DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi- 110016

Case No.41/2017

Mr. Chandrakanth Wopparapally

S/o Sh. W. Parthasarathy

R/o NH- 5, Andhra Pradesh Bhavan Quarters,

1, Ashoka Road, New Delhi- 110001

                                                                                                                       ….Complainant

Versus

M/S FIITJEE Ltd.

Rep. by its Managing Director

FIITJEE House, 29-A, Kalu Sarai,

Sarvapriya Vihar (Near Hauz Khas Bus Terminal)

New Delhi- 110016                                 

                                                                                                                        ….Opposite Party

              Date of Institution    :  02.02.2017      

              Date of Order            :  28.01.2022    

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member:  Ms. Kiran Kaushal

The facts as pleaded by the Complainant are that the Complainant’s son Sreekara Adwaith Wopparapally, got himself registered for a four year CRP for JEE (Advanced) – Weekend Contact Classes of M/S FIITJEE Ltd. (OP) on 24.07.2015.

Complainant’s son after clearing the entrance examination of OP was selected to prepare for JEE Advanced and JEE Main, NTSE, X & XII Boards and other Engineering/Scholastic Competitive Exams and he was offered a scholarship of 25% waiver on Tuition fee for the course offered at its Delhi (South) Study.

Complainant’s son on joining the OP institute realized that despite the assurances given by OP on the quality of education, it was not exactly upto the mark in all the subjects that were being taught. Complainant’s son brought to the notice of his parents, his dissatisfaction with OP by the end of the two year course. The Complainant realized that the student was under pressure to perform from the said institute, there was difference in the coaching method adopted by OP and that of the student’s school leading to confusion especially in PCM subjects. Accordingly, Complainant’s wife vide mail dated 07.01.2017 informed OP that her son has opted to withdraw from the course, which was to commence from April, 2017 onwards.

Fee of the four year course was paid as per the terms and conditions agreed upon between the parties, which are reproduced herein:-

With respect to the course that it will be a four year course with the fee split in installments, with post-dated cheques being submitted for the first two years at the time of admission itself. The rest is to be paid after two years with a condition that if the fee is paid in September, 2016 a concession of upto Rs.50,000/- would be given and otherwise, if it is paid before the commencement of the course, that much more would be charged”.

It is averred that OP started pressurizing the Complainant in September, 2016 itself that they should pay the next two years fee by 24.09.2016 and if they chose to pay the fee at the beginning of the course that is around April, 2017, they would be charged nearly Rs.50,000/- more and the said students would not be entitled to any scholarship. The Complainant having no other option paid six cheques for Rs.2,52,729/- out of which three cheques totalling to Rs.90,295/- were dated 24.09.2016 and were encashed by the OP soon. It is next averred that one of the remaining cheques was a post dated cheque for Rs.86,325/- dated 10.01.2017 and the other two were for Rs.70,589/- plus for Rs.5,520/- totalling to Rs.76,109/-.

Despite repeated requests made by the Complainant OP went ahead and lodged the cheque for clearance and sent a message containing an attachment demanding full payment alongwith the fine for stopping payment, listing out in detail the method of calculation of the fee to be paid. OP even warned of debarring the student from the course if the student’s fee was not paid and that legal action could be initiated against the Complainant if the fee was not paid as per the enrollment agreement signed by the Complainant and his spouse. 

Complainant in support of his case has placed reliance on a judgment in Islamic Academy of Education V/s State of Karnataka (2003) 6 SCC 696 passed by Hon’ble Supreme Court. It is averred by the Complainant that following the principles laid down in this case OP is obliged to return the advance fee for the period, when the student has not attended any class as the course had not even started.

Alleging deficiency in service and unfair trade practice by OP, Complainant has prayed for direction to OP to refund the advance fee of Rs.90,295/- paid through cheques dated 24.09.2016 and sought Rs.20,000/- as legal expenses. It is also prayed for direction to OP to return the post dated cheques being held by it declaring the contract null-n-void. 

OP resisted the complaint raising preliminary objection inter-alia that Complainant’s complaint is not maintainable in view of the observation of
Hon’ble Supreme Court in the case titled P.T. Koshy V/s Ellen Charitable Trust, wherein, it is categorically held that educational institution is not a commodity. Educational institutions are not providing any kind of service; therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.   

Second objection taken by OP is that the Complainant by consenting and signing the agreement and declaration at their own sweet will is legally barred from agitating against the same. As per terms of agreement Complainant has given an undertaking not to claim the refund of fees under any circumstances.

OP has next submitted that to ensure quality education and uniform teaching standard and also keeping in mind the students interest OP does not fill the vacancy created against any student, who leaves the course mid-way and the seat remains vacant throughout the programme. It is stated that the seat of the Complainant in the said programme has not been filled and the same remained vacant throughout the course duration.

OP further averred that it is a self financed and self managing institute and runs from the fees collected from the student. Most of the expenditure incurred is in advance and is also of fixed nature. Therefore, in case the fee deposited by the Complainant is refunded to him OP would suffer financial loss, as OP had planned its infrastructure including faculty members, classroom etc. and incurred expenditure on the premise in advance. It is thus prayed that the present complaint is not maintainable and is liable to be dismissed.

Rejoinder was filed by the Complainant. Evidence and Written arguments of both the parties are on record.

After going through the material placed on record and hearing the counsel of OP we are of the opinion-

That preliminary objection raised by OP is devoid of any merit as the judgment of three judge bench of Hon’ble National Commission titled
Deepak Tyagi and Ors. V/S Shri Chhatra Pati Shiva Ji in CC No. 261 of 2012, pronounced on 20.01.2020 has very categorically held in Para. 46 that

 We are of the opinion that any defect or deficiency or unfair trade practice pertaining to a service provider like coaching centers does fall within the jurisdiction of the Consumer Fora.

Therefore, coaching centers of the likes of OP do fall under the purview of the Consumer Protection Act. 

The Second preliminary objection of OP is that the Complainant had accorded their consent to the terms and conditions contained in the admission form without any coercion or undue influence. Therefore, they are bound by those terms and conditions as per law. On perusal of the agreement, it is observed that no exit clause has been provided in the agreement in case the student finds the service of OP unsatisfactory and wishes to withdraw from the institute.

Relevant para of the agreement is reproduced below- I understand that if I leave the institute midway before completing the full course for any reason whatsoever, including but not limited to transfer of my father/Mother/Legal Guardians/ill health of myself or any other member of the family or my admission in any institute/Course/ engineering college etc., or my studentship is cancelled because of misconduct etc. I or my parents/guardian……. shall not be entitled for refund of fees.

Bare reading of the para above shows that the clause of agreement is arbitrary and unreasonable. Moreover, absence of the exit clause makes the agreement unconscionable as it is one sided. Similar view has been taken by Hon’ble Delhi State Commission on Brilliant Tutorial V/s Rahul Das, Appeal No. 509/2006, decided on 09.01.2017 wherein it is held 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.

Therefore, we are of the opinion that OP cannot draw any benefit from the consent of the Complainant as it is arbitrary, unreasonable and one sided.

It is further pertinent to mention here that  OP has placed reliance upon law laid down by Hon’ble NCDRC in Revision Petition No. 462 of 2013 titled M/S FIITJEE Ltd. and V/S Pramod Pareek dated 10.07.2020; however the same is distinguishable on  facts.

In the said case, it is mentioned that since the child has joined the coaching after the course had already started extra classes were promised for him. The said fact shows that the student had joined the course mid-way after the course had already started. Hence, OPs statement that the seat left by the student remains vacant cannot be relied upon. Moreover, OP has not adduced any evidence to prove the same in the case (Supra) the student had switched over from Science Stream to Commerce Stream, which was probably the reason for withdrawal of the student from OPs institute. It is not so in the present case. The Complainant’s case is that his son opted out of OPs institute about 3-4 months before the commencement of the course.

We are of the considered view that, it would not be fair and just to the Complainant, if the Complainant is made to pay the full course fee of two years about ten months in advance before commencement of the course. No service provider can take or charge consideration of the service, which has not been rendered by him. It is also noticed that OP lured and threatened the Complainant that, if he chose to pay the fee at the beginning of the course, he would be charged nearly Rs.50,000/- more than the planned fee and that the student would not be entitled to any scholarship. Keeping such terms and conditions at a stage, when the student is vulnerable and indecisive amounts to coercion, pressurizing and unfair trade practice.        

   For the reasons mentioned above, we allow the complaint with direction to OP to refund the advance fee of Rs.90,295/- with interest @4% from the date of filing of the complaint. Additionally, Rs.5,000/- is awarded to the Complainant towards litigation expenses. OP is directed to pay the said amount within 45 days of the receipt of the copy of this order, failing which OP shall become liable to pay interest @8% per annum on the amount of Rs.90,295/- from date of filing of the Complaint till realization. 

File be consigned to the record room after giving a copy of the order to the parties as per rules.