| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.399/2010 Dr. Amitabh Yadav F/o Ms. Arushee Yadav R/o 33/13, First Floor, East Patel Nagar, New Delhi- 110008 ….Complainant Versus The Central In-charge FIITJEE Ltd. Punjabi Bagh Centre, New Delhi FIITJEE Ltd. FIITJEE House 29-A, Kalu Sarai, Sarvapriya Vihar, New Delhi- 110016 ….Opposite Party Date of Institution : 14.06.2010 Date of Order : 24.01.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Ms. Kiran Kaushal - The facts material to the case are that the Complainant’s daughter, Arushee got herself registered in a two year programme with FITJEE Ltd., hereinafter referred to as OP. The Complainant paid the complete fee of two years course in advance at the time of admission of his daughter, through post dated cheques.
- Complainant’s daughter, Arushee on attending the first class in OPs institute on 21.04.2010 was disappointed as the standard of teaching was not as per her expectation. The atmosphere was not conducive for preparations of
IIT-JEE Examination and discipline in the classroom was also lacking. As OP failed to meet the standard of service represented to the Complainant and his daughter they decided to quit the programme on the very first day that is on 21.04.2010. It is further averred that Complainant’s wife vide letter dated 28.04.2010 requested OP to refund the fee and return the post-dated cheques, however despite repeated reminders OP neither refunded the fee nor returned the post-dated cheques.
- Aggrieved, on not receiving the refund the Complainant approached this Forum with direction to OP to refund amount of Rs.50,000/- taken from the Complainant at the time of admission and Rs.40,000/- towards compensation and litigation fee.
- OP resisted the complaint raising preliminary objections stating inter-alia that Complainant is barred by the arbitration agreement signed and accepted by the Complainant. Second objection raised by OP is that while seeking admission/registration the Complainant and his daughter had read, understood and thereafter accorded their consent to the said terms and conditions laid down in the declaration. Thus, by signing those declarations they are bound by them as per law.
- It is next stated by OP that after taking the admissions, OP arranges for training/classes of the students. OP puts in its services, efforts and at times also hire the services of the related professional, on payment. Most of the expenditure is incurred by OP in advance and is also of fixed nature. OP has to bear expenditure like lease rent of the premises, salary of faculty members and non-faculty staff, electricity and other allied expenditures, preparation and printing of study materials etc., irrespective of number of students in batch. Further total fee includes taxes as applicable and cost of study materials supplied to students. OP further states that 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 mid-way.
- It is thus submitted that the Complainant has failed to establish any deficiency in service on behalf of OP therefore, the complaint be dismissed.
- Rejoinder and Evidence was filed on behalf of the Complainant. Evidence of Shri Ashish Kumar Aggarwal, Deputy General Manager of OP was filed. Written submissions are filed on behalf of parties. Submissions made on behalf of OP are heard and material placed on record is perused.
- Preliminary objection raised by OP as regards the arbitration clause finds no merit with this Commission as it is settled law that provisions of this Act are in addition and not in derogation to the provisions of any other law available to the Consumer. Therefore, availability of arbitration as a remedy does not debar the Complainant from approaching Consumer Commission in case of deficiency rendered to him/her.
- The second preliminary objection is that the Complainant and her daughter 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. Therefore, absence of the exit clause makes the agreement unconscionable, as it is one sided.
- Similar view has been taken in Brilliant Tutorial V/s Rahul Das reported as Appeal No. 509/2006, decided on 09.01.2017, wherein the view of the State Commission was 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. - A declaration in the enrollment form mentioned in Written Statement of OP reads as under:
11.1 Para.6 – 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 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. - Above condition on mere reading shows that the terms and conditions are absolutely arbitrary and unreasonable. Therefore, this Commission is of the view is that OP cannot draw any benefit from the consent of the Complainant as the agreement is unjust, unconscionable and one sided.
- Now on facts of the case:
It is Complainant’s case that OP in violation and disregard of the order dated 04.10.2006 in Appeal No. A-83/2006 titled as M/s FIITJEE Ltd. V/s Dr. Minathi Rath forced the Complainant to pay the complete fee of two years course in advance. We are of the considered view that OP cannot forfeit the whole fee paid by the Complainant as no service was provided to the Complainant’s daughter. However, we find force in the argument of learned counsel for OP that as most of the expenditure regarding running of OPs institute is incurred in advance and is also of fixed nature OP cannot let the seat remain vacant for the remaining period of the batch. OP has filed an affidavit in this regard of Shri Partha Halder, Centre Head- North West Centre, New Delhi of OP Company stating that the seat left by the daughter of the Complainant remained vacant throughout the entire batch. That no new student was admitted in the batch in which Complainant’s daughter was studying, after the commencement of the course. As against the said affidavit interrogatories were filed by counsel for the Complainant and OP chose not to reply to the same. Therefore, an adverse inference can be drawn against OP regarding the fact sought to be proved through the attendance sheets. - OP has placed its reliance on Revision Petition No. 462 of 2013
Titled M/s FIITJEE Ltd and another V/s Pramod Pareek. Instant case of the Complainant can be distinguished on facts. Reasons for withdrawal in both the cases are different. The Complainant in the case (Supra) had switched over from Science Stream to Commerce Stream, which was probably the reason for withdrawal of the student from OPs institute. Moreover the student joined the coaching after the course had already started; extra classes were promised for him. Whereas in the present case Complainant’s daughter attended the class for one day and found that the atmosphere in OPs institution was not conducive for preparation of IIT-JEE Examination and was contrary to what was promised.
- Even if we consider OPs plea that cost is incurred by OP prior to the starting of the course, it would be unjust and not proper for OP to retain the full fee of Rs.50,000/- paid by the Complainant. OP in Para.4 of his written statement has admitted that the total fee paid by the Complainant included service tax amounting to Rs.8,264/- and Rs.11,000/- towards study material and that the remaining amount was only kept by OP.
- However, for refund of fee, we are guided by FIITJEE Ltd. V/s Dr. 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. - Thus, this Commission is of the opinion that OP is entitled to deduct proportionate reasonable fee for the costs incurred by them and refund the remaining amount to the Complainant.
- In view of the facts and circumstances as discussed above, we allow the complaint and direct OP to refund Rs.35,000/- in lumpsum to the Complainant, permitting the OP to retain the balance amount of Rs.15,000/- towards administrative charges and other costs incurred by them. Additionally, Rs.10,000/- is awarded to the Complainant towards mental agony and litigation expenses to be paid within 45 days of receipt of the copy of this order. Failing which OP shall become liable to pay interest @5% per annum on the amount of Rs.35,000/- from the 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. | |
