DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

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

(Behind Qutub Hotel), New Delhi- 110016

Case No.296/2011

Mst. Sanidhya Goel

Through Shri Rakesh Goyal

Local Gaurdian & Best Friend

R/o WZ-219A, Gali No.07,

Lajwanti Garden,

New Delhi-16

….Complainant

Versus

FITJEE Limited

Through its Chairman

29-A, Kalu Sarai,

Sarvapriya Vihar

New Delhi

        ….Opposite Party

 Date of Institution    : 24.08.2011      

 Date of Order            : 11.01.2023      

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member: Ms. Kiran Kaushal

1.       Facts of the complaint as pleaded by the complainant are that Master Sanidhiya Goyal Student of Delhi Public School, New Delhi, residing in the hostel of the school took admission in FIITJEE (OP) for coaching.

2.      The present complaint is preferred through Sh. Rakesh Goyal being the local guardian and relative as the Complainant is a minor. Complainant  took admission in two years Class Room Programme for IITJEE and accordingly  paid an advance fee of Rs.55,564/- through D.D (Demand Draft).

3.      It is stated that the Complainant was under bonafide believe that he would be permitted to attend the classes in OP institute, being a coaching centre. But after admission to the course, the complainant was informed by the school authorities that they shall not permit the hostel student to venture out of its premises even for the purpose of taking coaching classes owing to safety and security concerns. Constrained by the school authorities, the complainant applied for cancellation of admission and refund of fees so deposited with OP vide letter dated 06.07.2010. Complainant’s request was not acceded to and OP vide letter dated 17.07.2010 refused to refund the amount paid by the Complainant. Thereafter the complainant again requested for a refund but not heed was paid to his requests.

4.      Thus aggrieved on not receiving the payment, Complainant approached this Commission with prayer for direction to OP to pay the principal amount of Rs.55,564/- with interest @18% to be refunded to the Complainant alongwith Rs.65,000/- towards compensation and litigation charges.

5.      OP filed its written version stating interalia that the complainant have agreed and accepted the Arbitration clause forming part of the declaration attached  to the Enrolment Form. Hence this complaint is barred by Arbitration Agreement and should be referred to the Sole Arbitrator.

6.      It is next stated that while seeking admission with OP the Complainant and his father have read, understood and thereafter accorded their consent to the terms & conditions contained in the Enrolment Form without any coercion and undue influence. Thus, by signing those declarations they are both bound by them as per law.

7.      It is further stated that OP to ensure quality education and uniform teaching standard also keeping in mind the students interest, does not fill the vacancy created against any students who leaves the course midway.

8.      OP further states that it is a self-financed and self-managed institute and runs with fees collected from students. Most of the expenditure incurred is in advance and also is 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 material  etc. irrespective of number of students and batches. Further total fee includes taxes as applicable and cost of study materials supplied to students.

9.      In the aforesaid premises, it is therefore prayed that the complaint be dismissed.

10.    Rejoinder to the written statement of OP is filed by the Complainant wherein it is stated that the entire declaration form of OP is unfairly loaded in favour of the OP. That a person who wants to take admission in the OP institute has no option of change or even discuss the terms & conditions of the declaration form. That at the time of taking admission the Complainant was in fiduciary capacity and OP took an undue advantage of this position.

It is next stated that an educational institute cannot  act like a business establishment, who works with sole motive of profit.

11.    As regards the vacancy created on withdrawal of the Complainant, it is stated that there is no loss to OP as they always maintain a waiting list and there are number of students who are absorbed against such vacancy which may arise due to the reason beyond the control of the Complainant/student.

12.    Evidence by way of affidavit and written arguments are filed on behalf of the parties. Submissions made on behalf of OP are heard. Material placed on record is perused.

13.    The preliminary objection raised by OP regarding the Arbitration Clause does not hold water as Section 100 of Consumer Protection Act 2019 clearly states that the provisions of this Act shall be in addition to and not in derrogation of the provisions of any other law for the time being in force.

14.     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. For ready reference  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.”

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

16.    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.

17.    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.

18.    Hon’ble State Commission, Delhi  in Brilliant Tutorial Vs Rahul Das reported as Appeal no. 509/2006 decided on 09.01.2017 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 service.”

19.    It is seen that the complainant did not attend a single class in OP's institute as he was not allowed by the school authorities to leave the hostel/school premises due to security reasons. Considering this fact OP cannot be allowed to retain the fee paid.

20.    As OP is a self financed and self managed institute, we think it appropriate that OP retains  the costs incurred by them and  refund the remaining amount to the Complainant.

21.    Complainant paid  an advance fee of Rs.55,564/- to OP. We are of the opinion that ends of justice would be met if OP is allowed to retain Rs.15,000/for administrative and other miscellaneous charges and refund the remaining amount to the complainant. Accordingly OP is directed to pay Rs.40,564/- from the date of filing of the complaint within three months from the date of order failing which OP shall pay @6% till realization.

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