Delhi

South Delhi

CC/352/2018

PAVAN SOOD - Complainant(s)

Versus

FIIT JEE LIMITED - Opp.Party(s)

23 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

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

(Behind Qutub Hotel), New Delhi- 110016

 

Case No.352/2018

 

Sh. Pavan Sood

R/o D-18, Green Park Ext.

New Delhi-110016

                                                                                ….Complainant

Versus

 

FIITJEE Ltd.

South Delhi Office

29 A, Kalu Sarai, ICES House

Sarvapriya Vihar

New Delhi-110016                                                     ….Opposite Party

    

     Date of Institution: 28.11.2018

            Date of Order : 24.01.2023  

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

 

Member: Ms. Kiran Kaushal

 

1. Succinctly put, Complainant’s son got himself enrolled in FIITJEE, hereinafter referred to as OP for two years' class room programme of JEE, commencing on 28.04.2018. Complainant paid Rs. 6,400/- and Rs. 28,500/- towards initial fee for coaching and gave post-dated cheques for the months of May, July, and December,2018.

 

2. Complainant’s son after attending the classes on 22, 28 and 29.4.2018 and half a session of 06.05.2018 was dissatisfied with teachers/faculty and also, as the teaching methodology was not the same that was promised at the time of admission. Complainant on 10.05.2018 personally visited the office of OP and requested for withdrawing his son from coaching institute. Accordingly, complainant sent an email to OP on 11.05.2018 requesting OP not to present the cheque dated 15.05.2018 and also to return the rest of post-dated cheques. OP reverted and sought the information regarding the complainant’s son. The complainant was even called by OP two or three times to update the information regarding his son. It is stated that during talks with OP the complainant was assured that the post-dated cheques will be returned but not the payment of Rs. 28,500/- and Rs. 6,400/- which was agreeable to the complainant.

 

3. However, to the utter dismay of  the complainant OP presented a cheque on 17.05.2018 which was drawn on the Axis Bank for an amount of Rs. 42,225/- and the same was debited from the complainant’s account. It is stated that this reveals the mala-fide intention of OP that even after giving the assurance OP presented the cheque dated 15.05.2018. Complainant felt cheated and called the OP many a times to return post-dated cheques and complainant’s amount of Rs. 42,225/- but OP paid no heed to his requests.

 

4. Hence the present complaint, with prayer for directions to OP to pay Rs. 42,225/- @18% interest p.a.  Additionally, complainant seeks compensation of Rs. 25,000/- for mental torture, agony on account of misconduct and arbitrary attitude of OP.

 

5. OP filed the written version, raising preliminary objection that complainant’s son was enrolled in a two year CRP-JEE (Advanced weekend contact Classes) and the complainant and his son have signed the enrollment form without any coercion and undue influence. Having signed the form voluntarily the complainant and his son are now bound by the terms of agreement.

 

6. It is stated that the complainant had chosen the fee payment Plan-I for the aforementioned course, the total course fee was Rs. 1,23,450/- including GST of Rs. 18,831/-. It is next stated that OP to ensure quality education and uniform teaching standard and also keeping in mind the student interest does not fill the vacancy created against any student in the course midway. The seat of complainant’s son remained vacant throughout the course programme.

 

7. It is further stated that OP is a self financed and self managed institute and runs from fee collected from the students. Most of the expenditure is incurred in advance and is also of fixed nature, OP has to bear expenditure like lease rent of premises, salary of faculty members and non faculty staff, electricity and other allied expenditures, preparation and printing of study material etc.    

 

8. It is denied by OP that the complainant was ever assured that the PDCs would be given back to the complainant before 15.05.2018. In view of the aforementioned fact, it is prayed that the complaint be dismissed.

 

9. Rejoinder to written statement of OP is filed. Evidence by way of affidavit and written arguments on behalf of parties are filed. Submissions made on behalf of OP are heard. Material placed on record is perused.

 

10. Admittedly, complainant’s son took admission in CRP-JEE two year programme of weekend contact classes in OP institute. Complainant at the time of admission paid Rs. 6,400/- and Rs. 28,500/- as initial payment towards fee. Acknowledgement receipts of the same are annexed with the compliant. It is also seen that Rs. 42,425/- was debited from the account of complainant .Statement of account is appended at page-14 confirming the same.

 

11. OP in his defence has stated that as the Complainant and his son had accorded their consent to the terms & conditions contained in the Enrollment Form without any coercion or undue influence, they are bound by those terms & conditions as per law. The said objection is rejected as it is settled position of law that terms & conditions of an agreement are not invincible or indestructible, if the same are unreasonable or unfair. It is apposite to take note of Para 4 of the enrollment form, the same reading thus:-

 

“Para 4:  I understand that if I leave the institute before completing the full course for any reason whatsoever, including transfer of parents/guardians/ill health of self or any other member of the family or my admission in any institute/engineering college etc., or my studentship is cancelled because of misconduct etc. I or my parents/guardian shall have no claim for refund of fees.”

12. Mere reading of the paragraph above shows that Para 4 of the Enrollment Form is arbitrary and unreasonable.

 

13. The following extracts from the judgment of Hon’ble Supreme Court in the matter of LIC of India Vs Consumer Educational & Research Centre (1995) 5 SCC 482  are worthy of consideration:-

 

“47. It is, therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service forever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract.”

14. OP by asking the parents to sign on the dotted lines of the declaration form meant “take it or leave it”. The bargaining power of the consumers in such cases is unequal, we are therefore of the view that any unjust condition thrust upon the consumers  is arbitrary and unconscionable. It is also noticed that option of Exit clause has not been provided in the agreement in case the students finds the services of OP unsatisfactory and wishes to withdraw from the institute. Absence of the exit clause also makes the agreement unconscionable as it is one sided.

 

15. In this respect we are further guided by view taken by the Hon’ble State Commission in Brilliant Tutorial Vs Rahul Das reported as  Appeal No. 509/2006, decided on 09.01.2017, wherein it was held that:-

 

12.1 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.

 

16. Therefore, we are of the considered view that OP cannot draw any benefit from the consent of the Complainant as the terms of the enrolment form are arbitrary, unreasonable and one sided.

 

17. The next contention of OP is that Complainant's Son voluntarily left the course midway and the vacancy created by him was not filled. However, OP has not furnished any record to show that the said seat remained vacant.  Even if, we consider the fact that OP is a self-financed and self-managed institute wherein it has to incur costs prior to commencement of classes it will not be fair and justified for OP to retain  fee for the services which are not rendered, this  would clearly amount to undue enrichment.

 

18. There is no written communication to prove the fact that OP assured the complainant that the post-dated cheque, dated 15.05.2018 will not be presented before the Bank, however, as the complainant has not prayed for Rs. 28,500/- and Rs. 6,400/- it leaves us to assume that some communication/settlement had occurred between the parties .We are of the opinion that OP is entitled to retain the administrative charges, cost of printing of books and material to the complainant and tax. The same would be covered by Rs. 6,400/- and Rs. 28500/- the amount which the complainant has consented to forgo and has also not sought for, in his prayer.

 

19. In view of the discussion above, OP is directed to refund Rs. 42,500/- @ 8% p.a. from the date of filing of the complaint within three months from receipt of the order, failing which OP shall pay 10% interest on the said amount. Additionally OP is directed to pay Rs. 10,000/- towards compensation for mental agony harassment to the complainant and litigation charges.

 

File be consigned to the record room and order be uploaded on the website.