| 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.21/2018 Mr. Tarush Raj (Minor) Through His Father Dr. Rajiv Kumar B- 3/343, Paschim Vihar, New Delhi- 110063 ….Complainant Versus FIITJEE FIITJEE House, 29-A, Kalu Sarai, Sarvapriya Vihar, New Delhi- 110016 ….Opposite Party Date of Institution : 30.01.2018 Date of Order : 31.01.2022 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 stated by the Complainant are that the Complainant took admission in a Two year CRP for JEE(Advance) classroom programme with FIITJEE (OP) and paid Rs.2,80,290/- towards fee on 28.05.2016.
- Complainant pleads that he joined OPs institute as tall claims were made by OP, which after joining the institute the Complainant realized were not true. Details of the promises, which OP had failed to fulfil are given below:
- It was specifically promised that more than twenty-five students will be taught in a single class, however on most occasions two to three classes were merged together and more than sixty to seventy students were taught in a single class.
- Classrooms were air conditioned but most of the time ACs did not function.
- It was specifically promised that the students would be given an opportunity to ask questions; however the teachers at the coaching centre were not co-operative and repeatedly discouraged students, who asked questions.
- It was promised that the course will go at a normal pace, however the teachers at the OP institute were focused more in completing the course instead of giving useful understanding of the course contents to the students.
- Due to the above failures on part of OP, Complainant opted out from OPs institute on September, 2016. Thereafter, Complainant sought refund from OP for the period the services were not taken from OP. However, despite repeated reminders and requests made by the Complainant, when no heed was paid Complainant approached this Forum with prayers to direct OP to pay Rs.2,80,290/- @18% per annum. Additionally, it is prayed that OP be directed to pay Rs.5,00,000/- as compensation towards mental agony and trauma caused by OP.
- OP contested the case and filed written statement raising preliminary objection inter-alia that the present Complainant is not maintainable in view and observation of Hon’ble Supreme Court made in case titled P.T. Koshy V/s Ellen Charitable Trust, wherein, the Hon’ble Supreme Court categorically held that education is not a commodity. Educational institutions are not providing any kind of service; therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by
the Consumer Forum under the Consumer Protection Act, 1986.
- It is next averred that Complainant and his son had given their consent and entered into in agreement for taking services of OPs and as such the terms and conditions of the said agreement are binding upon them. Complainant after free consent and signing of the agreement and declaration is now legally barred from agitating against the same at this stage.
- It is further stated that Complainant’s father had chosen the fee payment plan-II and the total fee of the said course programme came to Rs.2,80,290/- including service tax of Rs.34,689/- and cost of books and study material Rs.11,500/-. Copy of the fee receipt is attached as annexure OP-4. It is next submitted that OP to ensure quality education and uniform teaching standard and also keeping in mind the student’s interest does not fill the vacancy created against any students, who leaves the course mid-way and the seat remains vacant throughout the course programme. It is stated that seat vacated by the Complainant in the two-year CRP for JEE (Advanced) regular week contact classes remained vacant and has not been filled.
- OP being a self financed and self managed institute runs from the fees collected from the students. Most of the expenditure is incurred in advance and is also of fixed nature. Therefore, the refund of fee to the student would cause serious and irreparable loss and injury to OP. In view of the facts, it is prayed that the instant complaint is not maintainable and Complainant is not entitled to any relief from OP.
- Replication is filed on behalf of the Complainant .Parties have adduced their evidence by way of affidavit and filed written arguments. Arguments on behalf of OP are heard and material placed on record is perused.
- The preliminary objection raised by OP is that in light of the judgement of Hon’ble Supreme Court in the case of P.T. Koshy V/s Ellen Charitable Trust, the complaint is not maintainable. Distinguishing the law laid down by Hon’ble Supreme Court, a three-judge bench of Hon’ble National Commission in
Deepak Tyagi and others V/s Shri Chatrapati Shivaji pronounced on 20.01.2020 has very categorically 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, coaching centres of the likes of OP do fall under the purview of the Consumer Protection Act, 2019. - The next objection of OP is that Complainant and his son 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. In this regard this Commission is of the opinion that the terms of the agreement are not invincible or indestructible, if the same are unreasonable or unfair. On perusal of the clauses in the agreement (enrollment form) it is noticed that certain clauses are arbitrary. Clause 8 of the enrolment form is reproduced as under:
10.1 I undertake that if I leave the institute mid-way 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. - Mere reading of the paragraph above shows that the clause of agreement is arbitrary and unreasonable. Further it is noticed 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. 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
Hon’ble State Commission, Delhi was 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. - Therefore, we are of the opinion that OP cannot draw any benefit from the consent of the Complainant as such terms of the contract are arbitrary, unreasonable and one sided.
- OP in support of its case has placed its reliance on Revision Petition No.
462 of 2013 titled M/S FIITJEE Ltd and another V/s Pramod Pareek of
Hon’ble National Commission dated 10.07.2020. However, the instant case is distinguishable on facts as in the case (supra) the student had joined the course mid-way after the course had already started. The student had switched over from science stream to commerce stream, which was probably the reason for withdrawal of the student from OPs institute. Whereas, in the instant case the reason for the Complainant to opt out from the institute of OP was that he found the services of OP to be deficient. OP had failed to fulfil to the tall promises made by it. Therefore, the Complainant’s son withdrew from OPs institute in the present case.
- Even if we consider OPs plea that cost is incurred by OP prior to the starting of the course and the fact that complainant had attended OPs institute for about three months, it would not be proper and just for OP to retain the full fee of Rs.2,80,290/- paid by the Complainant.
- 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:
- 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 fee for the period services were availed and proportionate reasonable fee from the advance fee collected for the costs incurred by them and refund the remaining amount to the Complainant. Accordingly, after deducting the cost of books and material provided to the student, one eighth of the term of two years i.e., Rs.35,000/- approximately and the advance service tax of Rs.35,000/-. OP is entitled to retain Rs.80,290/-.
- In view of the discussion above we allow the complaint and direct OP to refund Rs.2,00,000/- @3% from the date of filing of the Complaint till realization. OP is allowed to retain the balance amount of Rs.80,290/- towards service tax, cost of books, study material and for services rendered. Additionally, OP is directed to pay Rs.5,000/- toward cost of litigation. Failing which OP shall pay Rs.2,00,000/- @8% interest per annum 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. | |
