as the purpose to retain the administrative charges with OP is neither defined nor there are any detail of this expenditure on the record. Thus, this practice of the OP school being arbitrary/unilateral and unreasonable in nature is held to be illegal.  As such, in our opinion the act of the OP for retaining huge amount of Rs.30,000/- without any justification or cogent reasoning is clearly unfair trade practice on its part.  So far as the question of the judgments placed on record by the OP is concerned the facts and circumstances of the present case are not similar to the facts and circumstances of the cases mentioned by the OP.   Thus, the said judgments are of no help to the OP.  Pertinently, the OP being a private institution imparting education has not been incorporated as a university or education institution under the State of Government of India and hence is not governed under the Rules laid down by the  Ministry of Human Resource  Development. If OP had been set up under the statute, the  Rules and Regulations  for its governance as well as refund of the fee would have been as per statutory provisions and in that eventuality we would not have passed any order in contravention of statutory condition. However, the OP is only a private profit making organization whatever be its size. Thus, its contention of refusal for refund of admission fee on the basis of it being non refundable, is not sustainable especially when the daughter of the complainant did not attend the school rather surrender the seat prior to the beginning of the new Session. Just because of prior intimation by the complainant, OP school was able to fill up the surrendered seat. Had the daughter of the complainant left the seat after the beginning of the session and on account of that the OP would not be able to fill up the seat, then the OP had a good case. But in the instant case as discussed above,   the OP duly filled up the seat surrendered by the daughter of the complainant. Thus, the OP cannot take double benefit for one and same seat by charging fee from the complainant as also from other student who was allocated the seat subsequently. Hence, there is unfair trade practice on the part of the OP.”

 6.              It was noted as a matter of fact that the child was withdrawn from the school before start of the session.  As per admitted facts on record, on request, the appellant/OP has returned only an amount of Rs.33,000/-  (Rs.18,000/- towards development fund and Rs.15,000/- towards tuition fee) and remaining amount of Rs.30,000/- was not returned and kept towards administrative charges.  At the time of arguments, it was specifically admitted by the Counsel for the appellant that after withdrawal of the child, the seat was offered to another child and had not gone vacant for the session, in question. The above fact clearly demonstrates that from the child admitted against the vacant seat, left by the daughter of the complainant, fee and administrative charges were again received by the school.  Not a penny loss was caused to the school and arbitrarily like a tuck shop an amount of Rs.30,000/- was retained by the appellant towards administrative charges. Neither in the written statement, nor at the time of arguments, counsel for  the appellant has referred to any rule and regulation framed as per law, on the basis of which, huge amount can be retained only for the purpose of processing of application for admission of a child in nursery class. Not only as  above, the very  plea taken by the appellant runs contrary to the admitted facts of the case.  It is admitted on record that to get admission in nursery class the complainant downloaded an application form through internet and after filling up submitted it to the appellant.  It was processed without getting any fee and finding it in order, admission was offered to the daughter of the complainant and he was asked to deposit Rs.63,000/-  in terms of fee book handed over to him. The above fact clearly shows that before offer of admission, no fee/charges were payable. If transfer order of the complainant had been received before making payment of fee, he was not going to loose any amount.  It was his  bad luck that transfer order was received after making payment of Rs.63,000/- in the month of January,2016.

7.        A similar question qua non-refund of amount terming it as ‘administrative charges’ came up for consideration before the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.3288 of 2016 titled as Mody University of Sciences and Technology & anr Vs Megha Gupta. Vide judgment dated 8.12.2016, the Hon’ble National Commission deprecated non-refund of amount paid where student was withdrawn from educational institution, by observing as under ;

 “Insofar the question as to whether the Complainant was a “consumer”, having perused the order dated 26.06.2015 passed by this Commission in Revision Petition No. 3993 of 2011, wherein by relying on the decisions of the Hon’ble Supreme Court in Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483; Jagmitter Sain Bhagat v. Dir. Health Services, Haryana & Ors., (2013) 10 SCC 136 etc., by a short order, the Bench has held that being a student, University does not render any services to him.  The Revision Petition, preferred by a student, was dismissed on the ground that he was not a consumer.  In Bihar School (supra), the question before the Hon’ble Court was whether a Statutory Board conducting academic examinations was a service provider qua a student taking the exam.  Answering the question in favour of the Board, the Hon’ble Court held that any dispute relating to fault in holding the examination and non-declaration of result of an examinee does not fall within the purview of the Act, which is not the case here.  Jagmitter Sain Bhagat’s case (supra) has absolutely no bearing on the point at issue.  According to our understanding of Bihar School Board’s case, the Hon’ble Supreme Court has not laid down as an abstract proposition of law that a student taking admission in an educational institute can never be a “consumer” vis-à-vis the institution, within the meaning of Section 2(1)(d) of the Act.  Accordingly, we reject the argument.  The instant case had to be decided in the light of the afore-noted guidelines issued by the U.G.C.  Any action by the institute in contravention of the said binding guidelines would undoubtedly amount to unfair trade practice.   

       Taking into consideration the said guidelines, both the Forums below have recorded a concurrent finding of fact, which has not been challenged by the Petitioners as being perverse on any ground, that the Petitioners have not placed on record any evidence to show that after the Complainant had left the Course, her seat remained vacant and had not been filled up by another candidate by the last date of admission. ”

8.            To the same effect is order passed in the case of Vice Chancellor, Shobhit University & anr Vs Arvind Kumar & 2 Ors. Revision Petition No.788 of 2016. The order dated 18.11.2016, reads thus ;

“Having regard to the fact that both the Fora below have recorded a concurrent finding of fact that the Application for refund of the amount deposited by the Complainants at the time of taking the admission, which included a substantial amount towards the hostel fee, had been made before the commencement of the session and therefore, there was deficiency in service on the part of the University in not refunding the full amount received by it from the Complainants, we do not find any Jurisdictional error in the impugned order warranting our interference in the Revisional Jurisdiction.  Accordingly, the Revision Petition is dismissed, with no order as to costs.”

                It was specifically held that in not refunding the amount, the institution concerned indulged into unfair trade practice.

9.          Reliance placed by the Counsel for the appellant on the ratio of judgment in the case of Fiit Jee Ltd Vs Abhishek Kumar Meena 2016(2) CLT 182 is not justified. That was a case where the student had undertaken coaching for  full period of the course and when he failed to improve in the examination, then objection was taken that coaching was not upto the mark.  In the present case, child of the complainant has not attended the class even for a single day.

10.          No rule or regulation has been mentioned in the written statement, on the basis of which, such a huge amount of Rs.30,000/- can be retained qua administrative charges. The child has not attended even one day in the session. Seat was filled up after its vacation.  No loss was caused to the institution, as such, retaining of amount of Rs.30,000/- was unfair and unethical. Private  educational institutions cannot run like money earning machines, as has  happened in the present case.  Fee for a quarter was Rs.15,000/- and for development fund Rs.18,000/- were charged. These amounts were returned but an amount of Rs.30,000/- towards administrative charges/admission fee was retained which has been rightly ordered to be refunded by the Forum.   

11.         Under the above circumstances,  no case has been made out by the appellant, to make interference, in the order under challenge.

12.         For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage,  with no order as to costs. The order of the District  Forum is upheld.

13.      Certified copies of this order, be sent to the parties, free of charge.

14.      The file be consigned to Record Room, after completion.

Pronounced.

 18.01.2017