| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.288/2017 Shri Abdul Nasir S/o Late Shri Abdul Sattar Abdul Sattar House, 46- Okhla Village, New Delhi- 25 ….Complainant Versus FIITJEE Forum for IIT-JEE, FIITJEE House, 29-A, Kalu Sarai, Sarvpariya Vihar, New Delhi- 16 ….Opposite Parties Date of Institution : 16.08.2017 Date of Order : 30.03.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Ms. Kiran Kaushal - Succinctly put, Complainant got his son enrolled in a two year
CRP-JEE(Advanced) regular week contact classes in the institute of FIITJEE (OP) and deposited fee of Rs.2,39,528/- on 28.04.2016 with OP for the whole course. - It is stated that at the time of admission OP had assured the Complainant that they had good faculty and sufficient facilities for Complainant’s son to crack the JEE Advance and JEE Mains. Complainant’s son attended classes in OP’s institute from 23.05.2016 to 28.08.2016, but was not satisfied with the coaching given by the teachers of the OP; therefore, he withdrew from OPs institute. Thereafter, complainant sought refund of the fee from OP
vide application dated 15.10.2016 and also reminded OP via e-mails but to no avail. No money was refunded to the Complainant. - Alleging deficiency of service and unfair trade practice by OP, it is prayed that OP be directed to return the fee of Rs.2,39,528/- alongwith Rs.50,000/- on account of mental agony and pain.
- Per contra, OP states inter alia that the instant case is not maintainable in view of the observation of Hon’ble Supreme Court in case titled as P T Koshi V/s LN Charitable Trust, wherein the Hon’ble Supreme Court has held that education is not a commodity. Educational institutions are not providing any kind of service; therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
- It is next stated by OP that the Complainant and his son after going through all the terms and conditions mentioned in the enrollment form had given their consent and signed the declarations, undertaking appended therein. Now, the Complainant and his son are bound by those terms and conditions and the complainant is legally barred from agitating against the same at this stage.
- It is next averred by OP that Complainant’s son had enrolled in a two year
CRP-JEE Advanced Regular week contact classes and had chosen the Fee payment Plan II for the above course. The Total fee of the said course was Rs.2,39,528/- including service tax of Rs.29,003/- and cost of books and study material of Rs.11,500/-. It is further stated that OP is a self financed and self managed institute and runs from the fees from the students. Most of the expenditure is incurred in advance and is also fixed nature. OP has to bear expenditure like lease rent of the premises, salary of faculty members and non-faculty staff, electricity another allied expenditure, preparations and printing of study materials etc. Furthermore, it does not fill the vacancy created against any student who leaves the course mid way. In this case also the seat of the Complainant’s son remained vacant throughout the course duration to maintain the quality and the uniformity. Therefore the institution is entitled for fee of the programme and the complainant is not entitled to any refund of fee. It is thus prayed that the complaint be dismissed with cost. - Replication is filed on behalf of the complainant, evidence by way of affidavit and written arguments are filed on behalf of the parties. Submissions made by the Complainant are heard. Material placed on record is perused.
- Preliminary objection taken by OP that in the light of the judgment of Hon’ble Supreme Court in the case of P T Koshi V/s L N Charitable Trust the complaint is not maintainable. Distinguishing the law laid down by the Hon’ble Supreme Court, a three judge bench of Hon’ble National Commission in Deepak Tyagi and others V/s Sh. Chatrapati Shivaji pronounced on 20.01.2020, in para 46 held:
We are of the opinion that any defect or deficiency or unfair trade practice pertaining to a service provider like coaching centres does fall within the jurisdiction of the Consumer Forum. Therefore, in view of the law laid down in the case (supra) the institute of OP, being a coaching centre does fall under the purview of the Consumer Protection Act, 2019. - The other objection raised by OP is that the complainant and his son had accorded their consent to the terms and conditions contained in the enrollment form without any coercion or undue influence. Therefore, they are bound by those terms and conditions and are barred from agitating the same. Regarding this, we opine that the terms of agreement are not invincible or indestructible, if the same are unreasonable and unfair. On perusal of the clauses in the enrollment form it is noticed that certain clauses are arbitrary.
- Clause 8 of the enrollment form mentioned in the written statement of OP reads as under:
I undertake that if I leave the institute midway before completing the full course for any reason whatsoever, including but not limited to transfer of my father/mother/legal guardians/ill health of myself 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/guardians………. shall not be entitled for refund of fees. - Mere reading of the above clause shows that the agreement is arbitrary and unreasonable. Therefore, we are of the view that OP cannot draw any benefit from the consent of the complainant as the terms of the agreement are unjust, unconscionable and one sided. It is also noticed that there is no exit clause in the agreement/enrollment form in case the students find the services of OP unsatisfactory and wishes to withdraw from the institute. Therefore, absence of the exit clause also makes the agreement unconscionable as it is one sided
- Similar view has been taken in Brilliant Tutorial V/s Rahul Das in appeal no. 509/2006, decided on 09.01.2017 wherein Hon’ble State Commission held:
“Any such terms 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 he provider of service has the right to charge consideration only if it provides the services.” - Further, there is no denying the fact that OP must have incurred costs prior to commencement of the said course. But it would not be just and proper for OP to retain the full two years course fee from the student/complainant’s son who attended the classes of OPs institute for only three months. OP cannot forfeit the full fee of the complainant on the pretext of financial loss when the student has attended the classes for only three months.
- For refund of fee, we are guided by FIITJEE Ltd. V/s 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:
“16.1 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”. - 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 them and refund the remaining amount to the complainant. Accordingly, Rs.29,003/- on account of service tax and Rs.11,500/- on account of cost of books and study material and Rs.30,000/- for services rendered is deducted from the total course fee taken by OP i.e. Rs.2,39,528/-. Thereby OP is allowed to retain Rs.70,503/- and refund the balance amount of Rs.1,69,025/- to the complainant.
- In view of the discussion above, we allow the complaint and direct OP to refund Rs.1,69,025/- @6% from the date of filing of the complaint within three months. OP is allowed to retain the balance amount of Rs.70,503/- towards service tax, cost of books, study material and for the services rendered. Additionally OP is directed to pay Rs.10,000/- towards cost of litigation, failing which OP shall pay Rs.1,69,025/- @10% p.a. 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. | |
