DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.268/12
Shantanu Attree
S/o Sh. Sunil Attree
R/o H No.279-A, Masjid Moth,
South Extn, New Delhi.
Through his father
….Complainant
Versus
FIITJEE Limited
Delhi (South Centre)
FIITJEE House,
29-A, Kalu Sarai,
Sarvpriya Vihar,
New Delhi-16
….Opposite Party
Date of Institution : 22.05.2012
Date of Order : 07.11.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Kiran Kaushal
1. Briefly, put the Complainant took admission for two years classroom programme for IITJEE in FIITJEE (OP), and paid fee amounting to Rs.1,34,566/-.
2. It is stated that Complainant upon attending the classes found that the standard of tuitions being imparted in the classes were substandard and were not in consonance with the information provided to him before he took admission in the said programme. The infrastructure available in the classes was not sufficient and teachers behaved very rudely with the Complainant. It is stated that OP on the basis of false and baseless promises induced the Complainant to pay huge amount to OP.
3. It is next stated that the instruction, tuitions, atmosphere, infrastructure, behavior of teachers was such that Complainant found it very difficult to continue with OP, therefore, it was under compulsion that the Complainant stopped attending classes in OP’s institute from September, 2010. Complainant made oral complaints to the Incharge regarding the deficiency of services, lack of infrastructure and uncongenial atmosphere but the same proved futile.
4. Thus, aggrieved the complainant left OPs institute and demanded refund of the fees paid by him but OP paid no heed to the same. It is stated that though the Complainant had paid Rs.1,34,566/- to OP but OP had returned a cheque of Rs.20,000/- to the Complainant.
5. Therefore, alleging deficiency in service by OP, the Complainant approached this Commission for directions to OP to pay sum of Rs.1,14,566/- alongwith compensation of Rs.1,00,000/- for mental and physical agony suffered by Complainant.
6. OP resisted the Complaint and filed its written version. OP raised preliminary objections stating interalia that Complainant withdrew voluntarily from the course opted by him and is now demanding the refund of fees. The same is not refundable as per the terms & conditions of the enrollment form, which had been duly signed by the Complainant. It is next stated that Complainant has failed to show any non-performance of any of the terms & conditions of the contract on part of OP. Complainant has not annexed a single document to show any deficiency.
7. It is further stated the Complainant has agreed and accepted the Arbitration Clause forming part of the declaration attached to enrollment form. Hence, the complainant is barred by Arbitration Agreement and the matter should be referred to Sole Arbitrator. The next objection raised by OP is that Complainant has signed the declarations in the enrollment form and has accorded his unconditional and free consent and is therefore bound by terms therein, as per law.
8. It further stated that OP to ensure quality education and uniform teaching standard 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 It is stated that OP has to bear expenditures like lease rent of the premises, salary of faculty members, non-faculty staff, electricity, printing of study material etc.
9. In the aforesaid premises, it is thus prayed by OP that the complaint be dismissed.
10. Rejoinder is filed on behalf of the Complainant. 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.
11. OP’s objection that Complainant has accorded his consent unconditionally and without coercion to the terms & conditions in the Enrollment Form, therefore the Complainant is bound by those terms & conditions and is legally barred from agitating the same. The said objection has no value in the eyes of law as any term of the contract, which is unconscionable or voidable is not enforceable. On perusal of the terms in the enrollment form it is noticed that certain clauses are not reasonable, therefore not actionable. Clause 6 of the Enrollment Form is reproduced as under:
I understand that if I leave the institute midway 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/course/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.
12. Reading the above clause of the Agreement/Enrollment Form it is apparent that the said clause is arbitrary and unreasonable. It is settled position of law that the terms of agreement are not invincible or indestructible, if the same 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.
13. 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.”
14. 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.
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. Considering the fact that OP must have incurred costs prior to commencement of the course but it would not be just and proper for OP to retain the full fee paid by the Complainant who attended the classes of OP’s institute for only three months. OP cannot be allowed to forfeit the full fee of the Complainant on the pretext of financial loss when the student has attended the classes for only three months.
17. Therefore, we are of the considered view that OP is entitled to deduct fee for the period, services of OP were availed and proportionate reasonable fee from the advance fee collected, for the cost incurred by OP and refund the remaining amount to the complainant. Accordingly, OP is allowed to retain Rs.25,000/- on account of service tax and cost of books and study material provided to the Complainant and Rs.30,000/- for services rendered is deducted from the total course fee taken by OP i.e Rs.1,14,566/-. Thereby OP is allowed to retain Rs.55,000/- and refund the balance amount of Rs.59,566/- to the Complainant.
18. In view of the discussion above, we allow the complaint and direct OP to refund Rs.59,566/- @6% p.a from the date of filing the complaint within the three months. OP is allowed to retain the balance amount of Rs.55,000/- towards service tax, cost of books , study material and for services rendered. Additionally, OP is directed to pay Rs.10,000/-towards cost of litigation failing which OP shall pay Rs.59,566/- @10% from the date of filing of the complaint till realization.
File be consigned to the record room and order be uploaded on the website.
