| 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. 368/2018 Sh. Vinayak Aggarwal K-89, Sector- 25, Noida, (U.P)- 201301 ….Complainant Versus FIITJEE (Through its Chairman & Managing Director) FIITJEE House, 29-A, Kalu Sarai, Sarvapriay Vihar, Near Hauz Khas Bus Terminal, New Delhi- 110016 ….Opposite Party Date of Institution : 10.12.2018 Date of Order : 23.11.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Kiran Kaushal - Brief facts of the case as stated by the complainant are that the complainant availed the services of FIITJEE Ltd. hereinafter referred to as OP. The complainant joined the coaching institute of OP from April, 2014 to March, 2015, by paying consideration.
- It is stated that the OP has a Pan India presence and its customers are lakhs of children across the country. OPs business strategy and survival is dependent on the performance of a few hundred students that succeed in the prestigious entrance examination like IIT-JEE. To create a brand name for itself, OP highlights the performance of only these few hundred meritorious students through various mode/media, and encashes on it, while suppressing many of the failures every year out of its customer children. To attract the meritorious students OP devises schemes for fee concession, medals & rewards.
- It is next stated that complainant is one such meritorious student, who has been made use of and has later been cheated by OP. The complainant was promised cash award and medal, upon fairing well in the IIT-JEE (Advance, 2015 Examination). However, when the complainant proved his merit by securing a respectable position in the said entrance examination, OP has been dithering and making excuses in giving full cash award earned by him and has cheated the complainant by giving a fake medal.
- It is further stated that the complainant had joined a one year classroom programme for JEE (Advanced) regular week plus Sunday contact classes, which started in April, 2014. OP promised reward to the meritorious students that would secure ‘All India Ranks’ in the forth coming IIT-JEE, 2015. Reward brochure is annexed as Annexure C/2.
- As per the reward brochure while the medal was to be given immediately on declaration of IIT-JEE (Advanced, 2015 results), the cash part of rewards was payable by OP in four equal installments. Each installments was to be paid in the beginning of every year of the four years study at IIT in which the successful students would pursue his B.Tech Course i.e. in the month of July, 2015, 2016, 2017 and 2018 respectably.
- Complainant having secured 896th All India Rank in the common merit list of IIT-JEE Advanced- 2015 examination became entitled to a ‘Gold Plated Pure Silver Medal’ and a cash award of Rs.2,00,000/-. In July, 2015 a cheque of Rs.50,000/- towards the first installment of the total reward of Rs.2,00,000/- was given to the complainant, however, no Gold Medal was given by OP. Though, OP had promised to pay the reward in the month of July, however, OP failed to fulfill the promise and did not pay the second and the third installment in the months of July of those years. The complainant after making various requests received the second and third installments late. Second installment was paid to the complainant on 15.12.2016 and the ‘Gold plated pure silver medal’ was also given to him around that time. Shockingly, in 2017 the so called ‘Gold plated pure silver medal’ started wearing out, it was exposed that it was neither Gold plated nor contained any pure Silver and as such was a fake piece of metal.
- For the third installment complainant again had to run from pillar to post before he was given the cheque of Rs.50,000/- in December, 2017. In July, 2018, the complainant submitted his claim for the fourth and final an installment of Rs.50,000/-, OP did not pay the same. Despite, the non-payment of final installment of Rs.50,000/- due in July, 2018, the complainant learn that OP has used his photograph for its brand promotion in a big way through hoardings, pamphlets, stickers and also through news-papers, without the consent of the complainant and/or his parents, who were not even informed about it.
- Aggrieved by the circumstances above, complainant approached this Commission for directions to OP to pay Rs.50,000/- towards complainant’s fourth and final installment of the reward amount with interest from July, 2018 and also to replace the fake medal given by OP. Additionally it is prayed that OP be directed to pay the interest for five months each on the delayed payment of installments of Rs.50,000/- which were due in July, 2016 and July, 2017 and were paid late. It is further prayed that OP be directed to compensate the complainant for unauthorizedly using his photograph for its business promotion by paying the complainant a token amount of Rs.2,00,000/- and Rs.50,000/- for harassment and mental agony.
- OP filed its written version raising preliminary objection stating inter-alia that the complainant is not a consumer within the definition as provided under section 2(1)(d) of Consumer Protection Act, 1986. As a person is a ‘consumer’, who has bought goods or availed service for consideration. Section 2(1)(o) defines ‘service’ wherein it specifically excludes services free of charge or under a contract of free service. It is stated that non-payment of reward amount is not a service for consideration. The cash rewards as well as medal do not form integral part of services. Therefore, there cannot be question of deficiency of service. It is also stated that OP provided the services for which they have charged; resultantly the complainant was selected for IIT.
- It is next stated that complainant was well aware of the fact that award would be released in case complainant maintains 8.5 CGPA every year and as the complainant’s CGPA was below 8.5 CGPA, complainant was not entitled for the reward. Securing 8.5 CGPA in all the years was a condition precedent for release of the corresponding installment of the year.
- It is further stated by OP that medals provided to the complainant are not manufactured by OP rather it is purchased from the market and if the same are not upto the mark, complainant should sue the vendor from whom OP has procured the same. For the use of the complainant’s photograph, OP states that the complainant has to approach the Civil Court for recovery of damages as the present Consumer Commission has no jurisdiction to entertain such a complaint. In view of the facts stated above OP prays for dismissal of the complaint.
- Rejoinder is filed on behalf of the complainant. Evidence by way of affidavit and written arguments are filed on behalf of parties. Arguments on behalf of parties are heard. Material placed on record is perused.
- It is not in dispute that the complainant took coaching from OP’s institute and based on performance, he was promised cash reward and medal by OP. The dispute between the parties arose when OP delayed the payment of the second and third installment and failed to pay the last installment of the reward as promised. Moreover, complainant’s contention is that OP despite promising Gold plated pure silver medal gave a fake metal medal to the complainant and thus indulged in unfair trade practice.
- Before adjudicating the said complaint it is necessary to refer to Section 47(iii) which reads as under:-
“unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely…. (iii). Permitting- - The offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged, in the transaction as a whole;
- The conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest, except such contest, lottery, game of chance or skill as may be prescribed;
- Withholding from the participants of any scheme offering gifts, prizes or other items free of charge on its closure, the information about final results of the scheme.
- Complainant has invoked Section 47(iii), alleging that OP has indulged in unfair trade practice as OP ‘has offered the award with the intention of not providing it as offered’. The said allegation of the complainant is not made out from the facts on record. Admittedly, complainant was given three out of the four promised cash rewards, totaling to Rs.1.5 lacs. Therefore, it cannot be said that OP did not intend to give the award to the complainant. It is seen from the facts available with us that OP paid three installments of Rs.50,000/- each to the complainant and the dispute arose only after the last installment was not paid to the complainant upon not meeting the condition precedent of scoring CGPA of 8.5 or above.
- A perusal of point 4 of the reward brochure it is very clear that for receiving the cash reward it was condition precedent that in every semester student must achieve a grade point average of 8.5 or above. Point No. 4 is the remark/condition associated with the reward which was in the knowledge of the complainant. As regards having been paid the installment in the third year despite scoring less than 8.5 CGPA, we opine that if the complainant was given concession once it does not mean that any right had accrued in favour of the complainant. It was the discretion of OP to pay the cash award despite the complainant scoring less CGPA. Since, the performance was not improved by complainant, OP was within its rights to follow the brochure and deny further reward.
- The second contention of the complainant is that ‘Gold plated pure silver medal’ turned black within two months; therefore, the complainant has concluded that the said medal was fake. It is common knowledge that if the Gold plated objects are rubbed vigorously the plating vanishes or gets thinned out. Complainant has not filed any proof from a registered or renowned jeweller to prove that the medal was not made of Silver. In absence of the same, complainants’ said contention is also rejected.
- Another point of contention between the parties is that OP used complainant’s photograph for its business promotion without his or his parent’s consent and without paying the complainant for such advertising/usage. In support of this contention, complainant has placed on record a news story in ‘Amar Ujala’ dated 19.06.2015, wherein the complainant’s photograph is shown in the said news story. Second evidence appended at page No.9 of the evidence is dated 19.10.2015 in ‘Hindustan’, wherein OP has produced its own results and the name of the complainant figures therein. News story cannot be considered to be an advertisement by the OP. Editor or publisher of the newspaper are ofcourse not party in this complaint. Even if we consider it to be an advertisement, it is seen that both the publications date back to 2015. Complainant did not raise any objection regarding the same in the year 2015. It is seen that the complainant has filed his complaint on 10.12.2018 and to agitate the issue, which arose about three years back, bar of limitation would be attracted.
- Counsel for the complainant in support of his complaint has relied upon the judgment in the case of ‘Society of catalysts v/s Star Plus TV & Anr. decided on 11.09.2008. The facts of the said case are distinguishable as in the said judgment there was impression created that something is being given or offered free of charge, when the prize was fully or partly covered by the amount charged in the transaction as of all. Therefore, it was established that it was an unfair trade practice. Whereas, in the instant case complainant has not pleaded that he was charged for the medal or cash reward. Similarly, in the other case, which is relied upon by the complainant is Ms. Ankita Jain v/s Principal K.M. Kundnani college of Pharmacy, in the complaint case No.50/2015, OP had received the amount to be paid towards scholarship from AICTE, which was not forwarded to the complainant. There are no such allegations in the present case. Therefore, we are of the opinion that the citations relied upon by counsel for the complainant are not applicable to the instant case, as facts of the cases stated above are different.
- In view of the aforementioned discussion and the fact that the complainant has not been able to establish any unfair trade practice by OP, Complaint is dismissed with no order as to costs.
File be consigned to the record room and order be uploaded on the website. | |
