The complainant filed complaint under the Consumer Protection Act 2019 against the OP’s Institute namely FIITJEE. For the sake of convenience, the parties are hereinafter referred as arrayed in the complaint petition.

The brief fact of the complaint as averred by the complainant Sri Bimal Roy against the sole OP - FIITJEE, Kolkata in a capsulated form is that his son Soumyadeep Roy desired to study at OP’s institute on 27.06.2018 (Annexure E) and took admission at the coaching center of the OP for the program namely ‘One year extended classroom program’. The OP issued offer letter (Annexure B- date illegible) upon filling up of enrollment form dated 13.06.2018 (Annexure C) against a receipt of PDC/DD for Rs.1,30,280/- (annexure E – running page 24 & 25) along with enrollment report cum payment receipt dated 15.06.2018 (Annexure D). By a letter dated 19.07.2018 (Annexure F) the student informed the OP about deficiency of the said coaching centre on teaching standards at the OP’s institute and decided to opt out, which was allegedly not accepted by the OP. Again by letter dated 08.08.2018 (Annexure G) sent by regd. Post, the complainant intimated about having no interest of the student to continue the course and requested for refund after deducting proportionate course fee against number of days of attendance in the class. However, both the local office, Kolkata and the Head office, New Delhi of the OP preferred to remain silent. Being aggrieved the complainant sent another letter dated 27.09.2018 (Annexure H) to OP which was never replied. The complainant approached Consumer Affairs Dept., Govt. of WB through complaint dated 03.12.2018 (Annexure I) and the dept. by a letter dated 28.01.2019 (Annexure J) requested the OP to submit their version in writing for redressal in the matter. But the OPs did not participate in the process of mediation which was informed by the dept. by letter dated 14.03.2018 (Annexure K) to the complainant. The complainant further sent legal notice to the OPs vide letter dated 28.03.2019 which was also not responded to.

It is also objected by the complainant that in the information booklet and in enrollment form (signed by student and parents/legal guardian) which is quoted as ‘‘each student taking admission has to pay complete fee under all circumstances even if he/ she discontinues for any reason’’. They complained that the OP meticulously drafted the majority of the clauses as ‘declarations/undertakings’ in the enrollment form with sole intention to not to give any iota of chance to the complainant for refund of course fee, either in full or part, which is, as per claim of the complainant, detrimental to the interest of the students and a motive to collect money from them by any means, even if the service is not provided in lieu of payment. The para (8) of the said declarations/undertakings reiterates that “if I leave the institution midway, my father shall not be entitled for refund of fees”, which in the opinion of the complainant tantamount to taking away the basic right of a consumer to reject the service of the OP, even if it is deficient and that leads to unfair trade practices. The complainant also disputes provision of appointing Arbitration and that too with a Jurisdiction at Delhi/ New Delhi which is far away from the coaching institute location of the complainant at Kolkata just to misguide and discourage consumers from taking legal action. The OP Institute also charges the GST for the wholesome amount in advance but make actual payments to the authorities in part, thereby enjoying unauthorisedly, the interest on residual amount. So the complainant files the complaint petition before this commission with a prayer for refund of entire course fee from OP for Rs.1,30,280/- paid by PDCs  alongwith  Rs. 1,00,000/- as compensation and Rs. 20,000/- as litigation cost.        

The Ld. Advocate of the OP further contended that the classroom commenced on 19.06.2018 and complainants son got registered on 25.05.2018 and enrolled on 13.06.2018. They disputed that the total course fee being Rs.1, 07,979/- including GST. It is counter alleged that considering the meaning of consumer as defined under the Consumer Protection Act 1986, the complainant failed to identify any area where there happened to be any deficiency in the service provided to the student by the OP’s Institute. It is also claimed that the agreement should be given respect in terms of executed contract. Vide reference of TV Sundaram Iyengar & Cons Ltd Vs Muthuswamy Duraiswamy reported as II(@003) CPJ 176 (NC).

The rival contentions were examined in their respective perspectives along with exhibits, records, documents and evidences received on affidavit. Aapplicability of the case under reference has been dealt at the later part of this discussions.There is no dispute between the parties that it is a case of refund of fees. The crux of the argument of the Complainant is that, at the OP’s Institute the students can’t leave the course midstream, if he/she finds the service deficient, substandard and non-yielding and contends that the condition mandating the fees once paid & not refundable thereafter, is an unfair trade practice as no service provider can take or charge the consideration money for the service, that was either not given or not been availed of. He has replied all the arguments and contentions raised by the OP in his written submissions, which is not required to be dealt with here, as it would be repetition of his arguments as described above.

Similarly in the recent Appeal before NCDRC in the matter of Registrar, Manonmaniam  Vs Sreosi Chatterjee & 2 Ors. dated 7  th  March  2022 and NCDRC, New Delhi vide Revision Petition no. 554 of 2019, (Appeal No. 905/2016 against SCDRC,West Bengal) it states as below :-

“The Revision Petition filed by The Registrar, Manonmaniam Sundaranar University u/S 21 (b) of the CP Act, 1986 challenging the Order dated 03.12.2018, passed  by the Rajasthan SCDRC, whereby the Appeal preferred by the Petitioner was dismissed with a Cost on the order passed by the DCDRC, Kol – II, which was upheld. In this case, the Complainant was pursuing MBA (Marketing) from the Petitioner University and it is alleged that she completed the course in December, 2012 and she has not been conferred with the certificates. Therefore, alleging deficiency in service on the Part of the Opposite Parties,  the Complainant approached the District Forum by filing a Complaint seeking direction to the Opposite Parties for issuing mark sheets and provisional certificate together with Compensation and litigation cost. Ld. Advocate for the OP alleged that the Complainant did not clear a paper & she had not submitted her project work and two assignments. Therefore, appropriate mark sheet was sent to Complainant's. The Ld. Advocate also disputed maintainability of the case on the ground that 'education' related matter does not fall within the ambit of the Consumer Protection Act. The Hon’ble NCDRC also held as follows:-

“Now we address ourselves to the submissions made by the Learned Counsels in Revision Petition No. 462 of 2013 with respect to Coaching Institutions. The question which arises here is whether the Coaching Institutions fall within the definition of "Educational Institution. Learned Counsel appearing for the Coaching Centres vehemently contended that though the Coaching Centres are not conventional Educational Institutions, since they are providing Coaching and training to students of an Educational nature same principles that apply to the Educational Institutions would also apply to these Institutions and that this view had been taken by this Commission in FIITJEE Limited Vs. Minathi Rath I (2012) CPJ 194 NC.  In this case it has been held that Complainants were consumers who sought to avail services for consideration and that FIITJEE is the provider of the services and that they are Consumer Disputes.  The issue that has been raised is that if the Coaching Centres were treated at par, as observed in this order, to be providing Coaching and training to students of an Educational nature, then they too fall within the definition of 'Education' and, therefore, the services rendered by Coaching Centres cannot be construed to be 'Service' as defined under Section 2(1)(o) of the Act.

44.     Learned Counsel appearing for the Complainants submitted that there is no Regulatory Mechanism applicable to the Coaching Institutes.  He contended that Coaching Centres are promoting rote learning and not imparting actual knowledge.  He vehemently contended that they are running for a commercial purpose with a single aim of making profit and are expanding using the franchise route. 

45.     We are of the considered view that conduction of Coaching Classes does not fall within the ambit of definition of 'Education' as defined by the Hon'ble Seven Judge Bench of the Supreme Court in P.A.Inamdar (Supra).    Coaching Centres cannot be equated to regular schools or colleges which are regulated by a Regulatory Authority and also confer a Degree/Diploma on the student who has passed in the examinations conducted as per the Rules and norms specified in the statute and also by the concerned Universities.  Therefore, strictly speaking Coaching Centres cannot fall within the definition of 'Educational Institutions'.  We refrain from making any comments on the submissions of the learned Counsel for the Complainants with respect of Coaching Institutions indulging only in 'rote learning”.

Hon'ble National Commission in Complaint Case No. 261/2012 titled as Manu Solanki & Ors. vs. Vinayka Mission University passed on 20.01.2020 held that :-

"The Institutions rendering Education including Vocational courses and activities undertaken during the process of pre-admission as well as post-admission and also imparting excursion tours, picnics, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986." In view of the foregoing discussion and considering that it is an admitted fact that the OP Institute is engaged in the business of running coaching centre during adducing evidence , we are of the considered opinion that M/s FIITJEE, the Institution rendering coaching to the joint entrance examination aspirants and activities undertaken during the process of pre- admission as well as post-admission will, therefore be covered under the provisions of the Consumer Protection Act, 1986."

Therefore the Institution of the OPs, admittedly a coaching centre for imparting training to students and the services rendered by the OP’s coaching Centres can be construed to be a 'Service' as defined under Section 2(1) (o) of the Consumer Protection Act’ 1986                                                                                                                                                                      

Now, for the sake of brevity and to avoid duplication, we take up the other points and aspects of the complaint case in hand and the views of the commission is given in a consolidated manner.

During scrutiny of the documents, it is found that there is no proof in support of dispatch of the letter dated 19.07.2018 by the complainant to OPs informing deficiency of the coaching centre and / or opting out, but there are other letters dated 08.08.2018 and 27.09.2018 on record by which the cause of action was duly intimated by complainant to the OP. As per averment of the complainant, the cause of action has taken place as evident from the intimation letter dated 08.08.2018 sent to OP by registered post which includes the cause of action. The enrollment form dated 13.06.2018 is a contract between the student, his father (expressly mentioned as ‘legal guardian’) and the authorized signatory of the OP’s Institute, that was executed on 13.06.2018, wherein the both the student and his father signed as ‘legal guardian’ as transpires from the contract document. As per Sec (2) (d(ii) of the CP Act 1986, “a Consumer means any person who [hires or avails of] any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised ,or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person , but does not include a person who avails of such service for any commercial purpose” So being a ‘beneficiary’, the father is very much covered under the CP Act 1986 as a ‘consumer’. The Cl (27) of the contract about appointment of sole arbitrator by FIITJEE is also in line with Arbitration & Reconciliation Act 1996 to which both the parties are within their rights to opt for. Having a pan India presence of the coaching institute with head quarter at New Delhi / Delhi, the jurisdiction for any legal dispute at New Delhi/ Delhi (Cl- 28) is logically justified specially when both parties agreed to it as per contract. Further, the GST is a periodical remittance and as per statute, every registered taxpayer has to make GST payment within 20th.of every month and nothing to the contrary could be cited by the complainant in the case in hand in that respect. Regarding payment of admission and other fees to FIITJEE by the complainant there are some anomalies and inconsistencies. Five (5) no. of PDC/DDs were deposited vide no 850849 dated 13.06.2018 for 21,600/- , no 850850 dated 13.06.2018 for 6.400/-, no 850851 dated 10.07.2018 for 14,400/-, no 850852 dated 11.07.2018 for 71,980/- and no 850853 dated 10.07.2018 for 15,900/- totalling to Rs. 1,30,280/- as acknowledged by FIITJEE vide receipt issued on 13.06.2018 (Comp- Exh E- running page 24 & 25) but for Rs. 136,280/-, which is incorrect and a totalling error due to inadvertence, which should have been corrected to Rs. 1,30,280/-. But in their Evidence, the OP on affidavit claimed having received Rs. 1, 07,979/-, including GST for Rs. 16,471/- after considering a 10% discount on tuition fees for Rs. 4,848/- (Exhibit; OPD-4). The complainant produced an exhibit regarding deposit by DD/ PDCs totalling to Rs. 1, 30,280/- but the complainant’s averments do not ascertain whether all PDCs were encashed by OP or not. Also the Complainant, after deposition by OPs, never contradicted the amount claimed having been received by OP. Hence pending any cogent proof about realisation of those PDCs, the total amount received as averred by  the OP Institute for admission, Course fee etc. is found to be Rs. 91,508/- + Rs.16,471/-  totalling to Rs. 1,07,979/- which is substantiated by exhibits.

This Commission has also considered all the records and documents and the grounds stated in complaint petition, written version, Judgements of higher Courts in above referred cases and facts and circumstances of this case. The OP claims that the Complainant is not entitled to refund in terms of provisions of the enrolment form, (Comp- Annx- C – running page 17) which was duly signed by the Complainant as legal guardian and the student at the time of admission of his ward. The issue that whether refund can be taken from coaching institutes in case of impossibility to attend the classes, this commission has examined whether to accept or reject the claim, when a student or his/her parents signs the admission form and then leave midstream alleging the service deficient and substandard knowing that fees once paid are not refundable. Notwithstanding the complainant hurled various allegations against the OP Institute, it is found that not a single documentary proof is furnished to stand the case of complainant on strong footing. It has to be appreciated that on the basis of mere allegation, the veracity of the same can’t be determined by any Court of law. One needs to put forth some sort of cogent proof in support of one’s contention. In case the Institute indeed put any deficient coaching or tuition process, complainant could have lodged a written complaint first and thereafter taken necessary legal recourse. However not a single scrap of paper is forthcoming, except the regular documents regarding admission, to show that at the behest of the OP Institute, the complainant was compelled to take such drastic step. It is also observed that in 2018, the result of WBJEE Rank card was declared on 23.05.2018 and the 3^rd. counselling process was over by 3^rd week of July 2018. From the letter dated 27.09.2018 from complainant (exhibit H), it is evident that he changed mind to make his ward join another course, as the student got selected at the Jadavpur Engg. College, which is highest rated engg. college of the state as per cut off marks and where the student admittedly took admission ultimately. The decision to withdraw from the existing course of OP’s institute midstream, hence, bears an element of afterthought, making the requirement of coaching redundant, after making payment to OP Institute on 13.06.2018, followed by declaration of result of counselling in between and intention to withdraw from the coaching classes. Therefore the contents and context of the case and allegations thereof as cited by the complainant suffers from some infirmity to prove the shortcoming of course quality, course material and course content of OP’s Institute.

However, the main contention of the complainant about one sided clause in the agreement cum enrolment form regarding non-refund of entire course fee is concerned, remains the bone of contention. So this is being now dealt herewith. The complainant contested that Cl (8) of the contract states that “I understand 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 guardian/ Ill health of myself or any other member of the family or my admission in any institute/course/engg college etc. or my studentship is cancelled because of misconduct etc., I or my father / mother / legal guardian shall not be entitled for relief of fees.” So, it is noted that as per contract, tuition fees are not refundable, and it is claimed to be bad in law. Upon scrutiny of relevant and contemporary judgements on this particular OP’s Institute settled in various State commissions and higher courts, it appears that no student can be confined for one or two years coaching classes against his wish, which does not guarantee or assure success in getting admission in professional courses. The fee is always paid as per the fee structure, which in the instant case was paid by the complainant for the course preparation. Therefore, the contention raised on behalf of the OP institute that there is no bar upon the OP Institute to charge fees for the entire course can’t be accepted being contrary to settled law on the subject.  It is also apt to mention here that similar issues qua non-refund of fee by the OP Institute on leaving the Course by a student midway giving consent and declaration, seat remained vacant due to leaving the course in between etc. as involved in the instant case in hand, have already been dealt with and decided by all other commissions in a number of cases, the latest being the case of  FIITJEE Ltd. Vs. Ms. Shinjini Tewari, Appeal No. 109 of 2019 decided by this SCDRC, Chandigarh on  11.07.2019, wherein, the state commission while also taking into consideration the settled law on the subject, observed and held in Para 9 to 12, inter-alia, as under:-

“9. It may be stated here that issues qua non-refund of fee by the appellant/opposite parties – Institute on leaving the Course in between by a student; giving of consent and declaration, seat remained vacant due to leaving the course in between etc. have already been dealt with by this Commission in number of cases. Recently, this Commission in the case of FIIT JEE Ltd.  Vs. Lalit Garg & Anr., Appeal No.59 of 2019, decided on 11.04.2019 has dealt, in detail, with all the issues raised in this case qua non refund of fee, undertaking given by the student/his or her parents etc. etc. Paras 9 to 11 of the said judgment reads thus:-

(9)  Question to be determined before us, is, as to whether refund of fee as ordered by the Forum vide the impugned order was justified or not. Admittedly, complainant no.2 took admission in the Pinnacle-Two Year Integrated School Program for JEE (Advanced) 2020 for preparation of entrance examination of IIT Engineering. On being informed that apart from Sector 34, Chandigarh, the opposite parties also impart coaching at two schools, complainant No.2 took admission in Shri Guru Gobind Singh Collegiate Public School, Sector 26, Chandigarh where she was to be imparted coaching of Physics, Chemistry and Maths during school hours between 08:00 a.m. to 01:30 p.m. commencing from 11.04.2018.  She attended the classes from 11.04.2018 to 27.04.2018 i.e. for 17 days only. The classes of Guru Gobind Singh Collegiate Public School were to start from July, 2018 and as such, the complainant did not attend the school of Opposite party No.5 at all. It is also admitted fact that complainant No.2 left the course of opposite parties No.1 and 2 in the month of April 2018 and as such, she did not attend any classes of opposite party No.5 in the month of July, 2018.

(10)  The grievance of the complainants was that complainant No.2 was not comfortable from the very beginning with the teaching imparted by the faculty who were favouring only 3-4 students. Not only above, further allegation made was that the opposite parties discouraged the complainant and demoted her in such a manner that she started feeling lonely and demoralized. Further the queries raised were not cleared by the faculty of the opposite parties and it got difficulty for complainant No.2 to move to next chapter without understanding the previous chapters, which resulted into leaving the course just attending only for 17 days.

(11) It may be stated here that similar controversy, whether forfeiture of the entire fee paid by the respondents/complainants for the entire period of course opted and not refunding a single penny, on leaving the said course in between or say 17 days, amounted to unfair trade practice or not, recently came before this Commission in the case of FIITJEE Ltd. Vs. Vikram Seth (Minor) through his Natural Guardian’ bearing Appeal No.223 of 2018 decided on 05.04.2019, wherein this Commission held in Paras 10 to 18 as under:-

10. The only law point involved in these appeals, to be determined, by this Commission, is, as to whether forfeiture of the entire fee paid by the complainants for the entire period course opted and not refunding a single penny, on leaving the said course by the complainants after attending the classes for 8 days, 2 months or mid-session, amounted to unfair trade practice or not.

11. To support above argument, Counsel for the appellant cited few judgments. He mainly placed reliance on the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, comprising Hon’ble Justice K. S. Chaudhari, Presiding Member, Hon’ble Mr. Justice V. K. Jain, Member and Hon’ble Dr. B. C. Gupta, Member, in case titled ‘FIITJEE Ltd. Vs. Harish Soni’, Revision Petition No.2054 of 2013 decided on 08.10.2015.

12.  The issue, in question, before the Hon’ble National Commission, was whether it is justified to allow refund of fees for the remaining part of the course or not.

13. In FITJEE Ltd. Vs. Harish Soni’s case (supra), relied upon by the Counsel for the appellant, the complainant’s daughter took admission by paying an advance fee of Rs.1,23,464/- on 15.04.2006 for getting admission in ‘FIIT JEE Pinnacle’ two years’ integrated programme.  After studying for one year, being not satisfied by the education imparted, she withdrew from the course and sought refund of the remaining fees alongwith interest and compensation.  The Hon’ble National Commission held in Paras 6 & 7 of its judgment as under:-

“6.     The complainant has placed on record the affidavit of its Managing Director Shri Dinesh Kumar Goel, stating therein that no student was enrolled against the seat vacated by the daughter of the respondent during the tenure of the entire course, at any point of time.  He has further stated that to ensure quality education and uniform teaching standard and keeping in mind the interest of students, the petitioner company does not fulfill the vacancy created by a student who leaves the course in midway.

7. For the reasons stated hereinabove, I am of the opinion that the complainant is not entitled to refund of the fee for the remaining period of one year.”

14. It may be stated here that that the Hon’ble National Commission in Sehgal School of Competition Vs. Dalbir Singh, 2009 (3) CPC  187, while dismissing the Revision Petition filed by Sehgal School of Competition, held in Paras 5 to 7, inter-alia, as under:-

“5. We have heard the learned Counsel for the petitioner. He submitted that the student had withdrawn voluntarily and, therefore, there was no deficiency of service. The petitioner’s school has shown excellent results. Hence it is wrong to observe that their coaching was not upto the mark. He also submitted that one of the conditions imposed by their school which accepting lump sum fees for two years is that ‘refundability / transferability of seat/fee is not possible under any circumstances’.

6. The above condition is one sided and biased totally in favour of the petitioner and against the principle of equity and natural justice and it is not a fair trade practice. The learned Counsel quoted the judgment of this Commission in Homoeopathic Medical College & Hospital, Chandigarh v. Miss Gunita Virk, I (1996) CPJ 37 (NC), wherein it is held that Fora constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal.

7. This judgment is 13 years old. Subsequent to this judgment this Commission in catena of judgments has held that it is unjust to collect the fee for the total period of the course. In Nipun Nagar v. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC) = 2009 (1) CPC 272 (NC), Revision Petition No.1336 of 2008, decided by this Commission on 7^th November, 2008, after quoting the public notice issued by the University Grants Commission, it was held that the Institute was unfair and unjust in retaining the tuition fee of Rs.1 lakh even after the student withdrew from their institute. Further if a student leaves before attending a single day of the college or school, he is entitled for total refund except for a small registration fee, say Rs.1,000/-. Even the University Grants Commission had issued a public notice directing all the institutions to refund the money of the students for the period, they have not attended the college/institution……….”

15. Not only above, in  Brilliant Tutorials Pvt. Ltd. Vs. Ashwani Verma, 2010 (4) CPJ 396, the Hon’ble National Commission while placing reliance on the judgment of Hon’ble Apex Court in Islamic Academy of Education and Another Vs. State of Karnataka and others, (2003) 6 SCC 697, held that charging fees in advance beyond the current semester/year would certainly amount to unfair trade practice and the same cannot be countenanced. In Islamic Academy of Education and Another’s case (supra), the Hon’ble Apex Court had expressed unhappiness with educational institutes charging the entire fees upfront and had said that students should only be asked to pay fees for a semester/year to begin with. The argument of FIIT-JEE that the ruling of Islamic Academy was not applicable to it since it is not an educational institute but only a coaching institute was not negated by the Hon’ble National Commission and order of the State Commission was upheld, directing FIIT-JEE to refund the fees. We may add here that Hon’ble Supreme Court of India condemned the practice of the educational institutes of collecting fee in advance for the entire course i.e. for all the years and also debarred them to claim any interest on the fee deposited. Further the Hon’ble National Commission in FIIT JEE Ltd. Vs. Dr.Minathi Rath, 2012(1) CPJ 194 while considering the revision petition on identical facts, as involved in the present complaint, has categorically held that FIIT JEE Ltd. could not charge full advance fee for Two years and held the complainant entitled for receipt of refund of fee taken in advance from him by FIIT JEE.

16. In our opinion, the plea of the appellant by way of affidavit that the vacancy created by the complainant(s) was never filled up and remained vacant, cannot be read against the respondent(s)/complainant(s).The appellant cannot be allowed to be on an advantageous position, keeping in mind the interest of poor consumer. It (appellant – Institute) cannot gulp whole of the fee paid, being the hard earned money. When a student or his/her parents signs the admission form, they have no bargaining power to negotiate, or refuse to sign any particular clause in the admission form. Hence, such clauses should not be held against the student. The appellant is continuing with an unfair trade practice of collecting huge amount to get itself enriched, which is totally against public interest at large, specially the parents, who send their children by putting a big cut on their stomach and giving each and every penny of their earnings to the coaching institute like the appellant, for imparting coaching, which does not guarantee or assure success in getting admission in IIT/NIT. Sometimes, after paying such hefty coaching fee, it becomes difficult for them to meet out their daily needs. Every parent, whether rich or poor or from any mediocre family, would desire that their children should get better education for which, sometimes, they have to obtain loan for paying fees etc. from Banks or Private Financiers. The appellant – Institute is not only a structure made up of bricks and cement where the students go and get coaching after paying hefty fees. The Institutes imparting coaching are also supposed to bear in mind that a child/student, who is coming to them, is also a future of our country, who at some stage is to contribute towards nation building or serve the country by entering into some field of his/her choice at some stage. Every student may not be so lucky to crack the entrances, after getting coaching etc. but it is a fact which cannot be denied that every student puts his/her best effort to clear these entrance exams. The coaching institutions should not act like money collection machines, without keeping in mind the feelings and future prospects of the student. The student may not be comfortable with the teaching methods/skills and attitude of some of the teachers at the coaching centre. In case, the student leaves in between or midsession or after attending for few days or months, in our opinion, he/she should not be denied refund of the fee for the remaining period, which he/she did not attend. If the student is given refund, he/she can pay the said amount to some other educational institute, where he/she wants to pursue coaching or education. The student is not supposed to pay another hefty amount to other coaching institute after leaving the appellant - institute. Parents may not be in a position to afford another heavy fee of another coaching institute and the student will be deprived of precious opportunity and formative years of career building. In case, the fee is refunded, the student can further move on with that amount to explore much better avenues of education, as per his/her desire. We may also add here that Consumer Protection Act, 1986, which is Consumer Oriental Legislation, is meant to protect the interest of consumers who show their courage to come forward and put forth their grievance against the unfair trade practices adopted by such like educational institutions. Future of an aspiring student, who will certainly contribute towards the development of our nation at some stage of his/her life, is of paramount importance and cannot be put at stake like this. Educational Institutions like the appellant must bear in mind the feelings and sentiments of an aspiring student who took admission with such like institutions with an aim and hope to achieve some better prospects and positions in their future. In our opinion, educational institutes should be prudent, desist from charging upfront fees for the entire course, and if they do, should not refuse a refund. A student or a trainee may leave midstream if he finds the service deficient, substandard and non-yielding, and to tell him that fees once paid are not refundable was an unfair trade practice, as no service provider can take or charge the consideration of the service which it has either not given or has not been availed. The existing practice in many institutions of collecting advance payment and not refunding this should be done away with. Such blatant act of the appellant(s) is a clear example of unfair trade practice, which has to be stopped by exercising a moral responsibility especially when seen in the light of the above facts and circumstances of this case.

17. Therefore, in our opinion, interest of such like consumers is to be taken care of and protected while interpreting the law settled on the subject.

18. We are of the considered opinion that the appellant miserably failed to make out any case and no benefit of the aforesaid judgment of Hon’ble National Commission rendered in the case of FIITJEE Ltd. Vs. Harish Soni’ (supra) can be extended to the appellant. We opine that the respondents/complainants are definitely entitled to refund of fees as ordered by the Fora below vide the impugned orders.”

Not only as above, in the case of  Krishan Mohan Goyal Vs. St.Mary’s Academy and Anr., Revision Petition No.3144 of 2016, the National Commission has also held that in some aspects of education activities, the Consumer Fora is competent to take action against the erring Educational Institutes such like the opposite parties, adopting unfair trade practices and also not rendering proper service. Same is the ratio of the judgment decided by the National Commission, in Jaipreet Singh Kaushal Vs. FIIT JEE Limited and another, Revision Petition No.918 of 2015 decided on 14.11.2017, wherein, it was held that the Institute is not justified in charging fee, for the entire course in one go…………”

Very recently the Hon’ble National Commission in Revision Petition No.3052 of 2018 titled ‘Frankfinn Institute of Air Hostess & Anr. Vs. Aashima Jarial’, decided on 04.04.2019, while upholding the above order passed by this Commission in the Appeal No.219 of 2018 held in Para 17 as under:-

“17. It is seen from the order of the District Forum that the District Forum has ordered refund of Rs.14,000/- as fee  along with Rs.5,000/- as compensation for unfair trade practice on the part of the opposite parties and Rs.5,000/- as cost of litigation.  The order of the District Forum is based on equity and therefore, the complainant would be only entitled to the refund of fees paid as directed by the District Forum and the cost of litigation.

The Hon’ble National Commission upheld the order qua refund of fee to the student as ordered by the Forum and upheld in appeal by us by giving detailed judgment. However, order qua award of compensation was set aside by the Hon’ble National Commission. Be that as it may, our order qua refund of fee charged by the Frankfinn Institute of Air Hostess Training and award of litigation expenses has been upheld and has become final.

As regards the argument raised by the Counsel for the appellant/opposite parties that the complainants are not entitled to any refund in term of provisions of Clauses 8 and 10 of the enrolment form, which was duly signed by them at the time of taking admission with opposite parties No.1 & 2, we would like to extract aforesaid clauses as under:-

“8. 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 guardian/ill health of myself or any other member of the family or my admission in any institute/course/engineering college etc. I or my father/mother/legal guardian shall not be entitled for refund of fees.

10. 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 is it adjustable towards any other existing courses at FIITJEE or any yet to be launched nor towards the fee of any other existing or prospective student.

It is a fact that when parents approach some coaching institute to get their ward admitted for coaching, they are supposed to sign the enrolment form and other terms and conditions, which are printed in very small letters. No doubt, the aforesaid clauses are totally one sided and against the interest of the complainants and also did not take care of the second party i.e. the complainants, yet there was no way out but to sign on dotted lines. Since complainant No.2 is minor, therefore, the said enrolment contract is void abinitio qua “

Thus, in view of our findings given in the case of  FIITJEE Ltd. Vs. Vikram Seth (Minor) through his Natural Guardian (supra), and in the preceding paras, no case is made out to set aside the impugned order passed by the Forum.

Therefore, in view of above, the contentions raised, in the instant appeals, on behalf of the appellant – institute with regard to the non-refund of fee by the appellant – Institute on leaving the Course by a student midway; giving of consent and declaration, seat remained vacant due to leaving the course in between etc. also stands rejected. Therefore, judgments in the cases of FIITJEE Ltd. Vs. Harish Soni’, Revision Petition No.2054 of 2013 decided on 08.10.2015, FIITJEE Ltd. Vs. S. Balavignesh, RP No.2684/2014 decided on 09.01.2015, Brilliant Classes Vs. Shri Ashbel Sam, RP No.270/2006 decided on 29.01.2010, Apeelay Institute of Management and Information Technology Vs. Prashant Ashok, I (2009) CPJ 10 (NC) and T.V. Sundaram Iyengar & Sons Ltd. Vs. Muthuswamy Duraiswamy, II (2003) CPJ 176 (NC) are not of much help to the appellant – Institute, in view of law laid down by Hon’ble Apex court in the case of Islamic Academy of Education and Another (supra), holding that charging fees in advance beyond the current semester/year would certainly amount to unfair trade practice and the same cannot be countenanced.

In our concerted view, the District Commission rightly allowed the complaint of respondent/complainant by holding in Para 6 & 7 as under:-

“6] The Opposite Party is not an accredited academic institution affiliated with any Board or University and is merely a Coaching Centre for providing Coaching to the students who aspire for admission to engineering/ technical institutions. The Opposite Party undoubtly is in dominating position and as such maneuvered to get the signature of parents of students on pre-settled printed enrolment undertaking. The parents under duress sign such undertaking with an anxiety to get their ward admitted for best coaching to enable him/her for better performance in the competitions for admission to high ranked engineering/technical institutions/ universities.  This is nothing but an emotional exploitation and cannot be acquiesced. If any child, after joining the coaching institute, failed to cope up with the coaching schedule for the reasons whatsoever, or is not satisfied with the standard of coaching or the environment at the coaching institute, he cannot be penalized by way of forfeiture of his money, which has been deposited by his parents with such coaching centre.  The Coaching Centres are entitled legally to charge fee only for the services, which they actually provide to the student and not more than that.

7] Per record, it is established that the complainant did not attend the coaching classes of the Opposite Parties, and thus made a request for the refund of the fees paid by him, but the Opposite Parties did not bother to refund the same. It is settled proposition of law that no fee (including advance fee) can be illegally held by the Opposite Parties for the period for which no coaching/service is being availed by the Complainant.”

Regarding the Contract/agreement versus it’s applicability following Judgement is quoted as reference to similar case wherein the Hon’ble Supreme Court of India has recently in the case of Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018 decided on 02.04.2019 and held that incorporation of one-sided clauses in a builder-buyer agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986. The Bench was considering an appeal against the order of Hon’ble National Consumer Disputes Redressal Commission, New Delhi wherein it was held that the clause relied upon by the builder to resist the refund claims made by the co0mplainant buyer, were wholly one sided, unfair and unreasonable and could not be relied upon. The Hon’ble Apex court held in Paras 6.7 and 7.0 of the judgment as under:-

“6.7   A term of a contract will not be final and binding, if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 186 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

7.0  In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.”

Further, we have the following recent Judgements in hand with identical backgrounds to the instant case. In all the Appeal cases at respective State Commissions as stated below in the matter of identical disputes about collection of tuition fees of entire course in advance and non-refund of tuition fees consequent upon leaving the course mid-stream by the student, the Appeals have been rejected and the Orders of respective District commissions, allowing refund of fees with litigation costs have been upheld.  

• Judgement dated 29.04.2022 in the matter of FIITJEE Vs Sh. Ajai Patel at SCDRC, Chandigarh
• J dated 02.03.2020 in the matter of FAA no 393/2016 FIITJEE Vs Smt Sneh Lata at SCDRC,Delhi
• J dated 07.09.2018 in the matter of FAA no 577/2015 FIITJEE Vs Nitesh Dewan at SCDRC,Delhi
• J dated 11.07.2019 in the matter of FAA no 109/2019 FIITJEE Vs Shinjini Tewari at SCDRC,Chandigarh

In view of the foregoing discussion and considering that the OP’s Institute being admittedly engaged in the business of running coaching centres during adducing evidence, we are of the considered opinion that the Institution rendering coaching for the Joint entrance and other competitive examinations aspirants and activities undertaken during the process of pre-admission as well as post-admission stage, will therefore be covered under the provisions of the Consumer Protection Act’ 1986. So, in view of settled position of law vetted by Hon’ble Supreme Court of India, the aforesaid enrolment contract or the above clauses have no binding force on the complainants.

ORDER

Going by the above said observations, it is ordered that the Consumer complaint being no. CC/4/2019 filed at ADCDRF, Rajarhat against the Opposite Party is hereby partly allowed on contest with the directions on the Opposite party to refund Rs. 76,000/- (5/6 th. of the paid up fee of Rs. 91,508/- after rounding up & without considering GST of Rs.16,471/-) to the complainant along with a simple interest @ 9% per annum, from 08.08.2018 being the date of  withdrawal intention by complainant to OP, till realization, as compensation duly factored in for mental agony and harassment and also to pay the litigation cost of Rs.10,000/- in lump sum. The total amount to be paid within a period of 45 days from the date of this Order in default a simple interest @ 12% per annum will accrue from 08.08.2018 till realisation.

In case of non-compliance by the OP, the Complainant shall be at liberty to put the entire Order into execution as per Law.

Let a plain copy be given to both the parties free of cost as per CPR.

Dictated and Corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER