Haryana

Panchkula

CC/278/2019

SH.DIWAKER GULATI. - Complainant(s)

Versus

BHAVAN VIDYALAYA. - Opp.Party(s)

DEEPAK SONAK & VIKAS SONAK.

13 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

Consumer Complaint No	:	278 of 2019
Date of Institution	:	14.05.2019
Date of Decision	:	13.09.2022

 

Sh.Diwaker Gulati son of Sh. Anil Gulati r/o H.No.916, Sector-8, Panchkula presently residing at Flat No.30, Second Floor, Aastha Royal Homez, Sadashiv Enclave, Baltana, Zirkapur.

 

           ….Complainant

Versus

Bhavan Vidyalaya, Sector-15, Panchkula through its Principal.

….Opposite Party

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Sh.Vikas Sonak, Advocate, for complainant. 

                        Sh.Deepak Kumar Sharma, Authroised representative                       of OP   

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the complainant had applied for admission of his daughter, namely, Aakriti in LKG Class for the session 2019-20 in the OP school. On 14.01.2019, he had deposited total admission fee of Rs.53,500/- in advance for his child in the Bank A/c bearing no.65033645392 of the OP school in State Bank of India, Sector-15, Panchkula. It is alleged that  apart from OP school, complainant had also applied in various other schools in Chandigarh for admission of his daughter eventually his daughter got the admission in some other school at Chandigarh. The complainant made request in writing on 07.02.2019 to the OP for withdrawal of admission and refund of the amount deposited on 14.01.2019 but even after one month of written application OP school has not responded to the letter.  It is alleged that an email on the official email address of the OP was sent on 07.03.2019 but even then no response was received. Further, a legal notice was also sent to the OP on 15.04.2019 but the same also was not responded. Due to the acts and conducts of the OP, the complainant has suffered physical harassment, mental agony and financial loss; hence, the present complaint.

2.             Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; estoppels; no jurisdiction and the complainant has not come with clean hands. It is stated that the admission has taken for his daughter in the OP school. He has gone through the terms and conditions of the admission and voluntarily deposited the due amount to confirm the admission. It is stated that the complainant discloses that  his daughter got admission in some other school at Chandigarh but hides the details of such admission as to in which school and when and how. Such a reason has not been disclosed in any of the applications or legal notice sent to the school, prior to filing the present complaint. The complainant has also given false statement that he is shifting to Chandigarh. This is also apparent from a perusal of the legal notice which states that the complainant has shifted to Baltana Zirakpur and not to Chandigarh. The complainant was called to the office and the OP staff offered him the due refund of the Security amount of Rs.15,000/- and even a cheque dated 18.03.2019 for the said amount in his name is lying ready with the OP. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP and as such, the complaint of the complainant is liable to be dismissed.

3.             Replication to the written statements of the OP was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OP.

4.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP tendered affidavit Annexure R-1 alongwith Annexure R-1 & R-2 and closed the evidence.

5.             We have heard the learned counsels for the parties and gone through the arguments filed by learned counsels for the complainant and OP, record carefully and minutely.

6.             The payment of sum of Rs.53,500/- made by the complainant to OP qua admission of his daughter in LKG class for the session 2019-20 vide deposit slip(Annexure C-1) is not disputed. It is also not disputed that the complainant had made the request for the refund of said amount on 07.02.2019. The complainant had also sent e-mail(Annexure C-3)  followed by legal notice(Annexure C-5) to OP seeking  refund of the said amount of Rs.53500/-.

                During arguments, the learned counsel for the complainant reiterating the averments made in the complaint has prayed for the refund of deposited amount of Rs.53500/- alongwith interest as well as compensation on account of harassment, litigations charges etc.

7.             The OP has resisted the complaint by raising preliminary objections as well as on merits in its written statement. The OP has raised a serious dispute about the maintainability of the complaint on the ground that there is no relationship of consumer and service provider between the student vis-à-vis the educational institutions. In this regard, the learned counsel for the OP has contended that the controversy as involved in the present complaint has been adjudicated by the Hon’ble National Commission vide its order dated 20.01.2020  passed in consumer case no.261 of 2012 titled as Manu Solanki & Ors. Vs. Vinayaka Mission University and other connected consumer cases and Revision Petitions and thus, has prayed for the dismissal of the complaint.

8.             On the other hand, the learned counsel for the complainant contended that there exists relationship of consumer and service provider between the student and the educational institutions. In this regard, the learned counsel has placed reliance upon the judgment delivered by the Hon’ble High Court on 19.11.2010 in CWP No.20339 of 2008 titled as Meenu Kaur Vs. Shri Guru Ramdass Institute of Dental Sciences and Research Amritsar & another. The learned counsel further contended that the OP institute has no right to withhold the admission fee. In this regard, reliance has been placed upon the judgment dated 21.07.2010 passed by Hon’ ble High Court in CWP No.13308 of 2009 titled as Sh. Atam Parkash Khattar & Another Vs. Commissioner & Secretary to Govt. of Haryana & others. It is further contended that the law laid down by the Hon’ble National Commission in Manu Solanki case(supra) is not applicable to the facts of the present case as the law propounded by the Hon’ble National Commission is applicable prospectively and not retrospectively. The learned counsel further contended that request for refund was made prior to the start of the academic session and thus, the complaint is liable to be accepted.

9.             Admittedly, the controversy in the present case is related about the refund of the admission fee etc. as deposited by the complainant in the OP institute qua the admission of his daughter, so, it is necessary to look into the relationship of student vis-à-vis the educational institution, which provides education related services to its students.  

10.            In this regard, the Hon’ble National Commission in Manu Solanki case(supra) after having a detailed discussion of various case laws as propounded by the Hon’ble Apex Court in cases such as Maharishi Dayanand University Vs. Surjeet Kaur, 2010(11) SCC 159, dated 19.07.2010, P.T.Koshy & Anr. Vs. Ellen Charitable Trust & Ors., 2012(3) CPCP 615(SC), Anupama College of Engineering Vs. Gulshan Kumar and Anr.  in civil appeal nos. 17802 and 17803 of 2017 dated 30.10.2017 and P.Sreenivasulu & Anr. Vs. P.J.Alexander & Anr.  in Civil Appeal Nos.7003-7004 of 2015 dated 09.09.2015 held that the educational institutions do not provide any service to the students. The relevant para of the said order/judgment for the sake of clarity and convenience is reproduced as under:-

51.     In view of the foregoing discussion, we are of the considered opinion that the Institution rendering Education including Vocational courses and activities        undertaken during the process of pre-admission as well as post-admission and   also imparting excursion tours, picnics, extra co-curricular activities,     swimming, sport, etc. except Coaching institutions, will, therefore, not be    covered under the provisions of the Consumer Protection Act, 1986.

11.            Pertinently, the law laid down by the Hon’ble National Commission in the Manu Solanki case(supra) is now pending adjudication before the Hon’ble Supreme Court in Civil Appeal Diary No.12901 of 2020, wherein  the Hon’ble Bench comprising of Dr. D.Y.Chandrachud, Indu Malhotra and Indira Banerjee, JJ.on 15.10.2020 passed the following order in the case of Manu Solanki (supra).

                “Since there are divergent views of this court bearing on the subject as to whether an educational institution or university would be subject to the provisions of the Consumer Protection Act, 1986, the appeal would require admission”. In another SLP No.16591 of 2021 titled as Rajendra Kumar Gupta Vs. Dr.Virendra Swarup Public School & Anr. involving similar question of law and facts, the Hon’ble Apex Court passed the following orders:-

“Having regard to the pendency of Civil Appeal no.3504 of 2020 (Manu Solanki and others Vs. Vinayaka Mission University), the issue as to whether education is a service within the Consumer Protection Act, is pending before this Court”.

12.            Since the moot question qua the relationship between the student and the educational institution is yet to be decided by the Hon’ble Apex Court in Manu Solanki case(supra) as well as other connected case, it would be proper to adjourn the case sine die till the controversy is  final settled by the Hon’ble Apex Court  and it is ordered accordingly. However, it is made clear that either of the party to the complaint shall be at liberty to get the present complaint restored at its original number as and when the controversy involved in the present case is finally adjudicated by the Hon’ble Apex Court.

Announced on:13.09.2022

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal         

           Member                          Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                               Satpal,                                

                                              President