DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

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

(Behind Qutub Hotel), New Delhi- 110016

Case No. 605/2013

Hamza,

Through his father/Natural Guardian,

Intikhab Alam,

S/o Sh. Abdulsalam,

R/o 163/2, Jogi bai,

Jamia Nagar, Okhla,

New Delhi

….Complainant

Versus

FIITJEE Limited,

Though Its Concerned Director/Chairman.

The Concerned Director/Chairman

of FIITJEE Limited

Both At-29-A, Kalu Sarai,

Sarvapriya, New Delhi

        ….Opposite Party

 Date of Institution    :  16.12.2013     

 Date of Order            :  14.09.2022    

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member: Ms. Kiran Kaushal

1.      Complainant’s son Hamza got enrolled in  FIITJEE Ltd. (hereinafter referred to as OP-1) in a two year classroom programme for JEE (advance) weekend contact classes on 06.04.2013.

2.      It is stated that Complainant paid the total amount for full two years i.e Rs.2,06,670/- vide post dated cheques . Complainant’s son upon attending the institute of OP realized that the tall promises made by OP at the time of admission were not being fulfilled by OP. Complainant’s son was not getting proper attention in the classes, as assured. It is stated that the queries or doubts raised by complainant’s son remained unattended. The teaching staff of OP made one excuse or the other but the doubts of the student remained unsolved. It is stated that the teacher would sometime say that the problems will be solved when at least five or six students have the same problem or that problems will be cleared once the session comes in full swing. The said assurances kept dragging and wasted full four important months of the complainant’s child.

3.      It is stated that the complainant telephonically informed OP regarding the problems faced by his son and he even visited the office of OP on 04.08.2013 and 06.08.2013 but was of no use. It is stated that the complainant vide letter dated 13.08.2013 informed OP that his son would quit the institute as he was dissatisfied with the services provided by OP. But no satisfactory reply was given by OP till filing of the complaint.

4.      Alleging deficiency in service of OP, Complainant approached this Commission with prayer to award sum of Rs.3,06,670/-including the refund of total tuition fees and also award the cost of litigation.

5.      OP resisted the complaint and filed its written version stating interalia that Complainant and his son while taking admission with OP for the two years classroom program for JEE (Advance) weekend contact classes, read, understood and thereafter accorded their consent to the terms & conditions contained in the admission form, without any coercion or undue influence. Thus, by signing those declarations, Complainant and his son have accorded their unconditional and free consent and are thus bound by the terms and conditions as per law.

6.      It is next stated that OP has charged fee only for the first year as per the direction of Hon’ble National Commission and as per law laid down in  FIITJEE Ltd. Vs Minathi Rath and anr. The fee for the second year was Rs.70,450/-, paid  vide post dated cheque. The same has been returned by the bank with the remarks stating that the payment has been stopped by the drawer. The said fact has been concealed by the Complainant and  rather he has stated that complainant has paid total fees of Rs.2,06,669/-, which is false. Complaint is liable to be dismissed on this sole ground.

7.      It is further stated that Complainant has agreed and accepted the arbitration clause forming part of the declaration attached to the enrollment form, hence this complaint is barred by arbitration agreement and the matter should be referred to a sole arbitrator. It is next stated 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 midway. In this case also the said seat of Complainant’s son remained vacant throughout the period of  the course.

8.      It is also stated that OP is a self financed and self managed institute and runs from the fees collected from the students. Most of the expenditure is incurred in advance and is also of fixed nature like lease rent of the premises, salary of faculty members and non-faculty staff, electricity etc. Preparation of printing of study material is also done in advance irrespective of number of students in batches.

 In view of the aforesaid, OP prays for dismissal of the complaint.

09.    Rejoinder is filed on behalf of the complainant wherein the complainant has clarified that when OP paid no heed to the complaints, the Complainant stopped the payment of the post dated cheques and wrote a letter to OP for not getting them encashed. Copy of the intimation dated 05.02.2014 and the postal receipts are annexed as Annexure- F & G.  Evidence by way of affidavit and written arguments are filed on behalf of parties. Submissions made on behalf of OP are heard. Material placed on record is perused.

10.    It is complainant’s case that complainant’s son  attended the classes of OP for about four months and was not  satisfied with the quality of teaching/training being imparted, particularly lack of personalized attention and not solving the queries or problems of the student. Therefore complainant’s son had no option but to quit OP’s institute .

11.    OP has raised an objection stating that the complainant and his son 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 & conditions. On perusal of the terms & conditions in the enrollment form it is noticed that certain clauses are arbitrary and unreasonable. Clause 8 of the  Enrollment form  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.

12.    Mere reading of the clause above shows that it is unreasonable. We are of the opinion that any term of the contract which is unconscionable or voidable is not enforceable. The terms like “fees once paid is not refundable” is unconscionable as well as voidable, therefore not actionable. It is also noticed that there is no Exit clause in the agreement/enrollment form in case students finds the services of OP unsatisfactory and wishes to withdraw from the institute.  Students may leave the course midstream, if he finds the service deficient or substandard and non yielding and to tell him  that fees once paid is not refundable is uncalled for. Therefore, absence of the Exit clause makes agreement unconscionable as it is one sided.

13.    In view of the above, we opine that OP cannot draw any benefit from the consent of the complainant as the terms of the agreement are unjust unconscionable and one sided.

14.    Similar view has been taken in Brilliant Tutorial Vs Rahul Das in  Appeal No. 509/2006, decided on 09.01.2017, wherein Hon’ble State Commission 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.”

15.    As regards the Arbitration clause in the Enrollment form, Section 100 of Consumer Protection Act, 2019 is very clear that the provisions of  this act shall be  in addition to and not in derogation  of the provisions of any other law for the time being in force.

16.    There is no denying the fact that OP must have incurred costs prior to the commencement of the said course but it would not be just and proper for OP to retain the full one year fee from the student/complainant’s son who attended the classes of OP institute for only four months. OP cannot forfeit full fee of the complainant on the pretext of financial loss, when the student has attend the classes for four months. OP cannot take or charge the consideration of the service, which it has either not given or was not availed by the complainant.

17.    Therefore, we are of the considered view that OP is entitled to deduct the fee for the period, services of OP were availed and proportionate and reasonable fee from the advance fee collected, for the cost incurred by them and refund the remaining amount to the complainant. The Complainant initially pleaded to have paid Rs 2,06,670/- including the post dated cheques however payment of post dated cheques was stopped and eventually an amount of   Rs.1,36,220/-  stood credited to the accounts of OP as consideration towards the course fee. In view of the discussion above OP is allowed to retain Rs.60,000/- from the fee collected towards service tax, cost of books , study material and for services rendered to the complainant for four months and OP is directed to refund the balance amount of Rs.76,220/-.

18.    Thus, we allow the complaint and direct OP to refund Rs.76,220  @6% per annum from the date of filing of the complaint within three months failing which OP shall pay Rs 76,220 @9% per annum from the date 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.