DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.335/2011
Shri Naresh Chahal
R/o Flat No. 3260, Sector-D,
Pocket-III, Vasant Kunj,
New Delhi- 110070
Ms. Prerna Chahal (Minor)
Through Naresh Chahal, Father and natural guardian
R/o Flat No. 3260, Sector-D,
Pocket-III, Vasant Kunj,
New Delhi- 110070 ….Complainant
Versus
FIITJEE
FIITJEE House,
29-A, Kalu Sarai, Sarvapriya Vihar,
New Delhi- 110016
Managing Director, FIITJEE
29-A, Kalu Sarai, Sarvapriya Vihar,
New Delhi- 110016 ….Opposite Party
Date of Institution : 07.09.2011
Date of Order : 01.02.2022
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 the Complainant are-
That Complainant’s daughter Ms. Prerna Chahal took admission in two years classroom programme for IIT-JEE in a coaching institute named FIITJEE (OP). Complainant paid Rs.1,12,092/- towards fee of the course and Rs.11,000/- towards books and study material to OP on 14.04.2010. The said course commenced on 17.04.2010, however to the utter surprise of Complainant’s daughter their classes were stuffed with large number of students causing lot of congestion in the class and the faculty was finding it difficult to answer/accommodate queries raised by the students admitted in the class. The Complainant’s daughter also found that the quality of teaching methodology was unsatisfactory. Complainant’s daughter was not able to properly comprehend the classroom lectures. It is stated that the performance of OP turned out to be quite contrary to the tall claims made in the brochure and advertisement of OP wherein OPs boast of having excelled in the field of providing coaching for passing entrance exam for engineering, particularly IIT.
It was also contrary to the claim that OP had only a limited number of students in a particular class.
Complainant on several occasion requested the concerned faculty and officials regarding the deficiencies of OP and it was the assured that necessary care would be taken to address her concerns. However, no heed was paid to any of the request made by the Complainants’. Despite repeated requests and follow ups, when the Complainants’ did not find any improvement in this situation, it was made clear to OP that no useful purpose is being served by continuing with the classes. Therefore, the Complainant’s vide letter dated 14.12.2010, informed OP regarding the withdrawal of Complainant’s daughter from the institute. As Complainant had paid the two years fee in advance Complainant requested OP to return the balance amount of fee for the period for which the services of OP were yet to be provided.
When no heed was paid to the reminders and representation for refund of fee, alleging unfair trade practice and deficiency in service by OP, Complainant’s approached this Forum with prayer for direction to OP to refund the amount of Rs.82,062/- pertaining to the period for which Complainant’s did not avail any service. Additionally, directions to OP to pay Rs.1,00,000/- to the Complainant for causing mental agony and tension and Rs.20,000/- towards litigation expenses.
- OP resisted the Complaint raising preliminary objection stating that the Complainant had agreed to and accepted arbitration clause forming part of declaration attached to the enrollment form. Hence, Complainant is barred by the arbitration agreement and the matter should be referred to a sole arbitrator.
- Second preliminary objection raised by OP is that Complainant by consenting and signing the agreement and declaration form without any coercion is barred from agitating against the same. As per terms of agreement Complainant has given an undertaking not to claim the refund of fees under any circumstances.
- OP has further submitted that to ensure quality education and uniform teaching standard and also keeping in mind students’ interest OP does not fill the vacancy created against any students, who leaves the course mid-way and the seat remains vacant throughout the programme. In the instant case also, no new student has been introduced in the batch in place of Complainant’s daughter.
- OP further averred that it is a self financed and self managed institute and runs from the fees collected from the students. Most of the expenditure like lease rent of the premises; salary of faculty members and non faculty staff, electricity etc. is incurred in advance and is also of fixed nature.
As Complainant’s daughter has already taken admission and consented to the agreement, OP has acted upon it and now if the Complainant’s daughter withdraws from the institute, it would cause serious injury and irreparable loss to OP. In view of the circumstance above OP prays for the complaint to be dismissed with the exemplary cost.
- Complainant has filed rejoinder reiterating the averments made in the complaint. Evidence by way of affidavit and written arguments are filed on behalf of parties. Arguments on behalf of OP are heard. Material placed on record is perused.
- Preliminary objection raised by OP regarding the arbitration clause forming part of declaration attached to the enrollment form does not hold merit as it is settled law that provisions of this Act are in addition and not in derogation to the provisions of any other law available to the Consumer. Therefore, availability of arbitration as a remedy does not debar the Complainant from approaching the Consumer Commission, in case of deficiency rendered to him/her.
- Next objection raised by OP is that the Complainant after having read and understood the enrollment form has signed various declarations. By signing those declarations Complainant and his daughter have accorded there unconditional and free consent and are thus bound by the terms and conditions contained in the enrollment form, as per law. In this regard, we are of the view that the terms of agreement are not invincible or indestructible, if the same are unreasonable and unfair.
- After going through the enrollment form it is observed that certain declarations in the agreement are arbitrary. A declaration in the enrollment form mentioned in the written statement of OP reads as under:
- 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 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.
- Above condition on mere reading shows that the terms and conditions in the enrollment form are arbitrary and unreasonable. Therefore, this Commission is of the view that OP cannot draw any benefit from the consent of the Complainant as the terms of agreement is unjust, unconscionable and one sided.
- Further on perusal of the enrollment form it is observed that OP has not provided any exit clause in the agreement in case the students find the services of OP unsatisfactory and wishes to withdraw from the institute. Therefore, 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: -
- 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.
- OPs argument that most of the expenditure regarding running OPs institute is incurred in advance and is also of fixed nature has some substance. Further it is noticed that the Complainant’s daughter took coaching in Op’s institute for about seven to eight months. However, it will not be fair and just to the Complainant if the fee for the second year, the period for which no services of OP were availed is forfeited by OP on the pretext of financial loss.
- 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:
14.1 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 proportionate reasonable fee for the services rendered and the costs incurred by them and refund the remaining amount to the Complainant. Complainant had paid Rs.1,12,092/- towards fee for Two-year programme to OP alongwith Rs.11,000/- towards books and study material. Deducting the amount for books and study material and the fact that Complainant’s daughter availed the services of OP for about seven months. OP is allowed to retain Rs.63,000/- the proportionate fee, cost of books and other administrative charges.
- In view of the discussion above we allow the complaint and direct OP to refund Rs.60,000/- @5% per annum fee for the second year after deducting the service tax, administrative charges and the study material/books provided to the Complainant’s daughter. Additionally, OPs directed to pay Rs.10,000/- towards mental agony, harassment and litigation cost within two months of the receipt of the copy of this order. Failing which OP shall become liable to pay Rs.60,000/- @8% interest 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.
