BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.427 of 2019
Date of Instt. 20.09.2019
Date of Decision: 26.07.2023
Ms. Nikita D/o Mrs. Anuradha W/o Sh. Tarun Jhanji R/o H. No.206/62, New Lakshmi Pura, Jalandhar.
..........Complainant
Versus
1. Frankfinn Institute, 1st Floor, Panesar Complex, Opp. King Hotel, 20, G. T. Road, Jalandhar, PIN 144001, Punjab.
2. Miss Sheika, Frankfinn Institute, 1st Floor, Panesar Complex, Opp. King Hotel, 20, G. T. Road, Jalandhar, PIN 144001, Punjab.
3. Corporate Office, Frankfinn Institute, Best Building, ‘A’ Wing, 5th Floor, S. V. Road, Opposite Andheri Railway Station, Andheri (W), Mumbai 4005.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Smt. Harleen Kaur, Adv. Counsel for the Complainant.
Sh. A. S. Bhullar, Adv. Counsel for the OPs No.1 to 3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant approached certain employees/representatives of the OPs on various occasion for guidance for joining the profession of Air Hostess. The complainant visited OP No.2 in the office of OP No.1 for the said purpose and was told that the last date of joining the institution on 02/04/2019. The complainant was made to shell out of Rs.1000/- as registration charges. The complainant deposited the same on the same very date. In the evening of 02/04/2019 their representative with wrong and malafide intention called the complainant in thereof for further payment of Rs.15,000/- on the pretext for admission to the course for training as and an Air Hostess. The complainant trusting and believing as a Gentleman demand deposited Rs.5,700/- and Rs.9,300/- vide receipt No.FAJAL20REGR13 and FAJL20FEER66 on 06/04/2019. Thereafter, OP No.2 representative made the complainant to deposit amount of Rs.23,000/- which was duly paid vide cheque bearing no.667595 drawn on State Bank of India, Industrial Area Branch, Jalandhar and the same was credited in their account on 12/04/2019. The representative of OP No.1 called complainant in their office to meet Ms. Shagun, grooming teacher of opposite party no.1, who after inquiring about age which was 17 years and 8 months commented that complainant could not join the stream of Air Hostess as she will not be selected either for domestic and international Airlines because of her age and facial features and hair. Besides there is a cut near her right eye and dark circles under eyes are not eligible for recruitment as Air Hostess as per criteria prescribed. The OP No.2 as representative of OP No.1 despite the above scenario asked for another installments without providing any service and charges of Rs.39,000/- paid as first installment. Apart from this, demanded second installment without any rhyme and reason and disclosing the purpose for such arbitrary and malafide demand. The OPs to cover-up your deficiency in service and carelessness wrote a letter dated 29/04/2019 to the complainant to attend the classes to escape their responsibility of misguidance. The complainant subsequently approached OPs on several occasions for refund of money paid to them due to the misguidance and misrepresentation to which till date no response has been received by the complainant. All efforts made to persuade and convince them for refund fell on deaf ears, rather they tried to allure the complainant to undergo for plastic surgery to take chance for entry into the stream of Air Hostess. All pre-requisites norms and criteria for selection as Air Hostesses are very clear and OPs dealing into this field have a clear guidelines available as per the mandate and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount as fully described above paid by the complainant. Further, OPs be directed to pay a compensation of Rs.50,000/- for causing mental tension and harassment to the complainant and Rs.11,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed joint written reply and contested the complaint by taking preliminary objections that the present complaint filed by the complainant is absolutely false and has been filed by concocting a totally false story as an afterthought which is contrary to the true facts on records, without any basis and without any cause of action, and as such, the same deserves dismissal at its threshold. It is further averred that before getting into the merits of the matter, in law, it is submitted that the Complainant herein is not a ‘consumer’ as she does not fall within the definition of ‘consumer’ as envisaged under the Consumer Protection Act. Further, no ‘service’ as defined under the said Act has been provided to the Complainant by the OPs. It is further averred that the Complainant was the student of the OP Institute, and as per the settled preposition of law, as laid down by the Hon'ble Supreme Court as well as Hon'ble National Consumer Disputes Redressal Commission, it has been categorically held that ‘education is not a commodity neither the educational institutions are providing any services, thus a Student is not a consumer’ and therefore, the complaint filed by the complainant is not maintainable before this Forum. It is further averred that the OP institute is a reputed organization and is engaged in imparting training in the fields of Aviation, Hospitality, Travel Management and Customer Services, for the last 26 years with largest network of ‘State of the Art’ centers across India besides international center in Dubai. On merits, it is admitted that the complainant approached the OPs and joined their institution for aviation, hospitality and travel management course, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.
6. The complainant has joined the institution of OP on 02.04.2019 and got herself registered vide Ex.C-1. She paid Rs.23,000/- to the OP vide Ex.C-1 and Ex.C-2. The fee was debited from the account of the complainant as per Ex.C-3. This fact has been admitted by the OP that the complainant approached the OPs and joined their institution for aviation, hospitality and travel management course. Payment of fee has also been proved by the complainant.
7. The OP has relied upon the agreement and undertakings duly signed by the complainant, which has been proved as Annexure/Ex.B and Declaration given by the complainant Annexure/Ex.C. The OP has also relied upon the student agreement Annexure/Ex.E and has referred the condition No.19 of the Students Agreement. The OP has also proved the Preliminary Information Form Annexure/Ex.G and has relied upon the law laid down by the Hon'ble National Commission, titled as ‘Manu Solanki & Ors. Vs. Vinayaka Mission University & Ors’ and submitted that since the Institution of the OP is imparting education, therefore, she is not consumer and this Consumer Commission has no jurisdiction to decide the present complaint.
As per Section 2(1)(d) of the Consumer Protection Act, 1986, the definition of the consumer reads as under:-
(d) “Consumer” means any person who,—
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) 12 [hires or avails of] any services 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 services other than the person who 12 [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 13 [but does not include a person who avails of such services for any commercial purpose];
8. The law referred by the OP titled as ‘Manu Solanki & Ors. Vs. Vinayaka Mission University & Ors’ shows that there are number of parties in this revision petition and all these OPs are universities of different states.
9. The counsel for the complainant has brought to our notice that this order has been challenged and the same is pending before the Hon’ble Supreme Court for decision and has not attained the finality as yet. The appeal was admitted by the Bench comprising of Hon’ble Mr. Justice Dr. D. Y. Chandrachud and Hon’ble Mrs. Justice Indu Malhotra on 15.10.2020 observing that there are divergent views on the point whether the educational institutions are covered under Consumer Protection Act or not, therefore the appeals were admitted. The Hon'ble National Commission in a Revision Petition No.3052 of 2018, decided on 04.04.2019, titled as ‘Frankfinn Institute of Air Hostess and Anr. Vs. Aashima Jarial’ has held that ‘the educational institutions, which are imparting education of any kind within the admissible legal frame work of the country can be covered under the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra). In other words, educational institutions covered under UGC, AICTE, State Universities, Central Boards and State Boards etc. can claim immunity from the provisions of Consumer Protection Act, 1986 for educational services. The Hon’ble State Commission in Appeal No.30 of 2021, decided on 10.05.2022, case titled as ‘Frankfinn Institute of Air Hostess Training Vs. Ritika Rana’ has held that the Franfinn Institution is a service provider and the complainant in that case was held to be consumer.
10. The OP has pointed out the condition mentioned in Student Agreement, which shows condition No.40 of Annexure E that ‘this agreement shall be governed by and construed in all respects in accordance with, the laws of India and the parties agree to submit to the exclusive jurisdiction of the Courts at New Delhi (India) to the exclusion of all other Courts. But this contention is not tenable as per Section-100 of Consumer Protection Act, 2019 which stipulates that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, as per Section-2(1) (d), the complaint is maintainable.
11. Thus, the educational Institutions which are governed by statutes like UGC, State Universities, Boards etc. can claim immunity from the provisions of Consumer Protection Act for imparting educational services. However, institutions like OPs which provide vocational training and are not governed by any legal framework cannot be exempted from liability under Consumer Protection Act. The complainant had hired the services of the OPs for consideration, therefore, she very well falls into the ambit of consumer.
12. It is a settled rule of law that the contract with a minor is void abinitio as Section-11 of Indian Contract Act, 1872 clearly lays down the requisite conditions of a valid contract. In the present case, at the time of execution of the agreement, undertaking and declaration, the complainant was 17 years and 8 months old only, therefore, as per provisions of the Contract Act, the agreement is rendered as void abinitio. Therefor;e, a contract with minor is void and hence, no obligation can arise on the complainant thereunder. We are supported by the law titled as ‘Mohori Bibee Vs. Dharmodass Ghoss’.
13. The OP has relied upon the Student Agreement Annexure/Ex.B and Declaration Annexure/Ex.C. Perusal of these documents clearly show that both these documents have been signed by the complainant Nitika and she has given a declaration that she has received the Frankfinn Student Agreement and have read it and accepted it before registering herself for the course and before payment of fees and she has given undertaking that she still wanted to pursue the course and will like to take the training for the aviation course. In the written statement, the OP has alleged that the complainant was 17 years and 8 months and she could not join the stream as Air Hostess. In the written statement itself, they have stated that the complainant was minor at the time of joining their centre, but perusal of Annexure/Ex.C and Annexure/D shows that both these documents i.e. undertaking and declaration was given by the complainant who was minor at that time when these documents were signed. These documents have not been signed by the guardian or the parents of the complainant. So, from all the angles the case of the complainant is proved and there is a deficiency in service and unfair trade practice on the part of the OPs and the complainant is entitled for the relief.
14. In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to refund the full amount to the complainant. Further, OPs are directed to pay a compensation of Rs.10,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
26.07.2023 Member Member President
