| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.430/2017 Ms. Nishu Chauhan D/o Sh. Satpal Chauhan R/o 48, Khirki Village, Malviya Nagar, New Delhi ….Complainant Versus Arena Animation (Creative Bee) C23, 1st Floor, Near India Bank, Main Market, Malviya Nagar, New Delhi Aptech Ltd. Aptech House A65, MIDC Merol, Andheri East, Mumbai Aptech Ltd. Regional Office North Zone, - 31, 2nd Floor, Sector 3, Noida, UP
M/S Rishabh Infotech A-13, Shivalik Road, Opp. Aurobindo College, Malviya Nagar, New Delhi ….Opposite Parties Date of Institution : 21.12.2017 Date of Order : 30.03.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Ms. Kiran Kaushal - Facts of the case as pleaded by the Complainant are that Complainant joined Arena Animation (Creative Bee) hereinafter referred to as OP-1 for AAIP-VISUAL Fx course in the year 2014, which was scheduled to be completed by March, 2016. Complainant after the discount was quoted a total fee of Rs.2,12,000/- for the entire course, which was to be paid in instalments, described in booking confirmation letter. Copy of the same is annexed as Annexure P/1.
- It is averred that, when the Complainant joined the institute
Arena Animation, it was being run by a franchisee M/s Rishabh Infotech
(Ex Franchisee) under the aegis of Aptech (OP-2), the same was later taken over by M/S Creative Bee (Present Franchisee). As the franchisee changed hands students of the old franchisee were shifted to a new place and were also enrolled in the new institute. Shifting took lot of time and there were multiple issues regarding the change of place. Creative Bee (OP-1) took almost a year to get settled and also to provide the students all the facilities, which were provided to them earlier. It is next stated that, OP1 was supposed to complete the course, which the complainant had joined by March, 2016. However, it was still not completed by the year 2017.
- It is further stated that, OP-1 failed to conduct the remaining semester exams till the filing of complaint on the pretext that, OP1 is not bound by the fee structure of erstwhile franchisee. Despite being deficient in-service OP1 demanded full fee Rs.2,22,748/- stating that there would be no discount, which was given earlier to the Complainant by the previous franchisee holder. It is stated that the Complainant after discount by the previous franchisee holder was to pay Rs.2,12,000/- instead of Rs.2,22,748/-. Complainant approached the Regional Head i.e. OP-2 in Noida regarding the conduct of OP 1 but to no avail.
- Complainant alleges that, OPs have indulged in unfair trade practices by not providing the dates for the exams of remaining semesters and also by asking for the extra fees instead of the amount, which was agreed upon at the time of admission. Alleging deficiency in service and unfair trade practice on part of OPs Complainant approached this Commission with the prayer to refund entire fees of Rs.1,84,000/- deposited by the complainant with OP and to compensate for the loss suffered due to delay and deficiency services of OP.
- Per contra, OP-1 submits that OP1 took over from M/s Rishabh Infotech in October, 2016 and the students, who were already enrolled during that period stood transferred to the new administration. It is stated that the said transfer of administration harmonised like clock work and the same had no affect on the functioning of the courses. It is next stated by OP-1 that the fess of the students, which was due and receivable from the students, who had already been enrolled was given to OP-1 by OP-2 and OP-3. In the case of Complainant though her course was to be completed by March, 2016 Complainant had not paid her full fee by the time OP1 became the franchisee holder in October, 2016. Complainant by way of email dated 25.03.2017 was reminded that, she had not paid her fees and as on 29.04.2017 an amount of Rs.40,180/- was due and payable by the Complainant to OP-1..
- OP-1 submits that as per the norms, it is required that before students are allowed to appear for the final term examination, the portfolios are submitted and the fees due is paid in full. Complainant was given countless reminders to pay her fee, which was acknowledged by the Complainant vide e-mail dated 08.08.2017 and 09.08.2017. Delay in the course of the Complainant arose due to non-payment of fees and the same does not amount to unfair trade practice or deficient service of OP-1. It is next stated that, the Complainant was herself irregular in attending course classes and portfolio submissions. It is thus prayed that, the complaint be dismissed with cost and Complainant be directed to pay remaining fee amounting to Rs.40,180/-.
- OP-2 & OP-3 resisted the complaint and filed their written statement stating inter-alia that the Complainant initially took admission and deposited the course fee with M/S Rishabh Infotech therefore, the said party is a necessary and proper party for adjudicating the present dispute. It is stated that the Complainant took admission and paid the course fee to the
Ex-franchisee and further after transfer, paid the part course fee to the present franchisee/OP-1. As OP-2 and OP-3 have no role therefore complaint is liable to be dismissed for want of cause of action qua OP-2 and OP-3.
- It is next stated that Ex-franchisee was not authorized to give rebate or reduction in the amount of course fee, unless the franchisor i.e.
OP-2 and OP-3 issued discount coupons or awarded merit scholarship to the students. In the present case no such rebate or reduction in the amount of course fee, was given by the franchisor. Therefore, the Complainant was not entitled to any reduction/discount in the course fee of Rs.2,22,748/-.
- OP-2 and OP-3 further state that, the Ex-franchisee and/or franchisee
(OP-1) is an independent contractor and not an agent, legal representative, partner, subsidiary, joint venture or employee of OP-2 and OP-3. Therefore, the Present and Ex-franchisee (OP-1) are liable for their own acts, omission and commission.
- It is further stated that as per the agreement between the Ex-franchisee and OP-2 and OP-3 it was the Ex-franchisee, who had been collecting the course fee from the students and in this case also it was the Ex-franchisee who had collected the course fee from the Complainant. Agreement between the parties expired on 29.11.2016 and the same was not renewed. On 15.10.2016 a new agreement was executed between Aptech Limited (OP-2) and M/S Creative Bee (OP-1) and OP-1 under took to complete the pending services of all the students including Complainant, who took admission with the
Ex-franchisee. Copy of the letter dated 06.10.2016 written by OP-1 to OP-2 is annexed as Annexure R/3.
- Denying the allegations of the Complainant, OP-2 and OP-3 prayed for the dismissal of the complaint with exemplary costs.
- Replication to the written statement of OPs is filed. Evidence by way of affidavit and written arguments are filed by the parties. Submissions on behalf of the complainant are heard.
- In the instant case, there are two contentions between the parties.
First issue is that of the discount offered by Ex-franchisee to the Complainant at the time of admission. Booking confirmation slip annexed as Annexure P/1 affirms that the Complainant was given discount of Rs.10,000/- and she was to pay total amount of Rs.2,12,000/- to OP-1. The said discount is hand written, which is duly signed and stamped, therefore there is no reason to disbelieve that at the time of admission the complainant was offered discount of Rs.10,000/-.
- OP-2 and OP-3 contends that the Ex-franchisee, (who gave the discount) was not authorized to give rebate or reduction in the amount of course fee unless OP-2 and OP-3 issued discount coupons or awarded merit scholarship to the students. As in the present case no such rebate or reduction was given by OP-2 and OP-3 or any merit scholarship awarded to the Complainant therefore the Complainant was not entitled for any discount. This contention of OP-2 and OP-3 has no substance in our eyes as the contract between the Ex-franchisee and OP-2 and OP-3 has no relevance here because Ex-franchisee was the face and was the one who was collecting the fee. It was the Ex-franchisee, who issued discount to the Complainant and there was privity of contract between the Complainant and the Ex-franchisee. Therefore, in case of loss or otherwise OP-2 and OP-3 is within its right to collect the discount amount from
Ex-franchisee. Hence, we are of the opinion that the Complainant is entitled to discount of Rs.10,000/- as she was promised the same at the time of admission.
- Further, it is noticed that though there is no direct privity of contract between the Complainant and OP-2 and OP-3 but it is seen from record that when OP-1 was not conducting the examination, Complainant approached the franchisor that is OP-2 and OP-3 for redressal of her grievance, which was not paid any heed to.
- Further, we are of the opinion that OP-1 (that is the present franchisee) can not ask the Complainant for full fee of Rs.2,22,748/- as OP-1 by way of letter dated 06.10.2016 to OP-2 and OP-3 has undertaken to complete the services of all students of old Arena Shivalik Centre on as is basis. OP-1 has also assured that there will not be any gap in terms of student’s services. The said letter is annexed as R/3 with the reply of OP-2 and OP-3. This letter reaffirms that OP-1 (present franchisee) would complete services of all the students of ex franchisee on ‘as is bases’. Therefore, OP-1 (present franchisee) now can not deny the discount given by the Ex-franchisee.
- Second contention between the parties is that as the complainant had not paid the entire fee therefore, she was not allowed to sit in the examination and completion certificate was not issued to the complainant. It is noticed from the documents placed before us that OP-1 vide e-mail dated 25.03.2017 asked the complainant to pay the remaining fee by 30.03.2017. Complainant had joined to course in 2014, which was supposed to be completed in 2016 and it is in March, 2017 that OP-1 was seeking fee from the complainant. This fact itself shows that OPs were deficient in service as the course which was to be completed within two years kept lingering on for another one year. Therefore, it is presumed that as the franchisee changed hands, there were issues or problems which caused delay in completion of the said course.
- Therefore, in view of the discussion above we hold OP-1, OP-2 and OP-3 guilty of deficiency of service. But as seen from the records, Complainant had attended various classes of OP-1. Therefore, we deem it appropriate for the OPs to pay Rs.1,00,000/- in lumpsum to the complainant and remaining amount i.e. Rs.1,12,000/- will be retained by OPs on account of administrative charges and services rendered by them. Accordingly, OP-1, OP-2 & OP-3 is jointly & severally liable to pay Rs.1,10,000/- to the Complainant along with Rs.10,000/- towards compensation for mental harassment and agony within three months, failing which OPs shall pay Rs.1,00,000 @6% interest from the date of filing of the complaint till realization.
File be consigned to the record room after giving a copy of the order to the parties as per rules. | |
