DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.641/2012
Ms. Ilika Tiwari
D/o Sh. Anil Kumar Tiwari
R/o 466, G.F. Maitri Lane, Sector-5,
Vaishali, Ghaziabad- 201010 (UP)
….Complainant No. 1
Ms. Ishanki Tiwari (Minor)
D/o Sh. Anil Kumar Tiwari
R/o 466, G.F. Maitri Lane, Sector-5,
Vaishali, Ghaziabad- 201010 (UP)
Through Father and Natural Guardian
Sh. Anil Kumar Tiwari
....Complainant No. 2
Versus
Brilliant Tutorials (P) Ltd.
12, Masilmanist, T. Nagar,
Chennai- 600017
Also at:
50-C, Kalu Sarai,
Sarvpriya Vihar, New Delhi- 110016
Brilliant Tutorials
50-C, Kalu Sarai,
Sarvpriya Vihar, New Delhi- 110016
Also at:
Dr. Vasanti Neelkantan
Managing Director
Brilliant Tutorials
12, Masilmanist, T. Nagar,
Chennai- 600017
….Opposite Parties
Date of Institution : 29.11.2012
Date of Order : 30.09.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
- Facts as pleaded by the complainant are that the complainant,
Ms. Ilika Tiwari and her sister Ms. Ishanki Tiwari took admission in Brilliant Tutorials (P) Ltd. hereinafter referred to as OP, for coaching.
- On 19.07.2011 complainant No.-1 got admitted to the course OYCP (P) and complainant No.-2 took admission in the course of ‘ Two Year Found’ Programme. Father of the complainant paid Rs.26,381/- on 18.07.2011 and 26,131/- on 28.07.2011 towards fee for complainant No.-1. Cheque dated 18.07.2011 of Rs.23,393/- was paid towards fee of Ms. Ishanki Tiwari (Complainant No.-2) for the two year programme. Fee details/receipt of the same are annexed as Annexure P/1 & P/ 2.
- To uttershock and surprise of complainants and their father, the classes of OP institute were called off in second week of October, 2011 without any prior notice and intimation. Complainant’s father tried contacting OP-1 but all his efforts went in vain as the phone calls were not answered. Complainant’s father went to OP centres at Mayur Vihar and also at Kalu Sarai physically but no information regarding the classes was given to him. It is stated that after second week of October, 2011 no classes were held.
- On 09.11.2011 the complainant received a letter through mail from OP-2, wherein, false assurance was given that the classes would resume from the second week of November, 2011 and that OPs would provide extra classes and give extra time to the complainants to compensate for their loss.
- OP-2 on 29.11.2011 mailed the complainant suggesting the use of ‘Brilliant Learning Solution System’, which is nothing but a video facility and has video lectures. The same were to be shown at select Career Launcher locations, none of which were near the complainants’ place or near the centre, where the complainants had enrolled. It is also stated that the list of centres of Career Launcher mentioned by OPs were quite far, which was not only difficult but practically impossible for girls to travel such distances. The mail also stated that Career Launcher would take responsibility only for the new students enrolled with them and not for the students already enrolled with Brilliant Tutorials.
- It is further stated that complainant vide mail dated 30.11.2011 informed the OP that complainants were not willing to take video library classes in the Career Launcher premises and sought refund of the fees paid.
- As OP did not revert despite requests, complainant approached this Commission for directions to OP to refund the amount of Rs.98,501/- @18% p.a. and compensate the Complainant’s to the extent of Rs.5,00,000/- for deficiency of service and also Rs.50,000/- towards cost of litigation.
- OP resisted the complaint stating inter-alia that as per terms of the contract signed between the parties, OP is not liable to refund any fee under any circumstances. The complainant had singed the enrolment form and the registration form. Therefore, they cannot resile from the same now.
- It is also stated that the present complaint is not maintainable on the ground of territorial jurisdiction. It is stated that it is specifically agreed between the parties that in case of any dispute between the parties the same may be subject to the exclusive jurisdiction of the Courts at Chennai where the registered office of OP is situated.
- It is also submitted by OP that no records were available at their registered office as the landlords are forcibly not permitting OP to vacate the premises or take out its record. Therefore, OP is filing a short reply and seeks liberty from the Commission to suitably alter add or amend its reply on discovery of certain new facts or documents. OP further submits that the OP institute could not be made functional on account of certain financial losses and irregularities committed at the centre by previous and present faculty , senior officials and above all the landlords with the view to tarnish the image, reputation and business of OP.
- It is also stated that complainant was offered relocation at another reputed institute named Career Launcher but the complainant did not avail the facility. Therefore, OP cannot be held liable for the acts of the complainant. It is thus submitted that complaint be dismissed with heavy costs.
- Rejoinder is filed on behalf of the complainant. Evidence and written arguments are filed on behalf of parties. Submissions made on behalf of the complainant are heard. Material placed on record is perused.
- On perusal of the material placed before us, it is noticed that OP vide e-mail dated 09.11.2011 has admitted that due to some internal staff/faculty issues and financial crunch, classes were stopped at OP institute. OP rather than conducting extra classes and giving extra time to students to compensate for the loss of the class hour, asked the complainants to attend classes at the centres of Career Launcher, which were quite far off. OP further offered the facility of ‘on demand’ video library which was not acceptable to the complainants as they opted and paid for regular classroom teaching in OPs’ institute.
- It is pleaded by OP that as per the terms and conditions of the enrolment/registration form, fees once paid is not refunded. Therefore, complainants are bound by the terms and conditions, which were signed and consented to, without any coercion. The said plea of OP is rejected. It is settled that if the terms and conditions of the contract are unconscionable or one sided then the said terms are voidable and unenforceable. Similar view has been taken in Brilliant Tutorial V/s Rahul Das reported as Appeal No. 509/2006, decided on 09.01.2017, wherein the view of the State Commission was that:
“Any such term of contract between the parties, which allows the provider of service to forfeit the amount of service, which he has not provided is against the public policy and good conscious, unjust and unconscionable as the provider of service has the right to charge consideration only if it provides the services.”
- The next contention of OP that the complaint is not maintainable on the ground of territorial jurisdiction as it is agreed between the parties that in case of any dispute the same will subject to exclusive jurisdiction of Courts at Chennai, where the registered office of OP is situated. It is settled law that territorial jurisdiction cannot be ousted by an agreement. Moreover Complainant’s took admission at Kalu Sarai, Sarvpriya Vihar, which falls in the jurisdiction of this Commission.
- In view of the discussion above, the complaint is allowed. We opine that as OP failed to provide services to the complainant which were promised and paid for, therefore complainants are entitled for refund. Accordingly OP is directed to refund Rs 98,501/-@ 6%p.a.from the date of filing of the complaint within three months, failing which OP shall pay Rs98,501/-@ 9% p.a. from the date of filing of the complaint till realisation.
File be consigned to the record room and order be uploaded on the website for perusal of the parties.
