DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.432/2017
Ms. Mehak Malik
D/o Shri Sandeep Malik
R/o J-79 Vikaspuri,
Delhi 110018
(Being Minor Through her father and N/G
Sh. Sandeep Malik)
….Complainant
Versus
1. FIITJEE Limited
Through its CEO
Fiitjee House
House No.29-A, Kalu Sarai
Sarvapriya Vihar, (Near Hauz Khas Bus Terminal)
New Delhi-110018
2. Sh. D.K Goel
Founder, Chairman and Chief Mentor
FIITJEE House,
House No. 29-A, Kalu Sarai
Sarvapriya Vihar, (Near Hauz Khas Bus Terminal)
New Delhi, Delhi-110016
….Opposite Parties
Date of Institution : 22.12.2017
Date of Order : 02.05.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
Facts of the case as pleaded by the complainant are :
1. Complainant is a bright and intelligent student who got lured by the tall promises made by the FIITJEE Ltd, hereinafter referred to as OP. Complainant got herself enrolled in a two years classroom programme for JEE of OP and paid an advance fee of Rs.2,64,523/- vide PDC and DD dated 20.07.2016
2. It is stated that the assurances made by the OP were completely false and imparting coaching to the students was very poor. Contrary to what was promised ,the guest teachers/staff/lecturers were not updated in their subjects. The only object of teachers/lecturers were to finish the course before the scheduled time irrespective of the fact whether the students were grasping the same or not. No personal attention was given to the problems of the students. The Complainant also found that the syllabus of OP was not in consonance with the schools syllabus, which added confusion and mental stress due to tremendous pressure. Moreover, the faculty members/teachers were frequently changed by OP, even the quality of the teachers/lecturers was not up to the mark. Due to the mental pressure the complainant started scoring low marks and the academic performance of the complainant started falling despite her best efforts after joining OP.
3. As the complainant’s progress kept deteriorating and OP was not responding in spite of requests/reminders, complainant along with her father discussed the problems with the counsellor for OP in the month of November. OP promised to revise the curriculum in accordance with curriculum of the school of the complainant within a week and promised that he will talk to the faculty members to follow the schedule strictly. Despite promises and repeated assurances OP did not take any step to redress the grievance of the complainant in any manner whatsoever. Complainant opted to withdraw from OP institute. Father of the complainant sent emails dated 24.03.2017, 27.03.2017 and 05.04.2017 to OP for refund of the amount, which was paid in advance.
4. It is next stated that OP vide letter dated 05.04.2017 refused to refund fees of the complainant and in order to justify their acts and with malafide intention started sending SMS regarding absence of the complainant from the class despite that fact that they were well aware that the Complainant wished to withdraw from the OP institute.
5. Alleging deficiency in service and unfair trade practice on part of OP, complainant approached this Commission with prayer to direct OP to refund the fee of Rs.2,64,523/-. Additionally, it is requested that OP be directed to pay Rs.50,000/- for mental agony, Rs,50,000/- for loss of academics, Rs.5,00,000/- for ruining the career of the complainant and Rs.50,000/- towards cost of litigation.
6. OP resisted the complaint and filed their written statement stating interalia that the present complaint is not maintainable in view of the observation of Hon’ble Supreme Court in case titled as P.T. Koshy Vs Ellen Charitable Trust wherein the Hon’ble Supreme Court has held that :
‘Education is not a commodity. Educational institutions are not providing any kind of service; therefore, in matter of admission, fees etc there can not be question of deficiency of service’
7. It is stated that the Complainant had opted for two years CRP-JEE advanced weekend contact classes and chosen the Fee Payment Plan II for the course. The total fee of the said course programme was Rs.2,31,520/- including service tax of Rs.33,003/- and costs of books study material i.e Rs.11,500/-. It is further submitted that it is not the case of complainant or his daughter that the enrolment agreement with OP was not signed by them or the same were got signed from them by OP under duress or coercion. As per the terms and conditions in the enrolment form fees once paid shall not be refunded under any circumstances and the complainant and his daughter had given an undertaking to that effect. Once binding themselves by consenting and thereafter signing the agreement and declaration at their own sweet will, Complainant is legally barred agitating the same at this stage.
8. It is next stated by OP that complainant has failed to show any deficiency in providing services by the OP. It is further stated that OP is to ensure quality education and uniform teaching standard and also keeping in mind the students interest does not fill the vacancy created against any student who leaves the course midway ,the seat remains vacant throughout the course program.
9. It is further stated that OP is a self-financed and self-managing institute and run from the fees collected from the students. Most of the expenditure is incurred in advance and also is of fixed nature. OP has to bear expenditures like lease rent of the premises, salary of faculty and non-faulty staff, electricity and other allied expenditures. Preparation and printing of study material etc irrespective of the number of students and batches.
10. In view of the facts stated above it is prayed that complaint be dismissed, being not maintainable.
11. Preliminary objection is taken by OP, that in the light of the judgment of Hon’ble Supreme Court in the case of P T Koshi V/s L N Charitable Trust the complaint is not maintainable. Distinguishing the law laid down by the Hon’ble Supreme Court, a three judge bench of Hon’ble National Commission in Deepak Tyagi and others v/s Sh. Chatrapati Shivaji pronounced on 20.01.2020, in para 46 it is held:
“We are of the opinion that any defect or deficiency or unfair trade practice pertaining to a service provider like coaching centres does fall within the jurisdiction of the Consumer Forum”.
12. Therefore, in view of the law laid down in the case (supra) the institute of OP, being a coaching centre, does fall under the purview of the Consumer Protection Act, 2019.
13. The other objection raised by OP is that the complainant and his daughter had accorded their consent to the terms and conditions contained in the enrollment form without any coercion or undue influence. Therefore, they are bound by those terms and conditions and are barred from agitating the same. It is settled that terms of agreement are not invincible or indestructible, if the same are unreasonable and unfair. On perusal of the enrollment form it is noticed that certain clauses are arbitrary and complainant had no option but to sign on dotted lines.
14. Clause 8 of the enrollment form mentioned in the written statement of OP reads as under:
I undertake 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/guardians………. shall not be entitled for refund of fees.
15. Mere reading of the above clause shows that the agreement is arbitrary and unreasonable. Therefore, we are of the view that OP cannot draw any benefit from the consent of the complainant as the terms of the agreement are unjust, unconscionable and one sided. It is also noticed that there is no Exit clause in the agreement/enrollment form in case the students find the services of OP unsatisfactory and wishes to withdraw from the institute. Therefore, absence of the Exit clause also makes the agreement unconscionable as it is one sided
16. Hon’ble State Commission in Brilliant Tutorial v/s Rahul Das in appeal no. 509/2006, decided on 09.01.2017 has held as under :
“Any such terms 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 he provider of service has the right to charge consideration only if it provides the services.”
17. To support its case OP has placed reliance on M/s FIITJEE Ltd & Anr. Vs Pramod Pareek which is not of any help to OP as the said case is distinguishable on facts . In this case son of the complainant had joined the OP institute after the course had already started and extra classes were promised to him. In the instant case it is not so.
18. This commission is of the view that OP might have incurred costs prior to commencement of the said course, but it would not be just and proper for OP to retain the full two years course fee from the student/complainant who attended the classes of OPs institute for about eight months . OP cannot forfeit the full fee of the complainant on the pretext of financial loss when the student has not attended all the classes.
19. For refund of fee, we are guided by FIITJEE Ltd. V/s Minathi Rath and anr 2012 (1) CPJ 194 (NC) and Islamic Academy of Education V/s State of Karnataka (2003) 6 SCC 696, wherein inter-alia it is observed as follows:
“16.1 In our view an educational institution can only charge prescribed fees for one semester/year, if an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalized bank (emphasis supplied). As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance”.
20. Therefore, we are of the considered view that OP is entitled to deduct fee for the period, services of OP were availed and proportionate reasonable fee from the advance fee collected, for the cost incurred by them and refund the remaining amount to the complainant. Accordingly Rs.11,500/- on account of cost of books and study material and Rs.80,000/- for the services rendered is deducted from the total course fee taken by OP i.e. Rs.2,64,523/-. Thereby OP is allowed to retain Rs.91,500/- and refund the balance amount to the complainant.
21. In view of the discussion above, we allow the complaint and direct OP to refund Rs.1,73,023/- @6% from the date of filing of the complaint within three months from the date of order failing which OP shall pay Rs.1,73,023/- @10% p.a. from the date of filing of the complaint till realization. Additionally OP is directed to pay Rs.10,000/- towards cost of litigation .
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
