FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application U/s 12 of the Consumer Protection Act, 1986 filed by the complainant stating inter alia that the complainant/petitioner No. 1 is the mother of complainant No. 2 and the OP No. 2 is the director and OP No. 1 and OP No. 2 are the leader in education under the certified education academy, a division of Hiya Computer Academy even its corporate office at Chaterjee international centre, suit A-2, 14th floor, 33A Jawaharlal Nehru, Kolkata-700071.
It is further stated by the complainant that the aforesaid institute namely “infinity” of an ISO 9001: 2015 certified education academy inserted a publication in the Bengali Newspaper namely “Anandbazar Patrika” on 03.08.2018 for inviting application for direct admission with assurance of admission in different colleges for different course including MBBS in India as well as overseas. The complainant on the basis of such advertisement when to the corporate office of the OP No. 1 for the purpose of admission of her daughter that is petitioner No. 2 only in the course of MBBS. Both the OP members after vivid discussion with the complainant No. 1 assured the admission of the daughter of complainant No. 2 in the medical course in reputed medical college there after both the parties have entered into a letter of agreement form of the institution i.e. “infinity” for admission of MBBS course which was confirmed by the said officials of the institution i.e. OP No. 1 wherein it was mentioned the course fees is Rs. 9,00,000/- per year only for the period of 4.5 years of the course of MBBS. The publication in regard to OP No. 1 and the said letter of agreement dated 21.08.2018 have been annexed as annexure A and B. It is further stated by the complainant that the complainant No. 1 issued an account payee cheque bearing No. 207062 of SBI, Saltlake Branch to the tune of Rs. 5,00,000/- on 21.08.2018 to the OP No. 1 but the OP No. 2 is directed to complainant No. 1 to do money transfer in the account No. of OP No. 1 to the tune of Rs. 12,00,000/- only and then aforesaid cheque dated 21.08.2018 would be returned to the petitioner/complainant No. 1.
The complainant further stated that the OP members assured and confirmed the complainant regarding the seat for the MBBS course for the session of 2018-2019 which has been mentioned in the letter of agreement dated 21.08.2018. Accordingly, on good faith the complainant No. 1 paid Rs. 5,00,000/- by the aforesaid cheque dated 21.08.2018 to the OP No. 2 on the date of execution of aforesaid letter of agreement held on 21.08.2018 at the office of OP No. 1 situated at 33A, Jawaharlal Nehru Road, 13th floor, PS Park Street, Kolkata-700071 which is situated in the jurisdiction of this commission. The aforesaid cheque being No. 207062 dated 21.08.2018 has been annexed here as “annexure C”.
The OP No. 2 directed the complainant No. 1 to pay the money of Rs. 12,00,000/- only by way of on line transfer to the OP No. 1 by the next date of admission of the daughter of the petitioner No. 1 in MBBS course in reputed college namely SDU, Kolar as the seat for session in 2018 -2019 was already confirmed by the OPs as per letter agreement dated 21.08.2018 and accordingly, on line the money was transferred to the OP No. 1 due to acknowledged by the OP-2. Then, the petitioner No. 1 and 2 left Kolkata by flight on 27.08.2018 for Bangalore as per instruction of the OP-2 and they were waiting at Park Hotel at Bangalore as per institution of OP-2 for collecting the allotment letter of aforesaid college namely SDU, Kolar. But it is alleged that ultimately, no letter of allotment were provided to the petitioners/ complainants on behalf of the OPs and thereafter, official of the OP-1 informed petitioner No. 1 at late night on 27.08.2018 that there was no chance to get admission in that college namely SDU, Kolar and again they instructed the complainant No. 1 and 2 to go to Balaji Medical College at Chennai where the date of admission was fixed on 31.08.2018 as per notification which has been brought in record as annexure D. The petitioner went to Chennai as per instruction of OP-1 for getting admission of petitioner No. 1 in MBBS course Balaji Medical College but ultimately, but she did not get the opportunity to get admission in that college.
Hence, it is alleged by the complainant that such conduct of OP member should considered as deficiency in service and which also caused mental pain and agony both the complainant No. 1 and 2 and the husband of complainant No. 2 thereafter returned in the evening of 30.08.2018. The complainant No. 1 requested the OP-2 over telephone for transferring entire Rs. 12,00,000/- in her bank account by online transfer as paid by the complainants. Subsequently, the OP-2 refunded of Rs. 6,00,000/- only at about 11.01 AM and Rs. 4,00,000/- at about 2.39 PM on 31.08.2018.
It is alleged by the complainant that surprisingly, the OPs without having any reason have deducted Rs. 2,00,000/- from the petitioners because they paid Rs. 12,00,000/- as per direction of OP members but the OP member without giving any service to the complainant only refunded Rs. 10,00,000/- and illegally deducted Rs. 2,00,000/- which caused mental pain, anxiety, agony and harassment to the petitioners and that is amounting to deficiency in service and unfair trade practice on the part of the OP members. The letter issued by the OP-2 to the husband of the petitioner No. 1 and the advocate letter date 24.08.2018 addressed to the OP-2 has been brought to record as “annexure F and G” collectively.
However, the OP-2 illegally and arbiterally without providing to service to petitioner No. 2 i.e. her admission in MBBS course in any medical college has been deducted Rs. 2,00,000/- for which that reason the complainants/petitioners without having any opportunity, he filed this case with the prayer to refund Rs. 2,00,000/- as deducted by the OPs 1 and 2 along with interest @ 18 % p.a. till realization of entire amount and also to get back Rs. 2,00,000/- as cost of air fare and hotel charges along with compensation of Rs. 2,00,000/- for mental agony and harassment to the complainants and also litigation cost.
The OP M/s Infinity has been contested the claim application by filing WV denying the entire material allegations leveled against him.
It is OPs case that the complainant has no cause of action to file the instant case and no privity of contract was there. It is also stated by the OP member that petition of the complainant is false, frivolous, vexatious, malafide etc. and also barred by the principle waiver and estoppels. It is alleged by the OP that the complainants have filed the case by way of misrepresentation and suppression of material facts and is therefore liable to dismiss in limini.
It is also the say of the OP that the complainant/petitioner is not a consumer the instant case as made out by letter dated 24.09.2018. It is OPs case that the petitioner No. 2 and her guardians were satisfied with all the terms and conditions of the said correspondence and it is candidly mentioned in the letter of agreement that the amount paid by the complainant/petitioner would be refunded to them in case of non admission of student (petitioner No. 2 ) after deducting of Rs. 2,00,000/- as service charge and the OP being renouned institution considering all the above started facts refunded the amount and deducted only contractual charges of Rs. 2,00,000/-.
It is alleged by the OP that the OP that the student and their agents gave threatening to the OP institution violating the process of admission and they also used filthy language to the OP institution in front of the office which hampered goodwill of the organization. It is also the OP’s case that the petitioners never suffered from any harassment and mental agony or suffered from any financial loss as alleged and as such there are not entitled to get any compensation and interest as claimed
As the petition of the complaint is false, baseless and without having any cause of action. So, the complaint is liable to be dismissed with cost.
In view of the above stated pleadings, following points of consideration should be considered and decided by the commission.
- Is the case maintainable in law and in its present form?
- Have the complainants any cause of action to file this case?
- Are the complainants are consumers as per law?
- Is there any deficiency in service on the part of the OPs?
- Are the complainant s entitled to get compensation as prayed for.
- To what other relief/reliefs are the complainant entitled to get?
Decisions with reasons
All the points are taken up together for convenience of discussion and to avoid unnecessary repetitions.
On a closed scrutiny on the material of records, it appears that the parties to this case are residing and running their business within the jurisdiction of this commission. The case has been filed within the limitation period valuation of which is also within the permissible limit of this commission. It is also revealed from the material on record that there is sufficient cause of action on the part of the complainants to file this cases. In view of the discussions made above it is held that the instant case is maintainable in its present form and law and there was sufficient cause of action for the complaint to file the case.
It is also revealed from the materials as well as evidence on record that the complainant No. 2 intends to take admission in MBBS course in any medical college in India. Accordingly the complainants paid the money to the OP institution ”infinity” running their office at Suit A-2, 33A, Jawaharlal Nehru Road, 14th Floor, PS-Park Street, Kolkata-700071, to the tune of Rs. 12,00,000/- by on line money transfer to the account of OP-2 from the evidence on record, it appears that the parties to this case have entered to a letter of agreement on 21.08.2018. As per that agreement dated 21.08.2018 the complainants initially issued cheque “annexure C”. Subsequently, as per the direction of the OP-2 . Cheques was drawn on SBI, Saltlake Branch issued by the father of the complainant No. 2 from the evidence as well facts and circumstances of the case as on record, it is revealed that the OP -2 failed to keep its assurance regarding admission of complainant No. 2 in MBBS course either at Bangalore or Chennai but they refunded sum of Rs. 10,00,000/- to the complainant after deducting Rs. 2,00,000/- which is also admitted by the OP-2 in its WV as well as BNA as service charges. From this discussion made above, it is held that the complainants are the consumer under the OP.
Let us see whether there is/was any deficiency in service on the part of the OP-2 or not as alleged by the complainant or whether the complainants are entitled to get relief as prayed for.
Admittedly the parties to this case have entered into a written letter of agreement in the prescribed format in the office of OP-2 “infinity” which has been brought in to evidence as “annexure C”. It appears that it has mentioned categorically that the service charges which has not refundable is of Rs. 2,00,000/- and the complainant put signature thereon. From which it is crystal clear that the complainants has entered into the agreement of letter dated 21.08.2018 annexure B and paid Rs. 12,00,000/- to the OP-2 institution for getting admission of the complainant No. 2 Salini Bhowmik in MBBS course at any medical college of India.
As the OP-2 failed to make any arrangement of admission of the complainant No. 2 in MBBs course at any medical college of India as per agreement dated 21.08.2018. They have refunded Rs. 10,00,000 after deducting Rs. 2,00,000/- as services charges which is not refundable. So, the complainant entered into the agreement knowing fully well that in any case either getting admission or not in MBBS course in any college in India at the instance of OP-2 they will not get back Rs. 2,00,000/- which they paid to the OP-2 as service charges which was non refundable.
Here in view of discussion made above, this commission has no hesitation to accept the argument of Ld. Advocate of the OP-2 that as per agreement dated 21.08.2018 the complainant are not entitled to get back Rs. 2,00,000/- which they paid as services charge and which is non refundable. So, in our view, there was no deficiency in service on the part of the OP-2 and the complainant are failed to prove their case in this respect that the OP-2 illegally withheld the amount of Rs. 2,00,000/- and caused mental pain and agony as well as harassment to the complainants.
On the basis of discussion made above, this commission is in view that the complainants are failed to prove the deficiency in service on the part of the OPs beyond all reasonable doubt and are not entitle to get the relief as prayed for.
In sum, the complainants are failed to prove their case beyond all reasonable doubts.
The case is properly stamped.
All the points are thus decided accordingly.
Hence,
Ordered
That the case be and the same is dismissed on contest without any cost.
Copy of the judgment be supplied to the parties free of cost as per CP Act. Upload the judgment on the website of this Commission for perusal of the parties.
