DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.364/2009
Smt. Sangeeta Goyal,
W/o Shri Sunil Goyal,
R/o B-50, Sector-14,
Noida-201301
….Complainant
Versus
- FIIT Jee Ltd. Through Operations Head ICES, House,
Kalu Sarai, Sarvapriya Vihar,
New Delhi-110016
- Sumit Kumar Dubey
Assistant Manager- Admission,
FIIT Jee Ltd. ICES House,
Kalu Sarai, Sarvapari vihar,
New Delhi-110016
….Opposite Parties
Date of Institution : 29.04.2009
Date of Order : 06.07.2022
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 pleaded by Complainant are:-
Complainant’s daughter got enrolled in a 02 year programme with FIITJEE(OP-1) on 29.01.2008, while she was preparing for her Class X Board Exam.
2. It is stated that at the time of taking of admission OP charged fee for entire two years duration from the Complainant. Complainant made the entire payment through Demand Draft of Rs.14,889/- and gave three post dated cheques of Rs.11,000/-, Rs. 24,213/- and Rs.30,786/- all drawn on and payable to OP-1. It is next stated that OP-1 obtained the Declaration from the Complainant on an already printed form. The Complainant, like other parents, was required to sign the declarations. In such cases, the parents have no choice except to sign on the dotted lines and therefore, their signing such documents does not amount to any valid agreement.
3. It is further stated that the Complainant vide letter dated 30.06.2008 intimated OP that although her daughter was enrolled for a 02 year programme while she was still preparing for her Board examination, after the results were declared she decided to take commerce for her further studies. She wanted to pursue a career in finance or management. Since, the child had changed her stream, Complainant requested OP vide letter dated 30.06.2008, to refund the fees paid by her but to no avail.
4. The fee was not refunded but the Complainant was assured by OP that the matter would be looked into, if a letter was submitted from Delhi Public School, Noida (where the child was studying) stating that her daughter was now a student of commerce in their school. Accordingly, such a certificate from the school was furnished to OP along with a letter of Complainant’s husband for refund dated 23.07.2008, however, no favourable response was received from OP.
5. Thus aggrieved, Complainant approached this forum with prayer to direct OP to refund the amount of Rs.80,888/-paid by the Complainant with interest @10% per annum. Additionally, it is prayed that OP be directed to compensate the Complainant by paying Rs.15,000/- towards mental agony and harassment along with cost of litigation
6. OP resisted the complaint raising preliminary objection that Complainant and her daughter agreed and accepted the Arbitration Clause forming part of the declaration attached to the enrollment form. Hence, the instant complaint is barred by the arbitration agreement and the matter shall be referred to an arbitrator.
7. Another objection raised by OP is that while seeking admission the Complainant and her daughter have understood and thereafter accorded their consent to the terms & conditions laid down in the Declaration, without any coercion or undue influence. Thus by signing those declarations, both of them have accorded their unconditional and free consent and are thus bound by them, as per law.
8. It is stated that Complainant’s daughter voluntarily left the course midway and as per the policy of OP no new student was admitted in the batch in place of Complainant’s daughter, who left the course midway. Therefore, refunding the fee would cost OP a huge financial loss. It is also stated that OP to ensure quality education and uniform teaching standard and also keeping in mind the students interest does not fill the vacancy created against any student who leaves the course midway.
9. It is next stated that OP is a self financed and self managed institute and most of it’s expenditure is incurred in advance and is also of fixed nature. OP has to bear expenditures 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 costs of study materials supplied to the students.
10. In the aforesaid premises it is prayed that complaint be dismissed, the same being not maintainable.
11. Complainant has filed rejoinder wherein averments made in the complaint are reiterated. Parties have led evidence in support of their contentions. Written Arguments are filed on behalf of parties. Submission made on behalf of OP are heard and material placed on record is perused.
12. Preliminary objection raised by OP regarding the Arbitration Clause forming part of the Declaration attached to the enrollment form is not sustainable. As per Section 100 of Consumer Protection Act ,2019-
‘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’.
Therefore, availability of arbitration as a remedy does not debar the Complainant from approaching the Consumer Commission, in case of deficiency rendered to her.
13. The bone of contention between the parties is whether the fee/consideration paid by the Complainant towards the 02 year programme for her daughter should be refunded by OP or not.
14. OP in his defence has stated that as the Complainant and her daughter had accorded their consent to the terms & conditions contained in the Enrollment Form without any coercion or undue influence, they are bound by those terms & conditions as per law. The said objection is rejected as it is settled position of law that terms & conditions of an agreement are not invincible or indestructible, if the same are unreasonable or unfair. It is apposite to take note of Para 4 of the enrollment form, the same reading thus:-
“Para 4: 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.”
15. Mere reading of the paragraph above shows that Para 4 of the Enrollment Form is arbitrary and unreasonable.
16. The following extracts from the judgement of Hon’ble Supreme Court in the matter of LIC of India Vs Consumer Educational & Research Centre (1995) 5 SCC 482 are worthy of consideration:-
“47. It is, therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service forever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract.”
17. OP by asking the parents to sign on the dotted lines of the declaration form meant “take it or leave it”. The bargaining power of the consumers in such cases is unequal, we are therefore of the view that any unjust condition thrust upon the consumers is arbitrary and unconscionable. It is also noticed that option of Exit clause has not 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 also makes the agreement unconscionable as it is one sided.
18. In this respect we are further guided by view taken by the Hon’ble State Commission in Brilliant Tutorial Vs Rahul Das reported as Appeal No. 509/2006, decided on 09.01.2017, wherein it was held 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.
19. Therefore, we are of the considered view that OP cannot draw any benefit from the consent of the Complainant as the terms of the enrolment form are arbitrary, unreasonable and one sided.
20. OP has contended that Complainant’s daughter voluntarily left the course midway and the vacancy created by her was not filled. The said argument is not well founded as we are all aware that when the student is in Class X there is lot of uncertainty and ambiguity regarding the career prospects. Therefore, if the student after the board exam results thought to change the stream, she cannot be penalized for doing so. Even if, we consider the fact that OP is a self-financed and self-managed institute wherein it has to incur costs prior to commencement of classes it will not be fair and justified for OP to retain full fee of 02 years especially if the services availed by the Complainant are only for 01 Month and 10 Days. This situation would clearly amount to undue enrichment.
For refund of fee, we are guided by FIITJEE Ltd. Vs 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 institutional can only charge prescribed fees for one semester/year, if an institutional 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 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.”
21. Thus, this Commission is of the opinion that OP is entitled to deduct fee for the period services were availed and proportionate reasonable fee for the costs incurred by OP. Rest of the fee should be refunded to the Complainant. Accordingly, after deducting the costs of books, material provided to the students and 01 Month 10 Days period of attending the classes i.e Rs.15,000/-approximately and the advance service tax of Rs9,888/-,OP is directed to refund rest of the amount.
22. In view of the discussion above we allow the complaint and direct OP to refund Rs.56,000/-@ 6% per annum from the date of filing of the complaint within 03 months from the date of order. OP is allowed to retain the balance amount of Rs.24,888/-towards service tax, costs on books, study material and for the services rendered. Additionally, OP is directed to pay Rs.5,000/- towards litigation, failing which OP shall pay Rs.56,000/-@ 10% 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. Order be uploaded on the website.
