CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No.612/2013

Sh. Gaurav Bajaj

C-34, Rail Par, Punjabi Colony,

Distt. Shamli, U.P.                                                   ….Complainant

Versus

1.      Brilliant Tutorials,

          50-C, Kalu Sarai, (Behind Azad

          Apartments,

          New Delhi

2.      Brilliant Tutorials Pvt. Ltd.

          through its Managing Director 

12, Masilamani Street,

T. Nagar, Chennai-600017                       ……Opposite Parties

                                                Date of Institution        : 23.12.13                                                             Date of Order      :  05.09.17

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

O R D E R

As per the complaint, the Complainant took admission in OP institute on 07.08.2011 in AIEEE Competitive Examination Course and paid Rs.74,232/- for a period of one year.   After attending the classes for one and half months i.e. 07.08.11 to 25.09.11 the OP closed the New Delhi study centre without any notice. The complainant was running from pillar to post to know the status of the OP regarding conducting of the classes. The other students were also facing the same problem. The OP neither refunded the amount nor started the classes. He sent many reminders and personal visits to the OP’s office.  The OP cheated, misleaded and lured the complainant as the OP had taken full fees in advance but not conducted the required classes and failed to refund the money to the complainant.  It is submitted that he had taken the accommodation on rent to complete his coaching and had to pay Rs.6500/- towards the rent and security amount of Rs.6500/- but due to sudden discontinuation of the classes he had to vacate the said rented accommodation from 01.12.2011.  Hence, the OP is not only guilty of deficiency in service but has also caused substantial mental harassment, agony and discomfort in his life.  Hence, pleading deficiency of service, the present complaint has been filed with the prayer to issue directions to the OP to refund Rs.74,232/- towards fee paid in advance with 18% interest, Rs.1,00,000/- towards mental agony, mental torture, harassment etc. and Rs.10,000/- towards litigation and miscellaneous expenses.

OP in the written statement has inter-ala submitted that the education provided by the OP is not a commodity and the OP is not providing any kind of service and cannot be treated as a service provider and as such  there cannot be any question of deficiency in service  on the part of the OP.  Even otherwise, no deficiency in service or unfair trade practice on the part of the OP has been alleged by the complainant. The present complaint is liable to be rejected in view of the order passed by Haryana State Commission in First Appeal No.360/2013 titled as Anupama College of Engineering Vs. Gulshan Kr. decided on 12.07.12 wherein it was held that “the complainant is not a consumer nor the OP institute is a service provider to the complainant-student.  Thus, this complaint is not maintainable under the provisions of the Consumer Protection Act, 1986. Hence, it is dismissed.” The present complaint is also liable to be dismissed in view of the judgment passed by the Hon’ble Supreme Court in case titled as P.T. Koshy  Anr. Anr. Vs. Ellen Charitable Trust & Ors.  2012 (3) CPC 615 (SC) wherein the Hon’ble Apex Court has held that “in view of the judgment of this court in Maharishi Dayanand University Vs. Surjeet Kaur 2010 (2) SCC 159 = 2010 (2) CPC 696 SC wherein this Court placing reliance of all earlier judgments has categorically held that the education is not a commodity. Educational institutions are not providing any kind of service, therefore, in the matter of admission, fee etc., there cannot be question of deficiency in service. Such matters cannot be entertained by Consumer Forum under the Consumer Protection Act, 1986”.  In another case No. 232 (2012) titled as Tarun Yadav Vs. Brilliant Tutorial District Consumer Forum, Gurgaon vide its order dated 01.01.14 dismissed the complaint of the complainant against the educational institution observing that “consequently  in view of the facts and circumstance discussed above the complainant is not a consumer nor the OP institute is the service provider to the complainant-student. Thus, this complaint is not maintainable under the provisions of the Consumer Protection Act, 1986,  hence, it is dismissed.” It is further submitted that the OP is not liable to refund any fees as the complainant had signed the enrollment form and with his open eyes and as such he cannot resile from the same.  This fact has been specially concealed by the complainant from this Forum.  The complaint is not maintainable as the complaint is barred by way of territorial jurisdiction. It is specifically agreed between the parties that in case of any dispute the same shall be subject be exclusive jurisdiction of the courts at Chennai where the registered office of the OP is situated.   It is submitted that the OP institute cannot be made functional on account of certain financial losses and irregularities committed at the centres in connivance  and concurrence with the previous  and present faculty and senior officials and above all landlords with a view to tarnish the image of the OP. Even otherwise, the complainant was offered allocation at another repudiated institution Carrier Launcher but the complainant did not opt for the same and as such the OP cannot be held liable for the acts of the complainant and other as mentioned hereinabove. Therefore, the complainant is not entitled to any refund of the fees and other amount claimed by the complainant.  OP has prayed for dismissal of the complaint with heavy cost.

No rejoinder has been filed by the complainant

Complainant has filed his own affidavit in evidence.  On the other hand, no affidavit in evidence has been filed on behalf of the OP despite opportunities given in this behalf.

We have heard the complainant in person and have also gone through the record.  

It is not in dispute that the Complainant had enrolled with the OP and deposited Rs.74232/- vide receipts dated 07.08.11 & 19.08.11 respectively (copy annexure CW-1/1).

It is evident from the record that New Delhi Centre was closed by the OP in November, 2011.

Now, the only dispute raised by the OP is that “fees once paid cannot be refunded” to the Complainant as per the terms and conditions of the admission form, which was signed by the Complainant and his parents with their open eyes. 

The judgments relied on behalf of the OP do not apply to the facts of the present case as the OP itself had closed down New Delhi Centre in the month of November, 2011 without informing the students including the complainant.

In the present case, the course in question could not be completed by the complainant not because of his own fault but it was on account of closure of the OP No.1 centre at New Delhi by the OPs themselves and the complainant could not pursue the full course. In our considered opinion, after collecting the fee from the student/students for a particular session /course/semester, the institution must complete the course under all circumstances and if for any reason which may be beyond the control of the institution the institution is not able to complete the course, then in all fairness and honesty, the institution must refund the fees to the student/students.  In such a peculiar and piquant situation in case the student approaches the consumer forum the institution should not be allowed to take a plea that being an educational institution it is not a service provider and, hence, the student/complainant is not a consumer as defined in the Consumer Protection Act.   OP was just a coaching centre. As stated hereinabove, in such a situation, the OP institution must refund the fee to the student without any reservation. However, in the present case, instead of doing so and thus adopting unfair trade practice the OP closed down its centre at New Delhi and did not refund the fee to the complainant for no fault of his. Therefore, in our considered opinion, the OP committed unfair trade practice and also deficiency in service.  

Therefore, we allow the complaint and direct the OPs to refund Rs.74232/- alongwith interest @ 6% p.a. from the date of filing of complaint till the date of realization alongwith Rs.10,000/- for mental pain and agony undergone by the Complainant including cost of litigation.

The order shall be complied within 30 days of receipt of copy of this order failing which OPs shall become liable to pay interest @ Rs. 9% per annum on the amount of Rs.74232/- from the date of filing of the complaint till its realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 05.09.17.