BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 25^th DAY OF JANUARY 2018

O R D E R

SRI. P.V SINGRI, PRESIDENT

Complainants have filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct OP to refund fee of Rs.72,000/- with interest to them together with cost of litigation, alleging deficiency of service.

2. The brief allegations made in the complaint are as under:

That the complainants applied for admission to some schools for their son Aarav Bajaj for Grade-I.  That, it is common practice for parents to apply for admission to few schools as the admissions to schools are not guaranteed and the parents cannot risk applying for just one school due to the possibilities that they may not secure admission to their child.  That, all the schools know about this fact and therefore the school fees are refunded if admission is cancelled before the commencement of the academic session.  That the complainant enrolled their son for Grade-I to OP school during the year June 2016 academic year by paying Rs.72,000/- towards fees and Rs.6,930/- towards uniform on 26.05.2015.  That, on 30.05.2016 the complainants came to know that their son Aarav Bajaj has also secured admission in Kendriya Vidyalaya school.  As the said Kendriya Vidyalaya school was closer to the complainants home, complainants decided to cancel the admission at OP school and admit him to Kendriya Vidyalaya.  That, the complainants promptly informed OP and cancelled the admission on 30.05.2015 and sought for refund of the fee.

That OP school cancelled the admission and also agreed to refund the fees, which is evident from their email dated 29^th July 2015, wherein they wanted to know the name in which the cheque has to be issued.  That on 05.08.2015, complainant-2 received an e-mail through OP school stating that the cheque has been dispatched from Head Office.  In the first week of August 2015, the complainants received a cheque for Rs.6,930/- towards refund of uniform kit.  However, the amount of Rs.72,000/- towards school fee was not refunded.  That the hard copy of the e-mail correspondence between the parties are produced.  That despite several requests, the amount of Rs.72,000/- towards refund of school fee remained unpaid.  That the second complainant when requested for an appointment with OP to discuss about the refund of the fee, the same was not granted and she was made to wait for hours.  But OP school in all their communication have not denied their liability to refund the school fees.  That the complainants have withdrew their son’s admission prior to commencement of the academic year.  That OP school must have easily filled the slot of the complainant’s son by informing other prospective children who had sought admission in OP school, which is precisely why have they agreed to refund the fees and also did not take any contention in their e-mail.  That the son of the complainant never attended the OP school even for a day.

That when OP school did not heed to the repeated requests made by complainants, they caused a legal notice dated 07.09.2015.  That OP has not replied to the said notice despite service.  Therefore, complainants were forced to approach this Forum for redressal.

3. In response to the notice issued, OP appeared through their advocate and filed their version contending in brief as under:

That the dispute alleged is not a ‘consumer’ dispute and the complainants does not fall under the definition of ‘consumer’ as defined in section.2 (d) of the Consumer Protection Act, 1986.  Therefore, this Forum has no jurisdiction to entertain the present complaint.  That complainants approached OP school and sought admission for their son on 25.05.2015.  As is the standard procedure followed up by OP school, the complainants were handed over a brochure along with the application forms required for admission.  That in the brochure the criteria for admission and other terms and conditions are mentioned and it is also mentioned that fees once paid will not be refunded under any circumstances.  Thus, it is clear from the time of admission itself, the complainants were made aware that the fees once paid will not be refunded.  That while submitting the application for admission the complainants have also signed a declaration that the admission fee of Rs.35,000/- paid by them was not refundable and not transferable under any circumstances and that in the event of cancellation or transfer of the child/ward’s admission, the complainants will not be entitled for refund of the admission fee paid either in part or full.  That on 26.05.2015, the complainants have paid fees of Rs.72,000/- and secured admission for their son for Grade-I.  This amount included admission fee, term fee and tuition fee for the first term, fee for the school essentials, library fee and club fee.  That an amount of Rs.6,930/- was paid by the complainant towards the uniform kit on 26.05.2015 for which a receipt is issued.

After few days, the complainants decided to withdraw their admission of their son and began making untenable and unreasonable demands for refund of the entire amount paid on the ground that the complainants’ son had secured admission in another school.  That the staff of the OP repeatedly explained to the complainants that fees paid could not be refunded.  However, the complainants were continuously pleading for refund.  Therefore, the staff of the OP enquired internally whether the order for uniform kit for the complainant’s son had already been placed with the third party contractor.  Since the order had not been placed and amount was not yet paid to the third party, OP agreed to refund the fee paid for the uniform kit, as a goodwill gesture.  It is in this backdrop of events that the e-mail dated 29.07.2015 was sent by OP asking in whose name the cheque has been issued.  However, there can be no guarantee and certainly no obligation for OP to give in to the requests for refund of fees on a mandatory basis, that too on the ground that their child had secured admission in another school. 

That OP never assured or promised that they would refund the entire amount paid.  That at the beginning itself the complainants have made aware that, the fee once paid is not refundable.  That the complainants having agreed to the terms and conditions of the admission now cannot demand the refund of the fees.  That the OP is obligated to offer a fair chance of admission to all the parents as far as practically possible.  It is submitted that it has become a common practice for parents to block seats in various schools by seeking admission and then withdrawing at the very last moment in order to keep their options open, thereby hampering the admission process of these schools.  That OP charges admission towards fees in order to ensure that there is commitment on the part of the student/parent after seeking admission in the OP school and after having blocked the seat.  It enables the OP to plan the strength of the batch of students in a year and the number of sections for every batch is decided on the basis of the number of students that are taken in that year.  That OP accordingly provides adequate infrastructure, ensures adequacy of teaching staff such that the student-teacher ratio is low.  If several students withdraw in the last minute and seek a refund of the fees, then the recruitment of teaching staff and other facilities such as transportation etc., planned by OP ends up being in excess and OP also compelled to suffer losses for no fault on its behalf.  That if the complainants are now granted a refund of the fees, it would set a bad precedent.  That there is no any deficiency of service since the school did not promise to do something and then failed to deliver on its promise.  Since any claim for refund of fees paid is a contractual dispute for recovery of money.  This Forum does not have the jurisdiction to try the present case.

For the above, amongst other reasons, OP prays for dismissal of the complaint with exemplary cost in their favour.

4. The points that arise for our determination in this case are as under:

        5. Complainants filed their affidavit evidence reiterating the allegations made in the complaint.  Complainants have relied upon certain documents.  Authorized signatory for OP school filed his affidavit evidence in support of the averments made in the version.  Both the parties have submitted written arguments.  We have also heard oral arguments.

6. Our answer to the above points are as under:

REASONS

7.  It is admitted by OP that complainants approached them for the admission of their son and submitted necessary application and thereafter also paid fees of Rs.72,000/- and Rs.6,930/- towards uniform on 26.05.2015.  It is also admitted by OP that, on 30^th May 2015 complainants sent a e-mail to them requesting to permit them to withdraw the admission of their son for the reason that they are able to get admission of their son in a school which is very close to their house and requested for refund of the fees paid.  It is apparent from the admission of the OP that, the complainants have withdrawn the admission of their son prior to the commencement of the academic year 2015-16 and their son has not attended the OP school even for a day.

8. Now the question is as to whether the conduct of OP in not refunding the fees to the complainants, amounts to deficiency of service and whether OP is justified in refusing to refund the fees.

9. It is pertinent to note here that, subsequent to the e-mail dated 30^th May 2015 the complainants have visited OP school, may be several times, requesting for refund of the fees paid by them.  In response to their request admittedly OP sent a e-mail communication dated 29^th July 2015 to complainants asking them in whose name the refund cheque is to be raised.  It is pertinent to note here that, in the said e-mail communication which is at Annexure-C, OP has not specifically stated that they are refunding a sum of Rs.6,930/- only paid by complainants towards uniform.  When the complainants did not receive the cheque from the OP despite having informed as to in whose name the cheque has to be raised, they have again visited OP and requested them for refund of the amount paid by them at an early date.  Thereafter admittedly OP sent a e-mail communication dated 05^th August 2015 to complainants stating that the cheque has been dispatched from their Head Office and they would update the complainants once they receive the same.  Here again the OP has not mentioned specifically as to what actual amount they are refunding to the complainants.  The request of the complainants was for refund of the entire amount of Rs.72,000/- paid towards fees as well as Rs.6,930/- paid towards uniform. 

10. It is significant to note here that, in their e-mail dated 20^th July 2015, the complainants have made it clear that, they are requesting for refund of fees as well as uniform payment made by them and they are awaiting necessary action on the part of OP regarding the refund.  Despite making it very clear that they are requesting for refund of the entire fees including the tuition fees of Rs.72,000/-, the OP in their e-mail communication are totally silent as to the refund of the fee of Rs.72,000/- but refunded only a sum of Rs.6,930/- received towards uniform fees since the said amount was not handed over to the third party contractor for the purpose of stitching the uniform.  One can very well make out from the e-mail communications from OP that they were ready to refund the entire fees including payment received towards uniform since the admission has been withdrawn much before the commencement of the academic year.

11. OP on the basis of the terms and conditions of the application form/admission form contended that, the fee once paid by complainants is not refunded for any reasons.  It is argued that, the complainants have admitted their son to the school after having agreed to the terms and conditions in the admission form.  The learned advocate for complainants vehemently argued that OP having agreed to refund the entire amount of Rs.72,000/- have returned only the amount paid towards uniform and are trying to take shelter under the arbitrary terms and conditions of the admission form.  The learned advocate for OP placing reliance on a judgment rendered by Hon’ble Supreme Court in a case of Maharshi Dayanand University Vs. Surjeet Kaur (2010) 11 Supreme Court Cases 159 and the judgment rendered by the Hon’ble Supreme Court in a case between P.T Koshy & ANR Vs. Ellen Charitable Trust & Ors. (Petition (s) for Special Leave to Appeal (civil) No.22532/2012) order dated 09.08.2012, argued that the complainants are neither consumers nor the OP school is a service provider.  Therefore, this Forum has no jurisdiction to entertain the present complaint and in terms of the conditions of the admission form they are not liable to refund the tuition fees of Rs.72,000/- paid by the complainants.  The learned advocate for complainant placing reliance on a judgment rendered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in CPJ-2009-3-33 argued that the conduct of OP school in retaining the fee of Rs.72,000/- despite having not suffered any losses due to the withdrawal of the admission by the complainants is unfair and unjust.

12. We carefully perused the judgment rendered by the Hon’ble Apex Courts in case of Maharshi Dayanand University Vs. Surjeet Kaur.  The issue involved in the said case was not regarding the refund of fees.  The refund of the fees was not directly involved in the said matter.  Subsequent to the judgment rendered by the Hon’ble Supreme Court in the case of Maharshi Dayanand University Vs. Surjeet Kaur, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in a case between Birla Institute of Technology & Science, Pilani, Rajasthan & others Vs. Abhishek Mengi S/o Virender Kumar (Revision Petition No.1668 of 2012 with (I.A No.1 of 2012, for stay) (Against the order dated 24.01.2012 in Appeal No.05/2012 of the State Commission, UT, Chandigarh) have opined that the Consumer Fora have jurisdiction to entertain a dispute like the one on hand, and have directed the petitioners therein, Birla Institute of Technology & Science, Pilani, Rajasthan and others, to refund the fees to the student who withdrew himself before the commencement of the academic year which did not cause any loss to the institution as the said institute failed to demonstrate that the seat vacated by the student therein was not filled up for the said academic year.  As stated above, this judgment rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi is subsequent to the judgment rendered by the Hon’ble Supreme Court in a case of Maharshi Dayanand University Vs. Surjeet Kaur as well as in case of P.T Koshy & ANR Vs. Ellen Charitable Trust & another.

13. In view of the judgment rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, we are of the opinion that, this Forum has jurisdiction to entertain the present complaint since the dispute raised is a ‘consumer’ dispute.  More over it is also not the case of OP that, the seat vacated by son of the complainant was not filled up thereby causing any loss to the OP Institution.  Therefore, we don’t find any justification on the part of OP in refusing to refund the tuition fee of Rs.72,000/-.  In view of the ratio laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the above mentioned case between Birla Institute of Technology & Science, Pilani, Rajasthan & others Vs. Abhishek Mengi S/o Virender Kumar, we are of the opinion that, OP is liable o refund the entire tuition fee of Rs.72,000/- to the complainants.  Since OP has retained the said amount without any justification they have to be directed to refund the said amount together with interest @ 12% p.a from the date of request made for refund till the date of realization together with litigation cost of Rs.10,000/-.  Accordingly point Nos.1 & 2 have been answered.

14. The order could not be passed within the stipulated time due to heavy pendency.  

15.  In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainants U/s.12 of the Consumer Protection Act, 1986 is allowed in part.

OP school is directed to refund a sum of Rs.72,000/- (Seventy Two Thousand only) to the complainants together with interest @ 12% p.a from 01.06.2015 till the date of realization together with litigation cost of Rs.10,000/-.

OP shall comply the said order within four weeks from the date of communication of the order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 25^th day of January 2018)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainants dated 10.01.2017.

1. Sri.Pankaj Kumar Bajaj
2. Neeta Bajaj.

Documents produced by the complainants:

Witnesses examined on behalf of the Opposite party dated 01.02.2017.

1. S.Bhushan Bhasin.  

Document produced by the Opposite party:

MEMBER                                                              PRESIDENT

Vln*