DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi-110016

Case No.395/2016

Sh. Vipin Vijeta Mittal

Father of Adhyan Vijeta  Mittal,

A-504, Delhi Doordarshan, CGHS,

Plot No.9, Sector-45, Gurgaon-122003                          ….Complainant

Versus

Mr. D. K. Goel

Managing Director/Chairman

FIIT JEET House, 29-A Kalu Sarai,

Sarvapriya Vihar,

Hauz Khas, New Delhi                                                 ….Opposite Party

                                                  Date of Institution        :30.11.16                Date of Order      :10.12.18   

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Brief facts of the complaint as stated are:-

1. The complainant, Vipin Vijeta Mittal enrolled his son in a two Year Classroom Programme for IIT-JEE (Advanced) for total fee amount of Rs.2,28,478/- at Gurgaon FIIT JEE Centre (OP).
2. As per the contractual arrangement the bulk of fee was collected within the few months of enrollment. The complainant was supposed to pay Rs.1,57,920/- within 40 days of enrollment. Complainant paid the first installment on 7^th April and within a month the complainant noticed that his son was getting disinterested with the studies. The complainant reported the matter to the authorities in the institute and asked them to take corrective measures.
3. It is further stated that on reporting to the authorities the complainant was assured by the faculty that the corrective measures and guidance would be provided to his son. In the whole process payment for second installment got delayed and was finally paid alongwith penalty. It is further averred that after making the payment towards 2^nd installment the matter for extra classes and guidance as promised was brought to the notice of the teachers and centre head by his son still there was reluctance to provide guidance to his son to make up for the loss and catch up with the class. The matter was postponed by the faculty to the next few weeks on one pretext or other.
4. It is next stated that the situation got further aggravated resulting in added gaps in the concept of previous teachings. It is stated the complainant met the Centre Head of OP again and it was only after meeting the Centre Head of OP few hours classes were given which were not sufficient to fill the gaps in the concepts and learning. The complainant’s son stopped going to the classes after two months of joining the institution. Finally after four months it was decided that complainant would withdraw his son from course and he asked for refund. The complainant in this context wrote multiple emails to the OP and met with the Centre Head of OP to refund the amount after deducting the appropriate amount till the time his son was in the institute. But to no avail. After long wait and personally meeting the Centre Head of OP on multiple occasions, he was informed that it was not the FIITJEE policy to refund. Aggrieved by the circumstances above, the complainant  approached the Forum with the following prayer:

1. Direct the OP to refund full fee payment amounting to Rs.1,57,920/- for failure to provide good quality services alongwith late fee payment of Rs.7,795/- on the basis of the order passed by the Hon’ble National Commission in FIIT JEE Vs. Minathi Rathi with interest @ 12% p.a.
2. Direct the OP to pay compensation of Rs.4 lakhs to the complainant alongwith interest @ 12% for breach of trust and promises which resulted in a loss of 1 year of child’s academic performance and merit.
   2. OP resisted the complaint inter-alia on the grounds that the complainant himself withdrew voluntarily from the course. The complainant’s son opted to pursue and is now demanding refund of the fees which is not refundable as per the terms and conditions of the enrollment form which is duly signed by the complainant and his mother. OP next states that the complainant has failed to show non-performance of any of the terms and conditions of the contract on the part of the OP. It is further averred that the complainant has agreed and accepted the arbitration clause forming part of the declaration attached to the arbitration, therefore this complaint is barred by agreement and the matter should be referred to the sole arbitrator. OP further reiterates that the complainant and his ward have signed and counter- signed various declarations. Thus by signing of those declarations both of them have accorded their unconditional and free consent and thus are bound by them as per law.
   3. It is further stated by OP the selection of students seeking admission is based only on the marks obtained in the admission test conducted by the OP. Complainant’s son was granted scholarship on the tuition fee based on the result in the admission test; OP further averred that complainant and his son were well aware of the fact that the preparation of IIT was not easy. This would require hard work and continuous study and dedication. It is stated that OP was always ready to provide the best services and infact the same was provided to the complainant but within short span of time, the complainant’s son was so demoralized that he did not wish to take any further classes. It is alleged that the fault was on the part of the complainant’s son who was unwilling to put his efforts and toil in preparing for IIT entrance examinations.
   4. Further OP has relied on the apex Court in case of P.T. Koshy and Anr. Vs. Eleen Charitable Trust and Ors.  which categorically held that education institution were not providing any kind of service. Therefore, the matter of admission fee etc. cannot be question of deficiency.  It is next stated that OP till date is ready and willing to provide its esteem services to the complainant’s son as per the agreed terms and conditions. It is therefore, prayed that the complaint be dismissed as it is nothing but an afterthought to dupe OP of its legitimate claim.
   3. Complainant has filed rejoinder controverting the allegations in the written statement and reiterating the averments made in the complaint. The complainant has filed his own affidavit by way of  evidence. Evidence by way of affidavit of Sh. Mridul Pathak, AR of OP has been filed.
   4. Written  argument have not been filed on behalf of the parties
   5. We have gone through the material placed on the record and heard the arguments addressed by the complainant and Ld. Counsel of the OP.
   6. Preliminary objection raised by OP is since the Agreement between the parties contained Arbitration Clause that arbitration and not a complaint before this Forum is the appropriate remedy. Forum finds no merit in this objections as Section 3 of the Consumer Protection Act, 1986 (CPA) provides that the provision of this Act is in addition to the other remedy available to the consumer. Therefore availability of arbitration as a remedy does not debar the complainant from approaching a consumer forum in a case of deficiency rendered to him. For the sake of clarity Section 3 of the Consumer Protection Act, 1986 is reproduced as under:-

“Act not in derogation of any other law—the provision of this Act shall be in addition to and not in derogation to the provision of any other law for the time being in force.”

7. As regard the execution of the contract between the parties it is observed that no Exit clause has been provided in the agreement in case the student finds the service of the OP unsatisfactory and wishes to withdraw from the institute. Therefore absence of exit clause makes the agreement unconscionable as it is one sided. Similar views are taken in Brilliant Tutorials V/s Rahul Das, Appeal No.509/2006, decided on 09.01.17 wherein the view of State Commission 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 services.” 

OP cannot draw any benefit from the consent of the complainant as it is one sided.

8. Another contention of the OP is that while seeking admission the complainant and his ward had accorded their consent to the terms and conditions as contained in the admission form without any coercion or undue influence. Thus, by signing of those declarations complainant has accorded his unconditional and free consent and thus is bound by them as per law.  One of the condition in the enrollment form is that:

 “I understand that if I leave the institution 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/ 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.

In addition to the above, I understand without any ambiguity that the fee once paid is not refundable at all, whatever the reasons be nor it is adjustable towards any other existing course at FIIT-JEE or any yet to be launched nor towards  any other existing or prospective student.”

From bare perusal of these declaration it is observed that these are arbitrary and unreasonable. Therefore, this clause of agreement is unjust, unconscious and unconscionable.

9. OP has relied on the judgment of P. T. Koshy and Anr. Vs. Ellen Charitable Trust and Ors. wherein it is held that education institutions are not providing any kind of services, therefore in the matter of admission, fee etc., there cannot be a question of deficiency of service.  Hon’ble National Commission in the matter of FIIT JEE Ltd. Vs. Dr. (Mrs.) Minathi Rath RP No. 3365 of 2006) has taken a different view and following has been observed:

“So far as the first issue is concerned, even though in a very narrow technical sense, for reasons pointed out by the Counsel for Petitioner in his oral submissions, coaching institutions may not be conventional educational institutions but since they provide coaching and training to students of an educational nature to equip them for higher studies in specialized educational institutions, the same principles that apply to educational institutions would also apply to these institutions in respect of the fees charged by them including advance fees. In any case, Respondents are consumers and the Petitioners are the service providers. Petitioners are rendering service for consideration and fall within the purview of Consumer Protection Act, 1986.

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…….as per Section 2(d)(ii) of the Consumer Protection Act, 1986, the Respondents are consumers who sought to avail of services for a consideration and the Petitioner/ Institute is very much a provider of these services and thus there cases are consumer dispute within the meaning of the Consumer Protection Act, 1986.”

10. It is an admitted fact that the complainant’s son took admission with the FIIT JEE in a two Year Classroom Programme for preparation for IIT and after two months of attending the classes the student stopped attending the classes on account of poor quality services of the institute. The complainant made several representations in person and held multiple meetings highlighting the short comings. Though he was assured that extra classes and guidance would be provided to the student but it was not sufficient to fill in the gaps in the concepts and learning resulting in added frustration of the student and disinterest towards study. The complainant alleges that there has been a breach of trust by FIIT JEE for failing to keep up its promise of providing personalized coaching and adhering to the quality principle which form the guiding principle for FIIT JEE.
11. The contention of the OP is that the complainant cannot back out after according consent to the terms and conditions duly signed by the complainant and his father. This contention has been dealt with in Para No. 9 above. OP further contended that the seat left vacant by the student remained unfilled for the remaining period of the batch. Hence, OP cannot allow this practice by the student to leave the course midway. As claimed OP is self financed and self managed institute and runs from the fees collected from the students. Most of the expenditure is incurred in advance and also is of fixed nature. OP further states that the institute will suffer an irreparable loss if the complaint is allowed.
12. Complainant’s son after taking classes for two months found the services of the OP to be deficient and unsatisfactory and hence decided to discontinue with the course. Complainant sough extra guidance, personalized attention and mentoring to his son. Few hours of extra classes were provided which were not sufficient to fill in the gaps. Therefore this Forum is of the opinion that the tall claims of professional education and extra classes/ guidance as represented by OP in its advertisement and brochure were way below the legitimate expectations of the complainant.
13. On similar facts Hon’ble National Commission in Jaipreet Singh Kaushal Vs. FIIT JEE Ltd. & Anr. decided on 14.11.2017 has allowed the complaint and directed refund of part fee which was upheld by the Hon’ble Supreme Court of India as the SLP filed by OP was dismissed.
14. Based on the discussion above and view taken by the Hon’ble National Commission in Jaipreet Singh case (supra), we partly allow the complaint permitting the OP to retain the balance amount of Rs. 82,920/- towards administrative charges and proportionate tuition fees for four months and direct the OP to refund Rs.75,000/- in lumpsum to the complainant. Rs.10,000/- is awarded to the complainant by way of compensation towards mental agony and litigation expenses within 45 days of receipt of copy of this order. Failing which OP shall become liable to pay interest @ 6% p.a. on the amount of Rs.75,000/- from the date of the filing of the complaint till realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on  10.12.2018