Haryana

Ambala

CC/312/2019

Amit Dhar Dwivedi - Complainant(s)

Versus

Extra Marks Education - Opp.Party(s)

Nitesh K Sawhney

30 Sep 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     312 of 2019

                                                          Date of Institution           :     01.10.2019

                                                          Date of decision    :     30.09.2022

Amit Dhar Dwivedi son of Sh. K.D. Dwivedi resident of House No. E-3, Rail Vihar, DRM Office Complex, Ambala Cantt.

          ……. Complainant

•  

 

1. Extra Marks Education Private Limited, D-180/181, Sector 63, Noida, Gautam Buddha Nagar, Uttar Pradesh-201301.
2. ICICI Bank through its Branch Manager, Ambala Cantt.
3. Capital Float, (CAPFLOAT FINANCIAL SERVICES PVT. LTD. (FORMERLY ZEN LEFIN PRIVATE LIMITED & KNOWN AS CAPITAL FLOAT) GOKALDAS PLATINUM, NEW NO.3 (OLD NO.211) BELLARY ROAD, UPPER PALACE ORCHARDS, SADASHIVNAGAR, BENGALURU.

                                                                                       ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

                                               

Present:       Shri Nitesh Sahni, Advocate, counsel for the complainant.

                     OPs No.1 & 3 already given up.

                    OP No.2 given up vide order dated 16.09.2022.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund Rs.7000/-, alongwith interest.
2. To pay compensation of Rs.5 lacs.
3. To pay Rs.50,000/- as litigation expenses.
4. Grant any other relief which this Hon’ble Commission may deem fit. 

 

2.                Brief facts of the case are that in the winter vacation (2018-2019) of the son of the complainant namely Rishabh Dwivedi, who studies in Mind Tree School, Ambala, the complainant got a call from Noida Centre of Extramarks Pvt. Ltd. (OP No.1) that Mind Tree School, Ambala has given the academic details of his son to them as he is meritorious. Mind Tree School further recommended his name for counselling by the extra mark counsellor team (OP No.1) to further boost his educational capability. Extra mark counsellor wanted to visit the home of the complainant at Ambala to explain further, in the presence of the parents. In the winter vacation, a lady counsellor from Extra Marks (OP No.1) visited the house of the complainant and interacted with their child in their presence. The counsellor posed many questions to their son to assess his mental capability, attitude and aptitude. Thereafter the said lady counsellor shared her views about their son and further informed that OP No.1 has a programme with Tablet for streaming the educational contents of the child and course will start from March 2019. She further told that the complainant and his son can use the tablet and in case they are not satisfied after use, they can return the tablet. She further reinforced that daily assessment of the child's progress would be made online by OP No.1 and in case the child of the complainant is not able to devote sufficient time to the tablet daily, the OP No.1 will come to know of it through online monitoring' and they will recall the tablet themselves at their own initiative. The total cost of the offer was Rs.42,000/- with monthly instalment of Rs.3500/-. The advance for the first instalment was paid in cash. The form for the scheme was filled up by representative of OP No.1 and complainant handed over a cancelled cheque to her. The representative of the OP No.1 told that, if after use, their ward did not like the same, they are at liberty to return the tablet and take back advance payment. The representative of OP No.1 also tried to get the signature of the complainant on the ECS form but the complainant categorically denied to sign the ECS Form by stating that if he did not like the scheme, he will have no control and no way to withdraw from the offer made as after signing the ECS form money will be automatically deducted from his account. The complainant further stated that before signing the ECS Form, he will clarify from the Mind Tree School, Ambala whether they have recommended the name of the child of the complainant to OP No.1 regarding this scheme or not. After winter vacations, the complainant's son- Rishabh Dwivedi went to his school and he was told, in writing, that Mind Tree School, Ambala is in no way affiliated with OP No.1. Upon this, the complainant and his son decided not to receive the delivery of the proposed tablet from OP No.1 or to avail the scheme offered by OP No.1. However, in the month of February 2019 the Tablet was delivered at the home of the complainant to his domestic help in the absence of the complainant and none of the family members of the complainant was present at home at that time. When the complainant came to know about delivery of the tablet, he instructed his family members not to open it as he will be writing to OP No.1 to take the Tablet back. He had written to OP No.1 for taking back the tablet on 27th February 2019 informing them that their tablet is not opened or used at all, in any manner. OP No.1 replied that all terms and conditions are stated in the form and that tablet was to be returned within 15 days after delivery. Furthermore, on 1^st March 2019, an amount of Rs.3500/- was siphoned off from the account of the complainant without his knowledge and without filling up of the ECS form, which ought to be filled up by a customer only, who is satisfied with the products offered to him. The complainant went to OP No.2 and filled up a form for discontinuation of automatic deduction of amount from his bank account. The representative of OP No.1 and OP No.3 (through which the OP No.1 arranged loan for the complainant), are making disturbing and abusive calls to the complainant and threatening him to make further payment at his own failing which his CIBIL Score will be badly affected and name of the complainant will be put in defaulter's list. OP No.2 with whom complainant is having his  account bearing No.628101049265, without his consent had debited the amount of Rs.3500/- and credited the same in the account of Capital Float Financial arm of OP No.1, inspite of the fact that no ECS form was signed by the complainant. By doing so, the OPs have not only committed deficiency in service but also indulged into unfair trade practice. Hence, the present complaint.
3.           Upon notice, none has appeared on behalf of the OPs No.1 & 3 before this Commission, therefore, they were proceeded against ex-parte vide order dated 27.11.2019.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability, estoppal, locus standi, cause of action, bad for non-joinder of necessary parties and concealed the true and material facts. On merits, it is stated that it is incorrect that on 01.03.2019, an amount of Rs.3500/- were siphoned off from the account of complainant without his knowledge, without filing up of ECS form. The complainant himself has given the mandate to transfers the funds and in pursuance of that mandate OP No.2 has transferred Rs.3500/- in the account of beneficiary. Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with special costs.
5.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-9 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP No.2 tendered affidavit of Shri Shyam Sunder, Branch Manager ICICI Bank Ltd., LIC Building, Ambala Cantt as Annexure OP-2/A and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the complainant and carefully gone through the case file.
7.           Learned counsel for the complainant submitted that the tablet in question was not opened by the complainant or his son, what to speak of use thereof. Complainant immediately informed the OPs No.1 and 3 regarding the said fact, as such, they were bound to refund the amount paid by the complainant but by not doing so, OPs No.1 and 3 are deficient in providing service and also adopted unfair trade practice. 
8.           It is significant to mention here that on 16.09.2020, none appeared on behalf of OP No.2. However, the learned counsel for the complainant made a statement for giving up the OP No.2, from the arrays of the opposite parties, accordingly, vide order dated 16.09.2022, the OP No.2 was given up from the arrays of the opposite parties, mentioned in the head note of the complaint.  
9.           In the present case, the only moot question which falls for consideration is, as to whether, the complainant is entitled to refund of the amount paid or not? It is significant to mention here that in clause 12 of terms and conditions, of the receipt dated 06.01.2019, Annexure C-6, it is mentioned that:- the fee payable is refundable only in case the same is applied for, within a period of 15 days from the date of payment. Admittedly, payment of first instalment of Rs.3500/- was made by the  complainant on 01.02.2019, as is evident from tax invoice dated 01.02.2019, Annexure C-7 and thereafter the second payment of Rs.3500/-  was made on 02.03.2019, as is evident from the statement of account dated 15.03.2019, Annexure C-9.  It is also not out of place to mention here that though in the first instance, the complainant disputed the second payment by alleging that OP No.2 was deficient in providing service by debiting the said amount of Rs.3500/- through ECS, yet, thereafter, through his counsel, he made statement to the effect that he gives up the name of OP No.2 from the array of parties, which was accepted by this Commission vide order dated 16.09.2022.

10.              As per the complainant he received the tablet in question in the month of February 2019. It is an admitted fact that the complainant has sought refund of amount paid, for the first time, vide email dated 27.02.2019, Annexure C-4, which is beyond the period of 15 days from 01.02.2019 i.e.  after 26 days from the date of making payment.  Under these circumstances, it is held that once it has been admitted to between the complainant and OPs No.1 and 3  to the effect that refund option is available only within a period of 15 days from 01.02.2019, then complainant should have exercise the option of refund within a period of 15 days from the date of deposit of the amount i.e 01.02.2019, but he failed to do so within the stipulated period. Thus, by not refunding the amount paid by the complainant, the OPs No.1 & 3 in no manner can be held to be deficient in providing service or guilty of indulgence into unfair trade practice.

11.     For the reasons recorded above, it is held that since the complainant has failed to prove his case, as such, this complaint stands dismissed, with no order as to costs. Certified copy of the order be supplied to the parties concerned, forthwith, free of costs as permissible under Rules. File be indexed and consigned to the Record Room. 

Announced on: 30.09.2022.

 

          (Vinod Kumar Sharma)        (Ruby Sharma)                   (Neena Sandhu)

              Member                               Member                President