BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  ADDITIONAL BENCH,                                                                                                    MANGALORE

Dated this the 22^nd November 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HONBLE PRESIDENT

SRI. T.C. RAJASHEKAR                       : MEMBER

ORDER IN

C.C.No.385/2012

(Admitted on 14.12.2012)

Mr. K. Harish,

S/o K H Pooja,

Aged 48 years,

Residingt at Swami Kripa

1.18/5, C/o. Guthige compound,

Nagakannika Temple Road,

Derebail, Konchady,

Mangalore.

                                           ….. COMPLAINANT

(Advocate for the Complainant: Sri SKU)

VERSUS

Boscoss Tutorials Pvt., Ltd.,

Gopal Nivas Compound,

Vraddashram Road,

Near Sharada Vidyalaya,

Kodialbail,

Mangalore  575 003,

Represented by its

                                                  ......OPPOSITE PARTY

 (Advocate for the Opposite Party: Sri. GP)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

     The grievance of the complainant is that his daughter K.H. Pooja studying in 1^st year PUC  for academic year 20.11.2012 joined the tutorials being run by opposite party by paying entire year fee which is for vocation cum regular course from 5.3.2012.  As complainant was unable to complete 1^st year PUC as per result announced on first week of April she discontinued and sought refund of the fee which however under letter 5.4.2012 however was refused by opposite party.  Hence seek refund the entire and compensation and cost. 

II.     Opposite party admits of K.H. Pooja daughter of complainant a student at St. Aloysius College, Mangalore for academic year 2011.12 unable to complete 1^st PUC and joined the tutorials of opposite party as mentioned by paying fee as alleged are unable to complete 1st PUC course.  Opposite party did contend that the fee paid for was entire course with condition of no refund.  Hence seeks dismissal.

     2.     In support of the above complainant Mr. K Harish filed affidavit evidence as Cw1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C5 detailed in the annexure here below.  On behalf of the opposite party Mrs. Sunita Menezes (Rw1) also filed affidavit evidence and answered the interrogatories served on him.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

               Point No. (i): Affirmative

              Point No. (ii): Partly Affirmative

              Point No.(iii): As per the final order.                  

REASONS

IV.   POINTS No. (i): Complainant’s daughter K.H. Pooja as student joined the tutorials of opposite party for vacation and regular course and she attended tutorial from 5.3.2012 till the end of March 2012 is admitted.  And as such opposite party having collected full years fee and refuse’d to refund the amount there is a consumer dispute between the parties.  Hence we answer point No.1 in the affirmative.

POINTS No. (ii):  The only point of dispute is opposite party s claim that there is no refund as the fee paid is for the entire year even though she attended only till the end of March 2012 and has to discontinue as Pooja failed in 1st PUC examinations.  The opponent’s mention that complainant was informed that the fee paid is non-refundable is not reflected as Ex.C1 the copy of the receipt issued by opposite party to complainant daughter Pooja K.H.  As mentioned earlier it is not the case of complainant attended all the tutorial classes.  The learned counsel for the complainant relaid on a reported judgment of PIESOLUTIONS AND SYSTEMS LTD Daya Shanker Mishra (DR.) in I 2007 CPJ 115 (NC) hence it is held:

Consumer Protection Act, 1986 Section 2(1)(g)Educational Service Coaching Institute Unfair trade practices Retaining fees without rendering any service O.P. prepares and coaches students for IIT JEE Complainant paid total fee of Rs.30,000/ however student failed in Class 12^th exam, became ineligible to sit for IIT JEE Claim for refund of fees Denied Clear that no service provided but consideration received by O.P.-Deficiency in service and adoption of unfair trade practices proved-State Commission rightly directed O.P. to refund Rs.30,000/ 

Similar is the view expressed in Nipun Nagar Vs Symbiosis Institute of International Business case reputed in I (2009) CPJ 3 (NC) hence it is held:

Consumer Protection Act, 1986 Sections 2(1)(g) Educational Services Fees Refund of Seat surrendered Fees not refunded Complaint dismissed by Forum Appeal against order dismissed Hence revision No loss suffered by Institute, as no set under general category kept vacant of by UGC; Unidersities and Institutions liable to reund fees of students who had discontinued/withdrawn from institute, secured admission in another institute-Refund of fees paid by complainant along with interest direct.

 On going through these reported judgments we are of the view the rejection of complainant s claim for refund is unjustified.  Hence opposite party shall be directed to refund entire fee less the service tax i.e. Rs.20,000 with the interest at the rate of 9% from the date of legal notice Ex.C2. dated 5.4.2014.   Opposite party shall also directed to pay compensation access pay at Rs. 20,000 inclusive of cost of the case.  Hence we answer the point No.2 partly in the affirmative. 

POINTS No. (iii): Wherefore the following order

                                                                                                                           ORDER

     The complaint is partly allowed.  Opposite party is directed to refund entire fee less the service tax i.e. Rs.20,000 with the interest at the rate of 9% from the date of legal notice Ex.C2. Dated 5.4.2014.  Opposite party shall also directed to pay compensation access pay at Rs. 20,000 inclusive of cost of the case. Payment shall be made within 30 days from the date of receipt of copy of this order.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 5 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 22^nd November 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr.  K Harish

Documents marked on behalf of the Complainant:

Ex.C1: 27.01.2012     Receipt for payment of fees

Ex.C2: 05.04.2012     Copy of the letter by the Complainant

Ex.C3:02.11.2012     Office copy of the legal notice

Ex.C4:                     Postal acknowledgment

Ex.C5:                     Original 1^st year P.U.C marks card

Witnesses examined on behalf of the Opposite Party:

RW1:  Mrs. Sunita Menezes, Manager, Boscoss Tutorials

Documents marked on behalf of the Opposite Party:

Nil

Dated:  22.11.2016                                         PRESIDENT