DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi-110016.

Case No. 518/12             

Joginder Singh

Kendriya Vidyalaya, Sector-2

R.K. Puram, New Delhi-110022.

                                                                   Versus

IIT Coaching Institute

FIITJEE House

29A, Kalu Sarai, Sarva Priya Vihar

New Delhi-110016.

  Date of Institution:  03.10.2012

  Date of order:        18.05.2022

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member: Ms. Kiran Kaushal

            Succinctly put, Complainant’s son took admission in FITJEE Ltd (OP) in one year extended classroom programme for IIT JEE - Regular Contact Classes and paid consideration of Rs.85, 214/-  for the same.

          It is stated that on commencement of classes on 13.06.2012 Complainant’s son found that there was total mismanagement and deficiency in various services provided by OP.  OP’s Institute had faulty time table, there was no fixed time for classes, teaching staff was incompetent, there was lack of permanent classrooms, study material was not up to the mark and no periodical tests were conducted to assess the progress of students. Hence Complainant thought it fit to withdraw his son from OP’s institute on 17.07.2012.

After withdrawing his son from OP’s institute for deficient services, Complainant sought refund of fee from OP but to no avail. Rather it was informed by OP that the fees paid once is not refundable. It is stated that Complainant tried to resolve the issue by approaching the mediation centre but as OP was not keen on resolving the issue, mediation failed.

          Thus aggrieved, Complainant approached this Commission with prayers for direction to OP to refund Rs. 85,214 alongwith interest, compensation for harassment and litigation costs.

OP resisted the complaint stating inter alia that  Complainant‘s son withdrew voluntary from the course, he opted to pursue. He is now demanding refund of fees, which is not refundable as per the terms and conditions of the Enrollment Form. Complainant and his son, read, understood and thereafter accorded their consent to the said terms and conditions contain therein, without any coercion or undue influence. Thus, by signing those declarations Complainant and his son have accorded their unconditional and free consent and thus  are bound by them, as per law.

          It is next stated that Complainant has failed to show any non-performance of any of the terms and conditions of the contract by OP.OP further states that Complainant has agreed and accepted the Arbitration  Clause forming part of Declaration attached to the Enrollment Form. Hence, Complainant is barred by the Arbitration agreement and matter can only be referred to an Arbitrator. OP also states that it is settled position of law that the District Forum or State Commission and National Commission cannot go behind the terms and conditions of the contract executed between the parties.

          It is further stated by OP 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. 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. OP has to bear  expenditures like lease rent of premises, salary of faculty  members and non-faculty staff, electricity and other allied expenditures, preparation and printing of study materials etc. It is therefore prayed that the complaint be dismissed.

 Complainant filed its rejoinder stating that number of cases  have been filed against OP at different locations, in and around  Delhi. To show that OPs are deficient in their services Complainant has filed Newspaper cutting wherein a court had refunded partial fee to the complainant along with compensation. Furthermore it is stated that certain representations were made twice by 35 out of 40 students of the same batch, as that of Complainant’s son. The said representation duly signed by various students is filed with the Rejoinder, which is marked as `Mark A’. It is also stated that Complainant himself being a teacher met the HOD, Mr. R.K Thakur alongwith a teaching faculty to address his grievance but no remedial action was ever taken by OP. It is because of the deficient services of OP, Complainant was left with no choice but to withdraw his son from OP’s institute and send him away to Kota for further studies.

 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.

OP has raised preliminary objections stating that as educational institutions are not providing any kind of service , instant matter cannot be entertained by Consumer Commission. In support of it’s argument OP has placed  reliance on PT Koshy & Anr. Vs Ellen Charitable Trust and Ors. SLP (Civil No.22532/2012)  passed on 09.08.2012 by Hon’ble Supreme Court of India.  Distinguishing the law laid down by Hon’ble Supreme Court in the judgement (supra) three Judge bench of Hon’ble National Commission in Deepak Tyagi & Ors. Vs Shree Chhatrpati Shivaji pronounced on 20.01.2020 in Para 46 held that:-

“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 Fora.”

Therefore OP being a coaching centre falls within the purview of the Consumer Protection Act, 2019.

The next objection raised by OP is that the Consumer Commission cannot go behind the terms of the contract . On perusal of clauses in the Enrollment Form it is noticed that certain clauses are arbitrary-  

   Para 6 of the Enrollment Form is reproduced as under: -

           “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 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.”

Mere reading of the Paragraph above shows the clause of the agreement is arbitrary and unreasonable. We do not find any merit in the above assertion of OP, as the contract is evidently one sided and Complainant was not in position to negotiate the terms.  We are of the view that the terms of the agreement are not invincible or indestructible, if the same are unreasonable or unfair.

 Further it is noticed that no exit clause has 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 makes the agreement unconscionable as it is one sided.

            Similar, view has been taken in Brilliant Tutorial Vs Rahul Das reported as Appeal no. 509/2006 decided on 09.01.2017 wherein the view of the Hon’ble State Commission, Delhi 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 service.”

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

OP has placed its reliance on FITJEE Ltd. Vs Dayachand Prasad Revision Petition No. 4634/12 decided on 26.11.2017, wherein it is held that since OP has charged fee only for one year and there was no semester system, the fee was applicable for whole year. As the Complainant left the course midstream therefore he is not entitled to any refund for that particular year. The said case is distinguishable on facts as the Complainant has not assigned any reason for leaving OP’s institute midstream, whereas in the instant case Complainant has alleged deficiency in service on behalf of OP.

 In support of his case Complainant with his rejoinder has annexed representation duly signed by 35 students to OP institute, which is marked as `Mark A’. The representation is regarding the poor teaching methods  adopted by the Faculty and it is requested that certain Faculty be changed.

 Considering the fact that OP is a self financed and self managed institute, we think it appropriate that OP retains proportionate reasonable fee for the services rendered and the costs incurred by them and  refund the remaining amount to the Complainant.

 Complainant paid Rs.85,214/- to OP towards  the full course. Deducting the amount for books and study material and the fact that Complainant’s son availed the services of OP for about one month alongwith taxes etc. we think it would be appropriate that OP retains fifty percent of the fee and refunds the rest to the Complainant.

Accordingly, OP is directed to refund Rs.42,607/- @3% per annum from the filing of the complaint within three months from the date of receipt of the order, failing which OP shall pay Rs.42,607/- @7% per annum till realization.

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.